First they came for our county courts…

On 16th March 2017, the government consultation to reform the Housing Possession Court Duty Schemes came to a close.

1. The scheme

The scheme allows tenants facing eviction to receive free advice and representation on the day of their possession hearing. Solicitors, in exchange, get £84 per case and the chance of building a professional relationship which will occasionally generate more work and business for the firm, albeit almost always on legal aid rates.

The scheme, as it stands, allows firms to apply to be on an individual court’s duty scheme, covering half or full days on a rotating basis. The rota is sometimes managed by an individual firm or in some cases by not-for-profit organisation.

2. The reforms

The reforms envisaged by the consultation is twofold:

a. A consolidation of duty schemes reducing the total number of schemes from 117 to 48; and

b. Introducing a competitive tendering system, awarding the entirety of a duty scheme to a single bidder, including an “objective” price criterion to the bidding process.

The purposes of these reforms can be summarised from the consultation document as:

i) To increase the scheme “sustainability” as the current system is deemed “unsustainable”; and

ii) To increase the level of competition on work and therefore provide a better service.

3. Are these reforms needed?

The evidence provided to back up the government’s rationale for reform is thin at best.

The consultation paper relies on the government’s assertion that 13 schemes have previously had to be retendered due to providers pulling out of schemes, yet no detail is given as to why that might be. Could it be that rural areas who see a low volume of cases were the issue? Though a decent explanation, it is impossible to know for certain as the consultation paper sheds no light on the matter.

Further, by consolidating duty schemes you necessarily increase the geographic catchment area that will need to be covered by each provider, requiring further travel to, from and between courts. The consultation further envisages and in many ways anticipates the use of agents or subcontractors, further increasing administrative costs.

These consequences, easily foreseeable, suggest that these reforms will be rendering the scheme less sustainable to run and it is difficult to envisage how, as the consultation suggests, providers will be able to take advantage of any “economies of scale”, when overheads increase and remuneration decreases.

It is a little hidden fact that running a duty scheme is already not a lucrative business.

Representing someone at a possession hearing, with very little preparation where the stakes – and therefore the pressures – are high, requires experienced solicitors with training in advocacy and a thorough knowledge of housing law. At £84 per intervention however, a solicitor’s margins are, needless to say, already infinitesimal. Were price to be the overriding criteria when awarding contracts, a bidding war between prospective providers would likely mean that solicitors would be completely priced out, with inexperienced paralegals or other untrained advocates providing the bulk of the service delivery. Having inadequate, but cheap service provision will in turn mean that any saving made by the tax payer is likely to be illusory, as poor representation at a possession hearing will lead to more stays of eviction and homelessness applications, both at considerable cost to the taxpayer.

But the government is right on one thing, £84 per intervention is unsustainable if you want to maintain an adequate quality of service. To put the cost into perspective, it costs the tax payer upwards of £155 for a paramedic to attend your home (this figure does not include a return trip to hospital or the future cost of care), £161-264 for a support worker to assist one young offender for one hour (another area which is chronically underfunded) and £557 per day in session for each peer sitting in the House of Lords . Though life-saving interventions cannot be a like-for-like comparison with the work of a housing solicitor, the loss of one’s home is nevertheless a life-affecting event and adequate assistance (and therefore funding) should be easily justified.

4. Same attack on access to justice, different court

Any feelings of déjà vu by this stage are well warranted: the legal aid crime tender of 2015 saw the government attempt similar reforms to the magistrates’ courts and police station duty schemes. These reforms, roundly criticised, were eventually withdrawn, but not before the government wasted a huge amount of resources on a tender that was proven impotent.

Now, the government looks to the arguably softer target that is the Housing Possession Court Duty Schemes and, should they succeed, I have little doubt they will use this as a springboard to gut legal provision across the board. This is therefore, not just a problem for housing solicitors and tenants, but for anyone looking to access high quality legal representation and advice.