Facing home truths

Overworked housing lawyers are battling to keep families intact.

But legislation before parliament could strengthen the foundation upon which legal work is based, reports Michael Gerrard

Few areas of law can currently be as hectic as that of housing, which is coming to grips with a variety of initiatives and an ever-growing number of clients against a background of scarcer resources.On the positive side, after more than two years of haggling between tenants' representatives and their landlord counterparts, a draft housing disrepair pre-action protocol was recently produced.In addition, a Homelessness Bill that widens the categories of those whom the authorities have a duty to house is winding its way through Parliament.But on the negative side, housing solicitors remain unhappy about the Legal Services Commission's (LSC) system of contracting and franchising for publicly funded work.There is also disquiet about the perceived inadequacies of housing benefit administration, and recent Court of Appeal judgments, which have suggested that children of those deemed voluntarily homeless could be put in care, rather than the family housed together - a change from past practice.Many of these issues were aired at last month's annual Law Society housing law conference, when speakers including Russell Campbell, chief solicitor at homelessness charity Shelter, expressed admiration for how his colleagues coped with it all (see [2001] Gazette, 22 November, 4).Housing solicitors carry out a variety of functions: part-lawyer, part-campaigner and part-social worker.Apart from housing law, they must also master many other disciplines, not least human rights, immigration, health and social services.

Yet there are fewer available to take on the burden.Wendy Backhouse, a partner at north London legal aid firm Hodge Jones & Allen and former chair of the Housing Law Practitioners Association (HLPA), says the number of law firms supplying housing services has fallen away since the LSC introduced its contracting regime nearly two years ago.Now, only certain approved firms are franchised by the LSC to do such work and bound to a one-year contract set at a certain sum.Ms Backhouse says: 'The effect is that there are a large number of people trying to get advice pushed back and forth between different providers, none of them with the capacity to handle all cases.

There is a definite problem with unmet need.'Even when the LSC agrees to fund an initial call for legal help, the solicitor complains that rates paid - as low as 53 per hour in London - can make it hugely uneconomic to proceed with this type of work.And if that were not enough, Ms Backhouse complains that even if rates are agreed, the LSC is still at liberty to carry out audits of work and subsequently claw back money from the contract if they suggest they have been overcharged.

She says: 'It is because of things like that that many of us lose heart.'Her fears for the adequate provision of housing legal advice are borne out by other solicitors working in the area.John Gallagher, a senior solicitor in Shelter's legal department, explains how his staff are stretched in providing legal advice to a network of about 50 housing advice centres, some of which are run by the charity.

Only three of these centres have solicitors on site.He says: 'We don't have the capacity to take on all the cases that are referred to us.

With some of them, you just have to help the best you can from a distance.'In addition, he says that the nature of cases has changed in recent years.

Where once the majority of work revolved around illegal evictions by private landlords, now there is a predominance of emergency situations, which put pressure on both lawyers and clients alike.Such problems are recognised by Rosaleen Kilbane, chairman of the Law Society's housing committee and a partner at Birmingham-based Community Law Partnership, one of only three firms contracted to handle housing work in the city centre.She says: 'It is a concern that there are fewer solicitors around, so it puts pressure on those that are available.

It is difficult to refer cases to others and we won't turn anyone away.'Andrew Brooks, a partner with London firm Anthony Gold and chairman of the HLPA agreed that there is a shortage of solicitors doing housing work, and some firms have recently relinquished their franchises.There are signs that the LSC is recognising the pressures housing solicitors endure.Its policy and legal director, Roger Hamilton, said at last month's conference that the organisation would attempt to address some of the profession's concerns, by changing the one-year legal aid contracts to 'rolling' ones, similar to those awarded to criminal law specialists.Alongside misgivings about support to solicitors, there is discontent over recent judicial decisions, which have put a question mark over homeless families being kept together.In certain cases, the court has found that where families are adjudged to have made themselves intentionally homeless, then children are at risk of being separated from their parents.Local authorities have been judged not to have a duty of care to house the family as a unit, with the children liable to be placed in care under the terms of the Children Act 1989, rather than through housing legislation.Naturally, housing solicitors are in the vanguard of trying to get such decisions overturned.

Mr Gallagher explains: 'We are fairly optimistic that if appeals on these children's cases don't succeed, we might be able to get the government to change the law.'On other fronts, housing specialists are campaigning to change the administration of housing benefit, the inefficiency of which leads to eviction hearings and possession orders.What is more, public authority tenants usually do not find out about problems with late payments until way down the line, as payment is usually made on their behalf by the authorities.Bizarrely, in many cases one local authority department fails to pay another in the same organisation on time.But it is not all gloom - some relief is likely to come from both the new housing disrepair pre-action protocol and the Homelessness Bill.The protocol, the result of two years' negotiations between legal representatives on both sides of the landlord and tenant divide, has recently been placed with the Lord Chancellor's Department for final consideration.Therefore, participants are loath to go in detail, but the general outline promises a major change in temperature to this often stormy relationship.

The protocols introduced in other areas, such as personal injury and libel, have proved effective in simplifying relationships and getting quick settlements without lengthy litigation.Landlords are legally obliged to carry out repairs for their tenants, but the subject has often led to costly and acrimonious disputes.The protocol provides a framework in which tenants can present their claims.

Landlords are given a certain time to respond, and they are then both encouraged to appoint a joint expert to provide a settlement.Ms Kilbane explains: 'We hope that it will work and make life easier for everybody.

It is also necessary that it is kept under review, so that if it's not working there can be adjustments.'John Swan, assistant director of administration at Sunderland City Council and a member of the Law Society's housing committee and Local Government Group, is optimistic about the pre-action protocol.

He says: 'It will make things more efficient, as everyone, both landlord and tenant, will know what they are supposed to do.' But he adds it was hard to get agreement between the parties.Alongside the protocol, fresh work is expected to come from the Homelessness Bill, which extends the categories of homeless people to whom local authorities owe a duty of care to find accommodation.

Several new bands of people will now qualify, including young adults leaving council childcare.There is plenty for housing specialists to be getting on with and more is on the way; specialists expect a complete root and branch overhaul of housing law within the next two years.To contact the HLPA, e-mail: chandra_rao@shelter.org.ukMichael Gerrard is a freelance journalist