Housing divisions

A plan to offer specialist accreditation to housing lawyers has recently fallen through.

Jessica Smerin finds out whether the scheme is needed and why it failed

In many ways, it came as no surprise when the Law Society's Council decided not to proceed with a scheme offering specialist accreditation to housing lawyers.

The poor response to a consultation on the scheme led the Society's housing law committee to recommend that it should not go ahead, despite the fact that the majority of those who did respond to the consultation were in favour of accreditation.As a practice area, housing law has never been characterised by its unity of approach.

Attempts to produce a housing disrepair protocol, as recommended in Lord Woolf's final report, fell through because the legal representatives of landlords and tenants were unable to reach an acceptable compromise.

Most firms only act for landlords or tenants.

Tenant solicitors proudly describe this as a political decision.

Landlord solicitors are equally proud that they would not get out of bed for the pittance paid to tenant solicitors, whose work is funded by the Legal Services Commission (LSC).However, there are rifts even among tenant solicitors.

Some lawyers have recently dragged the name of the profession through the mud by canvassing door-to-door for work on housing estates, holding public meetings in church halls on how to sue the local council, or even being convicted for legal aid fraud.

Specialist housing solicitors are keen to distance themselves from this behaviour; many also disapprove of those who advise on housing law as part of general practice.

The area is so complex that disrepair claims worth more than 1,000 are excluded from the small claims court.

It is felt that the technical demands and wide range of housing law is such that only specialists should practice it.And, despite the public sector ethos of tenant solicitors, there is often fierce antagonism between them and in-house lawyers in local authorities.

The latter think that the solicitors are helping people take money away from an authority which needs funds for areas other than housing.

The solicitors see the council clients refusing accommodation to the most vulnerable members of society or forcing them to live in squalor.With the publication in April of the radical housing green paper Quality and Choice: a decent home for all and the release this week by the Joseph Rowntree Foundation of new research suggesting current provisions for the eviction of anti-social tenants are inadequate, there is plenty of work for specialist tenant solicitors.

However, many face an economic crisis.

Some firms are no longer able to practise housing law, having failed to win franchises and contracts for advice and assistance.

When civil contracting is introduced in January, this problem will intensify.

However, even those with contracts are finding it increasingly difficult to make ends meet.

Despite the huge pool of potential clients, low rates and restrictions on the numbers of new matters released by the LSC are forcing many solicitors away from housing law.The chair of the Law Society's housing law committee, Rosaleen Kilbane, a partner in Birmingham firm the Community Law Partnership, says: 'In the west midlands, people are pulling out of housing law.

Our firm cannot cope with the demand.

We're turning clients away because we can't do the work on our manpower.

Not enough firms have contracts, and all the contracted firms are chock-a-block.

But the only contracted firm in Coventry is giving its contract back because housing law is not lucrative enough.'On principle, we won't do any work for landlords, but many firms are being forced to switch to acting for landlords.

There are not enough solicitors prepared to do work for tenants.

All our work is legal aid work, and we also do a considerable amount of pro bono work.

We make very little profit, but we survive by running with low overheads and no perks.'London firm Oliver Fisher is one of the only firms to work for both landlords and tenants.

Senior partner Russell Conway says: 'There's no reason why you can't work for both.

The law is the same.

We act for husbands and wives in our matrimonial department.

We're lawyers, not politicians.

My work for landlords enables me to carry on doing the legal aid work.

I can still do work for tenants, for which I'm paid 41 an hour, because I also have commercial clients who pay me 200 an hour.

I also do better paid work for private tenants.'Mr Conway's firm has recently entered into a partnership with the Royal Borough of Kensington and Chelsea, and two not-for-profit agencies, to provide a council-funded housing law advice service.

Mr Conway says: 'Housing has always been a battle area of the law.

The answer lies in partnership between solicitors and local authorities.

In practice, our partnership means increased dialogue between the parties.

For example, if a particular housing authority is always saying people have intentionally made themselves homeless, and we are always taking the council to court over this and winning, we could talk to them about changing their approach.

The LSC is very keen on these types of partnerships, which help to improve the relationships between solicitors and authorities.'Historic tension between solicitors and their in-house colleagues in authorities may also be reduced if authorities relinquish their role as landlords under green paper proposals to allow the wholesale transfer of housing stock from authorities to registered social landlords.

If authorities are no longer acting as landlords, there may also be a reduction in litigation due to increased funding for social housing.

The assistant director of administration at Sunderland City Council, solicitor John Swan, says: 'The proposals to transfer housing stocks to companies recognise that local authorities have, because of their financial situation, difficulties in meeting their obligations as landlords.

If stock is transferred to companies with the necessary finance, this should lead to fewer claims, because the new owners will have the resources to deal with the problems.'Mr Swan chairs the Law Society's housing disrepair protocol working group, which was set up to make a second attempt at achieving consensus in this area.

He says: 'We were aware from the start that there have been difficulties in the past.

It's a fine line, ensuring the interests of both interest groups are taken into account.

We've tried, knowing the history, to get the protocol so that it's acceptable to both.

And we hope to be in a position to send out a draft protocol for consultation by the end of July.'A key issue in the development of the protocol is the instruction of experts, in which landlord solicitors, tenant solicitors, and local authority solicitors all have vested interests.

These are so strong that tenant solicitors' group the Housing Law Practitioners Association (HLPA) has made it a condition of their code of conduct that: 'No HLPA member shall accept a referral where any condition attached to the referral seeks to compromise the member's discretion as to instruction of experts.' Tenants want an expert to be instructed at an early stage, to preserve evidence of disrepair that can be destroyed by patch jobs.

Landlords feel that this position is extreme.

The choice of an expert is crucial, as there can be significant disagreements between local authority surveyors and independent experts.The housing committee has not abandoned the idea of accreditation for housing solicitors, and intends to consult again on the issue in the autumn of 2001.

Although the response to the consultation was a poor 5.5.%, several Society accreditation schemes which are now operating successfully attracted a comparable level of interest initially.

Committee members believe that the introduction of civil contracting this winter is currently absorbing the attention of potential accreditation scheme members.Although the scheme was intended to cover solicitors who work for landlords and tenants, in practice any accreditation is likely to appeal to tenant solicitors working in small firms, rather than to the larger firms which act for landlords and tend to rely on their commercial reputations to generate instructions.Nearly all those who responded in favour of accreditation also had a legal aid franchise for housing work.

Most of those opposed were general practitioners who took on housing cases from time to time.

Yvonne Treacy, who wrote the report into housing law accreditation which went to the Council last month, says: 'Several respondents commented that if they told the truth about the amount of housing work which they did - the scheme as proposed required 350 hours a year over three years - they would not qualify.

Because of the financial pressures on the profession, there has been a channelling of housing work to high-volume firms.'With or without accreditation, general practitioners look certain to become increasingly unable to practise housing law.

In Ms Kilbane's view: 'The people doing housing in general practices are dinosaurs who shouldn't be doing it anyway.

If lots of people stop doing housing law until we have a very small group of housing practitioners on the tenant side, they will be a much more homogenous group.

Maybe everybody doing it might decide they want accreditation.'The chairman of HLPA, Andrew Brookes, says: 'We are in favour of accreditation, which would give housing law the same status as PI and family law, which have their own specialist panels.'

Jessica Smerin is a freelance journalist