Legal Aid funding is available for a range of housing matters.
Legal Aid Eligibility
The Legal Aid Agency decides if a client is eligible for funding using a ‘means and merits test’. This looks at the client’s income, capital and the merits of the case. The client must be eligible on both gross and disposable income to meet the criteria. Alongside this, the client’s capital will be looked at. This will include the value of their property or any other assets they may have. Both the income and capital criteria must be met before examining the merits of the case. If a client is in receipt of a passporting benefits, they will always pass the income test. However, an assessment of capital and merits must still be made.
The merits test must be satisfied in every case. The criteria will vary depending on the type of matter. Each case will need to be given a prospect of success from very good to unclear. This will dictate whether legal aid funding will be made available.
At Swain and Co Solicitors we hold the Legal Aid Contract for the Housing Court Desk at Portsmouth County Court. This means individuals facing possession proceedings have access to free legal advice prior to the hearing. The aim of this is to avoid Defendants losing their homes.
Individuals might be eligible for additional Legal Aid if a defence needs to be made.
Rent and Mortgage Arrears
Possession cases are covered by Legal Aid with the exception of mortgage possession or orders for sale.
It is possible to apply for Legal Aid for mortgage possessions, but this is considered a debt matter and therefore the client will need to firstly go through the mandatory debt gateway. The client must have met the standard criteria as set out above and have a defence against the possession to be eligible for a Legal Aid. The prospect of success must be borderline, marginal or better and the matter must pass a proportionality test.
Once Legal Aid is granted for a possession matter, the funding will also cover any work required in respect of a counter claim, even if the subject is out of scope of the original claim. For example, Legal Aid will cover a counter claim for damages for disrepair of the property. These damages must be used to offset any arrears owed.
Anti Social Behaviour
Legal Aid is available for possession proceedings issued under grounds of anti-social behaviour, but this is again dependent on a client’s eligibility for Legal Aid.
Unlawful eviction is in the scope of Legal Aid, normally in the form of emergency funding. A ‘reasonably alleged’ threat of unlawful eviction will be in scope too.
In order to qualify for Legal Aid, the standard criteria must be met; the proportionality test must be met; the prospects of success must be moderate or better or borderline or marginal if the case is of significant wider public interest.
The landlord responsible must be notified of the complaint and if notice is given, they must be given a reasonable opportunity to resolve the matter. If the claim is predominantly for damages rather than reinstatement of tenancy, Legal Aid is still in scope but it must be explained in the application why a conditional fee agreement is not appropriate.
Legal aid will be refused if the prospects of success are over 60%; if the opponent is considered able to meet any costs or damages awarded; if after the event insurance can be obtained and if you rely on this being unobtainable there must be evidence to prove this.
Individuals who are homeless or threatened with homelessness can also obtain Legal Aid, providing they met the requirements of Legal Aid.
The Means Test is the same as above, however the merits test for a certificate of legal representation in homelessness cases involves the standard criteria to be met; all administrative appeals and alternatives before the court to have been exhausted; a letter before claim has been sent (if the matter involves judicial review); the proportionality test to be met; prospects of success to be moderate or better or if the prospects are borderline or marginal, the case must be of significant wider public interest.
Housing disrepair claims can be split into 2 different categories, freestanding claims and disrepair counterclaims.
Freestanding disrepair claims are only in the scope of legal aid in limited circumstances. Funding will be granted only to remove or reduce a serious risk of harm to the client or a member of his or her family. It is to be used to ensure the repairs be carried out but not to claim for damages.
Housing disrepair counterclaim in possession proceedings are in scope, damages are included in this. However, if the tenant withholds rent to provoke possession proceedings, legal aid is likely to be refused. If a counterclaim for damages for disrepair is successful to the extent it is enough to repay arrears, it is possible to make an application to discharge a possession order. This method of offsetting areas in possession proceedings makes a good defence for the tenant if their situation is suitable.
Overall, housing matters are normally within the scope of Legal Aid and this will always be the first port of call when looking at funding a case. However, it is essential that the client fulfils all aspects of the means and merits tests before any work is carried.
Initial Free advice
Legal Aid is Available
Purely for Individuals