Open letter to Fiona Rutherford – Director, Access to Justice, MoJ, James Wrigley – Head of Civil and Family Legal Aid Policy, MoJ, & Jane Harbottle – Interim CEO Legal Aid Agency.

The Coronavirus Act 2020 and the regulations made under it has made major changes to the legal landscape of the UK in an unprecedented way. In addition to restrictions on movement and civil liberties, on 31st March and 1st April the Government removed statutory duties to assess and provide care to adults and provided local government with wide discretionary powers in respect of provision of social care.
At present, legal aid providers can only use delegated functions to grant funding certificates for judicial review claims under homelessness provisions. They are still subject to the regulations where, if they are refused permission by the court, they are not paid for the work they have done. Even in normal circumstances these conditions are serious inhibitors of the ability of those in need of care to obtain legal redress when things go wrong.
It is our submission that in these extraordinary times, upholding the rule of law and individual rights is essential and that, given the radical changes to care provision for the most vulnerable on society, swift and unencumbered access to justice via judicial review is essential.
While the motivation behind the recent changes is understood, equally it is crucial that the authorities also ensure there are no barriers to obtaining legal redress if the provisions cause unintended and disproportionate hardship.
Accordingly, we ask that the Ministry of Justice and the Legal Aid Agency in these extraordinary times consider the following:
(1) The restoration of delegated powers to solicitors to fund urgent judicial review claims for challenging community care, Children Act 1989 and Asylum Support decisions given the risk to life which is present in the pandemic and the need for urgent action by solicitors;
(2) To reduce the effect of any inhibition of the “permission at risk” regulations for legal aid providers for issuing claims by suspending the operation of the regulations which mean should the court not grant permission the provider is not paid.
Given the changes to the duties to provide social care combined with restrictions on movement, we consider these are necessary and urgent.
We want to emphasise, there is nothing in our proposals ((1) and (2)) that infringe the government’s new measures. Judicial reviews do not require the parties to attend court and the government’s social distancing measures are maintained. Our proposals are, however, essential to ensure that the rule of law is upheld, the vulnerable are protected and that access to the Courts is preserved.
Yours sincerely
Simon Mullings and Marina Sergides (co-chairs) for Housing Law Practitioners Association
Nimrod Ben Cnaan for Law Centres Network
Chris Minnoch for LAPG
Tim Baldwin Barrister Garden Court Chambers

On 18 March 2020 under a press release headline “Complete ban on eviction and additional protection for renters” Housing Minister Robert Jenrick said:

“The government is clear – no renter who has lost income due to coronavirus will be forced out of their home, nor will any landlord face unmanageable debts.

“These are extraordinary times, and renters and landlords alike are of course worried about paying their rent and mortgage.

“Which is why we are urgently introducing emergency legislation to protect tenants in social and private accommodation from an eviction process being started.”

Yet we are hearing today, 23 March 2020, that in fact the legislation amounts solely to an extension to three months of the notice period required for possession proceedings to commence.  That is not legislation to prevent an eviction process being started. Put at its highest it is grace period of one month and is entirely inadequate to the crisis at hand.

Former HLPA Chair Giles Peaker has posted the detail and his analysis here https://nearlylegal.co.uk/2020/03/emergency-legislation-on-possession-claims/

The MHCLG has dangerously misunderstood the scale of the crisis facing tenants and other renters, both immediately and in the future. We all face financial insecurity as well as the health crisis over the coming months.

The government’s overwhelming priority should be to keep people safe and keep people secure during the period of the crisis.

The policy fails to get to grips with the very simple fact that ordinary people need the security of their homes in order to keep safe in a pandemic.  Furthermore, the public good lies in people remaining secure in their homes and not being forced to seek new accommodation with all the social contact that implies.

A household receiving a notice of possession proceedings would have to start to look for new accommodation immediately, regardless of the fact that the notice gives three months before court proceedings will commence.  It is staggering that the government does not recognise that.

In addition, there is nothing that protects renters in more insecure forms of letting arrangements such as lodgers and many people in HMOs. Again, if those people have to leave their homes because of the inaction of the government then they are extremely unlikely to be able to follow the current guidance on social distancing as they find somewhere else to live.  Many will not find anywhere to live and will add to the shameful increase in street homelessness.

The government needs to come to its senses and bring forward measures that properly protects all renters and in so doing protects the whole public.  We call for:

* A moratorium on all and any steps to evict tenants and licensees for a period of three months with an option to extend as necessary, including service of notices, commencement of possession proceedings, all orders for possession of any kind and all and any steps to execute any possession order

* Measures to prevent rent and licence fees accumulating and measures to support landlords to ensure that properties remain viable for letting

* Enhanced powers against landlords who carry out or attempt to carry out unlawful evictions including further criminal sanctions

In other words the government must shake itself out of its long held complacency about the rented sector and must now adequately respond to the “extraordinary times” referred to by the Minister just five days ago.