Background

The Legal Aid Sentencing and Punishment of Offenders Act (the “Act”) received Royal Assent on 1 May 2012. It will lead to changes in the following three main areas:

  1. Scope of and eligibility for legal aid (Part 1);
  2. .Reforms to Conditional Fee Agreements (Part 2); and
  3. Sentencing Reform – e.g. it creates a new offence for knife threats in public and in schools (Part 3)

The Act also creates tougher community sentences, gives prosecutors the right to appeal against Crown Court bail decisions and clarifies the law around self-defence.

The Act

Part 1 of the legislation will have the most immediate effect on Registered Providers and the legal aid which their tenants have, up until now, been able to rely on. The Act will prevent applicants from being able to benefit from legal aid funding unless the application is of a type specified in the Act.  Prior to this, the position under the Access to Justice Act  1999 was that applicants would be eligible for funding for any matter that was not specifically excluded.

The Act states that an applicant will be able to apply for legal aid for the following services (all include legal representation):

  • advice as to how the law applies in particular circumstances;
  • advice and assistance in relation to legal proceedings;
  • advice in relation to the prevention of disputes about legal rights or duties; and
  • advice in relation to the enforcement of decisions in legal proceedings.

There are “exceptional cases” provided for in the Act where there is a public interest issue or the applicant’s Human Rights are being affected. This will create a substantial hurdle for the applicant to overcome in order to obtain legal aid. Furthermore, the Director of Legal Aid Casework, a newly created position that has powers delegated from the Lord Chancellor, will have to be satisfied that such an “exceptional case” exists.

Effect on Registered Providers

Social Housing tenants may find it increasingly more difficult to obtain funding for cases for which they would previously have routinely been granted legal aid.

Registered Providers should therefore be prepared for an increase in the number of Human Rights and Equality Act issues raised by tenants in an attempt to bring themselves within the new legal aid criteria as an “exceptional case”.

It is therefore important that Registered Providers should consider this carefully when preparing cases against tenants, to ensure that the Human Rights and Equality Act implications of commencing the case have been fully considered at the outset. File notes should be completed and placed on the file to ensure the file reflects that both these issues have been addressed and considered. Once proceedings have been issued it will be too late to try to justify actions under these heads.

This new legislation may result in more complicated and protracted proceedings if Human Rights issues and Equality Act issues are being cited at every opportunity.  We have already seen an increase in tenants raising “discrimination” issues arising out of the Equality Act for example as part of their defences to claims for possession.  They may now also seek to use the provisions of the Equality Act to claim that the actions of the Registered Provider are discriminatory, and as such they ought to be treated as an exceptional case under the new legislation for the purposes of obtaining legal aid.