Mike O’Dwyer spent 11 years at the Law Centre, heading the Housing Unit. He continued as a housing lawyer, both in other London Law Centres and Independent Advice Centres, retiring in 2015 after 7 years as Senior Housing Associate in private practice on Southwark. In this guest blog he shares how NKLC helped to establish the first “Duty Representation Scheme”.
I first worked in a Law Centre, in July 1974, volunteering in the housing unit with the “Vauxhall Community” in Liverpool’s docklands. This new initiative was to be called a “Law Centre” after the office which had been established in 1970, in North Kensington, London. It was to be a new type of law firm, helping both individuals and the community; collectively where possible; providing legal education, representation and advocacy on a not-for-profit basis. Law was not to be viewed in a vacuum.
This work was right up my street. I spent two years there and after qualifying as a solicitor, I joined the housing unit at North Kensington Law Centre in February 1979. Already there was a legacy of radical and innovative legal work. In my early years, I was told of one of the first Law Centre cases in 1970; after multiple evictions of families in St. Ervan’s Road, W10, a private prosecution (rare now – even rarer then) was brought against the offending landlord, resulting in reinstatement and compensation.
The early ‘80s saw the first wave of “Notting Hill Gentrification”, bringing with it, a spate of illegal evictions of private tenants. Property prices were rising and it paid landlords to obtain “vacant possession”. When clients had Court hearings, we represented but we could see that there were uncomfortable things happening where tenants didn’t attend. These cases were termed the “undefended list” and they would be heard at a rate of less than two minutes each. Inevitably possession orders were made and eviction ordered resulting in another homelessness statistic.
In 1982, we started negotiating with the local County Court about the wording of the material sent out with each possession summons. We argued for a clear warning as to the implications of not turning up, together with basic advice on security of tenure. Eventually, it was agreed to improve the paperwork being sent. This was built upon after some local Law Centres, each experiencing the same difficulties in assisting tenants with Court hearings, combined with NKLC, to approach, again, Bloomsbury and Marylebone County Court, to establish a representation scheme for all tenants (public and private) which could be advertised in the summons’ papers sent out. This brought in the judiciary who could see the advantages of a scheme in “assisting the Court” as well as unrepresented tenants and commencement was finally agreed.
‘At the start of “possession day” the overwhelming feeling from tenants would be a combination of fear, confusion and despair.’
The first scheme started in April 1984, with North Kensington Law Centre, Camden and West Hampstead Law Centres attending each Tuesday (“possession day”), on rota. The service was free to all those on the Court list for a hearing. Ideally two workers would attend, one to take instructions, the other to advocate but in the melee, things got mixed up. All actions would involve a rapid response, with most litigants turning up within minutes of the hearing time.
At the start of “possession day” the overwhelming feeling from tenants would be a combination of fear, confusion and despair. Many thought they were in a Criminal Court: others were preparing to be evicted, with no resources to meet spiralling rent arrears. Rapid action was needed for each tenant, after explaining the context of the hearing; working out disposable income to make an offer and personal circumstances to bring forward on oral advocacy, robust negotiations with landlords often resulted in agreement, but if not, a “mini trial” would take place in front of the judge. Multiply that by an average of 30 cases and the possession day is over. A typical attendance would involve taking urgent instructions (with or without Court papers); liaising with landlords or Council officers; keeping an eye on the Judge’s list; negotiating settlements or ultimately presenting a case in Court. At the end of the day the legal textbooks would be well thumbed; copious amounts of water consumed; reams of paper bundled and outcomes explained to confused occupants. Very rarely were those represented evicted.
This was homelessness prevention. Over the years, tenants’ legal security of tenure has fluctuated; Council tenants received protection in 1985; private tenants lost protection in 1988 and in between that, there have been different levels. However, the concept of the “duty scheme” (as it became to be known) grew nationally as Courts recognised the advantages. With growth, schemes took on their own identities with solicitors’ private practice and independent housing charities (such as SHELTER) covering many areas. However, the commonality was that the assistance and representation was free at the door of the Court. Funding was found from a variety of sources until 2012 when the (then) Legal Aid Board introduced set national conditions and stable funding. Politics intervened in 2018, by which time the number of Courts covered was almost 100, with many Law Centres still being involved. The budget had risen to £3.6 Million and the Legal Services Agency attempted to introduce, “commercial competitive tendering” for contracts, with the aim of reducing the number of schemes. In R –v- (Law Centres Network) –v- The Lord Chancellor (2018 EWHC 1588) this attempt was quashed as being both irrational and in breach of the Public Sector Equality Duty 2010.
Since 1984, hundreds of thousands of tenants and their families have been assisted by duty representation schemes. The vast majority will have kept their homes. In contrast, the number of households actually declared homeless has rocketed (resulting in an estimated 100,000 children in temporary accommodation in London, in 2019). Perhaps belatedly, in the Homelessness Reduction Act 2017, the Government recognised the need to prevent homelessness and now with enhanced funding, local Councils have duties to take action, including assisting occupiers to resist Court action. Again, in the age of Coronavirus, in 2020, the Government has recognised the need to keep tenants in their homes with a six month moratorium on possession hearings. The need for action to prevent homelessness is now firmly established. The next challenge for duty schemes is how to navigate remote video Court hearings in an adequate way so as to protect the rights of tenants who may have no access to technology and where local Courts have disappeared as a result of funding cuts. Another pioneering venture?
About the Author:
Mike O’Dwyer spent 11 years at the Law Centre, heading the Housing Unit. He continued as a housing lawyer, both in other London Law Centres and Independent Advice Centres. He retired in 2015 after 7 years as Senior Housing Associate in private practice on Southwark. Throughout 40 years practice as a housing lawyer, he has continued to live in North Kensington.