Wednesday 28 November 2012

Cross-party agreement to consider 'no bedroom tax eviction' policy in Scotland

Last night, a packed Mary Barbour Hall in Govan's Pearce Institute heard the heartfelt concerns from local tenants frightened for their families future with the 'bedroom tax' cuts, due next April.

The cuts will see those who are retired, working, or in receipt of benefits, receive housing benefit cuts of £48 per month from their rent, and in some cases £88 per month.

Humza Yousaf MSP
The meeting heard from a panel comprising of Johann Lamont MSP, Leader of the Scottish Labour Party, Humza Yousaf MSP, Scottish Minister for External Affairs and International Development, Cllr James Adams, Bailie Fariha Thomas, Dave Moxham, Deputy General Secretary of the STUC, Mike Dailly, Principal Solicitor, GLC, John Flanagan, Chair of Govan Housing Association, and Kenny McLeod, Deputy Director of Linthouse Housing Association.

There was a unanimous consensus from the panel and members of the public at the meeting, that the 'under-occupancy' housing benefit reforms were irrational and morally wrong, would unfairly force families to give up their homes of many years, and would ultimately lead to an increase in evictions and homelessness across Scotland.

Johann Lamont MSP
Both Johann Lamont  and Humza Yousaf agreed that the housing benefit proposals were irrational and would force families to make distressing and unfair choices. Cllrs Adams and Thomas were worried that the bedroom tax would cause misery for many local people and ultimately lead to greater homelessness, with the package of welfare cuts taking £115m out of the Glasgow economy. There was a need for local advice agencies to use the law and provide welfare rights support for those affected.

The STUC's Dave Moxham reflected on the need to look at rent capping in the private sector and much stronger rent regulation. He noted that levels of child poverty and equality of pay was actually better-off in 1979 than it was today, and how we needed a fightback in the spirit of those of the 1915 Glasgow rent strike, which included Govan's Mary Barbour.  Kenny McLeod explained that 75% of Scottish housing associations relied on housing benefit for more than half of their operational revenue, and that many tenants were already borrowing from high interest home credit lenders.

John Flanagan emphasised the need for all stakeholders and campaigners to come together to work with a united front. This was echoed by the chairman of the meeting, John Foster, and the meeting resolved to form a steering committee to take forward a united campaign on behalf of Glasgow tenants. Govan Law Centre (GLC) agreed to provide full support and backing to the steering committee.

Members of the public in Govan's Mary Barbour Hall
Mike Dailly talked to GLC's call for an urgent minor law reform amendment to implement a 'no eviction for bedroom tax' policy* in Scotland, upon the basis these cuts would be affecting tenants within 4 months or so, and we needed a new safety net otherwise we would be unable to prevent evictions based on the bedroom tax.

Mike explained that at the moment defended eviction actions in court can often turn on £3.55 per week payments to arrears, and with £12 to £22 per week being deducted from housing benefit it could become almost impossible to defend such eviction actions in future.

Both Humza Yousaf and Johann Lamont agreed to consider the feasibility of GLC's law reform proposal which was backed by those present at the public meeting. GLC has suggested bedroom tax rent arrears could be pursued as an ordinary debt, and should not be founded upon as a ground of eviction or to establish the reasonableness of local authority and housing association evictions. Such a policy could either be considered on a permanent or transitional basis with a sunset clause.

The meeting was organised by the tenants and residents associations of Govan and Linthouse, and the Govan Communnity Council.

* GLC's briefing paper and proposed statutory amendment is online here (opens as a PDF).


Friday 23 November 2012

Pre-Action Requirements in rent arrears cases may make it easier to evict

Govan Law Centre (GLC) is launching an advice leaflet today aimed at local tenants in Glasgow who get into financial difficulties and accrue arrears of rent. Although the Scottish Government's new 'Pre-Action Requirements' (PAR) for rent arrears came into force on 1st August 2012, the PAR only apply to eviction actions where a notice of proceedings was served on or after 1 August. 

Because of the time it takes to raise court proceedings we are still seeing cases calling in Glasgow next week with notices served before 1 August. Accordingly, GLC expects to see the PAR feature in most rent arrears eviction cases in Scotland shortly. The PAR are well intentioned and designed to prevent eviction cases being raised in the first place by requiring councils and housing associations to undertake a number of activities to attempt to avoid litigation. 

Flaw in the Pre-Action Requirements for rent arrears
However, we believe there is a major flaw and weakness in the PAR which may have the perverse effect of making it much easier for landlords to secure a decrees for eviction in those cases which come to court. All of the PAR activities must take place before a notice of proceedings is served, such as negotiating a repayment plan. Some of the duties, such as the landlord's requirement to help the tenant with a housing benefit application only engage 'if requested' by the tenant. 

Need for free independent advice 
Unless a tenant obtains independent advice at the time of the PAR there is a very real danger they will enter into an unaffordable repayment plan, fail to formally request housing benefit assistance or fail to engage. We know this from our casework experience over the last two decades; landlords invariably want arrears repaid more quickly than tenants can realistically afford. And we also know that tenants do not seek out independent advice at the early stage of the PAR - typically law centres and advice agencies are approached just before or when proceedings are raised.

What does this mean in practice? 
GLC is concerned that many tenants will fail to properly utilise the PAR without good independent advice. If this happens the perverse affect of the PAR is to give the landlord a powerful audit trail and new argument for why it is now reasonable to evict. A key flaw in the PAR is that even if a tenant approaches us before their case calls in court it is purely a matter of discretion on the part of the landlord whether to re-engage the PAR.

The 2012 PAR Order clearly states the landlord's duties are pre-notice of proceedings, yet five months may have passed after that point in time before a summons is raised, and it may be another two months before the case calls in court. Scottish Government guidance recognises this weakness, but simply states it is up to the landlord to decide whether to engage the PAR activities.

There is a very real risk the PAR could become a formal box ticking exercise which enables a landlord to demonstrate how reasonable it has been.

The PAR will only have any traction and policy impact if tenants obtain advice when the PAR engage. Accordingly, GLC will undertake local awareness raising through a variety of channels. We need to get the messages across that tenants need to take up their PAR rights and take independent advice. Our new leaflet attempts to sets out these messages in clear and accessible terms.

Ultimately, we believe the best solution to ensure the policy intention of the PAR is achieved would be to amend the 2003 Homelessness etc., (Scotland) Act to require housing associations to notify the council - akin to section 11 notifications - when they engage the PAR in any case. That would enable the local authority to facilitate an independent intervention. GLC intends to take this initiative up with the Scottish Government.


Monday 12 November 2012

Guilty until proven innocent through the payment of fees? - access to justice in Scotland

With the second stage of the Scottish Civil Justice Council and Criminal Legal Assistance Bill before the Scottish Parliament tomorrow (Tuesday, 13 November 2012) it is important to consider whether a fundamental principle of Scots law - 'innocent until proven guilty' - will remain intact in Scotland if this Bill is passed as currently drafted.

Govan Law Centre does not undertake criminal defence work as a community controlled charitable law centre; our focus is on initiatives to tackle social injustice, disadvantage and discrimination. Yet, injustice is injustice whether civil or criminal in our society; and people are people.

The present proposals by the Scottish Government would see anyone in Scotland accused of a crime having to pay upfront fees for their defence where their disposable income was £68 per week or more to obtain criminal legal aid.

Furthermore, such upfront contributions for criminal legal aid would have to be collected by the accused's solicitor. At present the Scottish Legal Aid Board (SLAB) are paid by the taxpayer to collect similar civil legal aid contributions. Why should criminal legal aid contributions be different?

It makes no sense for solicitors to undertake debt collection work which the taxpayer presently pays SLAB to undertake. Moreover, forcing those who are defending accused persons to collect upfront fees creates an inherent flaw, which requires defence solicitors to cease from acting where fees are not paid. Such an approach introduces a systemic blockage into Scotland's criminal defence system which cannot be compliant with Article 6 of the European Convention on Human Rights.

Ultimately, how can it be just for citizens up against the power of the State in Scotland to be denied access to justice for the inability of paying legal fees? How can it be just for people with disposable incomes as low as £68 per week to be required to pay for their defence in a criminal case? Incredibly, how can it be right that those found innocent or not proven of an alleged crime still have to pay fees?

We believe that the Scottish Government are in danger of undermining a precious tenent of Scots law - the principle of 'innocent until proven guilty' - with the risk that many Scots may be deemed guilty in the future unless able to pay a fee to be proved innocent.