Poor and vulnerable tenants who are evicted from their homes or living in dangerous conditions will lose the chance to take their landlords to court when new government rules on legal costs come into force next year, experts are warning.
The rules, designed to deter “ambulance chaser” personal injury claims, mean claimants awarded damages of less than £100,000 will only be able to seek “fixed recoverable costs” (FRCs) to cover legal expenses.
As housing law is complex and time-consuming, most solicitors will no longer be able to afford to take on housing issues. Legal aid for housing and homelessness cases – already unavailable in some parts of the country – is set to be wiped out.
The result is that even tenants who have been illegally evicted and lost their possessions, or who are living in dangerous conditions such as extremely damp properties which damage their health, will have no recourse to justice. Only those who can afford to bear the legal costs themselves will be able to pursue such a case.
Eleanor Solomon, a partner and housing law specialist at Anthony Gold Solicitors, described the policy on costs as “extremely damaging”. She said: “Legal cases are funded for tenants through legal aid or no win, no fee: both models rely on the rule in English law that the loser pays the winner’s costs. [Now] it’s either not financially viable, or you wouldn’t be able to do that work properly, which wouldn’t be acting in the best interest of the client.”
The new rules on fixed recoverable costs are set to come into force in April 2023. Housing policy experts and solicitors working in the field say the measure poses an “existential threat” to housing justice at a time when the government is seeking to strengthen tenants’ rights through the renters’ reform bill. Campaigners have warned that there is no point giving tenants new rights while also taking away the legal support they need to exercise them.
The Ministry of Justice is considering delaying the introduction of the new rules to property possession cases for another two years. Last week, Andy Slaughter, the shadow solicitor-general, urged justice minister Lord Bellamy QC to exempt possession cases altogether. In a letter seen by the Observer, he wrote: “For many families, the Law Centre is what stands between them and homelessness, and that is precisely why an introduction of FRCs for housing cases would have a catastrophic impact … I would urge you to think again about the proposals and understand that without housing advice services there to assist tenants, this out-of-control housing crisis is set to get even worse.”
Sandra Lempkowska, a housing association tenant from Bermondsey, south London, is one successful claimant whose case would never have been heard if housing solicitors could only apply for fixed recoverable costs. Lempkowska has two children, including one with disabilities including non-verbal autism.
Her home had a severe mould problem and the bathroom was unsafe because the sewage system was opening up into the shower. “There was a really bad smell. I was told nobody can smoke in the bathroom because there is gas coming through from sewerage. I could hear rats too. They weren’t coming up into the property but I could hear the rats when I was showering,” she said.
Lempkowska launched a claim against her landlord for severe disrepair in 2017. The case took four years and resulted in compensation of £16,000 and enforcement orders for repairs. “I had somebody there to fight my corner. I’m a mum and full-time carer, I wouldn’t have the money to pay a lawyer,” she said. “It was never about the money, it was about making my house a suitable place for me and my children to live in.”
A Ministry of Justice spokesperson said: “Fixed recoverable costs will enhance access to justice by helping parties to plan their litigation more effectively. It provides certainty about what costs could be paid and ensures legal action is proportionate – meaning parties aren’t locked out of justice through the fear of having to pay high legal fees.”