The scope of legal aid in damages claims relating to unlawful eviction

12 January 2018

It has come to my attention anecdotally that some decision-makers at the Legal Aid Agency are purporting to refuse legal aid for claims for damages for unlawful eviction when the tenant has decided that they do not wish to seek an injunction to be reinstated in the property on the basis that claims for damages alone are out of scope. This is wrong, unlawful and should be challenged.

The Legislation

Paragraph 33 of Schedule 1 to the Legal Aid Sentencing and Punishment of Offenders Act 2012 provides:

Loss of home 

33(1) Civil legal services provided to an individual in relation to –

(a)court orders for sale or possession of the individual’s home, or

(b)the eviction from the individual’s home of the individual or others.

(2)Civil legal services provided to an individual in relation to a bankruptcy order against the individual under Part 9 of the Insolvency Act 1986 where –

(a)the individual’s estate includes the individual’s home, and

(b)the petition for the bankruptcy order is or was presented by a person other than the individual,

including services provided in relation to a statutory demand under that Part of that Act.

General exclusions

(3)Sub-paragraphs (1) and (2) are subject to the exclusions in Part 2 of this Schedule, with the exception of paragraph 14 of that Part.

(4)But the exclusions described in sub-paragraph (3) are subject to the exceptions in sub-paragraphs (5) and (6).

(5)The services described in sub-paragraph (1) include services provided in relation to proceedings on an application under the Trusts of Land and Appointment of Trustees Act 1996 to which section 335A of the Insolvency Act 1986 applies (application by trustee of bankrupt’s estate).

(6)The services described in sub-paragraph (1) include services described in any of paragraphs 3 to 6 or 8 of Part 2 of this Schedule to the extent that they are—

(a)services provided to an individual in relation to a counterclaim in proceedings for a court order for sale or possession of the individual’s home, or

(b)services provided to an individual in relation to the unlawful eviction from the individual’s home of the individual or others.

(7)Sub-paragraphs (1) and (2) are subject to the exclusion in Part 3 of this Schedule.

Analysis

It is clear from paragraph 33(1) that claims for damages for unlawful eviction are in principle, subject to any exclusions, in scope as they clearly relate to the eviction of the individual or others from their home.

The use of the term “unlawful eviction” and the words “in relation to” are deliberately wide. They encompass preventing unlawful eviction, preventing harassment that may lead to a person giving up occupation and eviction itself.

This is then subjected to the general exceptions in Schedule 2. It will be noted that at the outset those exceptions do not include breach of contract or the Protection from Harassment Act 1997 (statutory tort) which is included in Schedule 1. It is provided that the business exception in paragraph 14 of Schedule 2 does not apply (no doubt in part to cover mixed use residential and business premises).

Paragraph 33(6) of Schedule 1, however, then disapplies some of the exception in Part 2 of the Schedule, inter alia, services provided to an individual in relation to the unlawful eviction from the individual’s home or others.

The five disapplied exceptions are:

3 Civil legal services provided in relation to a claim in tort in respect of assault, battery or false imprisonment.

4 Civil legal services provided in relation to a claim in tort in respect of trespass to goods.

5 Civil legal services provided in relation to a claim in tort in respect of trespass to land.

6 Civil legal services provided in relation to damage to property.

8 Civil legal services provided in relation to a claim in tort in respect of breach of statutory duty.

It will be seen that these disapplied exceptions cover just about all the other torts that a claim may be made for in relation to unlawful eviction – paragraph 8 would apply for example to a claim for breach of statutory duty under Section 3 of the Protection from Eviction Act 1977 had the tenancy/licence come to an end.

Consideration of paragraph 33 of Schedule 1 shows that there are no grounds whatsoever for excluding claims for damages alone. There is no express exclusion, such claims clearly “relate to unlawful eviction” and the exclusion of paragraphs 2 and 6 of Schedule 2 in particular would be meaningless.

Conclusion

There is no basis in law for refusing legal aid for a claim for damages for unlawful eviction (other than on the financial and/or merits) tests. They clearly are in scope. Any decision to refuse legal aid on this basis should be appealed and if refusal continues then that is open to challenge by way of an application for judicial review.

James Stark is a barrister at Garden Court North Chambers.