Chatting with another colleague working the coal face of private rented sector colleagues today made m ponder on this topic.
Whilst councils can prosecute landlords and agents for harassment and illegal eviction in the criminal courts, running parallel to this facility is the provision for a tenant to pursue damages for the same offences.
Criminal and civil redress is not an “Either/or”, you can do both for the same offences.
Criminal prosecutions rely on the local authority taking up the case and instigating action under the Protection from Eviction Act 1977. They aren’t under a duty to do this but they have the “Power” to and the exercise of that power depends on the impetus to protect local citizens from criminal activities, alongside the more pragmatic problems of the staffing and resources to actually do it.
Thanks to austerity cuts, most council lack both staff levels and resources.
I’ve done countless prosecutions for harassment and illegal eviction since 1990 when I started but never had a result that caused me to jump up and down and punch the air.
In fact the amount of hours and effort going into even a successful prosecution has left me pretty deflated to be honest, fines imposed by magistrates are pathetic, compared with what they could be, potentially unlimited fines and 2 years in prison.
Even in the handful of cases that have seen me in the witness stand at Crown Court have never delivered satisfactory justice to the victims.
The fastest I have ever had a case in court was at Wells St magistrates, just off Oxford St., which was 18 months after the actual offence and the amount of paperwork and officer hours just to get it there pretty much took me off the board for weeks, when I could have better employed my time protecting others in a more pragmatic way.
I’ve always been a bigger fan of civil action and damages for the following reasons:-
· Its faster, usually being disposed of in a few months.
· The penalties are far bigger. Tens of thousands of pounds instead of a few hundred quid and community service.
· The money goes to the tenant, not government.
What’s not to like?
But the problem, as I was discussing with my colleague today, is that a damages claim requires litigation and litigation requires qualified representation from lawyers. Illegally evicted tenants don’t usually have funds so are reliant on legal aid.
Contrary to what many may think, legal aid eligibility is not the main problem for many victims of harassment and illegal eviction.
The chief problem is finding a solicitor who has the capacity to take on a case.
The swingeing cuts of the Legal Aid, Sentencing and Punishment of Offender’s Act since 2012 have driven many solicitors out of the market because they simply cant earn a living doing legal aid work.
Those still in the game are so overstretched that when you call them you have the same, predictable conversation “Sorry Ben, we’d love to help but we are just snowed”.
Probably about 80% of Safer Renting’s cases would qualify the renters for damages but they never get them because you cant find a solicitor with capacity, so whereas the law allows for generous damages to provide justice for victims and punishment for offenders, it’s really an abstract concept.
On the surface, the law looks wonderful.
Special Damages – for out of pocket expenses, such as hotels when you cant get into your accommodation. Costs of meals out, laundry etc.
General Damages – compensating the victim for things like nights out of the property or general loss of enjoyment.
Aggravated Damages – Compensation for mental distress or injury.
Exemplary Damages – Punitive for a range of breaches, for instance where the acts done were calculated to make a profit or generally willful behaviour.
All wonderful examples of an advanced society with a strong sense of social justice.
And all complete bullshit when the chance of obtaining redress through damages is virtually non existent, because people cant pay for the justice and those left in the legal aid game are so overwhelmed that they don’t have the capacity to take on a damages claim.
Of course there is the good old CFA (Conditional Fee Arrangement) or “No Win – No Fee”, to give it the common phrase.
In order for a firm of solicitors to chance their arm with a CFA they need to be assured that the money will be recovered.
Not so much a problem when the offender has assets, for instance, is a landlord who owns the property in question but it is just as likely that the offender is an agent, or third party with limited liability status and no assets to draw upon.
In which case a CFA is a dead duck and even if it is a possibility, the solicitors, as with legal aid, don’t have capacity anyway.
So there we are. A society that has an inbuilt system for social justice. Damages that will punish the offender and compensate the victim but all just hot air in reality.
As I said at the start of this piece, roughly 80% of our clients would qualify for a damages claim of some sort but we might as well be talking Harry Potter, for all the reality it has.
A regular narrative for Safer Renting’s TROs with their clients, is watching reality gradually seep in, as they slowly realise that the justice they thought was their right, evaporates in the reality that they cant afford it and there are few people who can help them.
Don’t get me wrong, we have had some successful damages claims but they are a tiny proportion of the whole and so unusual that you remember them clearly years down the line. “You remember that case?………………..” whilst forgetting the ones that didn’t even get off the starting blocks because they represent 99% of your work.
Its completely pointless for commentators and politicians to point to the skies and remind people we are a just society and people have rights.
The only rights illegally evicted tenants have are those that they can pay for and if they could pay for them, they certainly wouldn’t be handing over vast swathes of their hard earned net income to pay for someone’s else’s pension.
by Ben Reeve Lewis
