ANNEX C: Detailed explanatory note for Part 1 of Schedule 1 Paragraph 33: Loss of home
921.Paragraph 33 relates to cases where an individual is at risk of losing their home.
922.Sub-paragraph (1) brings within the scope of legal aid services provided to an individual in relation to court orders for sale or possession of the individual’s home or eviction of the individual (or others) from the individual’s home. So, for example, legal aid will be available to a person facing the potential immediate loss of their home as result of outstanding mortgage or rent arrears. Legal aid will also, for example, be available for a person who is unlawfully evicted from their home by a landlord.
923.Sub-paragraph (2) brings within scope services provided to an individual in relation to certain bankruptcy matters. These are services provided in relation to a bankruptcy order against an individual where that person’s estate includes their home and where the bankruptcy proceedings are not brought voluntarily by the person concerned (and includes services provided in relation to a statutory demand). Such proceedings are included within the scope of civil legal aid because they can result in the loss of an individual’s home.
924.Sub-paragraph (3) applies the exclusions of Part 2 of Schedule 1 except in relation to business matters. Sub-paragraph (5) ensures that civil legal services are within the scope of civil legal aid where they relate to proceedings for sale or possession of an individual’s home brought by the trustee in bankruptcy under section 14 of the Trusts and Land and Appointment of Trustees Act 1996 in reliance on section 335A of the Insolvency Act 1986. This will cover, for example, legal aid for the former spouse of a bankrupt whose home is at risk as a result of an application for sale brought by the trustee in bankruptcy.
925.Sub-paragraph (6) disapplies the Part 2 exclusions relating to a claim in tort in respect of assault, battery or false imprisonment, a claim in tort in respect of trespass to goods, a claim in tort in respect of trespass to land, damage to property and a claim in tort in respect of breach of statutory duty in relation to counterclaims in possession/sale proceedings and in relation to unlawful eviction. This ensures that heads of claim in tort, commonly relied upon in possession proceedings and unlawful eviction cases, are not excluded from the scope of paragraph 33. This will include, for example, unlawful eviction claims brought by non-tenant occupiers
926.Sub-paragraph (8) excludes certain matters that, to the extent that they are to be within the scope of civil legal aid, are covered by paragraph 12 (victims of domestic violence and family matters).
927.Sub-paragraphs (9) to (13) ensure that paragraph 33 does not bring within scope services provided to persons who unarguably are occupying premises as a trespasser and entered the premises as such. This ensures that legal aid is not available to people who are squatting and face proceedings for eviction.