GLC backs Scottish Government's position on RBS plc v. Wilson

Govan Law Centre (GLC) supports and welcomes the Scottish Government's decision to take no legislative action in light of the UK Supreme Court's decision in RBS plc v. Wilson and others as the 'right thing to do' in the circumstances. 

While the majority of consultees alleged that the implications of this case would be negative, GLC believes there is no empirical evidence to back up such assertions, and that the Scottish Government was correct to advocate no law reform response, particulary so in the current climate of forebearance and difficult economic circumstances.

GLC's Principal Solicitor, Mike Dailly said: "Calling-up notices are the equivalent of 'default notices' for consumer credit debts and they serve a useful purpose in enabling the debtor to address problems before litigation can be raised. The only difference with a mortgage is the fact it is secured on heritable property and it is therefore entirely consistent to support the requirement for lenders to serve calling-up notices prior to entitlement to raise litigation. It is in the interests of both parties, lender and borrower".

"It is also instructive to note that some lenders and their solicitors did generally serve calling-up notices and did so as a matter of good practice without any difficulty".

"GLC rejects the Council of Mortgage Lenders (CML) assertion that the Wilson decision may not be in the 'best interests' of borrowers. For those with no prospects of retaining ownership or occupancy of their homes a calling-up notice can act as a spur to selling their property with or without their lenders assistance, and for those that need more flexibility to pay their debts the calling-up notice acts as a spur to take advice to set up a repayment solution which the lender would have to explore in any event in terms of the Pre-Action Requirements'.

"What the CML calls 'delay' is in fact a sensible and reasonable opportunity for practical solutions to be brokered and found to enable the mortgage to be paid, arrears cleared and homeowners to retain their homes. GLC is pleased the Scottish Government has acted to safeguard the rights of vulnerable homeowners in Scotland".

Solicitor of the Year nominee for GLC

Govan Law Centre's Principal Solicitor, Mike Dailly, has been shortlisted for the Solicitor of the Year Award at the Law Awards of Scotland 2011.

The nominees were announced last night at a reception held at 29 Royal Exchange Square in Glasgow. There were three solicitors in total who made the short leet in the category of Solicitor of the Year.

Mike previously won this prestigious award in 2007. The 2011 winner will be announced at an awards dinner in Glasgow's Hilton Hotel on 8 September 2011.

Risk of homelessness to private tenants from Scottish housing associations' debt recovery practice

GHA's CEO, Martin Armstrong

Govan Law Centre (GLC) has raised concern over the growing practice of Scottish housing associations using 'arrestments in execution' against private sector tenants in relation to debts owed by their landlords to housing associations, generally in the association's capacity as a property factor.

GLC believes this policy will force private sector tenants to incur rent arrears, exposing them to eviction, the risk of homelessness and unnecessary detriment. Housing association officers typically refer to such arrestments as 'rent arrestments' and use them every month or four weeks, repeatedly, against individual 'innocent' private sector tenants.

GLC's Principal Solicitor has today written to Martin Armstrong, CEO of the Glasgow Housing Association (GHA) to express the law centre's concern that this policy is disproportionate, regressive, and ultimately puts innocent private sector tenants through unnecessary detriment, with the risk of homelessness. Other housing association landlords in Glasgow are using this practice against private tenants, and GLC believes the Scottish Government should intervene to examine the practice and consequences of this policy.

Lindsay Paterson, Solicitor with Govanhill Law Centre said: "We believe this policy causes unnecessary cyclical monthly detriment to innocent private sector tenants, and exposes them to unnecessary potential fines and emotional distress".

"It can be a frightening experience for our clients to have sheriff officers come to their door to serve such documents on a regular basis, and in our experience the service of schedules of arrestment is causing significant distress and inconvenience to ‘innocent’ private sector tenants".

"We hope the GHA and other social landlords will reconsider their policies here and stop using this form of diligence against 'innoncent' private sector tenants".

Law centre opposes closure of Glasgow's Bilingual Support Unit following 'flawed' consultation process

Govanhill Law Centre (GhLC) has opposed the proposed closure of Glasgow's Bilingual Support Unit (BSU), presently positioned in Shawlands, between Govanhill and East Pollokshields, two of the most ethnically diverse communities in the City. Its opposition is supported by GLC.

Responding to a Glasgow City Council consultation, GhLC says that in its experience there are severe barriers to education and employment for Roma families in Glasgow. A saving of £186,000 from closing the BSU would represent very poor value in relation to the significant benefits gained from specialist language provision to youngsters in Glasgow's education system, youngsters who often have the lowest educational and employment prospects.

The law centre has identified five key flaws in the current proposed closure process:

(1) No educational benefits evidenced
(2) Financial savings alone seem to be driving force
(3) Flawed consultation process
(4) Failure to meet with needs of children with little or no English
(5) Failure to meet needs of Roma children

With respect to the need to undertake a proper consultation at a meeting on June 9th, 2011, GCC's Director of Education, Maureen McKenna said “this is not a statutory consultation so it is not a public consultation.  It is good practice for service reform”.  However, GhLC believes that GCC has failed to have 'due regard' to its statutory duties under the Equalities Act 2010. 

GhLC Associate Solicitor Lorraine Barrie said: "Glasgow City Council’s public sector duty under the Equality Act 2010 states that an Equality Impact Assessment document should be produced, containing sufficient information to show it has paid ‘due regard’ to equality duties in its decision making. In that regard, we have referred the Council to the recent case of R (W) v. Birmingham City Council [2011] EWHC 1147 where the High Court found that ‘where a decision may affect large numbers of vulnerable people … the due regard necessary is very high’ (at para 151). We believe that is the case here. Further, the court held that ‘consideration of the duty must be an integral part of the formulation of a proposed policy …’.

The Equality and Human Rights Commission’s guide for decision makers states “whether it is proportionate for an authority to conduct an assessment of a financial decision depends on its relevance to the authority’s particular function and its likely impact”. We would argue that as the proposal is likely to have a significantly adverse impact on the learning of all of the pupils who attend the BSU and future pupils, we believe the ‘due regard’ duty is very high, and accordingly GCC are required to carry out an equality impact assessment.

The only mention in the document of the Equality Act 2010 is as follows: “The proposed Service reconfiguration supports the Council’s responsibilities under the Education (Additional Support for Learning) Scotland Act 2004 (Amended 2009) and the Equality Act 2010”. This bald statement in our view, completely fails to demonstrate whether GCC have given “due regard” to their legal duties to equalities; particularly where the due regard duty is ‘very high’

We would hope GCC will produce an Equality Impact Assessment, and make its consultation public, otherwise it may render itself vulnerable to legal challenge under the 2010 Act".

Govanhill Law Centre's full consultation response is here (opens as PDF).

GLC challenge proposed care package cull for severely disabled Glaswegians

GLC has written to Glasgow City Council's (GCC) Director of Social Care challenging the legality of plans to cut funding by up to 40% for care packages for adults with profound learning disabilities, often requiring 24/7 'one to one' care services in the City. 

The proposals follow GCC's adoption of a 'Self Directed Support' (SDS) funding system whereby clients can take charge of their own funding to ensure a more personalised, choice-based service.  However, Govan Law Centre is concerned that the new SDS system is being used to mask an irrational funding cull for some of the most vulnerable adults and children in Glasgow.

The new system is being introduced in phases; the current first phase affecting 1,800 adults with learning disabilities in the City, with future groups including children with learning disabilities and those with mental health disabilities.

GLC's Principal Solicitor, Mike Dailly said: "Govan Law Centre has identified a number of apparent major legal flaws in the new SDS system and its imposition to vulnerable persons via a 'review' of their care needs. We believe the Council needs to urgently rethink its entire process here, and in the interim continue existing funding packages. Otherwise, we believe the Council will be vulnerable to challenges by way of judicial review."

"There is also a fundamental human rights issue at stake with this care package cull: a 40% cut to care services to severely disabled persons who may be unable to communicate or undertake basic tasks, translates into placing human beings at high risk of self-harm, pain, suffering, and ultimately death, due to the fact, for example, no-one will be watching them during the night if they start choking or self-harming. Why would any Scottish public body want to do this?".

Christie Commission Report: GLC says hundreds of millions of pounds could be saved by earlier, co-ordinated, intervention in homeless prevention

Govan Law Centre (GLC) has welcomed the Christie Commission’s emphasis on the need to prioritise preventative spending to tackle the root causes of social problems, and believes that if its innovative earlier prevention of homelessness systems were rolled out across Scotland, hundreds of millions of pounds of public money could be saved each year.

GLC’s prevention of homelessness senior coordinator, Alistair Sharp said: “At the moment our innovative earlier prevention of homelessness systems have a 84% success rate, resulting in a potential saving of £48m per annum if rolled out across the City of Glasgow – or potentially several hundreds of millions of pounds per annum if replicated across Scotland”.*

“We are further developing and progressing prevention and partnership through a new innovative process of early intervention with our partners. This will allow us to provide services at a much earlier stage to protect people in their tenancy’s and owner occupancy by providing legal advice and representation, money and benefits service and access to other targeted support from the voluntary sector and social work services teams.”

GLC's Principal Solicitor, Mike Dailly said: "Govan Law Centre would like to see an amendment to the Homelessness etc., (Scotland) Act 2003 to require all local authorities in Scotland to provide a co-ordinated earlier intervention prevention of homelessness system. We have seen the impact and success that such an approach can have in the Southside of Glasgow, and there is no reason that such an approach could not be delivered across Scotland".

The Christie Commission reports that as much as 40% of all spending on public services is spent on social problems which could have been prevented in the first place and by ‘prioritising a preventative approach’ and developing ‘a radical, new collaborative culture’ with the public and voluntary and private sectors working in partnership could cut demand and ‘big bills’ in health, social care and justice.

Govan Law Centre’s Prevention of Homelessness Partnership is made up of Govan Law Centre, Money Matters Money Advice Centre and Glasgow South West Social Work Services and in 2010 won the Scottish Social Services Accolade for Partnership Working in Adult Social Care. The Prevention of Homelessness Partnership project has prevented over 2,000 people and their families from homelessness since it began in 2005. Successful in both creating a collaborative culture through its multi disciplinary/agency partnership approach and by making prevention paramount for homelessness prevention in Glasgow South West.

We have already proven the impact of cost reduction to the public purse as reported in an independent evaluation of the Prevention of Homelessness Partnership project (2009). By preventing over 2,000 people and their families from eviction, repossession and homelessness the cost savings to the public purse can be calculated in terms of: the estimated economic costs of eviction and of a typical homelessness case being £23,074, (it can be as high as £83,000 for the most complex case); the cost of each case to local authorities and the housing provider is £15,000. (SCSH briefing Tenancy Failure and How Much it Costs & Crisis: How Many How Much). This shows that massive cost savings are achievable.

* Our estimate is based on our previous 84% success rate in preventing homelessness in relation to Glasgow City Council section 11 notification data (providing the number of cases taken to court for eviction and repossession in Glasgow – in 2010/11 (12 month period) there were 2,485 section 11 notices in Glasgow alone); utilising an average figure for the cost to the taxpayer for providing a range of housing, social work support and health service costs per household in the sum of £23,074 (COSLA Prevention of Homelessness Guidance, 2009).

GLC welcomes FSA intervention to prevent 'double charging' to Scottish homeowners threatened with repossession

Govan Law Centre (GLC) has welcomed the intervention of the Financial Services Authority (FSA) to prevent lenders 'double charging' Scottish homeowners where court proceedings are re-raised following the Supreme Court ruling in RBS plc v. Wilson and others.

It is estimated that as many as 5,000 cases were requried to be dismissed for want of service of a pre-court 'calling-up notice', with up to 15,000 historic cases potentially affected. News of the FSA's intervention was revealed in The Herald over the weekend.

Govan Law Centre's Jennifer Laughland, who defends mortgage repossessions across Ayrshire as part of a local partnership 'AHAP' service, said: “We welcome the FSA’s intervention on this important issue, particularly as we are now seeing repossession actions, which had been dismissed after last year’s Supreme Court ruling, being brought back to court".

“The clients whom we see facing homelessness through mortgage arrears are generally struggling to pay their mortgage and make ends meet. The last thing they need in these tough financial times is to be billed twice by their bank’s lawyers, through no fault of their own. The FSA’s action here will protect some of the most vulnerable homeowners in Scotland.”