21 Jan 2019

Pro Bono – Will you do it?

If I have to be completely honest, I have never actively thought about getting involved in pro bono work. I think, for me at least, it has always been part of my internal ethical character – to help people who find themselves in unfortunate circumstances, mainly in part because of my personal circumstances. I had worked many years in social welfare, as well as doing voluntary work in the community, and assisting several government initiatives (in Trinidad and Tobago) to help those who were not capable of helping themselves.


Since March 2018, I have been volunteering as an adviser in the advice centre at my local community centre. I would like to think that I have made a difference in the lives of the clients who visit seeking assistance. I have had success stories; for example, the single mother living on benefits who bought a cooker which was defective – condemned within a few days of purchase – and the company refused to replace it or refund the money, for nearly one year. Law students will know that this is a breach of the Consumer Rights Act 2015. After I got involved, it was replaced within a couple of weeks. I remember when the client came to say thank you, she literally had tears in her eyes, as she could not afford to buy a new cooker.


I see many people who have been living in atrocious circumstances. Usually, it is the City Council which is most at fault but also private landlords. Many times, repairs are not done in a timely or adequate manner and can cause significant health problems for tenants. Mould and damp are much too common and cause respiratory problems. It is not an exaggeration to say that many of these problems put the health of little children at risk – considerably more so than adults. The problem is so bad that I now have a standard paragraph in my complaint letters:


“The RSPCA would certainly disapprove of an animal living under these conditions! In fact, I dare say that the owner of any animal living in such accommodation would soon be prosecuted in court.”


The fact that Councils try to balance the use of resources against the health and well-being of tenants is certainly not a problem as far as the rights of tenants are concerned – Hotak& Ors v London Borough of Southwark & Anor (Rev 1) [2015] UKSC 30 made that very clear:


“an authority’s duty under Part VII of the 1996 (Housing) Act is not to be influenced or affected by the resources available to the authority. Once they have determined the status of an applicant under Part VII of the 1996 Act, their duty to that applicant is as defined in the Act: the fact that the authority may be very short of money and/or available accommodation cannot in any way affect whether an applicant is in priority need. In so far as a balancing exercise between housing the homeless and conserving local authority resources is appropriate, it has been carried out by Parliament when enacting Part VII.” [Emphasis added].


“Aha!”, you may say, “That only refers to homeless people.”


Well, under the Homelessness Code of Conduct Guidance, “a person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation.” [Emphasis added].


On 2 November 2018 I represented a client in Small Claims Court, pursuant to Section 3(1) of the Lay Representatives (Rights of Audience) Order 1999, and as set out in CPR 27 and PD 27, paras. 3.1 and 3.2.


The client had a leaking roof since 2010. The City Council owned the property then and did not do any effective repairs. In 2016, the client bought the apartment he was living in. It was one apartment, in a building that contained 4 such apartments. The result was that he owned the apartment under a lease for the building, which was still owned by the Council and who was still responsible for repairs to the outside of the apartment where the client lived, including the roof of course.


The leak in the roof continued up to February 2018 this year when the client filed his claim in court, then the Council hastily put down a tar covering on the roof to stop the leak. It wasn’t enough, as by then 8 years of leaks had damaged his apartment to some severity. He was so stressed he had to be medicated and treated for depression and anxiety.


At court, the Council was represented by a barrister, a solicitor and a junior lawyer. Plus, the Council’s witness who was the person responsible for the computer system that logs the repair calls and passes the jobs to the repair contractors. This witness brought in a partial list of the call logs for the past 8 years showing that when the tenant (my client) called to get repairs done, he was not at home when the workers turned up. 13 pages of call logs.


But here is the Council’s mistake. The barrister argued first that the tenant, my client, had a responsibility to call the Council to repair the roof. Well, the very fact that there were 13 pages of call logs was like shooting themselves in the head, right? I couldn’t believe a qualified barrister made such an elementary error.


Second, he argued that the tenant/my client should be home to allow access to the roof. I merely pointed out to the judge that the Council’s own witness said in his witness statement that the roof was accessed at least twice using an elevated electrical platform from outside and that was at times the tenant was not at home. So that was another headshot, right?


The result was that the judge agreed that my client had no duty to inform the Council more than he already did, that he was not needed to access the roof and that the statutory law, as well as his lease, made the Council responsible for the repairs. He was awarded £6000, plus costs.


There are some lessons to learn from the anecdotes I related:


a)   No matter how experienced you are in law, you can make elementary mistakes. In fact, the more experienced you are, the more you have to watch that you do not overlook very basic principles and ideas.


b)   Do not be intimidated by the ‘big names’ opposing you. Prepare your argument well, and you have nothing to fear, or be ashamed of.


c)   The law is not contained only in statute or statutory instruments. There may be guidance orders, case law etc and a well-prepared argument involves spending time on research, even if you do not need it in court or in your arguments. Better be prepared.


d)   Don’t be afraid to assert yourself and your client’s (really your) argument. I can be assertive to the point of being aggressive, as you can see. Experience has taught me that being too polite gets you ignored.


e)   The law is both a shield, to protect your clients, and a sword, to assert their rights. Used appropriately, the battle is half-won.


f)    Mind map everything. I actually presented my case to the judge as a printed mind map.


g)   Clearly state that you are making a “formal complaint” when writing your complaint letter/email. Without the use of the words ‘formal complaint’, a complaint is treated as an informal complaint and there is no requirement to act upon it (advice from the Housing Ombudsman).


h)   Always put complaints in writing. Never by phone calls – but if you do make calls, log the date, time and name of the person taking the complaint.


i)    Keep copies of all your documents. You may need them as evidence if you need to go to court.


j)     Resolving problems take time. Don’t get (too) impatient but follow the policies and complaint procedures and allow the time limits for responses and resolution.


k)   Do not hesitate to escalate your complaints. Remember, the law does not help those who ‘slumber’ on their rights.


There may be other lessons that more experienced lawyers can share. This is a few that I have learnt in my volunteering experience so far.


I hope more people do get into pro bono work.

29 Dec 2018

Thought for the Day

“The law is both a shield, to protect your clients, and a sword, to assert their rights.”

© 2018 OU Law Student

15 Sep 2018

Human Rights – Part 5:

Reminder: What are human rights?

If we go back to Part 2, Shestack (1986) described rights as:

“an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

  • Entitlements

  • Immunities

  • Privileges

  • Powers”

Human rights constrain governments to act in a certain way. The government’s behaviour is moderated to the extent that the government ought not (pay attention to these words) breach your rights without lawful authority. The government is also, to a certain extent, a guardian of rights, in that it has ‘agents’ in place to assist the general public to protect and assert their rights, for example, the police, and the judiciary. Keep in mind though, that the responsibility lies with those whose rights are breached to take action, to assert their rights.

The law, like equity, “aids the vigilant, not those who slumber on their rights”.

Human rights are encapsulated in the Universal Declaration of Human Rights (UDHR) but students should keep in mind that rights vary from place to place, culture to culture. One argument against the UDHR is that it encapsulates the ‘Western’ idea of rights and the issue of rights is further complicated in that every individual has an opinion on this topic.

“These views are influenced by upbringing, culture, religion, friends and family, among other factors. The most difficult aspect of freedom has always been that the concept requires us to recognise that other people have ideas that may not align with our own. This tension is demonstrated by movements underway to try and reframe certain civil rights, such as the right to private life as exercised by members of the lesbian, gay, bisexual and transsexual community, as infringements of religious freedom (Michaelson, 2013). The landscape of rights is continually shifting.”

© The Open University, 2014

Given the above then, now is a good time to remind readers/students that this LLB is about law in England and Wales, and therefore considers all topics as the law is currently applied here.


14 Sep 2018

Thought for the day

Justice and truth are the common ties of society; and therefore even outlaws and robbers, who break with all the world besides, must keep faith and rules of equity amongst themselves; or else they cannot hold together.

(Locke 1690, I.ii.2.)

3 Aug 2018

A little advice for newbies

A whole bunch of newbies will be starting in October. As a 'seasoned' OU law student (and Learner Experience Rep), I would like to share a little advice on what studying law entails… This is from my own experience of course! I will not speak for anyone else.

First, the law is not that difficult to understand. It teaches a logical and strategic thinking process even while you are learning the content. At first, probably the first four months of W101, you will be confused and find the concepts a bit difficult to understand. This is only natural. However, by the time March or April comes around in 2019, you will find that everything is falling together in place. In the beginning, what I found was that the concepts appeared to be isolated from each other. But then, when you begin to see how it all fits in together, it is far easier to understand.

Try not to put things off at the last minute, whether it is reading that unit or doing that TMA. Falling behind makes it difficult to catch up but not impossible. Your tutor is usually your first port of call. If you have difficulties contacting your tutor then, by all means, contact student support (SST). You will find the link on your student homepage. You will also find that the OU is very flexible and very willing to help you catch up if you fall behind. The most important thing is not to panic, don't feel that the task ahead is impossible, and to take it one small step at a time.

When you are starting off, try not to pay too much attention to what your peers are saying – you will find that there are often misconceptions and bad ideas promulgated on different groups! Remember that they are also new to law, and may be having the same struggles in understanding the concepts just as you do. This is why I am stressing, and I am sure the University will support me in this, please try to contact your tutor first! Your tutor is paid to help you, so do not feel guilty about contacting them.

During the course of your law studies, you will begin to learn many new things, some of which are:

learning how to learn

learning how to write academically

learning how to do proper referencing

learning how to read critically

learning how to think critically

learning how to analyse complex ideas

learning how to summarise these complex ideas

The above list is not exhaustive of course.

If this all sounds complex, don't panic. You will be gradually eased into these, and in most cases, you will never know that you are learning.  smile

Important:

1) Pay attention to your grammar and spelling. Law requires words, to explain and to convey ideas. Avoid complexity, by thinking that you are explaining these concepts to your grandparents or someone who is less educated than you – as will be your future clients. You can set Microsoft Word to check your grammar as well as spelling, and it will give you a "readability score" on how easy your writing is to understand.

2) Do not take tutor feedback personally. Tutor feedback is usually given in positive terms, but because it is a critique of your writing skills and thinking processes, it is difficult not to feel offended or disheartened. Keep in mind that your tutor is there to help you, not to discourage you and that if you follow their feedback, you will certainly improve – there's no question about that. By following my tutor's advice my grades jumped from the early 70s to the early 90s.

3) Begin to bookmark important legal websites. I will add some of my favourites at the end of this blog post to start you off.

4) Read as many judgements as you can. I love judgements coming out of the Supreme Court because they are written in very simple English, explains complex ideas very simply, and are very good examples of how to write for law.

5) Many law firms have part of their websites dedicated to explaining concepts of law. These are written by experienced solicitors and barristers and will offer you an opportunity to understand the concepts in a simpler format than many of the textbooks. Again, this has been my personal experience. I do not use these websites for reference, merely to understand and break down complex ideas.

I have another post in this forum on software, telling you how to get free software to assist you in your studies and give some examples of useful software that I have used over the years – I have 20+ years ICT experience. Still, you are free to choose whatever your preference is. I only recommend my personal favourites and I am not a replacement for the IT helpdesk at the OU. smile

Tips:

I have created a folder in my computer with many subfolders inside. The subfolders are named for each course example, W101, W102, et cetera. Inside of these subfolders, I have further subfolders for the TMAs, judgements, statutes (Acts of Parliament) et cetera. Think of your computer like a filing cabinet, and begin by arranging things neatly. You will find that this is beneficial later on for finding stuff – especially after a few years of study when you need to go back refer to previous studies.

Do try to make time to attend your local courts to see how the judicial process works. Most local courts will have volunteer opportunities as well. I appreciate that many of you will be fully employed and also busy with studies, family life et cetera, but it is well worth the sacrifice and time spent. After all, you are studying law to get into this world – hopefully.

Some of my favourite websites:

http://www.bailii.org/ – a repository for cases. You will find almost any case here, and it is an acceptable official source.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules – the Civil Procedure Rules 1998

http://e-lawresources.co.uk/Home.php – website explaining very simply and briefly important concepts with case examples

https://www.cps.gov.uk/ – homepage of the Crown Prosecution Services

https://www.jcpc.uk/ – homepage of the Judicial Committee of the Privy Council (JCPC), the final court of many Commonwealth countries.

https://www.supremecourt.uk/ – the UK Supreme Court

https://publications.parliament.uk/ – webpage dedicated to publications arising out of the UK Parliament at Westminster.

Blogs I like:

http://oulawstudent.blogspot.com/ – my personal blog where I document my own study journey

http://www.open.ac.uk/blogs/openjustice/ – the Open University's pro bono blog

https://howtogetafirst.wordpress.com/ – how to get a first-class honours degree in law by someone who did it smile

https://publiclawforeveryone.com/ – Prof Mark Elliott's blog – beautifully and simply written

http://www.thingslegal.co.uk/forum/index.php – a forum that I set up for discussing ideas about law, with a lot of resources uploaded. Members include already qualified lawyers, so the advice given is sound and based upon actual practice.

I hope that you find these tips useful. Good luck with your studies.