The last item on the agenda is consideration of the financial memorandum to the Tenements (Scotland) Bill. The bill was introduced on 30 January 2004 by Margaret Curran, Minister for Communities. To assist us with our scrutiny, we have with us Philip Shearer, a solicitor from the Scottish Legal Aid Board's technical unit, and John Blackwood, director of the Scottish Association of Landlords. Members have before them copies of the submissions from SLAB and the Scottish Court Service. They also have a copy of the briefing paper from the Scottish Parliament information centre.
No—I am happy for the committee to proceed straight to questions.
Same here, convener.
On legal aid costs, Mr Shearer, you say in your submission: "That figure appears reasonable." I assume that what you are saying is that the figure appears reasonable if only 50 new cases are brought a year. Based on my constituency experience, I would have thought that there would be more than 50 cases a year. The very modest figure of £80,000 a year is given for the costs of legal aid, judicial salaries and the Scottish Court Service, but if there were more than 50 new cases a year, the costs could be far in excess of that. In those circumstances, do you think that those figures are reasonable? I hope that we will be able to take evidence at a later date from Scottish Executive witnesses, who might be better able to answer our questions, but I wonder what you think of that estimate of 50 new cases a year. I can certainly think of quite a lot of people who have attended my surgeries who would take advantage of the legislation to deal with their own circumstances, which would give Dundee West a fair proportion of those 50 cases. What is your view?
I am not in a position to challenge the estimate of 50 new cases a year. You will see from the financial memorandum that the Executive estimates that only 10 per cent of those cases might be eligible for legal aid in any event.
We are speaking to the Executive next week, when we shall have the opportunity to deal with that question.
I can really only go by the figures that have been provided. It may well be that there is a greater constituency of tenement disputes. I hope that, in my own tenement, we will not find ourselves in court as a result of any common repairs. In the wider sense, however, I can offer the committee no picture as to whether there is perhaps a wider pool of applicants who might exceed that potential case load figure.
Is the Scottish Executive's estimate that only 10 per cent of cases will be eligible for legal aid based on information from SLAB? Do you know what it is based on?
I do not know anything about the methodology by which that figure was reached. I am certainly not aware that we were asked to provide potential figures.
I suspect that my question is primarily one for the Executive, but today's witnesses can address it if they wish. As I understand it, the bill will not apply to tenements where there are existing real burdens that specify schemes of repairs and where the majority of residents can require a scheme of common repairs to be carried out. What puzzles me slightly about the bill—I say this as a former practising solicitor—is that I have come across very few tenements that lack a fairly comprehensive scheme. Most title deeds set out such schemes in great, laborious, tedious and mind-numbing detail.
I do not really have any feel for that. My gut instinct would tend to be that the potential for litigation would most probably arise in Glasgow and Edinburgh, simply because of the number of traditional Victorian tenemented properties. Looking at my own tenement, I feel that I have a very exacting system of burdens, and I think that my personal experience would be replicated by most people living in central Edinburgh and central Glasgow, but I really could not comment on the situation in other parts of the country.
Mr Blackwood, can you give us any details of how much you were taken into the Executive's confidence when it was working out some of the figures? Do you feel that you were fully consulted and that you were able to give as much evidence as you wished to give?
We were certainly consulted on the policy behind the bill. I was a member of the housing improvement task force, which lobbied for the framework of the bill, so we very much support the bill. We have not had a great deal to do with the financial memorandum, but we have no reason to argue against the costings that have been given.
Do you agree with the Executive's figures? For example, the financial memorandum states that approximately 10 per cent of tenement flats are uninsured at present.
We have no figures to substantiate that claim or call it into question. We believe it to be an accurate reflection.
The financial memorandum gives the ballpark figure of £190 per annum for insuring properties that are worth £100,000. Do you have any other figures on that, or does that figure seem about right?
We feel that it is about right.
This question has probably only a tenuous connection with the financial issue, so it may be a policy issue. The bill proposes to introduce a right of access in the context of repairs and maintenance, but people with disabilities sometimes have issues with getting into their own property. Although the Disability Discrimination Act 1995 confers on disabled people rights of access to public buildings, I am aware of at least one case in which an individual has difficulty accessing the house that they live in because the neighbours will not allow a ramp or other appropriate access facility to be built. Could the bill potentially support that such cases or would that be outside the purview of the bill?
I think that that would be outside the remit of the bill, which provides access rights for repairs and maintenance rather than for improvements and alterations. That is my understanding.
There is an interesting issue about whether the bill should incorporate such measures or whether another bill would be appropriate.
Happily, I have not filled in a legal aid form for several years now, so I have forgotten the capital threshold limits. Would not most people who own a flat fall foul of the capital threshold limits and therefore be ineligible for legal aid? Will Mr Blackwood perhaps remind us of the broad rules governing entitlement to legal aid for actions in respect of liability in property matters?
I have not necessarily had experience of accessing legal aid myself. From the landlords' point of view, I cannot imagine that many landlords would even think that they would be entitled to legal aid. Strangely enough, I had a brief conversation earlier about possible entitlement with my colleague Philip Shearer, who would perhaps be better versed in the matter and therefore able to inform you.
Given the income eligibility levels for mortgages for properties that are currently on the market in Edinburgh and the west end of Glasgow, I suspect that, for starters, there are serious questions about whether most potential owner-occupiers would be within the income eligibility threshold for legal aid. Whether they are within the capital eligibility threshold really depends on their levels of savings, shares and so on. My gut feeling is that potential owner-occupiers of more recently purchased properties might not be financially eligible for legal aid, but each case will be assessed on its own merits. As we pointed out in our submission, that will interact with the common interest issues that will arise in potential litigation actions under the bill.
Perhaps Mr Blackwood or someone from the Legal Aid Board could send us a note on the entitlement to legal aid for, say, a group of home owners who, having taken a decision to carry out a scheme of common repairs, want to pursue an action to extract payment from a recalcitrant owner who refuses to contribute. That would probably be the common situation. In such cases, who would receive legal aid? Would the defender receive legal aid? If the defender was unsuccessful, would there be a recoupment? Those are standard issues that should be considered in principle. I have no clear idea of how the Executive calculated its figures, but it must have been by reference to an analysis of such a process. We have a short timescale, but if the Legal Aid Board is able to help us with those issues, it would be much appreciated.
Rather than give Philip Shearer an opportunity to respond to that question now, as there are probably three or four other technical issues that we want to clarify with both witnesses, I suggest that it might be useful to seek that clarification through an exchange of correspondence. Obviously, we need to bear in mind our timescale, as we will want answers in time for quizzing the Executive officials next Tuesday.
Meeting closed at 12:55.