Pressure points in the justice system – Part 1
In the second of four articles on access to justice in an age of austerity, Ellie Palmer and Laura Wrixon, of the Law School at the University of Essex, look at family justice and housing. The article reviews the outcome of the third in a series of Economic and Social Research Council (ESRC) seminars in which academics and practitioners presented their experiences to give an assessment of the then forthcoming legal aid cuts, their likely devastating impact and possible solutions for the future.
The third seminar focused on family justice and housing – two areas of concern placed under further strain by the passing of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill.1The seminar was held on 10 February 2012, when the LASPO Bill had reached the Committee stage in the House of Lords.
The seminar also focused on growing concerns about the accessibility of justice for a heterogeneous constituency of young people between 16 and 25 – often without adults on whom to depend – many of whose legal rights in the areas of employment, education, housing and welfare have been lost or rendered more complicated by the Health and Social Care Act 2012 and other austerity measures.
Funding justice: families, children and young people
Introducing the first session, entitled, ‘Funding justice: families, children and young people’, Mavis Maclean CBE, long-term adviser on family justice at the Ministry of Justice (MoJ), emphasised the research expertise of academics and practitioners who have worked together over the past two decades and more, to achieve a solid foundation in family policy and practice; underpinned by the Children Act (CA) 1989.2Mavis Maclean is joint director of the Oxford Centre for Family Law and Policy and academic adviser to the Lord Chancellor’s Office.
She accepted that there are difficult emotive issues in the area of family divorce. However, she also noted that, despite the adverse publicity given to problems that have arisen in the current system,3For example, Fathers for Justice had vigorously campaigned for new legislation to ensure access to their absent children. However, Mavis Maclean could point to similarly drafted Australian legislation that had often resulted in frustrated expectations and the prolonging of disputes. She suggested that reliance on the CA 1989, with its emphasis on the primacy of the needs of the child, could provide a superior framework for resolving tensions in individual cases.
her positive evaluation of the system’s overall fitness for purpose is shared by international practitioners.
However, it has become clear that in family justice, as in other areas, the government’s agenda continues to be driven by an overriding determination to reduce public expenditure on legal aid and on courts – an aim that it has sought to achieve by reconfiguring family breakdown as a private law matter of choice (beyond the aegis of the state), and by promulgating the view that mediation provides a better and cheaper way of resolving disputes across the board – with alternative dispute resolution supplanting rather than supplementing family courts.
Mavis Maclean and Stephen Cobb QC argued for a hybrid process of legally assisted mediation in family breakdown, expressing concerns that under the LASPO Bill children would only remain in scope for legal aid in domestic violence cases, unless able to rely on exceptional funding.4Stephen Cobb QC is a High Court justice and former chairman of the Family Law Bar Association.
Mavis Maclean argued that many questions arising in the early stages of separation – for example, ‘who should stay in the house or pay the mortgage?’ – often require legal advice and need to be addressed quickly. If dealt with early, unrealistic expectations and protracted disputes could be avoided. Stephen Cobb also pointed to research showing that mediation is more likely to succeed if the participants are supported by earlier legal advice, arguing that mediators would themselves refute the government’s claim for its suitability in all types of cases.5He pointed to the government’s own research, which showed that mediation worked best when supported by legal advice: Kim Williams, Research summary 2/11: litigants in person: a literature review, MoJ, 2011, available at: www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/litigants-in-person-literature-review.pdf.
Stephen Cobb’s expert presentation not only provided a detailed forensic examination of the potentially negative effects of the LASPO Bill for family justice but for courts in general. His paper also provided a close examination of the constitutional implications of a number of the bill’s provisions; raising wider questions about the government’s accountability for funding the justice system, through the fair and rational prioritisation of resources; and its duty to take into account the impact of the LASPO Bill on the poor and vulnerable in society. The following presentation, a timely research study by Dr Graham Cookson, both highlighted the inadequacy of the government’s evaluation of the LASPO Bill’s impact on the accessibility of family justice, and the cavalier approach to its constitutional mandate to fund the justice system in a fair and rational manner.
The government had made an a priori decision to cut the civil legal aid budget by £450 million, an objective largely to be achieved by removing certain cases from scope – 80 per cent of which are represented by family and social welfare disputes. Concerned about the government’s failure to undertake an impact assessment and its apparent indifference to the possible unintended consequences of the proposed cuts, the Justice Select Committee invited Dr Cookson, an economist, to carry out the assessment.
Dr Cookson presented the key findings of his research: that the proposals would have substantial knock-on costs – nearly £140 million (half of the proposed savings) – and that the poor and vulnerable would suffer most as a result of the cuts. His research findings indicated that the proposals were not cost-effective – other government departments would end up picking up the bill (for example, the NHS will have to cover the costs for clinical negligence cases). In relation to family law, Dr Cookson said that the knock-on costs from the legal aid cuts would be £75 million, costs the government had not accounted for, so that it would only be saving about 55 per cent of what was proposed on the family justice system.
Complexity, housing and access to justice
The second session, ‘Complexity, housing and access to justice’, began with a presentation by Professor Caroline Hunter.6Professor Caroline Hunter is a barrister and professor at York Law School.
Taking a step back from the LASPO Bill, she agreed with longstanding academic Martin Partington CBE QC’s opening comment that a precondition of proportionate dispute resolution must be simplification of the law: over many decades housing dispute resolution has become increasingly difficult, due to the complexities of individual problems and the law. Professor Hunter recognised two different approaches to assisting with housing problems: a property-focused approach or a person-focused approach. Each is likely to require different levels of advice, assistance and intervention by multiple agencies depending on the complexity of the problem.
Looking back to the exemplary Law Commission report, Housing: proportionate dispute resolution
(2008), Professor Hunter reflected on its triage plus proposal for dealing efficiently with multiple housing problems; recommending early initial contact to diagnose and signpost the best source of help.7Available at: www.official-documents.gov.uk/document/cm73/7377/7377.pdf.
However, this kind of early support is seldom available in the current economic climate where local resources are scarce. If such a service is available at all, it is offered as an in-house service by a small number of local authorities which recognise the cost efficiencies of early intervention. Furthermore, she recognised that although county court desk schemes have become a common place of last resort, they usually offer no more than a crisis point of contact, usually on the day of an eviction.8Although unlikely to be available to disadvantaged clients in the present economic climate, Caroline Hunter briefly outlined the availability of non-formal methods of property dispute resolution and alternative funding routes for formal housing dispute resolution. A picture of a very different future involving the private financing of legal disputes was set out by Professor Frank Stephen, of the School of Law at Manchester University, in the final third session of the day.
In the presentation that followed, Andrew Brookes focused on the LASPO Bill and other housing access issues, including the very real problem of physical access.9Andrew Brookes is Head of Housing and Property Dispute Resolution at Anthony Gold Solicitors. He sits as a deputy district judge. He formerly spent six years as chairman of the Housing Law Practitioners Association.
County court public counters (which have often acted as an informal sort of triage) are being cut (as in other public services) without any analysis of the impact of closure on service users. Similarly, the proposal to replace the current payments system by a central online or electronic service would in effect exclude or limit access to many clients. He also considered the possible impact in housing disputes of proposed reforms of civil costs through the LASPO Bill, noting in particular the damaging effect of changes to conditional fee agreements and the negative impact of cuts to legal aid on the supplier base. Lastly, like Caroline Hunter, he recognised that housing cases are very likely to involve problem clustering, so that removing debt and welfare benefit issues from the scope of legal aid will increase the burden on the housing sector.
Nevertheless, despite their concerns, both speakers concluded by focusing on some positive measures that might alleviate the current crisis. Andrew Brookes noted that, in face of a wave of expected repossessions, duty adviser schemes (funded by the Legal Services Commission) were providing support at courts for unrepresented clients (allowing dialogue between borrowers and lenders) although, as yet, there had been no research to assess the benefits of such schemes. Caroline Hunter concluded by suggesting a more radical long-term solution found in other jurisdictions: the development of problem-solving courts whose role would be to resolve housing disputes by reference to a cluster of other legal problems surrounding the claim.
The closing discussion in the session brought up further positive suggestions, with many participants proposing that a more active judicial system would be greatly beneficial in housing cases. Increased judicial activism would have the potential to facilitate good relations between tenants and landlords so that the lack of representation would not have such a great impact on access to justice.
•Cuts to the family law system are unlikely to make the savings suggested and those finding themselves unrepresented will be at a huge disadvantage (most importantly in child access cases where representation could decide where children are placed).
•Solutions need to centre on hybrid systems of legally assisted mediation to ensure better equality and fairer outcomes.
•Early intervention in housing issues is key; however, this is rare due to a lack of resources.
•Housing law is complex, which makes dispute resolution more difficult. In order to improve resolution the law needs to be simplified as well as ensuring appropriate advice is given at the appropriate time.
■ For further information about the ESRC seminar series 2011–2013 ‘Access to justice in an age of austerity: time for proportionate responses’, visit: www.essex.ac.uk/atj