Impact of changes to civil legal aid under the LASPO Act
This column documents evidence of the effect of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Readers are invited to send in relevant information for publication. Submissions of up to 500 words will be published in full and, on request, anonymised. E-mail: email@example.com using the message title ‘Legal aid cuts impact statement’.
Carol Storer, director of the Legal Aid Practitioners Group (LAPG), writes:
On 8 July the Justice Committee, chaired by Sir Alan Beith, heard evidence from six organisations about the post-Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 world.
Judith March, director of the Personal Support Unit (PSU), Julie Bishop, director of the Law Centres Network and Gillian Guy, chief executive of Citizens Advice, took part in the first session. Nicholas Lavender QC, chairperson of the Bar Council, Andrew Caplen, president of the Law Society (vice-president when he gave evidence) and Jenny Beck, co-chairperson of LAPG, gave evidence afterwards.
First session: legal aid safety net not working
What was striking was the similarity in the evidence given. Asked whether the objective of focusing legal aid on the most serious cases and most vulnerable litigants had been achieved, Julie Bishop highlighted that the new system allows problems to escalate because practitioners cannot tackle issues at the start of the case, nor necessarily deal with the whole problem.
Gillian Guy pointed out that it is hard to answer that question because it is difficult to tell what is being missed, as opposed to what is being picked up, in the new system (see page 8 of this issue). She stressed the difficulty for clients of satisfying evidence requirements, both means tested and for domestic violence. As for providers: ‘Since 2007/08, half of the legal aid providers have gone out of the market and in the last year another quarter have gone.’ She said that 92 per cent of clients they assess as being eligible have difficulty in finding someone to represent them. Before the reforms, Citizens Advice Bureaux helped 136,000 people in a year with legal assistance but this has dropped to 16,000 (see page 9 of this issue).
Judith March, whose PSU service provides trained volunteers in courts to help people without legal representation in civil proceedings, supported what had been said. When PSU submitted its response to the Justice Committee in April, it was seeing 2,000 people per month: that had just gone up to 3,000 per month. There was a discussion about the way all groups try to resolve matters without litigation. By the time PSU sees clients, there is ‘quite a lot of firefighting’.
When asked what the organisations would want the government to do (short of overturning the LASPO Act) there were a lot of suggestions, including:
•allowing children and young people to access legal aid;
•funding housing with underlying benefit or employment issues;
•funding debt and mental health cases;
•commissioning independent research into why, for example, social security tribunal cases have gone down by 70 per cent;
•commissioning independent research into exceptional case funding where currently only 1.2 per cent of applications are successful;
•allowing free medical evidence where required;
•greater clarity about the technicality of eligibility; and
•implementing some of the Low Commission recommendations on advice and triage.
The session also covered the future for the sector (‘a downward spiral’ remarked Gillian Guy); problems because the public and advisers think legal aid is no longer available; the need to improve the GOV.UK website; the difficulty of funding tribunal fees and medical fees; and the difficulty of accessing the telephone gateway. Regarding the latter, Julie Bishop said: ‘Of 3,245 discrimination cases that went to the gateway, only five were referred for face-to-face advice’ and Gillian Guy said: ‘To us, the gateway appears to be a bit of a misnomer – gateway to what?’
Second session: a system under strain
In the second session, the opening question was again whether the LASPO Act does focus on the most vulnerable clients and important cases. Jenny Beck referred to scope cuts and, in particular, the impact of private law children cases being removed from scope where children are no longer seeing one of their parents: ‘many children will not now have access to their parents. I am not sure there is anything more vulnerable or important than that’.
Jenny Beck also said that the gateway for domestic violence is too restrictive. The entitlement rules are far from transparent and the rigorous means testing excludes people from the system ‘with perpetual further requests for information being made at the coal face’. She referred to a client who was asked to explain about £1 that had been paid into her bank account (the mother had paid it in to stop the account becoming overdrawn).
Andrew Caplen endorsed what had been said so far: ‘I do not think it was ever perceived that they [legal help applications] would drop from 940,000-odd to about 130,000 in the course of four or five years.’
Nicholas Lavender QC gave the figures for the reduction in family and social welfare cases and said that the drop was greater than that predicted by the government. Regarding exceptional funding, he referred to the statement of Mr Justice Collins in Gudanaviciene and others v Director of Legal Aid Casework and Lord Chancellor  EWHC 1840 (Admin), 13 June 2014; July/August 2014 Legal Action 4: ‘the guidance is defective in that it sets too high a threshold’ (para 51).
Nicholas Lavender QC turned to the strain on the system as a whole, stating that unrepresented divorces have doubled and extra court time and resources are being taken up, for example: Have papers been served? Have copies been provided? Have the issues been identified correctly?
In its written evidence to the committee, the Ministry of Justice said: ‘Access to justice should not simply be equated to access to government-funded legal advice.’ (page 2). There were robust responses to that assertion, referring to privately paying clients, pro bono services, and clients representing themselves, but it was argued that ultimately some people need legal aid. The Law Society will be taking this forward during Andrew Caplen’s presidency.
Sir Alan Beith suggested that there is something wrong with a court system that cannot address issues like contact without the involvement of lawyers. Jenny Beck answered by referring to the importance of front-loaded advice in our adversarial system. Litigants in person are going down ‘a much more expensive path in terms of time, emotional cost and emotional fallout’.
The session covered exceptional funding, advertising so the public understands what legal aid is still available, as well as the challenges of representing a client when the other party is a litigant in person. There then followed a lengthy discussion on McKenzie Friends. Nicholas Lavender QC stressed that a McKenzie Friend has no right to stand up and address the court, but judges will allow this, where appropriate. He drew attention to McKenzie Friends ‘with an agenda’, who may be more interested in that type of case than in doing what is right for their ‘client’, and professional McKenzie Friends, who make a living out of it but are not regulated or insured.
Jenny Beck managed to fit in another very salient point at the end. As Robert Buckland MP talked about the cost of civil legal aid, she referred to a case where a mother and children had fled from their house amid allegations of domestic abuse against the father who remained there. The father had no legal advice and the case took five days. ‘Can I also point out that the cost of representing the individual in the case that lasted five days, which I mentioned earlier, is offset against the cost of representing probably 500 people with a small amount of front-loaded advice? One clearly outweighs the other.’
Justice Committee LASPO Act impact inquiry
Part 1 of the LASPO Act sought to reduce the civil legal aid budget by removing specific areas of the law from scope, either wholly or in part. The provisions came into force on 1 April 2013.
The Justice Committee undertook a short inquiry into the government’s proposals to reform legal aid when they were at the consultation stage, in the winter of 2010–11. The current inquiry focuses on the impact of the LASPO Act changes, examining the identifiable outcomes of the legislation against the committee’s previous conclusions and recommendations, as well as considering any new problems that have arisen.
Before moving on to oral evidence, the committee asked for written evidence from interested organisations and individuals and a summary of selected responses is found in ‘Review of evidence to LASPO Act impact inquiry’, June 2014 Legal Action 8.