Review of evidence to LASPO Act impact inquiry
This special feature reproduces a selection of the submissions to the Justice Committee in response to its call for written evidence into the impact of the changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. See also page 48 of this issue for a summary of Young Legal Aid Lawyers’ submission to the inquiry.
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Bail for Immigration Detainees (BID) is a charity which provides immigration detainees with free legal advice, information and representation to secure their release. From 1 August 2012 to 31 July 2013, BID assisted 3,367 detainees.
BID evidence: executive summary
•Since the April 2013 legal aid cuts were introduced, BID has carried out a small-scale monitoring exercise involving families separated by immigration detention.
•11 of the 47 parents in the research sample were removed or deported without their children. BID is gravely concerned that legal aid is no longer available to the vast majority of parents who wish to challenge their removal or deportation. (The evidence includes case studies on the impact on children of parents’ removal or deportation.)
•33 of the 47 parents in the sample were released from detention on bail or temporary admission. However, given the unavailability of legal aid, they faced considerable barriers to regularising their immigration status. (The evidence includes case studies on this issue, one of which concerns a mother, who has been subjected to domestic violence and speaks limited English, who has been refused exceptional case funding. The other case study involves an illiterate father who represented himself in his deportation appeal in the Upper Tribunal, which was dismissed.)
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The British Red Cross (BRC) provides a range of services to refugees and asylum-seekers in the UK and undertakes advocacy on behalf of this under-represented and vulnerable population.
BRC evidence: executive summary and key recommendations
This submission is concerned with refugee family reunion, an entitlement under both international and domestic law, and which has been restricted by changes in legal aid (see the Qualification Directive; the UN Convention on the Rights of the Child 1989; and the Convention Relating to the Status of Refugees 1951). Refugee family reunion is the process of reuniting separated family members across international borders. Refugees who have been granted status in the UK – whether refugee, indefinite leave to remain or humanitarian protection – are entitled to request refugee family reunion from the Home Office.
The LASPO Act has made refugee family reunion ineligible for legal aid funding. This was justified by former parliamentary under-secretary of state for justice, Mr Djanogly, because refugee family reunion was deemed ‘generally straightforward’ (Hansard HC Debates col 651, 31 October 2011). However, the BRC has accumulated evidence that contrasts sharply to this assumption.
The BRC is implementing four pilot projects wherein Red Cross caseworkers support solicitors undertaking refugee family reunion application casework. While providing essential services to clients at no cost, these projects afford opportunity to learn lessons about refugee family reunion and the mechanics of alternative models for service provision. We view this work as significant not only because of international and domestic obligations towards refugee family reunion, but also, as the UN High Commissioner for Refugees (UNHCR) helps to explain, because ‘reunification of the family unit plays an important role in ensuring the protection and well-being of individual members of a refugee family’ (see UNHCR House of Lords Briefing: Legal Aid, Sentencing and Punishment of Offenders Act, Second reading).
From this experience and BRC primary research, we hold that the application process towards refugee family reunion is highly complex at all stages. This complexity is exacerbated for individuals without money to hire suitably qualified and regulated legal representatives or who are unable to access charitable services. This is because they must independently navigate the application form and develop understanding of evidentiary and eligibility criteria. As a consequence, the LASPO Act has resulted in refugee family reunion becoming inaccessible and attainable only at financial risk to the individual.
The BRC views exceptional cases funding applications as presenting considerable challenges. These applications are time and resource intensive. Additionally, securing legal representatives’ services with no guarantee of funding can be prohibitive to constructing an application.
•The UK government should adopt a specific and simplified form for family reunion. In addition to this, a set of clear guidance notes should be easily accessible.
•The UK government, working with key partners, should explore the possibility of providing standard family reunion work via new service models.
•The UK government should provide funding for more complicated family reunion cases and appeals.
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The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to housing and public law. CLP incorporates the Travellers Advice Team, a ground-breaking, nationwide, 24-hour advice service for Gypsies and Travellers.
CLP evidence: conclusion
The reduction in scope of legal aid has led to situations where, for example, tenants are being evicted needlessly. We believe that the predictions that this will lead to increased costs in the end are already being proved true. At the same time, the purported safety net of exceptional funding has proved to be a smoke screen but, in the process, has led to barristers, solicitors and advisers wasting vast amounts of time in fruitless attempts to obtain exceptional funding. This, in turn, is now leading to a situation where legal aid providers are no longer willing to even attempt to obtain exceptional funding. We believe that the government may well be very happy with this result, and we also believe that exceptional funding was never really set up to be a proper safety net.
The Low Commission has called for the return of legal aid in housing law cases. We fully support that call. The commission has also called for a radical overhaul of the situation with regard to exceptional funding and we also fully support that call.
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Garden Court Chambers Housing Team is one of the largest specialist housing law teams in the country (over 20 barristers) and has a reputation for excellence in this area. We cover all aspects of housing law, including security of tenure, unlawful eviction, homelessness, allocation of social housing, disrepair and housing benefit. We are particularly committed to representing tenants, other occupiers and homeless people. Our work is not confined to the courtroom. We also spend time training, advising and writing on housing issues. We were the first chambers to serve as a Legal Services Commission (LSC) Specialist Support Service provider in housing law and, from 2004–2008; we offered specialist support and training under contract direct from the LSC.
Garden Court Chambers’ evidence: summary
In summary, our concerns are as follows:
•The lack of legal aid to assist with welfare benefits issues causes an unnecessary risk of homelessness.
•The restriction of legal aid in disrepair cases condemns a proportion of tenants to live in squalor while their landlord evades their legal obligations. In certain cases, this results in costs being shifted to local authorities in the form of increased applications for homelessness assistance. In addition, the rules on the funding of disrepair cases are difficult to operate in practice.
•We are aware of firms closing and practitioners leaving the profession as a result of continuing cuts to legal aid of which the LASPO Act marked the start. This is leading to a reduction in the quality of service provided to our clients.
•Post the LASPO Act, the burden on the court system caused by litigants in person appears to be increasing.
•We are concerned that the exceptional funding scheme is not operating effectively.
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Gingerbread is the national charity for single parent families. We provide expert information, advice and training opportunities to single parents and their families. We are committed to helping separated parents to reduce conflict and to co-operate in bringing up their children post-separation.
Gingerbread evidence: conclusion and recommendations
Evidence is beginning to emerge on the impact of legal aid reforms to private family law. The information that is available suggests that a significant minority of victims of domestic violence are not able to provide the prescribed forms of evidence required to obtain financial support for legal representation. The take-up of mediation is falling and mediators are dealing with a wider variety of cases with increased complexity. Where mediation fails or is inappropriate, the options for individuals seeking to resolve disputes are extremely limited. Paying privately for legal help and representation will not be a possibility for the majority of single parents on low incomes; others may attempt to represent themselves in court, while some may be forced to remain in circumstances that put themselves or their children at risk of harm.
It is vital that the government takes immediate steps to mitigate the negative impact of legal aid reforms to private family law. Gingerbread recommends the following:
•Urgently review the take-up of mediation services including the outcomes for those seeking help as well as the impact on providers.
•Extend the types of non-court forms of dispute resolution available under legal aid. This could include collaborative law and therapeutic interventions.
•Ensure that where mediation is unsuitable or has failed, separated parents have access to legal aid to seek help via the family court.
•Extend the types of evidence that can be used to access legal aid for victims of domestic violence. This should include evidence from:
■a domestic violence organisation;
■a counsellor; and
■police call outs in response to domestic violence incidents.
•Increase the training and information available to professionals who are required to provide evidence of domestic violence.
•Urgently review the operation of the exceptional case funding scheme with a view to improving access to funds.
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INQUEST is the only independent organisation in England and Wales that provides a specialist, comprehensive advice service on contentious deaths, their investigation and the inquest process to bereaved people, lawyers, other advice and support agencies, the media, parliamentarians and the wider public. INQUEST co-ordinates the INQUEST Lawyers Group (ILG), which is a national network of over 250 lawyers who are willing and able to provide preparation and legal representation for bereaved families.
INQUEST evidence: conclusion
It is important to situate our concerns in the wider context. Any justice system must ensure equal access to justice. When someone dies in the care of the state, this is fundamental. The inquest process is usually the only forum in which custodial deaths are subjected to any public scrutiny and plays an essential preventative role enabling important changes to public policy and practice.
Lawyers representing the government or state bodies, or indeed private companies conducting state roles (for example, Serco and G4S) are provided with funding which is not restricted and does not appear to be assessed or otherwise limited. INQUEST is unaware of any inquest into a death in custody where the state has not been legally represented. For example, during the 2012 inquest into the death in custody of Sean Rigg, five teams of lawyers represented the Metropolitan Police, South London and Maudsley NHS Trust and other public agencies, with one team for the Rigg family (see page 23 of this issue). This specialist legal representation for the family was vital in challenging the original findings of a flawed Independent Police Complaints Commission (IPCC) investigation and resulted in the inquest jury returning a damning narrative verdict. Evidence emerging during this eight-week inquest prompted an unprecedented independent reinvestigation of the IPCC’s original investigation and subsequent referral to the Crown Prosecution Service.
In short, it is our very firm view that if bereaved families are to participate effectively in inquests following deaths that occur in custody or analogous circumstances where the state exercises control, families require access to publicly funded specialist legal representation. INQUEST and the ILG are deeply concerned that, if not addressed, the current problems with the Legal Aid Agency’s decision-making process will increasingly mean that families are unrepresented, or insufficiently represented, at inquests. This will result in such deaths receiving insufficient scrutiny. Opportunities for lessons to be learnt will be missed – with the danger that any acts or omissions which contributed to the death could happen again. In the context of the increasing number of custodial deaths, this is deeply concerning and we therefore invite the Justice Committee to give careful attention to the matters that we raise.
The Justice Committee invited interested organisations and individuals to submit written evidence to the inquiry by 30 April 2014. A list of questions which were of particular interest to the committee is given below, but submissions could address any aspect of the impact of the changes to the LASPO Act.
•What have been the overall effects of the LASPO Act changes on access to justice? Are there any particular areas of law or categories of potential litigants which have seen particularly pronounced effects?
•What are the identifiable trends in overall numbers of legally-aided civil law cases being brought since April 2013 in comparison with previous periods, and what are the reasons for those trends?
•Have the LASPO Act changes led to the predicted reductions in the legal aid budget? Has any evidence come to light of cost-shifting or cost escalation as a result of the changes?
•What effects have the LASPO Act changes had on (i) legal practitioners; and (ii) not-for-profit providers of legal advice and assistance?
•What effects have the LASPO Act changes had on the number of cases involving litigants in person, and therefore on the operation of the courts? What steps have been taken by the judiciary, the legal profession, courts administration and others to mitigate any adverse effects and how effective have those steps been?
•What effects have the LASPO Act changes had on the take-up of mediation services and other alternative dispute resolution services, and what are the reasons for those effects?
•What is your view on the quality and usefulness of the available information and advice from all sources to potential litigants on civil legal aid? Do you have any comments on the operation of the mandatory telephone gateway service for people accessing advice on certain matters?
•To what extent are victims of domestic violence able to satisfy the eligibility and evidential requirements for a successful legal aid application?
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The Immigration Law Practitioners’ Association (ILPA) is a registered charity and a professional membership association. The majority of members are barristers, solicitors and advocates practising in all areas of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through an extensive programme training and disseminating information and by providing evidence-based research and opinion.
ILPA evidence: executive summary
We identify immigration law as an area where the LASPO Act has had particularly pronounced effects and persons under immigration control and their family members as persons particularly affected. Within this group, we highlight, with case examples, cases concerning Commonwealth citizens, refugee family reunion, deportation, destitution, children and young people and compensation claims by trafficked persons.
The overall effects of the LASPO Act in the area we summarise are as having reduced access to justice.
Lawyers are squeezing in ‘just one more case’ pro bono in a manner that has cushioned the effects of the Act so far, but is not sustainable, alone and particularly taken with the effects of the Transforming legal aid: delivering a more credible and efficient system changes. Clients are at risk of exploitation to raise the money to pay for legal representation, not limited to, but including, exploitation by unscrupulous advisers. Those in detention or with physical and mental health problems simply have no means to pay and go unrepresented. Many at liberty disappear and cease to try to resolve their status.
Legal Aid Agency statistics show that the number of legal aid asylum and immigration cases has dropped significantly. We question whether the money spent on legal aid is buying what it used to. Costs of legal representation have shifted onto local authorities and onto applicants. Local authorities also pick up indirect costs; for example, the costs of having to continue to support a person.
The fall in cases funded by legal aid has not been mirrored by a fall in cases before the courts. One possible explanation is a rise in litigants in person. Insufficient accommodation is made for litigants in person by courts and tribunals.
Information on civil legal aid is inadequate and apt to give persons and those trying to help them the impression that they do not qualify when they do.
Survivors of domestic violence with immigration cases are, in significant numbers, failing to obtain legal aid.
Exceptional cases funding is not operating effectively. Numbers of applications are vastly lower than estimated at the time of the passage of the Act. Successful applications are very few and this has the effect of discouraging further applications. Applications take an enormous amount of time, and those who have been refused include children, persons without capacity and persons given permission to appeal by the Court of Appeal.
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The Law Centres Network (LCN) is the membership body for Law Centres® in England, Wales and Northern Ireland, each of which is a not-for-profit legal practice providing legal services in civil law, with a particular focus on social welfare law. There are 45 Law Centres across the UK represented in the LCN, all but two of which hold legal aid contracts. Law Centres have practised in these areas of law since their inception in 1970, and the Law Centres Network (trading name of the Law Centres Federation) has co-ordinated and represented them collectively since 1978.
LCN evidente: summary
The LASPO Act changes have made an already troubled civil legal aid system more complex and exceedingly onerous to handle, especially for small not-for-profit agencies. In the LASPO Act regime’s first year, nine Law Centres have closed – one in six of our members – primarily as consequence of legal aid cuts, compounded by local authority funding cuts.
•Welfare reform has created growing need for legal advice, and scope changes mean that much of this need is now unmet by legal aid. Even cases still within scope are hampered by eligibility requirements and scope uncertainties for providers.
•Without legal aid people are largely left to fend for themselves in the justice system. They rely on voluntary help, largely under-resourced to handle the sharp rise in demand, and on public legal information, which is still patchy and of inconsistent quality.
•Civil legal aid exists to enable access to justice for people of modest means. The LASPO Act system does this aim a disservice by shifting costs onto these people through cutting legal aid scope and eligibility, and through gatekeeping measures such as a mandatory telephone gateway and an over-restrictive exceptional fees scheme.
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Legal Action Group (LAG) is independent of the providers and funders of legal services. We promote access to justice as a fundamental democratic right and undertake policy research on access to justice issues particularly the funding, quality and availability of legal services for the public. LAG seeks to represent the interests of the public, particularly the vulnerable and socially excluded, in improving legal services, the law and the administration of justice.
LAG: summary evidence
While LAG welcomes the inquiry launched by the Justice Committee, we believe that it faces a fundamental problem, which is a lack of reliable data on the impact of the LASPO Act on people with legal problems. We are largely reliant on the government’s equality impact assessments, the latest of which were published before the implementation of the Act. The committee, we suggest, needs to call for more research to address this yawning gap in our knowledge on the legal needs of the public, particularly in the areas of law which were cut back under the LASPO Act.
Rather than promoting access to justice, LAG fears that the direction of government policy seems to be primarily to reduce the Ministry of Justice (MoJ) budget by suppressing demand for legal aid and legal services in general. This is a trend which predates the scope cuts under the LASPO Act.
From a peak of one million cases in 2007/08, civil legal aid cases had fallen to 0.9m in 2012/13. The reduction in spending on civil legal aid is happening despite indicators pointing to an increase in demand, such as pending tribunal cases which increased by 19 per cent for the same year.
The changes to the eligibility rules for civil legal aid are, we argue, a major disincentive for practitioners to take on cases. We are asking the Justice Committee to recommend that the government reverts to a system of eligibility for legal aid in which entitlement to means-tested benefits passports clients into the system. LAG believes that this would lead to better administrative efficiency, as well as encourage greater access to justice.
LAG requests that the committee reiterates its views, ie, poor decisionmaking in government departments often has knock-on consequences for other public expenditure, and a policy of charging departments would provide a ‘financial incentive to public authorities to get their decisions right first time’. We believe that funding benefits advice in this way would seem to be an obvious option.
LAG is also calling for the following:
•The reinstatement of advice on welfare benefits in cases in which a person’s home is at risk of repossession due to rent or mortgage arrears, as this would ensure early resolution of problems before court proceedings are issued.
•Funding of early intervention in housing disrepair cases, particularly in cases in which a client’s health is at risk.
•The partial reinstatement of legal aid in immigration cases, particularly in family reunion cases for refugees. This links in part to the evidence we have uncovered in our report entitled Chasing status, which is due to be published in September.
•We believe that the committee should consider the barriers victims of domestic violence face claiming legal aid, such as the costs of obtaining medical evidence.
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Legal Aid Practitioners Group (LAPG) is a membership organisation. The majority of our members are firms and not-for-profit organisations with legal aid contracts. We also have individual members, including barristers, consultants and costs lawyers.
LAPG: summary evidence
In our response, we will endeavour to focus on the difficulties facing clients.
•Civil legal aid has changed from being a service which is readily accessible to those of limited means at times of crisis and often at an early stage to a service:
■which is limited in scope post the LASPO Act: the cuts brought in by the Act are far-reaching and complex;
■which is hard to understand;
■where information about what it covers is not easy to find or understand;
■which is hard to access for bureaucratic reasons (the bureaucracy around obtaining advice under the legal help scheme/legal aid for representation has a powerful deterrent effect on actually managing to obtain advice or representation); and
■where there is limited availability of practitioners.
•There were problems before the LASPO Act, and the Act has ensured that hundreds of thousands of people will not obtain legal advice on their problems, and the further changes proposed less than two weeks after the Act came into effect, in the Transforming legal aid: delivering a more credible and efficient system consultation, have also had far-reaching effects.
•New cases under the legal help scheme have been reducing even before the LASPO Act:
■677,257 in 2010/11;
■607,440 in 2011/12;
■558,555 in 2012/13; and
■123,441 (ie, for ten months of 2013/14, 148,129 extrapolated from ten months to one year).
•The groups that have been hardest hit include women suffering from domestic violence, children caught in the middle of family disputes and those with mental health issues.
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This is a short submission from the Liberal Democrat Lawyers Association (LDLA), the organisation that represents Liberal Democrats involved in the administration of justice. While the Liberal Democrats serve as part of the government, it should be noted that the Liberal Democrats’ conference – the party’s sovereign policy-making body – has consistently opposed the LASPO Act changes as the route to reducing legal aid spend, and have warned of their consequences and impacts. We believe that many of these are now coming to pass.
LDLA evidence: conclusion
Overall, the LASPO Act changes have damaged access to justice and weakened the fragile infrastructure of communitybased legal services serving the most vulnerable groups in society, who are at greatest risk of experiencing legal problems from the combined effects of economic change and public services reform. While we accept the need for legal aid spend reductions, we believe that there are other routes to achieve this – especially, for example, in high-cost commercial crime work where insurance and cost recovery could fund this most expensive type of defence work which is by far the biggest drain on legal aid funds.
There also needs to be learning from international experience – the Dutch civil legal aid system, for example, is rightly considered a world leader, but costs far less per head (about half) than the UK’s jurisdictions; it comprises three integrated pillars:
•an interactive web service with high functionality (‘Rechtwijzer’);
•a paralegal staffed ‘counter’ (Citizens-Advice-Bureau style) service which provides initial advice, sifts all legal aid applications, weeds out all legally weak cases and issues and provides alternative dispute resolution and other routes; and
•a practitioners’ litigation service.
Crucially, the Dutch system is not limited by scope at all and applies to all civil law areas, by contrast to the post-LASPO Act legal aid regime which restricts legal advice, support and representation to the de minimis requirements of equality law and human rights obligations.
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Rights of Women (ROW) works to secure justice, equality and respect for all women. Our mission is to advise, educate and empower women by:
•providing women with free, confidential legal advice by specialist women solicitors and barristers;
•enabling women to understand and benefit from their legal rights through accessible and timely publications and training; and
•campaigning to ensure that women’s voices are heard and law and policy meets all women’s needs.
ROW evidence: summary
The changes to civil legal aid introduced in April 2013 are denying access to justice to women experiencing violence, contradict the government’s commitment to end violence against women and girls and fail to meet obligations under domestic and international human rights law to respond to violence against women with due diligence (A call to end violence against women and girls: strategic vision, Home Office, November 2010).
Legal aid is a vital tool for the protection of women from violence (Women’s access to justice: a research report, ROW, 2011). It has enabled women experiencing violence to protect themselves and their children through protective orders, securing safe accommodation, making arrangements for children, ending a violent relationship and, if necessary, regularising immigration status.