Suffer the children
For all the government’s pre-LASPO assurances that children would be protected from the cuts, official figures show that civil legal aid has all but collapsed for the young, says James Kenrick
During the passage of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act in 2012, the government was constantly forced to reassure MPs and peers that legal aid for children who needed it in their own right would be protected.
The main protection offered was for children who were parties in family cases. No safeguards were provided for children and young people in most other types of cases. Yet ministers nevertheless stated that 95 per cent of children’s cases were protected – a claim that was repeated by Simon Hughes, the family justice minister, as recently as 5 February 2015 – and insisted that ‘of the remaining cases, many would potentially be eligible for exceptional funding’.
Neither the Joint Committee on Human Rights (‘We do not consider that the removal of legal aid from vulnerable children can be justified’), nor the Children’s Commissioner (whose research published in September 2014 showed that many vulnerable young people with severe legal problems were being ‘seriously affected by their inability to access legal representation’) were reassured. Both asserted that the government had failed to fully consider its obligations under the United Nations Convention on the Rights of the Child.
More recently, new data has emerged shedding light on the early impact of the government’s legal aid cuts on case volumes where a child or young person is the applicant. The data, provided by the Ministry of Justice (MoJ), in response to parliamentary questions from shadow justice minister Andy Slaughter, is broken down by broad legal aid category (family; immigration and asylum; and social welfare law), and by age (children aged 18 and under; and young adults aged 19–25).
‘Mere tinkering with the legal aid system will not be enough to deliver access to justice to this group; something more radical is required’
Social welfare law
•Numbers of social welfare law cases involving children have fallen by 65 per cent in the last four years (to just 1,477). They fell 42 per cent in 2013–14 alone – to a level that is already 30 per cent below even the reduced levels anticipated by the MoJ following LASPO.
•Cases involving young adults have also fallen well below anticipated levels (to just 11,530 in 2013–14), and are now 71 per cent down on their peak in 2010–11.
Immigration and asylum law
•Numbers of immigration and asylum cases peaked pre-LASPO in 2010–11, and have fallen rapidly since – to well below what was expected post-LASPO.
•Children's cases have fallen by 68 per cent in just three years to 4,159 – barely half of the MoJ’s anticipated post-LASPO levels. There was a 21 per cent fall in 2013–14.
•Young adults' cases fell by 58 per cent in the same three-year period (to 11,812), and by 20 per cent in 2013–14.
•Cases involving children, which are of course protected, have risen by 57 per cent in the last four years to 36,703. Numbers continued to rise (by 21 per cent) in the first year of LASPO and are now 57 per cent above MoJ predictions.
•By contrast, family cases involving young adults fell by 22 per cent in 2013–14 – but remain more than twice the level anticipated by the MoJ.
During the passage of LASPO, ministers repeatedly insisted that an expanded exceptional case funding scheme would provide an adequate safety net where children were otherwise out of scope of legal aid. Minister of State for Justice Lord McNally stated: ‘Where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.’ In February 2015, the legal aid minister, Shailesh Vara, confirmed that ‘the age of the child or young person applicant is one factor which caseworkers will always consider.’
The government’s pre-LASPO estimates should have led to at least 847 children and 4,888 young adults being granted exceptional funding each year. So, what has actually happened?
‘Children and young people are likely to be disproportionately affected by restrictions to prison legal aid and judicial review work’
Young people reported feeling that solicitors talk down to them and do not take them seriously because of their age
•The MoJ’s data shows that only 50 children and 95 young adults applied for exceptional case funding in the 12 months from October 2013 to September 2014.
•Of these 145 applications, a mere 12 (8 per cent) were granted, including just three (6 per cent) of the applications from children aged 18 and under.
It is also worth noting that children and young people are likely to be disproportionately affected by restrictions to prison legal aid and judicial review work.
Overall, the number of cases involving under 18s across all three broad civil legal aid categories actually increased by 11 per cent in the first year following LASPO, to 42,339. However, this is entirely due to a large increase in family cases, which are protected, outweighing quite dramatic falls in immigration and asylum and social welfare law.
The number of cases involving young adults aged 19–24 has fallen by 31 per cent overall, to 67,903. However, reductions in the areas of immigration and asylum and social welfare law have been far greater than this. Moreover, it is still early days – numbers are likely to fall further once pre-LASPO cases have worked their way through the system and the full impact of wider cuts to early intervention advice services has been felt.
Ministerial assurances about exceptional funding certainly do not seem to have fed through to the Legal Aid Agency’s decision-makers. Stronger measures to reflect promises made in parliament would be helpful, although Vara has recently confirmed that the government has no current plans to passport children and young people.
‘Just three applications from children under the exceptional case funding scheme were granted last year.’
We are seeking a more detailed breakdown of the data from the MoJ, so that we can understand better exactly what is going on in different categories of law.
Young people’s views of lawyers and legal aid (see box) indicate that mere tinkering with the legal aid system will not be enough to deliver access to justice to this group; something more radical is required. JustRights has developed some ideas for low-cost measures with high impact. We are ready to work with whoever forms the next government to implement the change young people demand.