Access to justice closed off
The Traveller community, which was already a highly disadvantaged group, is having its rights chiselled away further by a combination of changes in legislation and funding. Jo Gregson and Chris Johnson explain what lawyers can do to try to protect Travellers and their families, and the thinking behind the ‘No Mad Laws’ campaign.
The now defunct 2010–15 coalition government’s reforms of legal aid and judicial review produced exceptionally harsh consequences for the already struggling Traveller community’s ability to gain access to justice.
Judicial review
During the consultation on proposals to limit legal aid funding for judicial review, the vast majority of respondents indicated that most judicial review applications were settled successfully prior to the permission application being determined. Despite this, the government brought into force provisions that meant legal aid providers would not be paid on a judicial review application unless permission were granted or, if the matter were settled prior to permission without costs being awarded to the claimant, at the discretion of the Legal Aid Agency (LAA): the Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 SI No 607.
These changes had a chilling effect as many legal aid providers simply did not have the financial resources to take on work ‘at risk’ and the potential for the LAA to exercise its discretion in the provider’s favour offered little comfort.
In R (Ben Hoare Bell and others) v The Lord Chancellor [2015] EWHC 523 (Admin), 3 March 2015, these regulations were held to be unlawful. Beatson LJ found no rational link between the provisions and their stated purpose of incentivising providers to focus more sharply on the proper application of the merits test before applying for funding. The judgment focused on three scenarios where putting providers at risk of non-payment did not promote this objective:
•where the defendant withdraws the decision without conceding costs;
•where the court orders an oral hearing; and
•where the court orders a rolled-up hearing.
However, the previous government’s response was simply to introduce fresh regulations that are virtually identical. The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 SI No 898 merely pluck out the above three examples and allow them as exceptions to the ‘non-payment’ rule. Despite these amendments, it is likely that the chilling effect will continue. It is also highly questionable whether the amendments have cured the unlawfulness of the regulations.
Judicial review provides a means by which people can hold public authorities to account for unlawful actions and decisions. It leads to an improvement in public authority decision-making processes. The possibly disastrous effect on the rule of law of these reforms is clear. Gypsies and Travellers are some of the most vulnerable members of our society and an inability to challenge an unlawful decision by a public body may put them at a particular disadvantage.
What to do
Judicial review remains within scope for legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It is unlikely that the new Conservative government will respond to the general concerns raised by Beatson LJ in Ben Hoare Bell and revoke the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 entirely. In the meantime, providers face the difficult choice of turning away meritorious judicial reviews or taking on the work at risk.
Loss of home
‘Loss of home’ remains within scope for legal aid but ‘trespassers’ are now excluded from the definition of ‘loss of home’ (see LASPO Sch 1 Pt 1 para 33). This means Gypsies and Travellers on an unauthorised encampment facing county court eviction action by a local or other public authority where that authority is acting unlawfully (eg by flouting government guidance on welfare assessments) will be unable to get legal aid to defend that action. The national shortage of authorised stopping places for Gypsies and Travellers, estimated to be almost 6,000 pitches (see the Equality and Human Rights Commission’s 2009 research report, Assessing local housing authorities’ progress in meeting the accommodation needs of Gypsy and Traveller communities in England, by Philip Brown and Pat Niner), means unauthorised encampment is often a necessity rather than a choice and eviction can have a severe impact on families, and children in particular. It is, therefore, vital that legal representation is available in order to ensure that such steps are lawful and that the local authority has complied with its duties.
What to do
Gypsies and Travellers can still seek to judicially review the decision to evict, as Lord Wallace of Tankerness confirmed during debates on the LASPO bill in the House of Lords (HL Debates col 109, 12 March 2012).
Mobile Homes Act 1983
In 2011, almost seven years after Connors v UK (application no 66746/01) [2004] ECHR 223, 27 May 2004, the government finally amended the law to give proper security of tenure to those Gypsies and Travellers living on local authority-run caravan sites by amending the Mobile Homes Act (MHA) 1983 so that it covered those sites in England (a similar amendment was brought into force in Wales in 2013). However, that positive step was undermined when LASPO came into force. It stipulated (at Sch1 Pt 1 paras 33 and 35) that only possession actions and serious disrepair cases under MHA 1983 remain within scope for legal aid (albeit that any decision that would need to be challenged by way of judicial review, eg a pitch fee increase, would remain in scope). It follows that many Gypsies and Travellers living on local authority sites will find themselves unable to enforce the rights they have been given under the MHA 1983 because most disputes under that act are now out of scope for legal aid.
The Low Commission on the Future of Advice and Legal Support has called for the return of legal aid in housing law cases (Low Commission, Tackling the Advice Deficit – A strategy for access to advice and legal support on social welfare law in England and Wales, January 2014). Importantly, this would include cases under the MHA 1983.
What to do
The disputes mentioned above that are not within scope for legal aid, if not resolved by negotiation between the park owner and the occupier, would have to go to tribunal, where there is no availability of legal aid in any event (the First-tier Tribunal (Property Chamber) in England and the Residential Property Tribunal in Wales). An attempt could be made to obtain exceptional case funding (ECF) though doubtless this would be very difficult (see below).
Exceptional funding
During the passage of the LASPO bill through parliament, the government stated that ECF would act as a vital safety net and indicated that it was intended to ensure that the failure to provide advice and representation to someone does not result in a breach of article 6 of the European Convention on Human Rights (the convention) – the right to a fair hearing – and does not breach EU law.
No Mad Laws
The No Mad Laws campaign has been co-ordinated by Gypsies, Travellers and their support groups and representatives to highlight the disastrous effect that the coalition government’s legal aid and judicial review reforms have had on members of those communities (reforms that are unlikely to be reversed by the new Conservative government). Legal aid can be especially important to Gypsies and Travellers given that Romani Gypsies and Irish Travellers fare the worst of any ethnic groups in terms of health and education.
Practical examples of the difficulties that can be caused can be found in ‘Effects of the Reforms’ on the No Mad Laws website.
The latest legal aid statistics from the Ministry of Justice (MoJ) for October to December 2014 revealed that:
•of 280 ECF applications only 70 have been granted; and
•of seven ECF applications for housing law matters only one had been granted.
It is also apparent that there has been a drop in the number of applications, no doubt because providers feel that making an application is a waste of valuable time.
In the circumstances, it is not surprising that the Court of Appeal found the Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) to be unlawful in the recent case of R (Gudanaviciene and others) v Director of Legal Aid Casework and another [2014] EWCA Civ 1622, 15 December 2014. However, to date, the government has failed to amend the guidance, instead simply reminding LAA staff that they should also have regard to relevant case-law such as Gudanaviciene (Lord Chancellor’s Notice to the Director of Legal Aid Case Work, 7 July 2014).
ECF ought to be available to cover matters involving:
•housing benefit;
•Gypsy and Traveller planning inquiries;
•disrepair issues on Gypsy and Traveller sites that need to go to tribunal; and
•other claims under the MHA 1983.
It is absolutely clear to us that, in these cases, article 6 of the convention is breached because clients are not able to deal with the relevant hearings and, thus, there is no equality of arms (see Airey v Ireland (application no 6289/73) [1979] ECHR 3, 9 October 1979).
What to do
Obviously, legal aid providers can continue to make ECF applications; whether they will want to do so is another question entirely. If ECF is refused, the only recourse is, perhaps ironically, to seek funding to pursue a judicial review against the director of legal aid casework for the refusal. The authors have experience of three cases where either a judicial review had to be lodged or at least threatened before ECF was granted.
Where do we go from here?
The No Mad Laws campaign (see box) organised a petition that gained over 1,400 signatories. It called for:
•the legal aid regulations relating to the payment for work done on judicial review claims pre-permission to be withdrawn and legal aid to be reinstated for judicial review subject to the usual merits criteria and eligibility provisions;
•trespassers to be brought back within the definition of ‘loss of home’ for the purposes of legal aid;
•as proposed by the Low Commission, housing law to be brought back within scope for legal aid; and
•as the Low Commission also recommended, an urgent radical overhaul of the provision of ECF.
Before the election, the petition was handed in to the MoJ and the main political parties (the Conservatives, Labour, the Liberal Democrats, the Green Party, Plaid Cymru and UKIP). The only response so far has been from the MoJ, which continues to rely on its stated aim of cutting the legal aid bill by taking steps to ‘prioritise limited resources’ and ‘refocus legal aid for the most serious and highest priority cases’ (see No Mad Laws news item, ‘Ministry of Justice responds to No Mad Laws petition’, 23 March 2015).
The reduction in scope of legal aid has led to situations where Gypsies and Travellers are being evicted unlawfully and are otherwise being denied access to justice. We believe that the predictions that this will lead to increased costs in the end are already being proved correct, and urge readers to continue to lobby on these issues.