Some creative thinking required
Discrimination cases are still formally in scope of legal aid after LASPO, but the means by which help is available are not always obvious, leading to exceptionally low take-up. Douglas Johnson explains how to put this right.
Legal aid may be down, but it’s not out completely – at least not yet. Legal Action’s ‘Use it or lose it’ series aims to highlight what remains of legal aid, and to show practitioners how they can make the most of it to help their clients obtain much-needed access to justice.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought about enormous cuts to initial advice and assistance on civil matters.
Legal aid is still available for advice on the loss of a person’s home and their homelessness, but advice on the causes of homelessness – welfare benefits, loss of employment, separation and divorce – remains out of scope. Much asylum work remains in scope (May 2015 Legal Action 19), but the vast majority of immigration advice is out. In prison law (April 2015 Legal Action 16), advice is still available on issues that affect the length of time a person is detained, even if not for advice on conditions while in detention. In family law, legal aid is still available in proceedings where the state removes children from the home, if not for private law divorce and custody cases.
In this context, it should be remembered that, although many forms of discrimination were unlawful for decades (see the Race Relations Acts 1965, 1968 and 1976, the Sex Discrimination Act 1975 and the Equal Pay Act 1970) before being incorporated into the Equality Act (EA) 2010, it is also highly relevant in a human rights context in that it is prohibited – to some extent and where linked with another right – by article 14 of the European Convention on Human Rights.
The need for discrimination advice
In its green paper prior to LASPO (‘Proposals for the Reform of Legal Aid in England and Wales’, CP12/10), the government’s analysis of the need for legal aid for discrimination was less than robust, but concluded it was right to keep it available on the grounds that:
Although we do not generally consider that legal aid is likely to be justified in cases which are primarily about money, we recognise that the nature of the issues at stake – addressing societal prejudice and ensuring equality of opportunity – adds weight to the case that funding be retained.
It is also worth noting that, at that time, the government could state that ‘the Equality and Human Rights Commission [EHRC] offers legal assistance to a limited number of cases, and offers advice through its helpline and online resources’. This is no longer the case after the government removed the EHRC’s ability to provide advice through a helpline. The new Equality Advisory and Support Service helpline, set up in its place, is prohibited from providing ‘legal’ advice (which is somewhat bizarre given that the organisation’s sole purpose is to provide advice on a piece of legislation).
Before and after LASPO
Recording of discrimination advice under legal aid has not been consistent, as it has only had its own category since the LASPO changes in 2013. Prior to that, the majority of discrimination cases were brought in the employment category. Services cases were sometimes included in the consumer category, which was gradually narrowed in scope. From the 2010 contracts, the only areas remaining within scope of the consumer category were discrimination and professional negligence, and new supervisor standards relating to these specific areas were devised. However, it remains difficult to identify the long-term trend in discrimination cases from legal aid figures published by the Ministry of Justice (MoJ).
What is clear is that the numbers have now dropped hugely. The latest figures in the MoJ statistical bulletin (Legal Aid Statistics in England and Wales January to March 2015, 25 June 2015) show the number of legal help matter starts for discrimination was down to 1,602 in the year to 31 March 2015, with just 11 legal aid certificates granted in the same period.
Legal aid is, of course, not the only funding for discrimination cases that has been lost. Largely because of the historic failure of providers to take up discrimination cases under legal aid funding except under employment provisions, in 2006 the Disability Rights Commission devised a ground-breaking scheme in partnership with the Law Centres Network to raise the profile of, and bring cases on, unlawful disability discrimination in services.
A dozen law centres took part and began to run these cases under grant-funding arrangements, relying on law centres being best able to provide services appropriate to their localities. The success of the scheme survived the merger of the Disability Rights Commission into the EHRC and broadened the scope of the arrangements. While the government was later very critical of the EHRC’s lack of organised statistics, it remains the case that this scheme provided the equivalent of several thousands of legal help matter starts. At the same time as the government issued its consultation on reducing the availability of legal aid, it also removed the ability of the EHRC to provide this type of grant assistance to the voluntary sector to combat unlawful discrimination.
What remains in scope?
The good news for advisers wanting to use discrimination law is that LASPO is clear (Sch 1 Pt 1 para 43) that the scope of legal aid specifically includes civil legal services provided in relation to contraventions of the EA 2010 or a previous discrimination enactment.
The EA 2010 prohibits unlawful discrimination in a wide-ranging set of situations, typically where an individual has suffered a detriment from an organisation, whether an employer or a provider of services.
EA 2010 Pts 3–7 cover the following areas:
•Provision of services, goods and facilities to the public. Also included is the carrying-out of public functions where they cannot truly be described as a service, eg council tax enforcement. These cases are enforced in the county court.
•Landlord-tenant relationships in rented and leasehold premises, also enforced in the county court.
•Employment relationships, enforced in the employment tribunal.
•Education cases: complaints of discrimination in schools can only generally be enforced in the First-tier Tribunal (Special Educational Needs and Disability), formerly known as SENDIST; complaints relating to further and higher education remain in the county court.
•Private clubs and associations, again enforced in the county court.
Finally, there is the public sector equality duty (EA 2010 Pt 11). This is not directly enforceable except by way of judicial review. It is, however, an important tool for anyone working in public law, which is of course still within scope.
Category definitions – difficult decisions
The category definitions for the discrimination contract reflect the simplicity of LASPO Sch 1 Pt 1 para 43. In addition, the definition clarifies that that legal help is available for claims in employment tribunals, the Employment Appeal Tribunal (EAT) and the High Court but only ‘in so far as it relates to a contravention of the Equality Act 2010’.
This presents a professional dilemma for any employment adviser faced with the fairly routine case of a discriminatory dismissal from work. A claim in the employment tribunal would have to take the form of a single claim for both unfair dismissal and unlawful discrimination. Legal aid is available for advice, assistance and (in the EAT) representation on the part of the claim relating to discrimination but not the unfair dismissal part. A competent adviser running the discrimination element has professional duties to advise appropriately on the unfair dismissal claim, given that it would be almost impossible to refer on part of a claim so inherently tied up with the discrimination element. However, a provider risks sanctions from the Legal Aid Agency (LAA) on audit if it is considered that work has been claimed out of scope, or it risks having to carry out work for free, endangering the viability of the organisation. There is simply no satisfactory answer to this position.
Legal aid for freestanding claims of discrimination, however, is designed to be available only through the mandatory telephone gateway. Advice and casework in such instances are generally only available by telephone and are provided by just three firms under contracts with the LAA (meaning they are the only firms affected by this dilemma).
What the gateway covers
The mandatory telephone gateway deals with advice on three categories: debt; education (ie special educational needs); and discrimination. This means the vast majority of people seeking publicly funded advice on discrimination matters must contact the gateway.
There are only limited exceptions:
•clients who have been deprived of their liberty;
•children under the age of 18; and
•certain clients who have been previously assessed by the gateway.
Having said that, even if a client is exempt from the gateway, they can still only get advice from the three providers that hold discrimination contracts.
Avoiding the gateway – category overlaps
Discrimination, like public law, is hard to describe as a separate category of law in its own right because the essence of discrimination is that it crops up in the context of other areas of substantive law. This is, in fact, mirrored in the EA 2010: as described above, actionable claims for unlawful discrimination may occur in the context of other legal relationships such as consumer contracts or employment, housing, education or community care relationships, each of which will already have a legal framework setting out the rights and protections available to individuals.
For this reason, the definitions published by the LAA rightly acknowledge that some cases may fall within more than one category. For instance, the category definitions for the 2013 standard civil contract state:
Overlaps between categories
6. The Categories are drafted to ensure that the majority of cases clearly fall within one Category or another. For example, mortgage arrears possession cases fall within the debt category and are excluded from the housing category. However, there will be some cases which genuinely fall within more than one Category in which case you can choose in which Category to carry the case out.
7. An example of this is in discrimination cases, which may be dealt with either within the discrimination category itself or, where the underlying matter arises from an individual category such as education, within that category.
Discrimination cases may therefore be dealt with outside the telephone gateway where the issue also falls within a different category. In such a case, the relevant provider can choose in which category to carry the work out. It is important to check if a client has already been advised through the telephone gateway as a second matter start will generally be allowed only for a separate and distinct legal matter (see para 3.42 of the relevant contract specification). However, where a matter genuinely falls within both the discrimination category and another, the choice of whether to accept the case is the provider’s, not the LAA’s.
For this reason, providers with contracts in other areas of law may wish to consider how best to serve their clients by acting on issues of unlawful discrimination that arise within the context of a case that is in scope of their contracts.
Possession of an individual’s home falls squarely within the category definition of housing, giving effect to LASPO Sch 1 Pt 1 para 33(1). Consider the case of a private tenant who has received a claim for possession on the basis of a notice under Housing Act (HA) 1988 s21. This provision allows a private landlord to recover possession of a property without having to prove any reason for evicting the tenant. The safeguards against possession are purely procedural and relate to the technical validity of the notice, compliance with tenant deposit procedures and the like.
Nevertheless, it is frequently clear what the landlord’s motive is. In a typical case, where the reason for the landlord issuing possession proceedings is because the tenant’s housing benefit has stopped being paid, the legal aid adviser is limited to advising on whether the landlord has complied with the procedural requirements. Unless there is a technical defect that might give rise to a defence, the adviser can only really advise the client that the papers are correct and that they will be evicted unless the landlord can be persuaded to change their mind. What the adviser is no longer able to do is to advise or provide assistance with the underlying benefits issue, even though this might benefit both landlord and tenant equally and keep the individual in their home, incidentally saving resources for the court service and the local authority’s housing department.
However, consider the case where there is reason to believe the s21 notice was given because landlord has found out that the tenant has become pregnant. Pregnancy and maternity are protected characteristics under EA 2010 s4.
EA 2010 s35 provides that a person who manages premises (which would include a private landlord) must not discriminate against a person who occupies the premises by evicting them. In this case, the discrimination would be direct discrimination as defined in EA 2010 s13 – treating this tenant less favourably than they would treat another because of her pregnancy.
Even where the court appears to have no discretion but to order possession, the aspect of the case of LB Lewisham v Malcolm  UKHL 43, 25 June 2008 that is still good law is that ‘[i]f, by seeking an order for possession, a landlord is acting in a way the legislature has held to be unlawful, then, again, the court cannot make such an order. The court would be permitting, indeed facilitating, an unlawful act’ (Lord Neuberger at para 160).
So there is a valid defence to a claim for possession, but that defence includes detailed consideration of the EA 2010 issues. Here it is significant that, unlike the welfare benefits issues, the discrimination issues are clearly within the scope of LASPO (Sch 1 Pt 1 para 43) as well as within the housing contract category definition.
There is support for this viewpoint in a frequently asked questions document issued by the LAA on 19 April 2013. Question 75 is clear:
75. Can I advise a client on a housing related discrimination matter under my Housing contract?
Yes, you would be giving Housing advice, so this is not subject to the CLA Gateway.
A further housing example relates to the category definition for housing allowing for legal help and proceedings ‘in relation to the provision of accommodation and assistance’ under HA 1996 Pts 6 and 7 for an individual who is homeless or threatened with homelessness (LASPO Sch 1 Pt 1 para 34).
It is not just about the homelessness provisions (HA 1996 Pt 7) but also the operation of the housing allocations or waiting list (HA 1996 Pt 6) for people who meet the definition of homeless.
Suppose the tenant above seeks help from the local council about her housing benefit problems. When she informs the staff she is facing eviction, she is inaccurately told she can apply to go on the council’s housing register but must produce a passport or official immigration document as part of the government’s new rules requiring landlords to carry out immigration enforcement.1This refers to a misunderstanding of Immigration Act 2014 s22, which was in force from 1 December 2014 only in the West Midlands.
The incorrect treatment of the homelessness duties clearly falls within the category definition. Because she is homeless, she can also receive legal aid for advice on the Pt 6 issue: the incorrect information about joining the housing register. However, an adviser may recognise that the demand to produce a passport indirectly discriminates against British citizens. This is because those citizens of other countries with an entitlement to social housing are very much more likely to have either an actual British passport (if naturalised) or equivalent documents. A British citizen needs no such documentation or passport and many people do not have them.
This could give rise to a claim for unlawful, indirect race discrimination. Potentially, the client could bring a claim in the county court for a declaration, damages and (if the council really persisted even after an initial approach from the legal adviser) an injunction requiring amendment of its policy or practice.
Such a claim would be within the scope of LASPO and within the scope of the housing category definition above.
The case would also appear to come within the public law category.
In immigration cases, legal aid is still available for bail, temporary admission or release, including challenges applied to conditions applied on release. Suppose one of the conditions is a requirement to report and sign on regularly but the building that the applicant is required to attend is physically inaccessible to someone with the client’s disability. Alternatively, Home Office facilities or practices may place a client with a hearing impairment or a mental health problem at a disadvantage compared with someone without that disability. Such cases could give rise to a potential claim under the EA 2010. Where the Home Office is providing a service or carrying out a public function, the matter would clearly fall within the discrimination category, so advice should be available through the telephone gateway. By its very nature, this, of course, may not be accessible, so the client may want to take advice from the provider with whom they have established a relationship.
In this situation, there is an argument to say the advice sought is in relation to immigration-related detention powers referred to in LASPO Sch 1 Pt 1 para 25(1) – ie to reporting requirements relating to detention under Immigration Act 1971 Sch 3.
The advice in this situation would include advice on rights and remedies under the EA 2010 in a situation that is within the category definition for the immigration/asylum contract.
The community care category definition under the 2014 definitions (para 18) allows:
Legal Help and related proceedings concerning the provision of community care services … the provision of facilities for disabled persons … and the inherent jurisdiction of the high court in relation to vulnerable adults … This includes legal services provided in relation to community care assessments, service provision decisions, and issues around the delivery of services …
The processes of assessment and decision-making are examples of public functions within the meaning of EA 2010 s29(6), whereas the delivery of services is likely to fall within s29(1). In either case, the way in which these are delivered contains scope for challenges under the EA 2010, so advice within the community care category may include these actions. It is true that it can be difficult to untangle the issues of discrimination, especially disability discrimination, where the whole context of this field relates to the provision of disability-related services. However, that does not alter the view that the right cases may be brought by a provider who holds a community care contract.
One relatively simple example might be a failure by a care company contracted by a local authority to provide correspondence to a visually impaired person in a suitable format.
A less clear, but still potentially viable, case might be about the practice of scheduling care visits for a disabled person with diabetes. Advisers will come across frequent cases of unreliable care provision. However, where a disabled person relies on carers to prepare meals, the effect of irregular visits may have a greater impact on someone who requires regular meals to control diabetes. The strength of a case under the EA 2010 would depend greatly on the precise circumstances but could potentially be brought by a provider with a community care contract.
Where such cases are viable, it would be appropriate to bring them with the backing of a legal aid certificate. EA 2010 cases in the county court are frequently allocated to the fast track or multi-track because of the importance of the case to the parties, the complexity of the case, the amount of evidence involved and the non-financial remedies. Non-financial remedies are particularly important in such cases because they relate to the way care provision is actually carried out.
Act now for the future
Legal aid has taken a battering and advice on discrimination, which was never very well developed, has been hit particularly hard, such that there is now very little of it going on. Discrimination law remains in scope of legal aid but advisers must be creative to make use of what is available. It hugely is important to show that there is a need for such advice because discrimination is still an issue in society at large. When public opinion shifts again in the future, legal aid advisers must be ready to show they are ready to pick up the work that will one day be funded once more.