Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Scope (LA 05)

1. ABOUT SCOPE

1.1 Scope supports and works with disabled people and their families at every stage of their life. We believe disabled people should have the same opportunities as everyone else. We run services and campaigns with disabled people to make this happen. As a charity with expertise in complex support needs and cerebral palsy we never set limits on potential.

2. OVERVIEW OF OUR COMMENTS

2.1 The Government has published the Legal aid, Sentencing and Punishment of Offenders Bill which sets out proposals to reform the legal aid system in England and Wales. The proposals within the Bill follow on from the Green Paper that the Government consulted on earlier this year and raise considerable concerns about their implications for access to justice for disabled people.

2.2 Scope is extremely concerned about the proposal to remove social welfare cases from the scope of legal aid, which will have an adverse and disproportional impact on disabled people. The legal aid system plays a crucial role in ensuring equal access to justice and the ability to access legal advice and representation is an important part of ensuring disabled people are able to hold public services and the Government to account. Furthermore, income-related benefits are designed to provide a welfare safety net for disabled people. Scope disagrees with the decision of affording welfare issues less importance in the allocation of legal aid funding, on the basis that these cases are essentially concerned with financial entitlement.

2.3 Scope is worried that if legal help on welfare benefits will no longer be available, this will leave many disabled people unable to challenge decisions when they are let down by the system. We believe that the assumptions set out in the Green Paper which preceded this Bill which underpin the proposal for removing welfare benefits law from the scope of legal aid are flawed and that there is a great need for the retention of legal help in this area. The key assumptions are as follows:

§ The tribunal system is designed to be "accessible" and "user-friendly"

§ Appellants are only required to provide short reasons for disagreeing with the decision

§ Decisions are overturned on appeal "simply because the tribunal is able to elicit additional information which was not available to the Department" [1]

2.4 Scope recognises the difficult economic background against which the proposals have to be considered and that reducing spend is one of the drivers for the reform of legal aid. However, this proposal will not deliver substantial savings in legal aid expenditure. According to the Government’s impact assessment, the savings derived from this are estimated at £22 million compared to a total legal aid budget of £2 billion, taking into account that this covers 113,000 cases per annum at an average cost of £200 per case [2] . However, without early help, problems become more complex and can cost the public purse more.

3. KEY PROVISIONS OF THE BILL

3.1 Scope of legal aid: With only very minor exceptions, the Bill if enacted in its current form would implement the exclusions from scope of legal aid that were first put forward in the Green Paper. Clause 8, in conjunction with Schedule 1, establishes the discrete areas in which civil legal aid will remain. This briefing focuses on the substantive proposal to cut advice provision to disabled people seeking legal assistance on social welfare issues which will now fall outside the scope of legal aid. However, we have further concerns in relation to the broad-ranging powers conferred to the Lord Chancellor. In particular, Clause 8(2) paves the way for further changes to the legal aid scheme, by allowing the Lord Chancellor, by order, to ‘omit services’ from those areas of law that have been kept within scope. We believe that allowing changes in scope to be made through secondary legislation is neither appropriate, nor does it provide sufficient safeguards to ensure that access to justice is not arbitrarily interfered with.

3.2 Financial eligibility: Similar to the powers to further restrict the scope of legal aid, Clause 20 confers powers to the Lord Chancellor to make regulations relating to the financial eligibility of an individual to receive legal aid. The only indication of what reviewed financial eligibility for legal aid would be set is in the Government’s response to the consultation on the Green Paper. The absence of clear criteria for eligibility poses a serious concern. As disabled people are more likely to be living on a low income, a further reduction in eligibility for legal aid will create a significant barrier to access to justice.

4. REMOVING WELFARE BENEFITS AND SOCIAL WELFARE LAW MORE GENERALLY FROM THE SCOPE OF LEGAL AID

4.1 Scope is aware of the many difficulties that disabled people face when trying to appeal against an unfavourable decision about their benefits. From having to deal with a complex area of law to navigating a tribunal system that is often inaccessible to disabled people, disabled people are at a particular disadvantage when seeking to secure their entitlements. Removing the limited support that disabled people currently receive, in the form of advice rather than representation, will make it harder for them to resolve issues related to their welfare benefits. Scope would therefore recommend that the Government revises its decision to remove welfare benefits from the scope of legal aid with consideration of the issues raised below, and amend the Bill as necessary.

4.2 The nature of welfare law and impact of removing legal help in the context of wider welfare reforms

4.2.1The Bill provides for the continuing availability of legal aid in only a very limited number of areas of law. Legal aid would no longer be routinely available for welfare benefits, which would result in excluding 113,100 cases based on the statistics from 2008-2009 [3] . We believe that the reforms should reflect the fact that the law in this area is of considerable complexity and disabled people need specialist legal assistance to pursue an appeal in the vast majority of cases. Scope recognises the Government’s intention to simplify the benefits system by introducing the Universal Credit and welcomes the intention to combine benefits that are currently separate.

4.2.2 Scope agrees that by improving the initial decision-making on welfare benefits the need for appeals may, to some extent, be reduced. However, the legal aid system provides an essential safeguard against poor quality of decision-making. Both the high volume of cases going to appeal and the high success rate for appeals, suggests a widespread failure of public authorities getting decisions right the first time; currently 40% of appeals against Work Capability Assessment (WCA) decisions are upheld [4] . There can be significant consequences if disabled people do not receive the benefits to which they are entitled, causing considerable financial strain and pushing them into poverty.

4.2.3 The proposals should take into account the need to prevent disabled people falling through the net in the transition period. Recent reforms have altered the entitlements that disabled people can expect, and the need for advice will be even greater as the entire benefits system undergoes fundamental reform – particularly considering that two frameworks will be operating in parallel during the period that Universal Credit is phased in. There is a risk that the positive benefits of these reforms will be undermined if disabled people do not have access to adequate advice during this crucial transition period, when problems under the new system may occur, and instead disabled people will be left open to harsher sanctions.

4.2.4 Previous welfare reforms, including the introduction of the Employment and Support Allowance (ESA), have shown that the reshaping of welfare benefits system and making changes to entitlement to benefits significantly increases the need for legal advice. Removing legal advice in this area of law will fail to meet disabled people’s needs while the reforms to the welfare benefits system are implemented.

4.2.5 We are disappointed that in its response to the consultation on the reform of legal aid, the Government has excluded the possibility of considering the ‘polluter pays’ principle. This was part of a package of alternative proposals for Government departments to meet the costs they generate for the legal aid budget, instead of reducing the scope of legal aid as the Bill proposes. In the case of welfare benefits, the system favours the decision-maker. The reconsideration process, which would become a mandatory tier before being able to pursue an appeal under the current welfare reform proposals, provides an additional opportunity to correct decisions prior to an appeal being heard by the tribunal. Applying the polluter pays principle would be essential for incentivising decision-makers to get decisions right the first time and reduce the need for legal aid in the first instance.

4.3 The nature of legal help

4.3.1 Scope believes that the current scheme for legal help is well-structured and uses public funds efficiently. The legal aid system does not fund representation in court with regard to social welfare law, and is currently restricted to legal help that can be used to prepare for appearances at court or tribunal. Specialist benefits advisers help obtain some form of resolution early on, without the further costs to the public purse of public officials preparing appeal papers and the Tribunal Service arranging and holding appeal hearings. The weight of evidence estimates that early intervention and legal help can stop situations escalating and avoid more costly problems at a later date, with Citizens Advice estimating that £8.80 is saved for every £1 invested in benefits advice [5] .

4.3.2 The Justice Minister has recently stated that ‘the Government does not dispute the value of early advice, and fully recognises the role it has to play in the early resolution of issues and the avoidance, in some cases, of the need to take matters further, in particular before the court or tribunal systems’ [6] . However, this is not projected in the Bill. Such early stage preventative interventions will no longer be funded if the provisions in the Bill are implemented and legal help for welfare benefits is removed. In the Green Paper, the Government has placed significant emphasis on discouraging unnecessary litigation. The proposed changes aimed at social welfare law will not assist in preventing unnecessary litigation, but instead remove the very scheme which provides early legal advice and assistance aimed at avoiding court action.

4.4 Expectation that everyone is able to present own case

4.4.1Scope is very concerned that if legal aid for welfare benefits cases is withdrawn, many disabled people will be unable to represent themselves without the prior preparation that legal help currently provides. Regardless of the benefits that might accrue from a simpler benefit system in the future, large area of complexity are likely to remain. Entitlement to benefits is often based on the correct interpretation of highly technical regulations and assessment criteria.

4.4.2 The Work and Pensions Committee has previously highlighted that ‘access to welfare rights advice can be a crucial resource’ for those who require ‘support in preparation for an appeal’ [7] . In order to launch an appeal, an individual disabled person may need to read a very long submission from the DWP, in which it can be difficult to understand why a certain decision has been reached. Basic legal advice enables disabled people to recognise if they have a case to pursue as well as giving them the ability to present it themselves. Legal help also ensures that relevant evidence is obtained and provided to the tribunal, which saves judicial time and resources.

4.4.3 Scope does not agree with the Government’s statement that claimants are only expected to present the facts to the tribunal. An individual pursuing an appeal will have to relate medical evidence to conditions of entitlement, which is often not possible without legal advice. For instance, an individual appealing their decision on Disability Living Allowance would need to have an understanding of the difference between lower and higher rate eligibility as prescribed in detailed regulations, and be able to apply it to their case. It is on this basis that most appeals are allowed, and so without legal help prior to the tribunal, the prospect of an accurate outcome is significantly undermined.

4.4.4 Also, the proposed changes appear to be on the basis that where legal aid will no longer be available, individuals will still be able to represent themselves. Scope is concerned that in presenting the case for reform, the Government has over-stated self representation as a viable or desirable option. Evidence suggests that appeals against decisions on Attendance Allowance and Disability Living Allowance are much more likely to succeed if the individual is represented, suggesting that the tribunal system does not ensure unrepresented appellants fair access to justice. In 2009-10, there were 15,122 people who appeared at the tribunal with representation who were successful, in comparison to only 7,256 people winning their appeals without representation in the First-tier Tribunal (Social Security and Child Support). [8]

4.5 Need to find savings and impact on wider public finances

4.5.1 Scope is concerned that the Government’s proposals would change the stage at which public funding should be provided to crisis point situations only . Elsewhere, the Government has recognised the value of prevention services to prevent problems snowballing into a crisis, with all the associated costs for other public services. Failure to ensure that timely legal advice is available could see additional demands placed on services such as the NHS and other Government departments, undermining the purpose of reducing the legal aid budget.

4.5.2 In addition, the decision to retain discrete areas of law shows a lack of understanding of the reality of disabled people’s lives. Many disabled people experience a cluster of problems which compound one another across different social welfare scope areas, as this case illustrates:

"Some years ago I was claiming Job Seeker’s Allowance and the department officials made errors on three separate occasions stopped my benefit and it took up to eight weeks to get my payments restarted! During this time my Housing Benefit was also stopped. My landlord demanded rent and so I went overdrawn at the bank to keep up the rent. Naturally I accrued bank charges-large bank changes! In total I had £800 overdraft that took years to pay back on JSA and later IB"  [9] .

4.5.3 If the proposals go ahead, most of these problems will relate to areas of advice to be excluded from the scope of legal aid, and a lack of advice in any one of these areas would have direct consequences for the individual concerned. The Government has argued that it ‘would be inappropriate to devote limited funds to a range of less important cases on the basis that they could, ultimately, lead to more serious consequences for the litigant’ [10] . This case is a good illustration of the fact that when welfare benefits are refused, disabled people move quickly into debt. Scope believes that the proposals show a narrow understanding of the benefits that timely legal advice provides in preventing a build up of unresolved problems. We are disappointed that the link between debt, welfare and employment matters and eventual homelessness is not acknowledged in the Bill. Restricting legal aid to discrete areas will make it impossible to deliver a comprehensive, sustainable solution to the legal problems that disabled people face, with most problems being left to exacerbate as a result of excluding large areas of law from scope.

4.6 The move to a single mandatory telephone gateway

4.6.1Scope also has serious concerns about the plans to trial the mandatory single telephone scheme for those areas of law staying within the scope of legal aid, as is proposed in the Government’s response to the Green Paper consultation. We are concerned that introducing a single gateway would create a number of barriers for disabled people and could prevent them from accessing legal advice and assistance which they need and to which they are entitled. Also, a further concern is that the telephone service may artificially demarcate between areas of law remaining within scope and those than are excluded. As stated above, legal issues are often complex and in order to deal with their legal problems in a holistic way, disabled people will often require legal assistance that spans across a number of areas.

4.6.2 We disagree with the plan to trial the telephone gateway for four areas of law that have been kept within scope, namely discrimination, community care, special educational needs and debt (insofar as it remains in scope), as this fails to recognise the complexity of these cases. 4.6.3 Face to face contact is a critical component of good quality legal advice for cases involving either of these areas of law. We do not believe that these cases can be dealt with effectively through a telephone channel, as this would make it harder to process paperwork that is often required to provide adequate advice on such matters. Whilst we recognise that telephone advice may be a suitable alternative in some case, we would oppose the proposal that access to face to face legal advice will be regulated initially through a triage system of telephone advice. To ensure access to justice, a range of options for accessing advice should be available.

4.6.4 Scope notes that while the Bill provides no detail on how the telephone gateway would operate, the Bill poses significant challenges and would effectively remove the choice for disabled people seeking advice as to how they access it. Clause 26(1) provides that ‘the Lord Chancellor’s duty under section 1(1) does not include a duty to secure that, where services are made available to an individual under this Part, they are made available by the means selected by the individual’. Further, it is stated under Clause 26(2) that ‘the Lord Chancellor may discharge that duty, in particular, by arranging the services to be provided by telephone or by other electronic means’. This raises fundamental issues particularly if after receiving telephone advice, disabled people cannot be referred to a specialist of their choice, whom they have potentially used before and trust.

5 SCOPE’S RECOMMENDATIONS

5.1 Scope strongly recommends that the Government makes amendments to the Bill in order to retain legal aid for welfare benefits within scope. Also, we would recommend that any transfer of powers to the Lord Chancellor, which would allow him to further exclude areas of law from the scope of legal aid or tighten financial eligibility criteria, are carefully scrutinised against their impact on access to justice for disabled people.

July 2011


[1] Paragraph 4.217 of the Green Paper

[2] Impact Assessment – Scope changes, http://www.justice.gov.uk/consultations/docs/legalaidiascope.pdf

[3] http://www.justice.gov.uk/consultations/docs/legalaidiascope.pdf

[4] Department for Work and Pensions (2010), Employment Support Allowance: Work Capability Assessment Statistical Release: http://research.dwp.gov.uk/asd/workingage/esa_wca/esa_wca_26102010.pdf

[5] Citizens Advice (2010), Towards a business case for legal aid: http://www.citizensadvice.org.uk/towards_a_business_case_for_legal_aid.pdf

[6] Justice Minister Jonathan Djanolgy address to the Legal Action Group Social Welfare Law Conference, July 4 2011

[7] Work and Pensions Committee (2010), D ecision making and appeals in the benefits system , http://www.publications.parliament.uk/pa/cm200910/cmselect/cmworpen/523/52302.htm .

[8] Written Answer to Parliamentary Question (22 December 2010), Slaughter – Appeals.

[9] Scope, Money matters survey results

[10] Paragraph 4.79 of the Green Paper

Prepared 14th July 2011