Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Howells Solicitors (LA 104)

Family Law

If the present Bill proceeds without amendment the poorest and most vulnerable members of our society will no longer be eligible for legal aid to help them sort out divorce proceedings, disputes relating to children including absent parents who are seeking contact with their children, wider members of the family who are applying for contact or in some cases residence of a child who may live with them, people who need advice on sorting out financial matters when divorcing or separating unless there is "objective evidence of domestic violence". In 2009-10 95% of civil and family legal help recipients were in the bottom two income quintiles. These people are often the most vulnerable yet will lose the right to get legal advice even if their opponent is privately paying. There will be a two tier justice system. Those with money will be able to afford to instruct a solicitor whereas those without will be left to represent themselves in complex and difficult proceedings.

Legal advice early in a case can prevent court proceedings, manage people’s expectations and resolve disputes leading to less stress for both the parents and children and a better understanding between the parties which may prevent further dispute. At the moment 90% of family law cases are resolved out of court.

88% of the work that we do in these areas will go out of scope. There will be 34,000 fewer Children Act cases (75% of existing cases). Parents or carers will struggle to get legal advice creating a society where children miss out on the opportunity of having a relationship with both parents, the opportunity of having the stability provided by a residence order and financial security as the Bill proposes to take out of scope advice in financial matters where there is no objective evidence of domestic violence. This applies to cases where urgent court action is necessary to prevent one of the parties dissipating the assets.

Mediation

Almost all our cases are referred to mediation. A mediator can only give information not legal advice. We continue to support parties through the mediation process by providing tailored legal advice – often at the suggestion of the mediator who is not qualified to do this and this helps to facilitate an agreement and avoid court action. The legal advice guards against unfairness.

Mediation is not suitable for all cases and often fails. Where mediation fails under these proposals many people will be left to navigate their way through the court process without the guidance and advice of a solicitor putting a huge strain on the courts.. Cases will take far longer when a Judge is dealing with litigants in person and is left to explain the law and procedure to them in full.

Our Suggestion

Increase the proposed funding for advice through the mediation process – the present proposal to provide a fixed fee of £150 for help with mediation will lead to even more firms deciding to ditch legal aid and advice deserts for face to face work. Allow legal aid to be granted by a solicitor without a referral to mediation where there is an urgent need eg finances are being dissipated by one of the parties or a child is at risk of abduction in the UK.

Domestic Violence

At the moment legal aid is available to advise the victims of domestic violence and send out warning letters which sometimes prevent court action. This work would no longer be covered under those present proposals.

Whilst the definition of domestic violence has been extended slightly it does not cover victims of abuse or those who have no objective evidence of the domestic violence. It does not cover representation for the alleged abuser who may have their relationship with their children curtailed or stopped if adverse court findings are made against them.

Many victims of domestic violence choose not to report it so would not qualify under this legislation. Others may be encouraged by the promise of legal aid in future contact and financial proceedings to press for findings when they would otherwise have chosen not to inflame what is already a very volatile relationship.

At present injunction proceedings are often compromised by one party giving an undertaking which is a promise to the court which can be enforced if it is broken but does not amount to an admission of wrong doing. Many cases which would otherwise have gone to a long and traumatic court hearing are disposed of in this way and often enable the parties to move on with their lives and concentrate on other pressing issues. Under the proposed legislation undertakings will not be sufficient objective evidence of violence so full, contested hearings will be more prevalent, increasing the strain on the judicial process and inflating legal costs. At the moment the cost to the legal aid system of proceeding with a domestic violence injunction which is concluded by undertaking is approximately £800 . The cost of a 1 or 2 day fully contested hearing would be approximately £5,000 . It will also heighten the animosity between the parties, adversely affect their ability to communicate directly in future and make the absent parent’s contact more difficult. Under these proposals only the victim would be represented and would be subjected to cross examination by the abuser.

Our Suggestion

Extend the definition of domestic violence so that a mediator can determine that mediation is not suitable because one of the parties is at risk of abuse. This will avoid many unnecessary contested hearings on the issue of domestic violence. Make legal aid available to those who are the alleged abuser to ensure that there is equal representation in domestic violence proceedings.

Statutory Charge

At the moment almost all our financial cases which are funded by legal aid result in the repayment of the costs in full from the money the party "recovers or preserves". Experiences and specialist lawyers do not allow cases with few assets or no chance of success to trouble the Courts.

Alternative payments for legal services

The Bill proposes to introduce interim orders for costs. This scheme may work but potential applicants need detailed advice on how to proceed to this point and advice on the likelihood of success which will involve detailed analysis of the other side’s financial affairs and under the present proposal this preparatory work will not be funded. It is likely therefore to be rarely used in practice.

Our Suggestion – make legal aid available for advice in connection with the new interim lump sum proposals at an early stage

Civil Law

Early advice on debt, welfare benefits and housing issues resolves issues, prevents court or tribunal proceedings and saves costs.

These proposals simply pass the burden of expense onto other agencies e.g. homeless services, social services, court and tribunal services, health services, MP’s etc. A successful housing benefit appeal will cost a fixed fee of £167 and may prevent a tenant falling into arrears and being evicted. Lack of early intervention may lead to eviction, homelessness, social services involvement with children at the very least and at a vastly greater expense to the public purse.

These proposals threaten to destroy legal aid provision on a scale that will create huge advice deserts and will damage the market irreparably.

10% Cuts

Even the largest and most dedicated suppliers who are determined to try and continue will find it difficult to do so. Those not committed to legal aid have already pulled out and others have become insolvent.

Legal aid firms have already reduced overheads to a minimum. There are no further savings that can be made. A further 10% reduction in current remuneration cuts margins tighter in an already difficult environment and requires providers to assess their future business plans. Most legal aid firm’s profit margins already too tired to tolerate the fee cut and this may tip many legal aid firms into unprofitability.

The Otterburn report shows that the profit margin across all firms is 10%. These cuts will effectively eliminate profit and inevitably mean that some firms stop doing legal aid altogether leading to advice deserts.

In family land civil law the 10% cuts will wipe out our profit.

Attached are case studies we have drawn up which are based on our experience, working in practice for many years and predicting what could happen as a result of these proposals.

Case studies

September 2011