Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Just Rights (LA 13)

1. About Just Rights

Just Rights is a coalition of over 30 organisations, established by Youth Access, The Law Centres Federation, The Howard League for Penal Reform and the Children’s Rights Alliance for England. We campaign for the rights of children and young people within the legal system. Supporters of the campaign are listed at the end of this briefing.

2. Summary

2.1 The Legal Aid, Sentencing and Punishment of Offenders Bill will remove access to legal aid for clients in most private family law cases, for cases involving medical negligence, employment, immigration, most debt, some housing cases, most education cases, and those involving welfare benefits.

2.2 Among the many people who will lose access to legal aid will be children and young people, who will be expected, unacceptably, to represent themselves within an adult legal system. Cases where a child or young person will no longer be eligible for legal aid include:

· Young people living independently after leaving the care system who will no longer be able to challenge decisions about their access to financial support.

· Young people who have experienced criminal injuries, including abuse.

· Young people left severely disabled by medical negligence.

2.3 The Government has taken some steps to protect children up to the age of 18 from the changes. They appear to have recognised that children and young people differ from adults – developmentally; in their legal status; and in their ability to navigate the legal system. Lord McNally stated in Lords questions on legal aid on July 17 th: "As far as possible, our intention is that, where children are involved, legal aid will still be provided." Minor concessions have been made, e.g. to protect children in some family cases and to exempt under-18s from the requirement to access legal advice via the single telephone gateway.

2.4 However, thousands of children and young people have not been protected and will be denied access to justice. JustRights wants to see a more consistent, logical approach that extends protection to all children and vulnerable young people (up to age 25) across the civil legal system.

3. How changes to legal aid will affect children and young people

3.1 The Legal Aid, Sentencing, and Punishment of Offenders Bill removes a large number of areas of civil law from the scope of legal aid. Schedule 1 of the Bill lists those areas of civil law where legal aid will remain available. The response to the Government’s consultation on legal aid, [1] published alongside the Bill, lists those areas which have been removed from ‘scope’. These include: clinical negligence; criminal injuries compensation; debt (except where there is an immediate risk to the home); employment cases; education cases (except those regarding Special Educational Needs); housing cases (except where the home is at immediate risk or the case regards homelessness); immigration cases; and welfare benefits.

3.2 JustRights is deeply concerned about how these changes will affect children and young people who are currently the direct recipients of legal aid in cases in these areas. The Government’s Equality Impact Assessments have barely considered the impact on children and young people. Yet these scope changes will have a huge impact on young people’s access to justice.

3.3 Cases in which children and young people will no longer be able to access legal aid include:

· Employment: Children and Young people aged between 16 and 25 in employment who wish to challenge exploitative practices by their employers, for example, non payment of the National Minimum Wage.

· Welfare benefits: Children and young people living independently, who experience problems with financial support, including Housing Benefit, Income Support, and Jobseeker’s Allowance, will no longer be able to seek advice.

· Criminal injury: Children living independently who have experienced abuse, for example within the care system, will receive no help to gather evidence in order to present their case for compensation.

· Immigration: Migrant children and young people facing deportation from the UK and many victims of trafficking will lose access to advice.

· Debt: Research suggests that 77% of young people get into debt by age 21. [2] The proposals would remove their right to legal assistance to regularise their situation.

4. Examples of cases which these changes would affect

The following cases, provided by Law Centres conducting targeted work with this client group, are examples of children and young people who have been helped through civil legal aid, but who would lose access to this help under the proposed changes:

Terry, aged 17, got his first job as a trainee mechanic in a garage in London. He was keen to work and cheerfully worked overtime. Terry worked 50 hour weeks for the first 4 weeks of his new job and at the end of the month he was paid only £160. This is the equivalent of 70p per hour. Terry was very disappointed about the amount of money he received and asked his employer why his pay was so low. His employer told Terry that he would not be paid for the first week of his employment since he was "training" and was paid that much because he was a "trainee". Terry’s Connexions adviser recommended the Law Centre, who advised Terry that he should have been paid the national minimum wage for all the hours he worked, including the week for which the employer alleged he was "training". The Law Centre wrote to the employer pointing out the breaches of law and threatened to take a case to the Employment Tribunal. Terry was paid for all the hours he worked, including the overtime. Terry went on to find another job where he was not exploited.

John was 17 and living independently, having been thrown out of his mother’s home following repeated conflicts with his mother’s boyfriend. He has a learning disability and attended a special school. Having had no experience of managing money, he fell into arrears with his service charge and was threatened with eviction. Streetwise Law Centre supported him to apply for Disability Living Allowance. He was initially refused, and then won on review. He didn't really understand that he had a learning disability, and would not have been able to explain his needs at review / appeal. Nor did he have anyone able to support him – the staff at his accommodation had no knowledge of DLA. The backdated benefit cleared his arrears and Streetwise helped him set up a standing order to pay his rent when the DLA came into his bank account.

5. Why provide children and young people with access to legal aid?

5.1 JustRights wants to ensure that children and young people aged up to 25 retain the right to legal help and civil representation across the current range of civil legal proceedings.

Children and young people are a vulnerable group who should not be expected to cope with the demands of an adult legal system.

5.2 Research suggests that 16-24 year olds experience at least 2.3 million rights-related problems requiring advice each year. [3] Most are amongst the most disadvantaged young people, e.g. those who are leaving the care system. New research shows that 80% of 16-24 year olds with civil justice problems fall into at least one ‘vulnerable group’, e.g. they have mental health problems or are NEET. [4]

5.3 Research has also established that young people have the lowest levels of ‘legal capability’ [5] . Generally, it is understood that children are not always able to fully understand the consequences of their decisions. However, new evidence showing that the brain’s centre of reasoning and problem-solving is among the last to mature indicates a need to take an age-specific approach to service delivery even for young adults in their twenties. [6]

5.4 The Government has recognised that children have different needs within the legal system, e.g. by retaining legal aid for children in some types of family case and excluding under 18 year olds from the requirement to access legal advice via the proposed single telephone gateway. We believe that this recognition should be extended to all vulnerable young people aged under 25, who should never be expected to navigate an adult legal system on their own.

Children and young people’s unresolved civil justice problems impact on their health and their employment prospects

5.5 Unresolved problems can have a significant negative impact on young people’s prospects. Research shows substantial evidence of an adverse impact on young people’s mental and emotional health, with 34% of NEET 18-24 year olds reporting stress-related illness as a result of civil justice problems, with more than a third going on to use NHS services. [7] Housing, employment, debt and welfare benefits problems – which are largely being taken out of scope – were the problems most likely to bring this on.

5.6 Over 8% of young people with civil justice problems experience loss of employment as a result. [8] 70% of people who lose employment as a result of civil justice problems go on to experience a period of unemployment and, of these, 59% go on to claim unemployment-related benefits. [9] Government departments have previously recognised that providing good, early advice to young people on issues such as benefits, housing and debt was "key in helping them to overcome barriers to participation in learning and make a smooth transition to adulthood and working life" . [10]

Retaining legal aid for children and young people will save money

5.7 Based on calculations made by economists working for the Ministry of Justice, [11] JustRights conservatively estimates that the cost of unresolved civil justice problems experienced by 16-24 year olds alone currently amounts to £1 billion per year . These costs will rise significantly if children and young people’s access to justice is further curtailed.

5.8 The cost of retaining legal aid for all children and young people would be modest . New MOJ data shows that only 6% of currently funded civil representation cases involving under 18 year old clients are due to fall out of scope. Protecting all these children and young people from the legal aid cuts would be affordable in the short term and will generate significant savings to the public purse in the long term.

5.9 Any savings made through denying children and young people civil legal aid are likely to be outweighed by increased costs in the criminal legal aid budget alone. 55% of 16-24 year olds who had recently been arrested reported experiencing at least one ‘difficult to solve’ civil justice problem. [12] This group was particularly likely to have problems concerning housing, benefits, debt and employment – which are all key factors influencing re-offending rates – and to have multiple problems. [13]

5.10 Legal advice can help vulnerable children and young people to resolve civil justice problems, and support them to achieve their potential:

· 70% report improved levels of stress after getting legal advice

· Over a third report improvements in their ability to engage in education, employment and training

· 48% of disadvantaged young people report an improvement in their behaviour [14]

Retaining legal aid for children and young people would cut bureaucracy and reduce delays in the system

5.11 In the absence of a blanket exemption for children and young people from the cuts to scope, it is likely that lawyers would apply for legal aid for most of these clients on a case-by-case basis under the Exceptional Funding Scheme, which provides for legal aid to be granted where it would not be reasonable or in the interests of justice for vulnerable clients to present their own case. Bureaucracy and administrative costs would increase substantially, leading to delays which could harm children and young people’s chances of obtaining timely justice.

The availability of advice from alternative sources for children and young people is being drastically reduced

5.12 The Government has suggested that clients faced with problems that have been removed from the scope of legal aid will be able to seek advice from voluntary sector providers. But local authority funding cuts mean that the availability of advice to young people from the voluntary sector is being drastically reduced. Youth Access surveyed youth advice providers earlier this year and found that a quarter will close this year, and a further half will operate at a reduced level. [15]

5.13 Other provision often caters poorly for the needs of young people; less than 1% of advisers and solicitors currently practising social welfare law report that they see young people as a target group. [16] Young people are already the least likely of any age group to obtain advice. [17]

UK and International Law demand special protection for children

5.14 The Government is bound by UK and international law to make the welfare of the child the primary consideration in any legal proceedings involving children and to ensure children’s access to justice, including through the provision of advice and representation.

" In all actions concerning children , whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. "

Article 3 of the United Nations Convention on the Rights of the Child

"Children should have access to free legal aid, under the same or more lenient conditions as adults."

The Council of Europe guidelines on child-friendly justice [18]

5.15 The Bill does acknowledge the Government’s responsibilities to uphold children’s rights under international law (e.g. see Schedule 1, part 1, para. 15, EU and international agreements concerning children). However, the Bill still leaves thousands of children’s cases outside scope, which is not acceptable.

6. What changes do we want to see to the Bill?

6.1 The Government has stated that it wishes to protect children and young people, and has done so in several ways, e.g. by exempting under 18s from accessing legal aid via the telephone gateway and keeping some types of family cases in scope for children. However, there is no consistency in the Bill, with many other types of case where children and young people can currently receive legal aid being removed from scope.  

 

6.2 JustRights believes that the Bill should be amended to properly protect children and young people’s access to civil legal aid, e.g. by:

i) making children and young people aged under 25 a distinct category within the ‘included’ cases in Schedule 1.

ii) ensuring that children and young people aged under 25 are always treated as ‘exceptional cases’.

6.3 We further believe that the exemption for under 18 year olds from having to access legal aid via the single telephone gateway should be extended to all children and young people aged under 25. This is based on the fact that the research evidence used by the MOJ in deciding to exempt under 18s actually relates to 18 to 24 year olds, who are half as likely to access legal advice by telephone as people aged 25 and over. [19]

6.4 We further request that an urgent Age Impact Assessment be conducted alongside the passage of the Bill in order to inform MPs’ final decision s on the Bill.

The JustRights Campaign is supported by:

· Catch 22

· Children's Legal Centre

· Children’s Rights Alliance for England

· CHYPS (Confederation of Heads of Young People’s Services)

· CROA (Children’s Rights Officers and Advocates)

· Howard League for Penal Reform

· Just for Kids Law

· Kids Company 

· Law Centres Federation

· National Youth Agency

· National Council for Voluntary Youth Services

· National Youth Advocacy Service

· Streetwise Community Law Centre

· Streetlegal

· The Cabin (the UK's only CAB for young people)

· Voice

· Youth Access

· Young Minds

July 2011