Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Sheffield Law Centre (LA 16)

Civil Legal Aid


1. I am submitting this response in my role as E quality Rights Worker at Sheffield Law Centre. This response refers to the areas of work I have direct experience of, to inform the committee of issues relating to the clauses of the Bill under discussion.

2. The response therefore focusses on advice on discrimination law and the impact of Schedule 1 of the Bill, introduced by clause 8.

About the Law Centre

3. Sheffield Law Centre is a registered charity run by a voluntary management committee. It has recently celebrated 25 years of providing legal advice, assistance and representation to the community. The Law Centre exists to:

· provide an accessible legal service to people who live or work within Sheffield and who are oppressed, disadvantaged or living in poverty

· challenge injustice through legal representation, education and training

4. The main areas of law we undertake are:

· Housing

· Employment

· Immigration and asylum

· Discrimination in all fields

5. We hold contracts with the Legal Services Commission in employment, housing, asylum, immigration, disability discrimination and public law. Along with our partner advice centres, we provide advice in welfare benefits and debt. In addition, we receive funding from the Equality and Human Rights Commission, to provide further advice in discrimination and human rights, as well as some support from the local authority, which allows us to provide a holistic service that our clients need. Each source of funding has an impact on the effectiveness of each other source.

6. All our advice is confidential, impartial and free at the point of delivery. Last year, we provided a full casework service to 1356 people and advised a further 2639 callers, mainly with telephone advice. We provided second-tier advice to 43 different organisations - this complements our service as well as reflecting or links in the community. On our feedback forms, 92% of clients said their life had improved because of our help.

About my work

7. My role is to provide advice, casework and representation in unlawful discrimination cases, principally outside the employment field. Employment advice needs are met by our specialist employment advisers.

8. Cases of unlawful discrimination in employment are enforced in the employment tribunal – there were 65,710 discrimination cases brought in the employment tribunal in 2009-10 [1] . Complaints in some cases in the education field must be brought in the Special Educational Needs and Disability Tribunal (SENDIST) but all other complaints of unlawful discrimination must be brought in the county court. This includes cases in goods, facilities and services, housing and higher or further education. in contrast to the relatively ready access to employment tribunals, very few cases are ever brought in the county court because of the obstacles of high costs, upfront fees, formality, the adversarial nature of proceedings and the lack of guidance by the courts, the risk of significant costs awarded in the event the case is lost. Even where a viable case is identified with good prospects of success, there is often difficulty getting the backing of a legal aid certificate for full representation or funding under a conditional fee agreement. This is because the costs of bringing a case are high because of the uncertainty of litigation: discrimination cases are so rare they do not have a beaten track to the court’s door. In comparison, awards of damages are low, often considerably lower than the legal costs of the case. We have therefore previously supported proposals for a dedicated Discrimination Tribunal, along the lines of the employment tribunal, to provide ready access to a means of enforcing discrimination rights. This proposal was rejected in the drafting of the Equality Bill, in preference to maintaining an adversarial system.

9. In my experience, very few clients, if any, are motivated primarily by the prospect of compensation. Most are either defending legal action (actual or threatened) brought against them by another party or to put right a social injustice which will affect them and others again in the future if they do not take action. Taking action is often the only way to achieve a vital, non-money remedy. One of the difficulties with the present remedies available in the Equality Act is that the court’s powers are principally limited to awards of money and are not directed at achieving social change.

10. Some case studies of the anti-discrimination work are available at: These include:

David Allen v Royal Bank of Scotland

A teenager using a wheelchair was forced to take legal action against the Royal Bank of Scotland when it was not prepared to allow him into his local branch. The bank had sufficient resources that it was able to take an appeal to the Court of Appeal and Supreme Court – our client was successful at each stage.

Post Office accounts:

A retired man with mental health problems had difficulty keeping track of his money because the Post Office refused to send account statements more frequently than once every three months – until we took action.

Discrimination by DWP

One client, who is blind, brought a claim against the DWP after it persistently sent her letters in small print so she could not read them. She was successful at her benefits tribunal and also successful in court proceedings under the Disability Discrimination Act.

Disabled drivers

A disabled driver brought a successful complaint of disability discrimination against an insurance company who refused motor insurance because his car was adapted for his disability:

Use of personal insolvency for council tax arrears

A severely disabled man with a learning disability nearly lost his life-long home after the local authority wrongly brought insolvency proceedings for non-payment of council tax. We intervened - after the bankruptcy order had been made – and succeeded in getting it set aside so his home was saved.

Action on public transport

A profoundly deaf woman took action about her treatment when using public transport:

11. It is important to realise that these are only the few cases that were publicised. By far the majority of cases result in a positive outcome through advice, increased understanding and negotiation. The cases do show that discrimination law is different from other fields in that it cuts across them all.

12. 77% of my clients at the Law Centre have disabilities. 41% are BME. What is vital about our service is that people can contact me in a variety of ways, such as:

· In–person (with or without appointment)

· E-mail

· Telephone

· Fax

· Typetalk / Text relay

· Through a third party

· By home visit

· At a third party premises or appointment by arrangement with a third party

· With interpreters (including BSL) if necessary.

13. Importantly, my casework usually involves a combination of these methods, depending on what is the most effective and efficient use of our resources.

14. The proposal for a mandatory telephone helpline for all advice on unlawful discrimination is of particular concern - this would rule out access to advice for most of my clients. It is not clear how the Government proposes that their advice needs would be met.

15. Members of the Committee may also be aware that the Government is requiring the Equality and Human Rights Commission to cut its grant funding to Law Centres such as ours. At present this provides for some of the advice and casework that is not met by the limited availability of legal aid. Whilst the Government has indicated there is to be an additional £20 million available to not-for-profit agencies, this should be seen in the context of the Government’s proposed cut of £60 million in legal aid funding for the NFP sector, plus £4.2 million in funding from the EHRC. We find it worrying that the voluntary sector is expected to bear most of the brunt of cuts to legal aid.

Impact of the current Bill on clients experiencing unlawful discrimination

16. It is pleasing the Government intends to recognise the social importance of clients being able to get advice and, where necessary, representation on tackling discrimination. As the judge in the case of Allen, above, said,

"Disability discrimination is a social evil and is widespread and the legislation is there to outlaw it."

17. It is important this commitment to access to advice is more than lip service. It is unclear at present how clients will be able to access advice if the only route is through a mandatory telephone line. The second concern is how providers – especially small providers and charities like ours – will be in a position to employ someone to provide advice. The problems of "advice deserts" are well documented in rural areas but even in Sheffield – the fourth largest city in the country – there is not a single provider offering advice in education law. The risk is that this will extend to other areas of law. For instance, who will provide advice to low-income families facing discrimination at work?

18. To achieve the Government’s aim of continuing advice on unlawful discrimination, I note that discrimination cases under the Equality Act remain in scope by virtue of Schedule 1, Part 1, paragraph 37. This is welcome. However, the present arrangement of the Bill will leave some uncomfortable boundaries between what is in scope and what is outside it.

19. In the case mentioned above of the man with learning disabilities facing insolvency for council tax arrears, although we advised of his rights under the Disability Discrimination Act 1995 (then in force), the proceedings brought were an application to annul the bankruptcy order. This application was therefore made under the Insolvency Regulations, with reference to the DDA, rather than under the DDA itself. It would be wrong if this type of case were excluded from the scope of legal aid, as appears to be proposed.

20. There is also the possibility of cases of unlawful discrimination brought under other statutes (whether current or future) such as the provisions in Schedule 5 of the Social Security Act 1989. In my view, the Bill should allow the possibility of legal aid covering any instances of unlawful discrimination falling outside Equality Act 2010 jurisdiction.

21. The effect of paragraph 37(2)(a) of Schedule 1 of the Bill is to allow cases in relation to welfare benefits to remain within scope where there is a case of unlawful discrimination under the Equality Act. However, there seems to be no reason to exclude other types of discrimination case, such as:

· A profoundly deaf woman suffering discrimination by being locked in a room by in-store security staff who suspected her of shop-lifting and being separated from a friend who could interpret from British Sign Language. Because this is arguably a case of false imprisonment, the impact of Schedule 1, Part 2 paragraph 3 would appear to exclude her from bringing a claim of discrimination. That would be wrong.

· Paragraph 8 of Schedule 2 would appear to exclude legal aid for advice on a breach of statutory duty even where the breach arises from an intentional discriminatory motive.

· Paragraph 13 of Schedule 2 would appear to exclude legal aid to a person who has been harassed out of a position in a small charitable company because of his disability, although possibly not if it were an unincorporated association. It would be a strange anomaly if certain types of discrimination were excluded from a real remedy.

22. In terms of the scope for discrimination claims, I would recommend that

(a) All the exclusions in Schedule 1 Part 1 paragraph 37 (2) are removed.

(b) Paragraph 37(1) is amended to include "contravention of the Equality Act 2010 or any other prohibition of discrimination"

Welfare benefits

23. I should also draw attention to the proposals to exclude welfare benefits generally from the scope of legal aid. The Minister is wrong in thinking that benefits issues are primarily about low-level financial entitlement and that the tribunal will help unrepresented applicants through the process. Aside from the breath-taking thought that the whole of someone’s income might not be a significant matter, it is important to realise that the importance of many welfare benefits issues go beyond the financial issues.

24. For instance, I am currently representing a woman who faces an overpayment of housing benefit. The financial issue is not all that important in reality since she has no prospect of paying a sizeable debt if her appeal is unsuccessful. However, the long-term impact of being unsuccessful is that it will place her at risk of homelessness in the future because of the impact of any overpayment recovery on her current and future rent payments. It will also limit her options for rehousing by the local authority and other housing associations whilst she has an outstanding debt.

25. The case has been going on September 2010. There has been a stream of correspondence about the appeal, often with detailed analysis of the law on both our part and the officer of the local authority. Contrary to the Minister’s views, there has been no involvement from the tribunal service until recently when the tribunal judge has issued a number of written directions requiring "a submission setting out what are considered to be the issues in the appeal by reference to the relevant statutory provisions …"

26. There is no possibility that this client, unrepresented, with her particular level of written English would be able to respond to this direction. More to the point, she would never have been able to submit an appropriate appeal without the advice needed to identify the decision to appeal, apply the relevant law and address the relevant issues.

27. Whilst there is merit in finding ways of restricting legal aid to cases where there is "sufficient benefit", it is not going to be achieved by removing the entire area of welfare benefits from scope.

28. I trust these views will help inform the Committee.

July 2011

[1] Employment Tribunal and EAT statistics 2009-10 , Ministry of Justice (3 September 2010)

Prepared 18th July 2011