Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the National AIDS Trust (NAT) (LA 19)

 

Summary

NAT is the UK’s leading charity dedicated to transforming society’s response to HIV. We provide fresh thinking, expertise and practical resources. We champion the rights of people living with HIV and campaign for change.

We would like to make comments around the proposed cuts to legal aid contained in the Bill. In particular, we have concerns around:

· The disproportionate impact of the cuts on people living with HIV, and on disabled people and people from BME backgrounds more broadly. NAT does not believe that the Government has adequately considered these equalities impacts and wheather the proposed changed are consistent with its duty to promote race and disability equality.

· The removal from scope of employment, welfare benefits, asylum support, immigration, housing and debt advice, which will increase hardship and social disadvantage among people living with HIV.

· The way in which the mandatory telephone gateway will act as a barrier to access for people living with HIV.

Disproportionate impact of legal aid cuts on people living with HIV

1. Statistics about who is currently accessing legal aid show that people living with HIV will be disproportionately affected by the cuts. Legal aid is relied upon disproportionately by people with disabilities, people from black and minority ethnic backgrounds, and those on low incomes. HIV is a disability, and a significant proportion of people living with HIV are black African or black Caribbean. [1] [2]

2. Disabled and BME people represented 18% and 8% of the UK population respectively, but are 21% and 26% of civil legal aid clients. In the area of welfare benefits, which is especially relevant for people living with HIV, 85% of current legal aid clients are from a BME background. [3] More than a quarter of housing claims on legal aid involve disabled people; this is also a major issue for people living with HIV. (Please see points 10-12 and 16 below for specific comments on these impacts).

3. Many people living with HIV are also affected by poverty. Between 2006 and 2009, one in six people receiving HIV treatment had to seek charity assistance in the form of cash payments. [4] They are particularly likely to be disadvantaged by the loss of funding for legal help with housing, welfare advice and asylum support.

4. NAT is very concerned that these impacts were not adequately addressed by the Government in the original Equalities Impact Assessment for the reform proposals. This assessment failed to recognise that the importance of legal aid as a means of access to justice is different for different protected groups, merely stating that as the cuts applied across the board and have the aim of reducing Government spending, the impact was ‘proportionate’.

5. Moreover, there has been insufficient consideration given to the Government’s responsibility to promote equality between groups in society. As already noted, people living with HIV are particularly likely to be affected by poverty, and this applies especially to migrants and people from BME backgrounds. HIV is also a stigmatised condition and people living with HIV still experience discrimination and disadvantage connected to their disability.

Recommendation

6. NAT recommends that the Committee:

· Review the Equality Impact Assessment provided by the Government on the plans to cut legal and highlight areas where further consideration is needed.

· Ask the Government how legal aid cuts can be considered proportionate if they will have a more severe impact on particular groups, including people living with HIV and other disabled people.

· Seek further information on how the Government intends to align legal aid cuts with its responsibility to promote equality among different groups in society.

Limiting the scope of civil legal aid

7. NAT is particularly concerned about the removal from scope of the following areas of civil legal aid: employment, welfare benefits, immigration, asylum support, and housing. These areas represent some of the main dimensions of social disadvantage experienced by people living with HIV.

Employment

8. People living with HIV still experience discrimination in the workplace due to their disability. [1] NAT strongly supported the introduction of the Equality Act 2010 and increased protections for disabled people, including people living with HIV. However, we are concerned that now that these protections are in place, cuts to legal aid will prevent individuals from accessing these rights.

9. Although discrimination cases will still be eligible for legal aid, these cases will often arise alongside another employment claim, which will no longer be in scope under these proposals. This will create a practical barrier to pursuing the discrimination claim. The loss of legal aid in these areas will lead to a reduction in the number of providers who advise on combined claims.

Welfare benefits

10. The system of welfare benefits is complex, and becoming more so. There is particularly rapid change around disability-related benefits, which are a crucial source of income for many people living with HIV.

11. Research by NAT has found that people living with HIV face particular barriers in accessing Employment and Support Allowance (ESA), the benefit for people who cannot work due to illness or disability. [2] However, those who receive expert advice are much more likely to succeed. This is illustrated by the appeals statistics for ESA: 40% of appeals are successful, but this figure is as high as 70% when the applicant has representation. [3] We also know that now that Incapacity Benefit claimants are being moved across to ESA, HIV-specific welfare rights advisors are facing increasing demand for their services, which they may not be able to meet.

12. With a raft of further reforms to welfare benefits planned between now and 2014, including the abolition of Disability Living Allowance (DLA) and introduction of Personal Indepedence Payment (PIP), changes to housing benefit and the introduction of the Universal Credit, it is even more essential that people living with HIV have access to independent, high quality advice about their entitlement to welfare benefits.

Immigration

13. Immigration is a key dimension of the HIV epidemic in the UK. Of those newly diagnosed in 2009, the vast majority had contracted HIV overseas. [4] Immigration law is complex, and the provision of reliable advice early on in the process reduces the likelihood that migrants will end up staying in the UK illegally. For migrants living with HIV, residential status is crucial for accessing essential NHS care. Providing early immigration advice under legal aid is invaluable for helping migrants remain and settle in the UK in accordance with all relevant laws.

Asylum support

14. People living with HIV are also overrepresented in the asylum system. For this reason NAT is very concerned that legal aid will not be available to provide advice to asylum seekers about receiving support under Section 95 or Section 4. As asylum seekers are generally not allowed to work in the UK, and have no recourse to public funds, this assistance is the only income available to them. Research by NAT has found that involvement in the asylum and immigration systems is the main driver of poverty for people living with HIV. [5]

15. It is inconsistent to allow legal aid for advice for asylum cases, while not allowing help with advice that will ensure that these individuals do not experience destitution while awaiting the outcome of this case.

Housing

16. Some people living with HIV have special housing needs. For example, damp accommodation with inadequate heating creates an unhealthy and potentially dangerous environment for people with respiratory infections and tuberculosis. [6] A tenant living with HIV may wish to enforce their landlord’s obligation to make repairs to reduce serious damp problems. Under the new proposals, they would not be able to access legal aid for this case, even though their health is at risk. They would only be able to do so if the were at immediate risk of losing their home – for example, if they had withheld rent from their landlord and were threatened with eviction.

Recommendation

17. NAT recommends that the Committee consider how cuts to legal aid will increase the experience of social disadvantage among people living with HIV by:

· Reducing the likelihood that they will pursue claims of disability discrimination at work, even though they are entitled to such support.

· Leaving them without advice and support to navigate complicated welfare changes and challenge unfair decisions - and in some cases, without access to the benefits to which they are entitled.

· Increasing the number of people living with HIV who fail to understand and meet the requirements of the immigration system - which will in turn increase the number of people living with HIV with an irregular migration status who do not access essential treatment from the NHS.

· Reducing the access destitute asylum seekers with HIV have to the only financial support available to them.

· Leaving people living with HIV in unsuitable housing situations completely unsupported, even if their health is at risk.

Mandatory telephone gateway

18. NAT is concerned that introduction of a Community Legal Advice telephone as the single gateway to access civil legal aid advice will act as a barrier to access to justice for people living with HIV. Having access to a telephone advice line will no doubt be preferable for some people, and should be available as an option. However, a phone line where claims are assessed by a generalist adviser should not be the only point of access for legal aid.

19. People living with HIV who may have faced discrimination related to their disability will not always be comfortable disclosing the nature of their claim to a telephone adviser. This will deter them from accessing legal advice for their claim. They should be able to approach a legal aid provider, who is experienced in the sensitivity of disability discrimination cases, directly.

20. Migrants with HIV who have English as a second language may not be able to access the phone line. Those who are currently experiencing problems with their immigration status may also be too distressed or frightened to accurately describe their problem on the phone.

21. Individuals will not always have detailed knowledge of what legal protections apply in their situation, and therefore what sort of case they have. For example, many individuals who in fact have a discrimination claim may not immediately raise this aspect but would call up with an ‘employment’ problem and may be wrongly told they are not eligible for support..

22. Research has shown that knowledge of discrimination law among employees with HIV can be patchy, especially protections against disability discrimination. In 2009, two-thirds of gay men with HIV who were in work were aware of their rights under the Disability Discrimination Act, compared to 84% who knew they were protected against discrimination based on their sexuality. [1] NAT and others in the HIV sector are working to ensure that people with HIV are now aware of their Equality Act rights, but many people will have no reason to consider their protections against disability discrimination until they already have a problem at work.

23. Those who currently provide advice under legal aid have observed that sometimes it is necessary to view documentation before the true nature of a client’s problem can be identified. Individuals will not be able to communicate the relevant aspects of this documentation over the phone, so may miss out of the assistance they are entitled to when they do have a claim for discrimination or another area in scope.

Recommendations

24. The Committee should ask the Government to explain:

· How it will ensure that people with HIV and others who are less able to use the telephone gateway are not excluded from access to justice.

· What measures will be in place to ensure that the confidentiality of people who access the gateway is upheld, especially in respect of queries around discrimination complaints and disability-related queries.

July 2011


[1] A a third of heterosexuals accessing HIV care are Black African. HIV in the United Kingdom : 2010 Report. http://www.nat.org.uk/Media%20library/Files/Policy/2010/NAT%20black%20Caribbean%20report%20July%202010.pdf

[2] Black Caribbean people make up 1% of the UK population but account for 3% of people living with HIV. NAT. 2010. HIV and black Caribbean communities in the UK . http://www.nat.org.uk/Media%20library/Files/Policy/2010/NAT%20black%20Caribbean%20report%20July%202010.pdf

[3] Percentages from the Government’s Equality Impact Assessment.

[4] NAT and THT. 2010. Poverty and HIV: 2006 to 2009 . http://www.nat.org.uk/Media%20library/Files/Policy/2011/HIV&Poverty.pdf

[1] 40% of people living with HIV who had experienced discrimination in their current or previous job believed that they had lost their job as a result of their HIV status. NAT. 2009. Working with HIV . http://www.nat.org.uk/Media%20library/Files/Policy/Our%20thinking/Employment%20summary%20report%20-%20FINAL%20August%202009.pdf

[2] NAT. 2010. “Unseen disability, unmet needs: A review of the impact of the WCA on people living with HIV”. www.nat.org.uk

[3] Analysis by Citizens Advice Scotland of ESA.

[4] Of those where the place of infection was known. Health Protection Agency, 2010. “New diagnoses”. http://www.hpa.org.uk/Topics/InfectiousDiseases/InfectionsAZ/HIV/NewHIVDiagnoses/

[5] NAT and THT. 2010. Poverty and HIV: 2006 to 2009 .

[6] NAT. 2009. Housing and HIV. http://www.nat.org.uk/Media%20library/Files/Policy/2009/Housing%20and%20HIV%20updated.pdf

[6]

[1] NAT. 2009. Working with HIV .

Prepared 18th July 2011