Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Community Law Partnership (LA 27)

Summary

Some of the essential advice and representation provided by Community Law Partnership will be removed by the Legal Aid Bill – Welfare Rights, most of Debt and most of Gypsy and Traveller law. For the reasons given below we feel that these exclusions will have disastrous consequences.

1. Community Law Partnership is a legal aid firm in Birmingham. We have taken some of the leading cases in homelessness and Gypsy and Traveller Law. We have a three year Social Welfare Law Contract. We were shortlisted this year for the award of Legal Aid Firm of the Year. As explained below we are relying on the submissions from other national organisations on some of the vital issues such as Welfare Rights and Debt.

2. If brought into force as it stands now this Bill will have disastrous effects on the provision of advice and representation to Gypsies and Travellers on accommodation issues (to say nothing of the disastrous effects on many other areas of the law such as welfare rights, debt and education to name but a few).

3. Clause 8 of the Bill states that civil legal services will only be available in those areas detailed in Schedule 1 Part 1 of the Bill.

4. Clause 26 provides that the Lord Chancellor may provide services by means of telephone advice. On the same date as the publication of the Bill the response to the consultation on Legal Aid has been published [1] . There had been a proposal that telephone advice should be the "mandatory single gateway" to Legal Aid assistance (which would mean that only those providers who had telephone advice contracts would be able to deal with that initial stage). At para 146 of the consultation response the Government has stated that, initially, they will confine this proposal to four areas of law: debt; special educational needs; discrimination cases; and community care. At paragraph 153 they confirm that the Community Legal Advice Helpline will continue in the following areas: debt; special educational needs; discrimination; community care; family; housing.

5. Schedule 1 Part 1 of the Bill contains those services which remain in the scope of Legal Aid (by this is meant all forms of advice, assistance and representation). At paragraph 17(1) "Judicial Review" is kept within scope. However paragraph 17(2) makes 17(1) subject to the exclusions in Schedule 1 Part 2. Part 2 paragraph 5 excludes ‘trespass to land’.

6. At paragraph 27 onwards "loss of home" is kept within scope but the following should be noted:-

(8) In this paragraph "home", in relation to an individual, means the house, caravan, houseboat or other vehicle or structure that is the individual’s only or main residence, subject to sub-paragraph (9);

(9) References in this paragraph to an individual’s home do not include a vehicle or structure occupied by the individual if there are no grounds on which it can be argued –

(a) that the individual is occupying the vehicle or structure otherwise than as a trespasser, and

(b) that the individual’s occupation of the vehicle or structure began otherwise than as a trespasser

(10) In sub-paragraphs (8) and (9), the references to a caravan, houseboat or other vehicle include the land on which it is located or to which it is moored.

7. Excluded services are listed at Schedule 1 Part 2. Gypsy and Traveller planning work (in other words High Court planning appeals, planning injunction actions, challenges to Stop Notices and direct action etc) are not mentioned but (subject to what we say later) must be taken to be excluded by not being included in Schedule 1 Part 1.

8. In its consultation response the Government accepts that the majority of the over 5,000 responses they received were against the reforms. Nevertheless they are willing to fly in the face of those responses. For example at paragraph 41 of the consultation response they state:-

Over 90% of Respondents to the consultation disagreed with the proposals to remove from the scope of Legal Aid those cases and proceedings set out in the consultation.

9. At paragraph 234 of the consultation response the Government conclude that they will proceed with a 10% reduction to all fees paid under the Civil and Family Legal Aid Schemes.

10. At Annex B paragraph 74, the Government relate the key issues raised in the consultation on Housing cases (which incorporates Gypsy and Traveller accommodation cases). They state that one of the key points raised by Respondents was:-

Funding should be provided for planning appeals and eviction cases involving Gypsies and Travellers because this group was one of the most vulnerable in society.

11. However, in their response to the consultation from paragraph 75, they fail to actually respond to that point.

Submissions

Debt

12. We and others have just been through an immensely traumatic (and we would say botched) tendering process for Social Welfare Law. Social Welfare Law has been set up to include housing, debt and welfare rights on the basis that more than one of these issues are often relevant to our clients and it is better to have a "joined up service". We have accepted this logic only to find out that the Government now propose a U-turn by taking most of debt advice and all of welfare rights advice out of scope. It is self-evident that at a time of recession, debt advice is absolutely essential. Individuals often get into serious debt because they have grave difficulties managing their affairs. In reality there is little debt advice available outside of agencies and firms that are funded by Legal Aid.

Welfare Rights

13. As we have already said above about debt matters, we have accepted the logic of a "joined up service" only to find out that the Government now propose a U-turn by taking welfare rights out of scope. It is self-evident that, at a time of recession, welfare rights advice is absolutely essential. Individuals who lose their jobs, or have even greater difficulty than normal in finding employment, need accurate advice on welfare rights issues. In reality there is little welfare rights advice available outside of agencies and firms that are funded by Legal Aid. In addition welfare rights is one of the most complex areas of the law. Moreover a failure to provide proper advice and assistance to people concerning welfare rights can directly lead on to possession actions and homelessness. For example, if housing benefit is not paid when it should be paid, a tenant may get into rent arrears and then may end up being evicted. They will then be homeless. If proper advice and assistance concerning the housing benefit problems had been provided at the initial stage, then those consequences could have been avoided. Additionally by the time it comes to possession action being taken or by the time it comes to the person being homeless, it may be even more difficult to defend the possession action or to pursue the homelessness case if early and proper welfare rights advice has not been provided.

The statistics show that you are at least 5 times as likely to succeed before a tribunal in welfare benefits if you have legal assistance. The DWP has recently engaged in lengthy litigation in the higher courts over the entitlement to benefits and the right to reside. These cases have been referred to the European Court of Human Rights. This would simply not have happened had welfare benefits not been within the scope of the Legal Aid Scheme.

14. We join with the submissions from the Legal Aid Practitioners Group, the Housing Law Practitioners Association and the Legal Action Group. We go into detail below on Gypsy and Traveller cases since, whilst the above groups cover in full detail the other issues we are concerned with (especially the 10% cut, telephone advice as an initial gateway, Welfare Rights and Debt) , Gypsy and Traveller work is a highly specialised area which will not be covered by the organisations mentioned above and we are one of the few firms specialising in this area (indeed we have run, since 2002, the Community Legal Service funded advice line for Gypsies and Travellers).

Gypsy and Traveller cases

15. The main types of Gypsy and Traveller cases that come under the housing umbrella are: evictions from unauthorised encampments; evictions from rented sites; other issues relating to rented sites; High Court planning cases (injunctions, planning appeals, challenges to Stop Notices and direct action etc), and homelessness cases.

16. Under the Government Bill all unauthorised encampment eviction cases will go out of scope. A very large number of planning matters will go out of scope (any argument that ‘loss of home’ is involved would seem to be precluded by the use of the word ‘eviction’ under ‘loss of home’ in the Bill. Stop Notice and direct action cases will normally involve Judicial Review and will therefore be within scope). Ironically, since, after an enormous struggle, the Mobile Homes Act 1983 has finally been applied to local authority Gypsy and Traveller sites since 30th April 2011, all aspects of the Mobile Homes Act 1983 apart from possession actions will go out of scope.

17. Some 25% of the Gypsy and Traveller population who live in caravans in England and Wales are either on unauthorised encampments or unauthorised developments and, therefore, many of those people will be directly affected by these proposals. At CLP we estimate that at least 75% of our ‘accommodation cases’ for our Gypsy and Traveller clients would no longer be within scope.

18. As is, of course, well known, the Gypsy and Traveller community are one of the most vulnerable and disadvantaged communities in England and Wales in terms of health, education and discrimination and it is almost universally accepted that these disadvantages and problems would be addressed if there was adequate site provision.

19. Up to 25% of this population are homeless compared with 0.1% of the settled population.

20. Those advising and representing Gypsies and Travellers on eviction cases know that many local authorities fail to follow the Government guidance on unauthorised encampments, fail to take into account Human Rights considerations, fail to address relevant caselaw, and fail to follow a proper and reasonable process. If Gypsies and Travellers involved in High Court planning cases are unsuccessful, then that will result in loss of their home and homelessness.

21. There has been some publicity surrounding the Bill stating that Legal Aid will be refused to "squatters". This publicity refers to a few high profile cases where expensive properties have been squatted. It is rather ironic, therefore, that the exclusion in the Bill does not seem to necessarily cover "housing"! It would appear, therefore, that squatters in houses could potentially obtain Legal Aid. However, it should also be pointed out that it would be extremely rare for squatters in houses to obtain Legal Aid. The Explanatory Notes to the Bill state (at para. 671):

Sub-paragraphs (9) to (11) ensure that paragraph 27 does not bring within scope services provided to persons who unarguably are occupying premises as a trespasser and entered the premises as such. This ensures that legal aid is not available to people who are squatting and face proceedings for eviction (our emphasis).

It seems possible from this that the Government have accidentally caught up Gypsies and Travellers in a measure aimed at ‘squatters’ of residential premises. If this is the case this error needs to be addressed urgently. This may also explain the failure to refer to Gypsies and Travellers at all in the Equality Impact Assessment ( see further below).

22. Some of the leading Supreme Court and Court of Appeal cases in the areas of evictions and homelessness have involved Gypsy and Traveller cases. Additionally the recent Supreme Court judgments in Manchester City Council - v – Pinnock and London Borough of Hounslow – v – Powell and Others made it clear that, in unauthorised encampment cases, Article 8 of the European Convention on Human Rights (the right to respect for private and family life and home) would be engaged. However, the Bill will ensure that Romani Gypsies and Irish Travellers (ethnic groups under the Equality Act 2010) will be excluded from raising these Human Rights issues in any defence to an eviction action.

History of the Provision of Gypsy and Traveller Caravan Sites

23. Following on from the Caravan Sites and Control of Development Act 1960, when the commons were closed down to Gypsies and Travellers and there was an increasing loss of traditional stopping places, the power to supply sites between 1960 and 1970 led to only 12 local authorities acting on that power (see Clark and Greenfields, Here to Stay, University of Hertfordshire Press, 2006 p. 72). Between 1970 (when the duty to provide sites contained in the Caravan Sites Act 1968 was brought into force) and 1994 (when that duty was repealed), some 350 sites were built in England and it is fair to say that, despite the fact that there was still completely inadequate provision, those sites would not have been built without that duty being in place. Between 1994 and 2006, the Government put emphasis on the private provision of sites by Gypsies and Travellers themselves (see Department of the Environment Circular 01/94). Not surprisingly the provision of sites virtually ground to a halt and it became much more difficult to obtain planning permission (see Friends, Families and Travellers Report Confined, Constrained and Condemned (1996)). Between the introduction of the ODPM Circular 01/2006 in February 2006 and the present time, there has been a slow but sure increase in the provision of sites (see research by Dr Jo Richardson and Ros Lishman of the De Montfort University for Lord Avebury Impact of Circular 01/2006: Supply of New Gypsy/Traveller Sites 29 March 2007). On 13th April 2011 the Coalition Government published Planning for traveller sites, the draft guidance that is designed to replace ODPM Circular 01/2006. This draft guidance relates to England only. The consultation deadline on this guidance has just been extended to 3rd August 2011. At CLP we are aware that a large number of Gypsy and Traveller support groups are opposed to this guidance because they feel it will loosen the control over local authorities and simply lead to a stagnation, once again, in the provision of sites.

24. What is clear from the history of this matter is that a series of failures, both by central and local governments, has led to a position where there is an inadequate provision of sites. Therefore in many ways it can be said that those Gypsies and Travellers who remain on unauthorised encampments and unauthorised developments are there through no fault of their own. It is clear that the majority of those Gypsies and Travellers who are on unauthorised encampments and unauthorised developments wish to obtain either permanent or temporary stopping places but have been unable to do so. This is a failure of Government, and not a failure by the Gypsies and Travellers themselves.

25. The recent report produced by the Travellers Aid Trust following on from a Panel Review which took evidence from some of the leading experts in this area, A Big or Divided Society?, referred to the disadvantage and prejudice experienced by Gypsies and Travellers in this country. With regard to education, the report stated:-

Travellers of Irish Heritage and Gypsy and Roma pupils are nearly three times more likely than White British pupils to be identified as having special educational needs. Fewer than 10% of Gypsy/Roma/Traveller pupils are among the top 50% of achievers at Key Stage 4.

26. With regard to health, the report stated:-

It was in response to the research findings on their health status … that the Department of Health targeted health improvement of Gypsies, Roma and Travellers in a policy initiative aimed at reducing health inequalities, the Pacesetters Programme. The results showed striking inequalities in the health of Gypsies and Travellers, even when compared with people from other ethnic minorities or from socio-economically deprived white UK groups and demonstrated the long-term health impact associated with a history of persecution, social pathologisation and social exclusion of Gypsies and Travellers. Poor accommodation and a lack of sites are often major variables that impact on the health of Gypsies and Travellers (page 54).

Unauthorised Encampments

27. In order to provide proper legal advice and assistance to a Gypsy or Traveller on an unauthorised encampment, specialist knowledge is inevitably required. Currently there are only four solicitors firms who can provide this specialist knowledge in England. [2]

28. Many of the eviction procedures that can be used by landowners are specific to this area of the law, e.g. Criminal Justice and Public Order Act 1994 Section 61, Section 62 (A) to (E), and Section 77.

29. There is specific Government guidance that needs to be taken into account. In England, this consists of:-

Department of the Environment Circular 18/94;

ODPM Guidance on Managing Unauthorised Camping [2004]; and

ODPM Home Office Guide to Effective Use of Enforcement Powers – Part 1: Unauthorised Encampments [2006].

30. There is important caselaw that needs consideration, e.g. R v Lincolnshire County Council Ex Parte Atkinson [1997] JPL 65; R (Casey and Others) v Crawley Borough Council [2006] EWHC 301 Admin.

31. Under Housing Act 1996 Section 175 (2):-

A person is … homeless if he has accommodation but –

… (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and reside in it.

32. Evictions from an unauthorised encampment may amount to a breach of Article 8 of the European Convention on Human Rights (see Manchester City Council v Pinnock [2010] UKSC45, 3 November 2010, and London Borough of Hounslow v Powell and Others [2011] UKSC8, 23 February 2011).

33. Unauthorised encampments are, therefore, intricately linked in with homelessness. Most Gypsies and Travellers on unauthorised encampments are seeking an authorised stopping place (permanent or transit).

34. The following types of ‘trespasser’ will (it seems from the wording of the Bill) be able to access legal aid if required: a family member living in a local authority house or flat when the tenant dies where there has already been one succession to the tenancy; a person in homeless persons’ accommodation after a Notice to Quit has expired; a joint tenant of a local authority house or flat after the other joint tenant has terminated the joint tenancy (this is not an exhaustive list). The Government have realised (correctly we would say) that someone facing eviction from their home requires legal advice and assistance. It is not clear in those circumstances why Gypsies and Travellers facing eviction from their homes will not be provided with such advice and assistance.

Planning

35. Whilst many of the types of planning enforcement action that a Gypsy or Traveller on their own land might experience can also be applied to other breaches of planning control, once again specialist provision will be required. Legal aid housing lawyers who advise non-Gypsies and Travellers do not have to refer to planning law and are thus extremely unlikely to have the detailed knowledge required.

36. Planning enforcement is often, effectively, also a method of eviction. If an Injunction is granted or a Stop Notice comes into effect or direct action under the Town and Country Planning Act 1990 Section 178 is taken, the Gypsy and Traveller concerned may have to leave the land.

37. The failure to mention planning cases in Schedule 1 Part 1 combined with both the failure to mention them in Part 2 and the failure to mention Gypsies and Travellers at all in the Equality Impact Assessment raises the possibility that the Government has simply overlooked these types of case. If this is the case then this needs to be addressed urgently.

38. Once again, it is unclear why there has been a deliberate targeting of Gypsies and Travellers in terms of removing them from the scope of legal aid.

Equality Impact Assessment (EIA)

39. Romani Gypsies and Irish Travellers are ethnic groups protected under the Equality Act 2010. Given what we have detailed above, it is remarkable that they are not mentioned at all in the EIA.

40. As stated before, at CLP we estimate that at least 75% of our cases for our Gypsy and Traveller clients would no longer be in scope if the provisions in the Legal Aid Bill are brought into effect as they stand.

Conclusion

41. Romani Gypsies and Irish Travellers are amongst the most disadvantaged groups in the United Kingdom and subject to some of the worst incidences of prejudice and discrimination. Legal advice to Gypsies and Travellers on unauthorised encampments can lead to the provision of at least temporary, tolerated sites if not permanent pitches. Legal advice to Gypsies and Travellers on planning matters can enable them to ultimately obtain planning permission. It is extremely difficult to understand the motivation for the apparently deliberate exclusion of the vast majority of Gypsies and Travellers who need assistance on ‘accommodation issues’ from the scope of legal aid.

42. Additionally the 10% cut in fees could in itself decimate the legal aid sector which has for years existed on a cashflow knife edge.

43. The introduction of telephone advice as the initial gateway may also cause the collapse of legal aid firms and Law Centres. Telephone advice should be a complement to face to face advice – it cannot be a substitute.

44. Welfare rights and debt advice are a crucial part of our service. Their removal will have disastrous consequences for the rest of our service.

July 2011


[1] The Reform of Legal Aid in England and Wales : the Government Response

[2] The same applies to planning matters.

Prepared 18th July 2011