Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Young Legal Aid Lawyers (LA 83)

INTRODUCTION

1. Young Legal Aid Lawyers (YLAL) was formed in 2005. We are a group of lawyers committed to practising in areas of law traditionally funded by legal aid. We have over 2,000 members nationwide including students, paralegals, trainee solicitors and barristers, and qualified junior lawyers. Our members share a belief in the importance of legal aid in upholding the rule of law. We co-host the All-Party Parliamentary Group on Legal Aid with the Legal Aid Practitioners’ Group.

2. As junior members of the profession we have little financial interest in the detail of the Bill; our interest is in providing the best service that we can to the vulnerable people whom we represent. At the same time we are well placed to comment on the practical reality of these changes and how they will affect the quality of legal help given to those who cannot afford to pay for a lawyer privately.

SUMMARY

3. Our evidence is directed at Part 1 of the Bill which deals with legal aid. Our principle concern is that the cuts to legal aid within the Bill will impact harshly on the most vulnerable in society.

4. To avoid duplicating the evidence of other organisations we have focussed on providing case studies which would not be funded under the Bill. These were collated as part of an independent Commission of Inquiry into Legal Aid [1] , organised with the assistance of YLAL and the Haldane Society.

5. Our evidence deals with the following areas in turn: concerns over the cuts to scope; the need to ensure that legally aided advice is of good quality; concerns over telephone advice; and the need for legal aid to be administered independently of Government.

SCOPE

6. The cuts to scope contained within the Bill differ little from those proposed in the Green Paper. Our concerns remain the same as in our response to the Green Paper [2] : that the cuts will prove to be a false economy which hurt the most vulnerable [3] and that the Government has overestimated the ability of ordinary people to navigate the legal system without legal advice. We oppose the cuts to scope in their entirety and consider that Schedule 1 should be amended accordingly. The purpose of this section is to provide examples of cases which would not be funded under the Bill.

Immigration:

7. Claude was represented by an immigration and asylum practitioner with 25 years experience. He would not be eligible for legal aid under the Bill as he was not an asylum seeker.

Claude arrived unaccompanied from Congo on a passport indicating he was 7 years old. Immigration officers interviewed the man who met him at the airport. The man claimed Claude was his son returning from a trip to Congo, but evinced no interest in his welfare, and their interaction showed no familiarity. Immigration declined to entrust the child to him, but granted temporary admission into the care of social services pending further enquiries. He was placed with a foster family.

DNA testing undertaken by social services showed that the man was not the father. Immigration refused Claude leave to enter and began to look into removing him. Social services brought the child to me, for advice and to conduct his appeal.

Claude struggled to follow the instructions he had been given by those who sent him here to the effect that he had lived here before and had come to rejoin his father. The first crack in his facade came with his delightfully typical childish outrage at being told that his passport made him just 7 years old: "That’s not right! I’m 8 already! I had my birthday before I came!". As trust between us built he revealed his real name and what he actually remembered of his previous life. He was an orphan who had lived for some time with someone he thought was his grandmother but with other children who had left for different destinations abroad. The suspicion of a child trafficking operation arose.

On appeal the judge made an error of law. The case was remitted back for fresh hearing. The end of the story was that Claude was granted discretionary leave to remain and continues to live with his foster family, with whom he had formed strong bonds. Without legal aid Claude would at best have been left in limbo with no secure status or at worst returned to who know what hazards in Congo.

Housing:

8. DM received legal aid when he became homelessness after mistakes were made with his housing benefit. In future his solicitor would not receive funding to address these mistakes.

I began to get into trouble with my rent when the Council reduced my housing benefit by £50 every week. I found it difficult to make up the shortfall on my limited income from part-time work and my rent arrears increased. I tried to speak to the Council about my Housing Benefit to ask why it had been reduced. Nobody could explain why. In the end my landlord started a possession claim against me.

When my family and I were evicted we were placed in emergency hostel accommodation. This housing was not very good but we were grateful to have a roof over our heads.

The Council investigated our case and decided that they could not continue to house us because I had made us homeless by not paying the rent. I did not think this was right – I had been paying the rent, it was just that it was too high for me to manage. We were evicted again. My partner and children stayed with one friend and I stayed with another.

We went to a solicitor who immediately wrote to the Council. The letter warned them of court action unless they agreed to house our family. She also asked social services to help because my young children were at risk of being homeless. The Council agreed to provide us with emergency housing that same day.

After, my solicitor got a copy of my Housing Benefit files. From this she could see that it was not my fault that the rent had become unaffordable. She wrote representations to the Council and they agreed to overturn their decision. They accepted that they have a duty to make sure that my family has somewhere to live.

9. Jean Martin’s landlord tried to increase her rent unlawfully. She would not be eligible for legal aid under the Bill until the problem had escalated to the stage where he started threatening to evict her.

My landlord tried to increase my rent to a level I could not afford. I live in a house in Enfield where I have lived almost all my life. My parents were the original tenants and they lived there when I was born in 1943. My partner died in 2001 and my son moved out not long after. Since then I have lived alone.

In February 2010 I received a letter from my landlord informing me he was going to double my rent. I approached Enfield Council Housing Advice for assistance. They referred me to a solicitors’ firm who advised me that I was a protected tenant under the Rent Act and that the landlord could not lawfully raise my rent to the level he wanted. They helped me apply to court to establish that I was a protected tenant. I was so happy when I heard this - it was like an early Christmas present. All the worry and stress had been like a lead weight around my neck. It had made me ill and I was even taking anti-depressants which I had never had before in my life.

Family

10. KD, who experienced domestic abuse, received legal aid to help with her divorce. She would not be eligible under the Bill and the associated policy changes as she does not have sufficient "objective evidence" of abuse.

Things between my ex-husband and me started to go wrong around 1990. He was very demanding and controlling and he became physically and emotionally abusive. He forced me to move to Spain with him along with our children. I had tried to leave him in the past but I could not afford to pay for a solicitor to help me with the divorce. He had most of our savings and property hidden behind companies and trusts. I borrowed some money to pay for a solicitor but this money soon ran out.

In the end the abuse got so bad that I reported him to the Spanish police. They told him not to come back to our family home. I decided just to leave. When my children and I arrived back in England we had nowhere to stay. The police advised me to go to a refuge. The key-worker there put me in touch with my current solicitors.

They applied for legal aid for me and helped me apply for a divorce and to protect my share of our assets. It has taken a while for things to be settled, but the process of sharing out the assets has almost finished. I would not have been able to use mediation because my ex-husband was determined not to provide any information on the trusts he had used to hide our assets. My ex-husband had enough money to pay for a private solicitor. If I had not had legal aid I would have been up against him and his legal team. If that had happened I do not think that I would have received any of my fair share of our capital.

Debt

11. Helen received legal aid for her family and debt issues. Under the Bill she would not receive legal aid to help resolve her debts, yet it was only by resolving these problems that she felt able to make a clean break from her abusive husband.

I needed legal representation after the breakdown of my marriage. My husband was very aggressive and subjected me to domestic abuse, which was the main cause of the breakdown in our relationship. Since he left me I have been left with a great deal of debt and had to struggle to support my son on my part-time income.

My solicitors gave me advice and support with my divorce and managing my debt situation. They applied for a Debt Relief Order on my behalf which removed a great deal of my financial burden. This enabled me to have a clean break from my husband and I have been able to have a fresh start to life.

Welfare benefits

12. Mr and Mrs Mansell received free legal advice to retain their pension credit. They would not receive legal aid under the Bill.

My wife and I found ourselves in difficulty following a decision by the DWP to refuse to pay me any Pension Credit. They also told me that I had been overpaid by more than £11,000. This left us with barely any income. We struggled to survive.

With professional welfare benefits advice we were able to prepare for a tribunal hearing. We were successful and were able to quickly change the decision that we had to pay money back to the Pensions Service.

The rules involved in the Pension Service’s decision were complex and not easily understandable. We found that the Pension Service themselves confused the issue further in advance of the hearing which would have made it nearly impossible for us to deal with the case on our own.

13. In addition to this case study YLAL feel it is important to highlight the high level of poor decision making by the DWP: in the year 2010-11, 50% of incapacity benefit decisions, 38% of Disability Living Allowance (DLA) decisions and 37% of Employment and Support Allowance (ESA) decisions were overturned on appeal [4] .  The number of appeals to the First-Tier Tribunal is also forecast to rise to 436,000 in 2011-2012 [5] as a result of the Government’s drive to reassess those who are in receipt of Incapacity Benefit. In light of the high rate of wrong decisions by the DWP we feel it is very important that people are provided with legal aid to help prepare their cases.

14. We are also concerned that the Government has disregarded  the impact of the forthcoming overhaul of the benefits system with the introduction of universal credit and the replacement of DLA with the Personal Independence Payment. There is a real risk of more incorrect decisions whilst decision-makers find their feet.

QUALITY

15. There is a real danger that wider legal aid reforms will erode the quality of publicly-funded legal help. There should be provision within the Bill to counteract this.

16. Funding cuts, due to come in in late 2011, combined with the planned introduction of best value tendering (BVT) threaten quality by encouraging firms to cut corners in the name of efficiency. Our members are particularly concerned by the trend of "paralegalisation", where firms, in an effort to cut overheads, rely increasingly on large numbers of inadequately supervised very junior lawyers, or lawyers in training (paralegals), who take on too much responsibility, too soon for relatively little remuneration (anecdotally £16-18,000 per annum is typical), with little in the way of career progression. Very junior lawyers having to take on cases which they are not ready for, is detrimental to the clients who end up receiving a poorer service.

17. As fees are cut, there is also a risk that good firms will be forced to close. We highlight the closure of Refugee and Migrant Justice and the Immigration Advisory Service owing, in part, to financial difficulties. The financial situation for most legal aid firms is already precarious as firms struggle to contend with fixed fees. The criminal and civil legal aid spend has reduced by 12% and 15% respectively in real terms since 2003-2004 [6] . Further cuts to funding risk making a bad situation worse.

18. To counteract these concerns we make three proposals. First, under clause 3 the Lord Chancellor must have regard to the need to ensure that legally aided advice and representation is of comparable quality to non-legally aided advice and representation. Second is that the Lord Chancellor in setting and monitoring standards under clause 3, must have regard to the long-term sustainability of the legal profession and the need to adequately train and supervise new entrants to the profession. These changes would go some way to avoiding the pitfalls inherent in BVT and reducing paralegalisation.

19. Third, is that clause 26(3) needs to be clarified to make it clear that the Lord Chancellor has no power to say that a person must go to a particular person or agency; this would reduce people’s ability to vote with their feet when they receive a poor service removing an important safety check on quality.

TELEPHONE ADVICE

20. Clause 26 of the Bill provides the legal basis for a mandatory telephone advice service. It is clear that telephone advice will not always be suitable. For example where the person:

· is particularly vulnerable, for example because they have mental health problems;

· has difficulty communicating because English is not their first language or otherwise;

· has a particularly complicated case;

· has large amounts of paperwork;

· cannot access a phone in private.

21. Additionally, it is more difficult to build up a relationship of trust over the phone. This relationship is essential to making sure that people give full details of their case. Many individuals will have built up a relationship with their local firm or law centre over time. Diverting these people away from the trusted lawyer who knows their background will waste time and resources.

22. We are also concerned about the quality of telephone advice. The Government has given few details about the scheme however, a call centre staffed by low-paid advisors is within the scope of clause 26. The possibility of the rights of vulnerable people depending on legal advice from such a service is one that we find deeply troubling. In our view, the best way to safeguard the quality of advice is to allow people the option to go elsewhere if they receive a poor service. The solution to these concerns is for telephone advice to be available but not mandatory. Clause 26 should be amended to reflect this.

INDEPENDENCE

23. The Bill must include safeguards to ensure that funding decisions are made independently of government. Legal aid is an essential tool in holding the Government to account and decisions about which cases are funded should be made in the interests of justice and not in the name of political expedience. This is a real concern; in Evans v Secretary of State for Justice [7] , the Ministry of Defence was found to have lobbied the Ministry of Justice and the LSC resulting in a change to the funding code precluding cases involving the accountability of Government for the acts of the armed forces abroad and the torture of Iraqi and Afghan nationals. The High Court labelled this as "inimical to the rule of law".

24. The Bill provides limited protection in that Clause 4(4) precludes Ministerial interference in "individual cases". This is not sufficient. The Evans case is an example of unacceptable interference which would not be prohibited by this clause. Additionally the LSC is to be abolished and the Ministry of Justice will have operational control over the administration of legal aid, leaving greater scope for unacceptable Goverment interference.

25. We propose that a duty should be placed on the Director of Legal Casework under clause 4 to make decisions independently of Government, and in accordance with the interests of justice. This will ensure that justice is done and is seen to be done.

September 2011

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[1] “Unequal before the law? The future of legal aid” J Robins (ed) 2011 http://www.jures.co.uk/jures/ViewWhitePapers?function=View

[2] YLAL’s response to the Green Paper is available here http://www.younglegalaidlawyers.org/files/Releases_Responses/YLAL_legal_aid_green_paper_February_2011.pdf

[3] For example, 57% of those affected by cutting legal aid for welfare benefits will be ill or disabled (Equality impact assessment ( http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-eia.pdf )), p62 paragraph 2.213

[4] Quarterly tribunal statistics available at http://www.justice.gov.uk/downloads/publications/statistics-and-data/tribs-stats/quarterly-tribs-stats-q4-2010-11.pdf (table 1.2d p31)

[5] Senior President of Tribunals’ Annual Report Feb 2011 p39 http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/spt-annual-report-2011.pdf

[6] NAO The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission November 2009 http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx page 10 paragraph 1.3

[7] [2011] EWHC 1146 (Admin)