Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Carol Laidlaw and Ellen Lee (LA 99)

My name is Carol Laidlaw. I have previously worked for 10 years for the Citizens Advice Bureau, and for two years for Platt Halpern solicitors, dealing with social welfare law and housing matters under legal aid contracts. This submission includes a contribution from my colleague Ellen Lee, who has provided the first four case studies. She is a family solicitor and has worked for Platt Halpern since 1994.

We oppose the removal of any matters from the scope of legal aid, but in particular family, housing, welfare rights and debt matters. These are matters we both have long experience of. Not many of the previous published submissions to the committee have included case studies, but we think the need for legal aid to continue can only be appreciated by looking at the situations of the people who benefit from it. We are presenting a series of case studies to illustrate this. The case outlines also demonstrate how the different types of matter are frequently interlinked.

FAMILY CASES

Case 1.

Wife was brought to England to live with her husband and his family. She was not allowed to leave the house or meet others without husband or members of his family. She was raped by her husband and regularly verbally and physically abused by various members of his family. Wife’s mother was concerned when no communication was received from her daughter and contacted the British police. They removed wife and child to a refuge in Manchester. She did not want to obtain any orders against her husband and his family for fear of long lasting reprisals. Her husband made an application for return of child and a residence order and traced our client’s whereabouts to Manchester. Wife opposed the application for residence. After long and distressing proceedings, findings were made against husband and family, and a prohibited steps order was made against them together with an order for indirect contact only for the father. We have represented a number of clients in this and similar situations.

Case 2.

Wife was brought to England under a spouse visa, to live with her parents in law. Her husband had a long-standing relationship with an English woman and he rejected our client, who was thrown out of the house with no resources. She did not have indefinite leave to remain in the UK and was not entitled to claim any welfare benefits. She was supported initially by a local women's refuge. An application for a maintenance order was issued, which, after a contested hearing, was granted. The level of maintenance allowed wife to pay for very modest accommodation and to develop her language and other skills to become independent. We have represented many clients in this situation.

If the MoJ proposals for are implemented, these clients’ applications for legal aid would not come within scope and we believe this would give rise to grave injustices

· These groups of clients would not be in a position to properly represent themselves.

· There would be no equality of arms in the proceedings where the abuser is represented.

· The victim of abuse may be exposed to cross examination by the abuser. This is not allowed in the criminal court where an advocate is paid for by the state to carry out cross-examination (S38 Youth Justice and Criminal Evidence Act 1999). The Vulnerable Parties Working Group of the Family-Criminal Interface Steering Committee has recommended that this be extended to all family proceedings.

· It is highly unlikely that clients in example 2. would be aware of their right to claim maintenance or how to achieve this.

Case 3.

One young women seeking asylum with her two younger brothers from an East African country who had been through rape and a huge amount of trauma at an early age including witnessing the death of close family members during the conflict. I applied for her to receive "Section Four" support because she was pregnant and she and her brothers had made a fresh claim for asylum after initial rejection. I applied for both her and her brothers to receive support from UKBA but support was granted only to her and not her brothers and only after an appeal at the asylum support tribunal. She was also given accommodation in Liverpool even though she was receiving counselling and treatment for depression in Manchester and she had a strong support network in Manchester. I asked UKBA to accommodate her in Manchester due to her Post Traumatic Stress Syndrome and the risk of her suffering from Post-Natal depression due to isolation in Liverpool but UKBA said that if she needed support she had to move to Liverpool or she would be destitute. She was very distressed and fearful of what would happen to her and the medical evidence we had provided had not been taken in to account and several support agencies had tried to help her. She went to see solicitors and she issued a Letter before Action to UKBA who within a couple of days granted her accommodation in Manchester sharing a house with her brothers.

Case 4.

Another woman supported an asylum seeker from West Africa who suffered from mental health problems. Her child had been taken in to foster care temporarily partly because she didn’t have suitable accommodation for her daughter. Since she had been refused asylum and due to her mental health problems she was homeless but she was expected to attend the contact centre at social services three times a week to see her child. When I met her she stayed with a friend from the church for a short time over the other side of Manchester and had to travel very long distances to the contact centre including walking far which caused her a lot of suffering especially since she had mobility problems. She had nowhere to stay and had to keep asking for extensions from the church with my help and was becoming increasingly desperate since they told her she had to leave repeatedly. She had no means to support herself and was barely eating some days and she struggled to attend the contact centre and didn’t always make it there three times a week which impacted on her relationship with her daughter. She had tried to find support from mental health services but they refused to find her accommodation and Children and Families also said it was not possible even though they were putting her through a rigorous assessment process.

Solicitors wrote to Social Services and they found her accommodation reasonably close to the contact centre and give her a maintenance allowance.

SOCIAL WELFARE LAW CASES

When I worked for Platt Halpern, I was often asked to deal with further issues for clients for whom the firm had first dealt with family matters. Cases 5 and 6 are examples:

Case 5.

We helped a woman obtain a divorce from her abusive husband. She had had to stay in a women’s refuge, the address of which had to be kept confidential so that her husband or any of his relatives could not find her. One of the forms of abuse was that he had forced her to sign credit card agreements in her name, as he was unable to get credit. He then drew out the maximum amount of cash on each card, and did not make any repayments. Eventually, he used this money to arrange a marriage abroad to a second wife. His mother assisted the abuse by threatening to separate the woman from her child and take him abroad if she did not sign everything she was told to.

When I saw this woman, she was being harassed by eight different creditors for thousands of pounds worth of debts that her husband had fraudulently applied for. She did not read and write English well enough, or know enough about debt collection procedures, to be able to tackle this problem herself. I was able to persuade all eight creditors eventually to agree that she was not liable for the debts.

Case 6.

I helped another woman who had been abused by her husband and had to go into a women’s refuge, to obtain a community care grant for furniture when she was permanently rehoused. She had originally come from Bangladesh on a spouse visa, and had no family or personal contacts in Britain. A community care grant can only be awarded in particular circumstances, and a claimant’s circumstances often need careful explanation to demonstrate that they fit the criteria. This client was fluent in English but would still have had difficulty understanding the rules and explaining her situation. She was not awarded enough to buy sufficient basic furniture for herself and her children on the first application, so I also had to ask for a review to get the award increased. If I had not helped, the woman would have been faced with living in a house with no furniture at all and no cooking facilities, and no good means of getting any. That is, she would have had an entirely empty house with bare floorboards. Her status as a foreign spouse meant that she was barred from claiming benefits. Up to the point when she was given leave to remain as a victim of domestic violence, Social services had been providing for her children under the Children Act while she was in the women’s refuge.

This client had combined immigration, family, and welfare benefits issues. Her situation would not have been improved if there had only been funding available to tackle one issue in isolation from the others.

Platt Halpern also deals with criminal cases. Where these concerned benefits fraud, I was often asked to deal with an appeal against the overpayment of benefit as a separate matter. This could have an influence on the client’s sentence, or their prospects of getting a convicted. It is not unknown for the Department for Work and Pensions (DWP) to exceed their remit in pursuing prosecutions. I offer this case as the most glaring example I have come across:

Case 7.

My client, a woman, was being prosecuted for benefit fraud because the DWP believed she had been claiming benefits for many years as a single person when she had been living with her partner. The only evidence they had was that her husband, from whom she had long been separated but had never divorced, had used her address for some of his mail and to obtain a bank loan.

One of my colleagues dealt with the criminal case. I dealt with an appeal to the Tribunal Service against the decision that she was not entitled to benefits. My colleague knew little about social security law and believed the DWP had a sound case, to which there was no good defence.

In fact, in cases such as these, the DWP has to prove that a couple were "living together as husband and wife". There is rather more to such a relationship than using some-one’s address for mail, and the benefit regulations set out that the DWP has to consider a range of points to establish whether there probably is such a relationship. DWP fraud investigators, in my experience, regularly ignore this guidance.

In this case, they had no good evidence that the couple had been cohabiting. For the purposes of the benefit appeal, I obtained a statement from the woman’s sons that she had been living alone for years. And I obtained a statement from her mother – in –law that her son (my client’s husband) had lived with her for the past twelve years, had his own room, and was picked up for work from her address every weekday by one of his friends.

The first tribunal hearing was adjourned, I cannot now remember the reason. While we were waiting for a new hearing, fraud officials investigated my client’s witnesses. They discovered that the mother-in-law had not declared her son as living with her on her last housing benefit form, which she had filled in four years previously. They called on the mother-in-law, who was elderly, disabled and housebound, and threatened to have her jailed for housing benefit fraud. When they had her sufficiently upset, they wrote out a statement and told her that "everything would be all right" if she signed it. She was not allowed to read the statement and was not given a copy. They had written, among other things, that "George [the son] has never lived with me permanently". The DWP investigators then submitted the statement both to the tribunal and to the magistrates court for the fraud prosecution, knowing it to be false.

I re-interviewed the mother-in-law before the next tribunal hearing, and since she was too disabled to travel, I made a video recording of the interview so that the Tribunal could be sure I had not put my own interpretation on her statement. She gave me the above account, and reiterated that her son had had his own room in her house for twelve years. The result was that the Tribunal found that there had been no fraud and that my client had not been cohabiting with her husband.

My colleague persuaded the DWP to withdraw the criminal prosecution. However, he told me that he had worked for the DWP before becoming a solicitor and that it was common for the fraud investigators to use dubious methods and take advantage of vulnerable claimants.

If legal aid had not been available for me to pursue this appeal for this woman, she would almost certainly have been wrongly convicted of fraud. Incidentally, benefits cases are funded only by a fixed fee which is £164 per case. This is all that is paid regardless of how much work has to be done. It does not pay for representation at the actual appeal hearing, and never has done. Some advisers will nonetheless represent clients at hearings, even though in effect their organisation is losing money when they do so.

DEBT CASES

Case 8.

I represented a woman in the county court who was in arrears with her mortgage. She had two mortgages on her property and had kept up payments on both of them originally. But then she lost one of her part time jobs and could pay the first but could not afford the second.

She had originally been a private tenant. The landlord, a company, owned a number of flats above a row of shops, but did not look after the properties and did not carry out repairs. The company allowed them to become run down, thus encouraging vandals to set fire to them and teenagers to break in and use them for drinking dens. It became unsafe to live there and the woman eventually got rehoused by the local authority. She posted the keys to her flat back to the company but did not give them written notice. After living in her council house for a few years, she exercised her right to buy.

Her original landlord then traced her and took court proceedings against her, claiming thousands of pounds in accumulated interest and rent arrears. Our client could not afford to pay a solicitor for representation and was not aware that free advice might be available. Her former landlord got a charging order on her house. She did not understand what a charging order is and thought she might lose her home. She borrowed a secured loan from a subprime lender, the only type of company that would consider her as she was on a low income, to pay off the landlord.

She was able to pay her first mortgage, but struggled to pay the second. She lost one of her two part-time jobs and then could not afford to pay the second loan.

This case is a good example of how taking housing cases out of scope unless the client’s home is at risk is a false economy. If this woman had been able to get publicly funded advice early on, an adviser would have advised her to give written notice so as to avoid issues with the landlord. They could also have

advised her how to enforce her statutory right to repair. Such advice would have cost the fixed fee of £174. Even at the point where the landlord was claiming a huge amount of backdated rent arrears, a publicly funded adviser could have challenged the validity of the claim, probably successfully, and/or had it offset by a counterclaim for disrepair. The client would also have had advice about what a charging order is and so would have known that her home was not at immediate risk. This might have involved one county court hearing, and cost the fixed fee plus perhaps a further £300-£450.

By the time I got to deal with the mortgage arrears issue, the case ended up costing more than £1,000. This was because the first county court hearing had to be adjourned while I investigated the case. It seemed that the secured loan agreement with the subprime lender might be invalid, so I applied for a barrister’s opinion to see if this could be confirmed. It turned out that the agreement was valid (just) but the lender had charged more in arrears charges and interest than they were lawfully entitled to do. I was able to get the surplus amount refunded to the client, thus significantly reducing her debt. A second court hearing was then required to get a court order for a suspended possession agreement.

Incidentally, once I had the barrister’s opinion, the subprime lender’s solicitor co-operated in getting a satisfactory settlement of the case quite quickly. Legal representatives do not promote contentious litigation. If certain government ministers cared to read Civil Procedure Rule 1, they would know that legal advisers are enjoined to assist the court by trying to reach a settlement before a case needs to go to a full court hearing.

I could offer more examples, but only these few are possible within the recommended word limit for a submission to the Committee.

There is no justification for removing any matter from the scope of legal aid. There is no budget crisis.

The national debt was 68.6% when the Conservative Party formed a government and is currently 67.4% of the Gross Domestic Product.

This is a lot less than it has been for some decades. Between 1945 and 1960, when the country was building council houses and establishing the NHS, it was 200%.

It is also a lot less as a proportion of GDP than the national debt of any other developed country.

Whatever the government’s motives for removing these matters from legal aid, and for reducing other forms of public spending, it is nothing to do with the level of the national debt.

September 2011

Prepared 11th October 2011