5 Impacts of the proposed reform
Impact of scope changes on vulnerable
clients
64. Of the £350 million annual savings the
Government hopes to realise from its proposed reform of legal
aid,[68] by far the largest
tranche of savings (£279 million) is estimated to result
from the changes to scope. For legal help, this would result
in around half a million fewer cases falling within the scope
of legal aid funding annually, which equates to 68% of all existing
cases. 45,000 fewer cases would fall within scope for the purposes
of Legal Representation, equating to 44% of existing cases. The
Government's Impact Assessment sets out the likely reduction in
numbers of eligible cases by category:[69]
Reduction in legal aid for customers (by volume
of cases) 2008-09
LSC Statistical
Category
| Legal Help
| Legal Representation
|
| Reduction in case
volumes
| Proportion of
existing cases
| Reduction in case
volumes
| Proportion of existing cases
|
| Combined Family |
n/a | n/a
| n/a | n/a
|
| Financial Provision
| n/a | n/a
| n/a | n/a
|
| Help with Mediation
| n/a | n/a
| n/a | n/a
|
| Other Family Matters
| n/a | n/a
| n/a | n/a
|
| Priv. Law Children Act
| n/a | n/a
| n/a | n/a
|
| Total Family |
211,000 | 83%
| 53,800 | 48%
|
| Actions Against Police
| 2,200 | 55%
| 100 | 22%
|
| Consumer | 3,200
| 100% | 630
| 100% |
| Education | 2,100
| 97% | 70
| 26% |
| Clinical Negligence
| 3,600 | 100%
| 2,500 | 99%
|
| Community Care |
0 | 0%
| 0 | 0%
|
| Debt | 75,000
| 75% | 220
| 57% |
| Employment | 13,300
| 100% | 70
| 94% |
| Housing | 38,000
| 36% | 2,400
| 22% |
| Immigration |
37,300 | 41%
| 6,400 | 29%
|
| Miscellaneous |
3,800 | 75%
| 920 | 76%
|
| Personal Injury |
0 | 0%
| 0 | 0%
|
| Public Law | 0
| 0% | 10
| 1% |
| Welfare Benefits
| 113,100 | 100%
| 10 | 27%
|
| Total Civil |
291,000 | 60%
| 12,400 | 33%
|
| Grand Total |
502,000 | 68%
| 45,000 | 44%
|
65. The breadth and depth of the Government's proposed reform
- and in particular the wholesale removal of certain legal categories
and the partial removal of others from scope - has caused serious
concerns amongst the providers of legal aid services and others
about the effect such cuts will have on clients. For example,
Advice Network and Advice Centres for Avon told us that "we
believe that [the reduction in numbers of cases eligible for legal
aid as a result of scope changes] will represent a disaster for
the thousands of individuals unable to seek redress for issues
that affect their fundamental well-being — we believe that
these proposals will directly lead to more and more vulnerable
individuals becoming literally destitute, leading to increased
homelessness, higher costs in social care and greater damage to
individuals' and families' health, leading to increases in spending
in the health budget that will dwarf the 'savings' being made
by cutting legal aid".[70]
A similar point was made by Greenwich Housing Rights:
The proposed reforms will ... reduce access to both the civil
courts and tribunal systems for those seeking to challenge actions
brought by, for example, local authority housing departments,
or decisions made by, for example, the DWP. If, as we anticipate,
the proposals contribute to the complete closure of services (including
housing services) tenants, employees and benefit applicants will
not be able to access the advice that would help them to identify
challengeable decisions, illegal employment practices and defendable
possession claims. Without access to specialist advice fewer
tenants will mount a defence or apply to remain in their homes.
Fewer benefit applicants will challenge erroneous decisions by
the DWP. Fewer employees will bring claims against their employers.
It is the remit of the court and tribunal systems to decide on
the merit of claims and submitted defences: it is not the MOJ's
remit to remove the ability of employees, tenants and benefit
claimants to participate in the judicial system.[71]
66. The Government's own equalities impact assessment notes
that "the proposals have the potential to disproportionately
affect female clients, BAME clients, and ill or disabled people,
when compared with the population as a whole. This is as a result
of those groups being overrepresented as users of civil legal
aid services. However, it should be noted that, due to the significant
proportion of clients for whom illness or disability information
is not known, findings in relation to this group, and to a lesser
extent the BAME group, should be treated with caution".[72]
While we note the Government's caution regarding the absence
of data, evidence from provider groups suggests that the impact
of the reforms will have a disproportionate effect on specific
groups. Advice UK told us that "typical client breakdowns
at AdviceUK member advice centres show, for example:
Agency A
Mental Health Difficulties 48% of
clients
Physical Health Difficulties 50% of
clients
BME 37% of clients
English Language and Literacy 30% of clients
Carers 25% of clients
Families with Children under 4 15% of clients
Agency B
70% of our welfare benefits clients are BME, also
70% are disabled
95% of our immigration clients are BME, 20% are disabled
50% of our housing clients are BME, 52% are disabled."[73]
67. Shelter told the Committee that it believes
"that the proposals would exclude large numbers of vulnerable
people, including many who are ill or disabled. They may have
complex, inter-related problems relating to housing and homelessness,
welfare benefits and debt. By definition they will be poor, as
they would have been eligible for legal aid".[74]
Scope told us of its specific concerns, stating that "disabled
people will be disproportionately affected by the removal of areas
of social welfare law from the scope of legal aid and by the tightening
of the eligibility criteria. There is no real scope for restricting
legal aid further without denying access to justice for disabled
people".[75] When
concerns were raised with the Minister about the impact of the
reforms on vulnerable people, he noted that if an individual's
"life, liberty or home is at risk, then they will be eligible"
for legal aid and that, for those who would not remain eligible
"it would be more suitable...[to use] non-court alternatives
such as mediation".[76]
68. The Government has acknowledged that there
is likely to be an increase in the number of litigants in person
in the courts as a result of its reform.[77]
We look at the wider impacts of this in more detail below, but
the Minister did accept that there were concerns about the ability
of people with mental health problems, disabilities, drug dependency
or alcohol addictions to represent themselves and said that the
Department would be "interested to see how people respond
to the consultation on these particular issues". He also
said that this area would be re-assessed following the consultation
exercise.[78] The Equalities
Impact Assessment published with the consultation paper conceded
that there were information gaps relating to data about clients
and stated that the Department intends to conduct a survey of
legal aid clients to address the "significant non-response
rates as to race and disability client characteristics".
It further states that the consultation response will "feature
an accompanying full Equalities Impact Assessment, which will
incorporate any improved evidence base established during the
consultation period."[79]
69. According to the Government's
own figures, the changes it is proposing to the scope of legal
aid will result in 500,000 fewer instances of legal help and 45,000
fewer instances of legal representation being funded by legal
aid annually. The Government has conceded that it does not know
the extent to which these reductions would impact upon people
with disabilities and black and minority ethnic people because
of information gaps. While it is taking some steps to address
those gaps, evidence we have received, and the Government's own
thinking, suggest that these people, as well as other vulnerable
groups, rely more on legal aid services than do the less vulnerable,
and so there is the potential for them to be disproportionately
hit by the changes. If this were to happen it would sit uneasily
with the Government's commitment to protect the most vulnerable
in society.
Impact
of scope changes: family law
70. Having looked at the impact of the proposed
scope changes on the overall volume of help and representation
provided by legal aid, and the possible effects for people who
are in vulnerable groups, we now look at the likely impact of
scope changes in specific areas, starting with family law.
71. Legal aid expenditure on family law is the
single most expensive area of legal aid provided through the community
legal service, accounting for more than half of all community
legal service expenditure. Expenditure over the last six years
was as follows: [80]
| Expenditure, £million
| 2004-05 | 2005-06
| 2006-07 | 2007-08
| 2008-09 | 2009-10
|
| Family | 490.0
| 537.8 | 549.1
| 582.7 | 623.6
| 596.8 |
| All community legal service
| 845.9 | 831.0
| 808.9 | 851.1
| 917.0 | 940.0
|
| Percentage of spending on family law
| 58 | 65
| 68 | 68
| 68 | 63
|
72. Given the scale of expenditure on family
law, it is not surprising that the Government is proposing to
make changes in this area. In cases where related domestic violence
is not present, the Government proposes to remove from scope all
advice and representation for ancillary relief cases (covering,
for example, disputes about the division of assets; applications
for lump sum payments or maintenance; transfers of tenancy; and
divorce) and for private law children and family cases (relating
to: disputes about contact and residence of children; injunctions
against ex-partners; Prohibited Steps Orders; and divorce). The
Government proposes to retain in scope: the current funding of
mediation in private law family cases; the current scope of advice
and representation for domestic violence, forced marriage, international
child abduction cases and international family maintenance cases;
funding for advice and representation for separately represented
children under Rule 9.5 (and 9.2A) of the Family Proceedings Rules
1991 (making a child a party to the proceedings if it is in their
best interests). The consultation paper also proposes retaining
the category of public law children cases within scope.
73. The Government anticipates that the removal
from scope of the areas of family law described above will lead
to a reduction in case volumes of 211,000 (83% of existing cases)
for legal help and 53,800 (48%) for legal representation and lead
to reductions in spend of £50million (82% of existing spend)
for legal help and £128 million (41%) for legal representation.[81]
Combined, this represents around half of all the savings the Government
is seeking to realise from its proposals, and is therefore central
to the success of those proposals.
74. The green paper sets out the reasons why
the Government believes this change to scope is justified, summarised
as follows:
In relation to ancillary relief:
- Many cases will be about dividing
marital assets which will not generally be of sufficient priority
to justify legal aid when compared to cases which involve matters
of liberty or physical safety
- Advice is available online to help couples navigate
the divorce process
- Evidence suggests that cases can be resolved
by parties reaching agreement and the Government is proposing
to fund mediation to assist this process
- The Government proposes to make changes to the
courts' powers by giving judges powers to make interim lump sum
orders against a party who has the means to fund the costs of
representation for the other party, thus helping to redress the
balance in cases where one party is materially disadvantaged
- While some public money spent on ancillary relief
cases is recovered, the Government does not consider this to be
at a level sufficient to enable to continue to include this area
within scope as, in 2008-09, the net cost, after repayments, of
providing legal aid in ancillary relief cases was £19 million.[82]
In relation to private law children and family
cases:
- While the circumstances may
be difficult, the parents bringing these cases are not always
likely to be particularly vulnerable and their emotional involvement
in the case may not necessarily mean they are unable to present
it themselves
- There is no reason to believe the cases will
be routinely legally complex
- Online advice is available
- Research suggests that in the vast majority of
cases parents agree contact arrangements informally without recourse
to the courts
- The Government is concerned that legal aid is
creating unnecessary litigation and encouraging lengthy, acrimonious
cases which can impact on the child's well-being
- The Government is also concerned about the impact
of legal aid provision on the opponents of those who receive funding
and would like to move to a position where parties are encouraged
to settle using mediation (which it will continue to fund in private
law family cases).[83]
75. The assertion that people concerned in such
cases will not generally be vulnerable, or that they will be able
to cope because the procedure is not complicated has been disputed
by some witnesses to our inquiry. The Family Law Bar Association
(FLBA) does not believe that many parents will be able effectively
to access a court or represent themselves in it. They told us
that "many parents in the throes of relationship/family breakdown
suffer from learning disabilities, or mental ill-health, or have
lives affected by abuse of drink or drugs, or do not speak English
as a first language. Many people are from cultures where accessing
a court would be uncommon, even unacceptable". They further
argue that many people concerned "suffer acute anxiety, stress
and depression; it is reasonable to predict that many of these
people will be deterred from seeking relief through the courts
if they know that they will have to represent themselves".
The Association fears that this inability or reluctance to access
the family court will lead to the following adverse consequences:
- "non-resident parents
may abandon genuine claims for contact (or increased contact)
with their children;
- parents will hold back in expressing their concerns
about the care or contact arrangements for their children (which
may genuinely be adversely affecting the welfare of the children)
because they cannot face embarking on litigation unrepresented;
- cases which verge on the edge of child protection
will go undetected.
- In each situation, it is the children who suffer."[84]
76. The Law Society is also concerned about the
removal of legal aid from this area, telling us that "without
legal aid, issues of neglect, abuse or simple obstruction by one
party will go unaddressed. This may cause harm to the child and,
in extreme cases, lead to parties taking the law into their own
hands."[85]
77. The FLBA refer to what they describe as a
"worrying contradiction" in the proposals as to the
assessment of the nature of the rights of various parties involved.
They ask:
Can it be said on the one hand that all parties who
face removal of children from the family should have legal aid
(even if they have not had any interest in/contact with the child
for many years), but that a father who is being unreasonably denied
any contact, and therefore at risk of losing his relationship
with his child, should not?[86]
78. This point relates to the proposed retention
within scope of public law children cases, which cover proceedings
under the Children Act 1989, where the state is considering commencing,
or has commenced, care or supervision proceedings in respect of
a child, proceedings for a child assessment order, or proceedings
for an emergency protection order. The Government proposes to
retain these cases within scope because "the issues at stake...
are extremely important, and the very emotional nature of the
subject matter, and the personal circumstances of the individuals
involved, will often make it difficult for them to present their
own case. We recognise that families must have a practical means
of taking part in proceedings brought by public authorities that
affect the integrity of the family unit. We do not consider that
there are viable alternatives to legal aid."[87]
79. The Government is right
to retain legal aid in scope in cases where actions by a public
authority "affect the integrity of the family unit".
We accept there is a philosophical difference between the state
intervening to remove a child from a family and an absence of
contact between a parent and child as a result of relationship
breakdown, and that the case for the taxpayer to fund legal costs
is significantly stronger in the former than in the latter case.
80. We note concerns put to
us that many of the parents involved in difficult cases involving
children will face problems in accessing a court and representing
themselves and that this could impact adversely on the wellbeing
of the children concerned. We note further the argument put to
us by the Family Law Bar Association that, while the consultation
paper appears geared towards meeting the interests of the party
seeking legal aid, it does not meet the interests of children
involved in proceedings. We call on the Government to address
these issues specifically in its response to the consultation.
DOMESTIC VIOLENCE AS A CRITERION
81. The Government proposes to retain within
scope family law (private) cases where "related" domestic
violence issues can be demonstrated in one of the following ways:
Ancillary relief
Ancillary relief proceedings where the Legal Services Commission (LSC) is funding ongoing domestic violence (or forced marriage) proceedings brought by the applicant for legal aid, or has funded such proceedings within the last 12 months and an order was made, arising from the same relationship;
Ancillary relief proceedings where there are ongoing privately-funded domestic violence (or forced marriage) proceedings, or where there have been such privately-funded proceedings in the last 12 months (or proceedings brought by a litigant in person) and an order was made, arising from the same relationship;
Ancillary relief proceedings where there is a non-molestation order, forced marriage protection order or other protective injunction in place against the applicant's ex-partner (or, in the case of forced marriage, against any other person);
Ancillary relief proceedings where the applicant's partner has been convicted of a criminal offence concerning violence or abuse towards their family (unless the conviction is spent).
|
Children and family cases
Private Law Children proceedings where the Legal Services Commission (LSC) is funding ongoing domestic violence (or forced marriage) proceedings brought by the applicant for legal aid, or has funded such proceedings within the last 12 months and an order was made, arising from the same relationship;
Private Law Children proceedings where there are ongoing privately-funded domestic violence (or forced marriage) proceedings, or where there have been such privately-funded proceedings in the last 12 months (or proceedings brought by a litigant in person) and an order was made, arising from the same relationship;
Private Law children proceedings where there is a non-molestation order, forced marriage protection order or other protective injunction in place against the applicant's ex-partner (or, in the case of forced marriage, against any other person);
Ancillary relief proceedings where the applicant's partner has been convicted of a criminal offence concerning violence or abuse towards their family (unless the conviction is spent).
|
82. A number of witnesses were worried that the
proposed use of domestic violence as a criterion for eligibility
for legal aid was too narrowly drawn. Concerns were raised that
the proposals used a definition which referred exclusively to
physical violence and that this did not encompass the full range
of domestic abuse. The Association of Lawyers for Children told
us "No definition of what is meant by "domestic violence"
is provided anywhere in the Green Paper, although reference is
made (in paragraph 4.64) to "those in abusive relationships"
needing "assistance in tackling their situation". It
is unclear what is to be encompassed within "abusive relationships".
If it is only physical violence, then that would run counter
to the research evidence as to the scope and definition of abuse
and, indeed, to the impact of other types of abuse on the children
of the family. It also runs counter to the definition of domestic
violence which was stated as recently as 2008 to be the ACPO,
Crown Prosecution Service and government's definition of that
term. It would also run counter to the Legal Services Commission's
current policy on funding in this type of case."[88]
A recent Parliamentary Answer indicated that domestic violence
was only present in a small proportion of cases in which legal
aid was provided in ancillary and relief and private law cases.
For example, in 2008-09, £157.2 million was spent on legal
representation on private law children proceedings where domestic
violence was not present, and £15.6 million was spent in
cases where it was present.[89]
83. Sir Nicholas Wall, President of the Family
Division, was also concerned about the apparent narrowness of
the proposed definition. He said
I think the Government is very ill advised to concentrate
on violence in the context of domestic violence. "Domestic
abuse" is the term which we currently use because much domestic
abuse is not violent. It is psychological, often financial and
emotional... if the Green Paper stands we will be forced to deal
with abuse in terms of violence, but abuse is much broader. The
ACPO definition of domestic abuse is much, much broader than physical
violence. Indeed, common sense dictates that.[90]
When he gave oral evidence to us, the Minister was
cognisant of such concerns about the need for domestic abuse to
encompass more than physical violence, stating that in consultation
meetings this had "come up as an issue very frequently. We
can see it is an important issue and it is one that we will be
studying very carefully in our responses to the consultation".
He said he had "absolutely" not yet reached a conclusion
on the matter.[91]
84. Witnesses had further reservations about
the definition used of domestic abuse, relating to the consultation
paper's apparent requirement for injunctive action to have been
taken in order to qualify for legal aid. Sir Nicholas Wall told
us that "there is a perverse incentive, it seems to me, in
the proposals...that people will be obliged to take out injunctive
proceedings against a former spouse. They will be obliged to litigate
in order to open the gateway to legal aid. As you know only too
well, so much domestic abuse is hidden. It is not brought into
the public domain. It is not brought forward into police action.
It is not brought into prosecution". [92]
The FLBA argued that "proof of domestic violence as an act
of physical harm is a crude and inapposite test for the grant
of public funds" and said that "many women who fear
domestic violence may not seek injunctive relief (it should not
be overlooked that the perpetrator will usually make sure that
there is no opportunity for the non-violent parent or the children
to speak freely) but would nonetheless wish to have support in
resolving issues concerning the children."[93]
85. Furthermore, even where an injunction is
sought, cases are often resolved by means of an undertaking as
to future conduct, rather than by an order which, as the Association
of Lawyers for Children told us, "protects the applicant,
but involves no finding of the court as to whether or not the
respondent has been responsible for the behaviour complained of."
They point out that this approach can save time and money and
reduce levels of tension and that the unintended consequences
of making it necessary to obtain an order would be that:
- Most cases will be contested
by respondents in order to limit the adverse consequences upon
them of findings in relation (particularly) to arrangements for
the division of parenting time;
- The Legal Aid fund will accordingly have to meet
the much higher costs of contested domestic violence proceedings
for the applicants, and there will be knock-on effects on other
agencies;
- It is highly probable that many respondents will
be able to demonstrate entitlement to public funding to meet the
allegations against them.[94]
Sir Nicholas Wall was also critical of the proposal
in this respect, telling us that "most injunctions these
days are dealt with by way of undertakings. A man will frequently
say, "I undertake not to assault or molest in the future,
irrespective of my conduct in the past." That undertaking
is accepted by the court and the case proceeds on the basis of
that undertaking. That will no longer be possible."[95]
86. Sir Nicholas also noted the proposal's creation
of a "perverse incentive not only to litigate to obtain an
injunction but also to make allegations of domestic violence as
opposed to abuse in order to open the gateway to legal aid",
which he considered "very detrimental".[96]
The Association of Lawyers for Children also said that using
allegations of domestic violence as an "exclusive gateway"
to public funding would lead to an increase in "allegations
which are ultimately found to be false or exaggerated".
Even if the allegations are not false, they suggest, "there
is also likely to be the putting forward of abusive acts which
would not have been argued previously in order to obtain funding.
There are very few relationship breakdowns which involve no abuse
but detailing these will invariably focus the attention of the
parties on past conflict rather than the present situation where
judges and lawyers try to encourage parties to consider the children
and move forward to arrange their future."[97]
87. Given that family law is
the single most expensive area of legal aid provided through the
community legal service we understand why the Government is seeking
to reduce spending on it. However, we are concerned that using
the presence of domestic violence as a proxy for the most important
cases will lead to a perverse incentive to make false allegations
of such violence or, where such violence has occurred, cause it
to feature in disputes before the courts where it might otherwise
not have done so. As well as potentially harming children in
such circumstances, this could add unnecessary expense, including
the cost of legal aid for persons accused of domestic violence.
Additionally, there is the converse problem of victims of domestic
abuse who do not want such abuse to be brought to court and who
will therefore be ineligible for legal aid. We therefore call
on the Government to reconsider its use of domestic violence as
a gateway to legal aid funding and to bring forward alternative
proposals by which to focus family law legal aid expenditure on
the most deserving cases.
88. If the Government does insist
on retaining domestic violence as a criterion for legal aid eligibility
it should adopt a definition of domestic abuse which explicitly
incorporates non-physical abuse and we welcome the Minister's
statement that he will consider this matter further in light of
the consultation responses. Further to broadening the definition
of domestic abuse, the Government should ensure that undertakings
as to future conduct rather than orders of the court are sufficient
to confer eligibility.
MEDIATION
89. The consultation paper proposes the continuation
of funding for legal aid for mediation in private law family cases,
including private law children and family proceedings and ancillary
relief proceedings. The Government intends that this will principally
be used in cases where domestic violence is not an issue, but
it will be offered even in those cases. The paper notes that,
since the requirement to consider mediation was made mandatory
in the legally aided sector in 1997, the number of publicly-funded
mediations has increased from 400 to almost 14,500 in 2009 and
that "the full and partial success rate of publicly-funded
mediation now stands at 70% (with the full resolution of cases
accounting for 66% of this)." In addition to continuing
to retain family mediation services in scope, the Government is
proposing that, when a client enters mediation, a fixed amount
of legal help (equated to £150 of work) will be available
to facilitate the input of a solicitor in providing advice during
the mediation and to formalise and give legal effect to any agreement
made following it.[98]
90. The use of mediation is key to the Government's
sensible aspiration to divert cases away from the courts where
possible. The Minister made clear his personal commitment to
it and the importance of highlighting its availability, telling
us "this is an issue of particular concern to me. Since I
have been a Minister I have made some half a dozen speeches on
the issue. We are publicising it. We are providing a new website
which will be on the Directgov website. People will have easy
access to mediators. In the last few months the number of mediators
across the country and also the number of mediation outlets has
increased dramatically."[99]
91. The LSC ran a tendering exercise in 2010
for publicly funded family mediation services, as a result of
which there are now 201 organisations delivering mediation from
1,000 locations under legal aid. Furthermore, the Government
is "working with the Family Mediation Council to enable this
growth to continue and to meet the increase in demand for services.
This includes a programme of training courses for new mediators
and 'refresher' events for those who may not have done mediation
work for some time". The Ministry of Justice has also told
us there are at least 600 family mediation services in England
and Wales listed on the database of the Family Mediation Helpline
service and that "organisations responding to the consultation
have indicated to us that there has been increased interest in
training for mediation as a result of the Government's legal aid
proposals."[100]
92. The utility of mediation and its retention
within scope has been widely welcomed, for example by FLBA which
told us that it "recognises that mediated agreements and
negotiated outcomes for children bring many advantages to parents
who are wrestling with the difficulties of relationship breakdown.
It is obviously highly desirable that arrangements are reached
with the minimum of conflict and stress".[101]
93. Useful though mediation is, and accepting
it may be possible to extend its use, it will not be sufficient
to resolve all disputes. Resolution - an association of lawyers
which is committed to non-adversarial resolution of family disputes,
and which trains and accredits mediators - told us that
we have concerns about the lack of clear evidence
about the benefits of directing all couples to only mediation,
which is essentially a voluntary process, and about mediation
outcomes. Mediation, like other options, has some disadvantages.
These include that the mediator cannot offer legal advice to
indicate that the agreement the couple are heading towards is
plainly wrong; it often cannot work where there is a significant
power imbalance between the parties in terms of the dynamics and
history of the relationship; some parties are simply not equipped
with the skills and abilities to use the mediation process effectively;
and not all mediators are trained in family finance law with the
result that many mediated finance settlements don't always produce
the right result and which also raises the issue of mediator capacity
to deal with all elements of cases and without delay.[102]
94. The Legal Aid Practitioners Group made related
points, stating that the back-up of the courts was needed in cases
where people did not comply with mediated outcomes, and also argued
that for the Government to cite the statistic that 73% of ancillary
relief orders were not contested as evidence that the majority
of individuals were able and willing to take responsibility for
their own financial affairs was "wholly misleading"
as many of those agreements would have relied on legal advice
and might not have been achieved via mediation.[103]
95. The FLBA also felt that there would be large
numbers of cases not capable of resolution by mediation and that
mediation would be inappropriate in many cases (for example, where
a parent has a mental illness or where there is alleged harm of
a child). They made the point that mediation is generally considered
to be a voluntary process and that "compelled mediation has
a poor prospect of success". The FLBA was particularly concerned
about difficult-to-resolve cases which, they contend "will
be no more resolvable by mediation in the future, and will require
court intervention. Yet it is in these difficult cases that the
Government has proposed that parents will have to enter the court
process unrepresented."[104]
96. This view was echoed by Sir Nicholas Wall,
who made the point that mediation was not a cure-all:
Mediation works best with legal help. Most mediators
will tell you that, I think. They like their clients to have good
legal advice, particularly if you are dealing with all issues
in mediation and you are mediating on money as well as on children....
Mediation is simply one of many very good alternative dispute
resolution procedures. As I have already mentioned, many of the
mediators get their mediations because, at the first appointment,
the Judge, District Judge or CAFCASS officer says, "Why don't
you try mediation to resolve this dispute? It is much better that
you should do so." Mediation is one of the factors in alternative
dispute resolution, but it is by no means a panacea. To be fair
to the mediators, they will say to you it is not a panacea. They
will say it is very good for a particular category of case where
both parties are willing to discuss the issue frankly and openly
and make concessions. It is not a panacea in any sense of the
term.[105]
97. David Jockelson, a family solicitor, gave
an example of a type of case in which mediation will not help:
A woman has been caring for three children for some
years, separated from her husband or ex-husband. There was previously
a long history of bullying and oppressive behaviour. She remains
frightened of him. She is not very well educated or confident
and certainly cannot deal with documents by herself.
He applies for the children to come and live with
him. He is able to afford legal representation. He makes false
allegations about her mental health or her ability as a mother.
He will claim to offer a better quality of life for the children.
The court may insist on mediation but without advice
and support she is at a huge disadvantage. Outside of mediation,
he may approach her and pressurise her to give in. She cannot
get an injunction to stop that. He does not accept the outcome
of mediation. He ignores it or sabotages it.
Mr Jockelson concludes that "mediation often
works because behind it there is always the real possibility of
the matter going to court. Remove or weaken that possibility and
mediation becomes far less convincing and much less likely to
succeed. Why co-operate with mediation and why compromise when
you think you can press on regardless?" [106]
98. The Government's commitment
to the provision of mediation in private law cases is very welcome
and its aspiration to use mediation to divert as many cases as
possible from the courts is prudent and generally in the best
interest of both parties and any children involved. However,
we agree with the President of the Family Division that mediation
cannot be a panacea and that it will not work in all cases. Further
work needs to be done on how difficult and unresolved cases can
be dealt with if legal aid is not available.
99. The FLBA told us of their concerns about
one specific category of people who might not be eligible for
legal aid: the parents in 'rule 9.5' cases. These are private
law children cases which raise issues of significant difficulty
where the court joins the child to the proceedings as a party.
Such cases may include circumstances where: there are allegations
of physical, sexual or other abuse of the child; there are complex
mental health or other medical issues; there are intractable disputes
about contact or residence which may be causing harm to the child;
there are international complications; or there is a contested
issue about blood testing.[107]
Some of these cases may not be suitable for mediation.
100. While, under the consultation paper proposals,
legal aid would be available to support the child in rule 9.5
cases, parents will remain ineligible for public funds for representation.
The FLBA states, therefore, that the Courts will have before
them unrepresented litigants
Being required to marshal the relevant evidence in
a case concerning physical or sexual abuse of a child, where there
may be, for example, concurrent police involvement / investigations;
Having to deal with (and cross-examine on) expert
evidence relevant to serious allegations of physical or sexual
harm of a child,
Having to consider and deal with expert evidence
relevant to the court practice of a foreign jurisdiction;
With "mental health issues", who will be
expected to represent themselves even though the "significant
difficulty" envisaged in the case is precisely the fact that
the parent has such a condition.[108]
101. We share concerns raised
with us that parents in rule 9.5 cases will not be eligible for
legal aid, and that courts will have unrepresented litigants in
cases which involve significant difficulty. We urge the Government
to consider amending its proposals to permit legal aid provision
in any rule 9.5 case where it is clearly necessary.
TIMING OF THE PROPOSALS
102. Resolution told the Committee that it was
"disappointing and worrying that the Ministry of Justice
has made these proposals [concerning legal aid for family law]
before the Family Justice Review Panel makes its interim recommendations".[109]
The Review, which is chaired by David Norgove, is wide-ranging
and its role is to:
- examine both public and private
law cases
- explore if better use can be made of mediation
and how best to support contact between children and non-resident
parents or grandparents
- examine the processes (but not the law) involved
in granting divorces and awarding ancillary relief, and
- look at how the different parts of the family
justice system are organised and managed.[110]
It will produce an interim report in Spring and a
full report later in 2011.
103. The Association of Lawyers for Children
also called for the Government to wait for the Review to report
before considering legal aid changes which would affect family
proceedings, in the context of noting that there are a number
of proposals being considered by the review - namely, the provision
of a Family Court with dedicated Family Court judges at all tiers,
the introduction of no fault divorce, and addressing various "pinch
points" in the Family Justice system notably with CAFCASS
and HMCS - which could lead to reductions in expenditure on family
legal aid. They told us that "it is wholly inappropriate
for the Government to be setting out proposals at this stage which
fundamentally affect entitlement to public funding in family law
cases. The proper time to do that... is once it has been possible
to digest the final conclusions of the Family Justice Review Panel,
and not before. To do otherwise is contrary to the Government's
Code of Practice on Consultation."[111]
104. The consultation paper notes the ongoing
work of the Review and states that it will "present recommendations
to Government that offer us the opportunity to develop a stronger,
more efficient system that leads to better results for children
and families."[112]
105. The Family Justice Review
Panel is undertaking a fundamental reassessment of the family
law system and its recommendations are likely to have a significant
impact upon that system. The Government should wait until the
Review Panel has produced its full report before implementing
changes to the legal aid system in the area of family law.
Impact of scope changes: social
welfare law
106. The Government is proposing to remove from
scope legal aid provided in relation to:
- decisions about Disability
Living or Attendance Allowance, Incapacity Benefit, Housing Benefit,
Income Support and other benefits;
- housing matters, other than those concerning
homelessness or serious disrepairs which threaten health; and
- debt matters where the client's home is not at
immediate risk.
107. The cost of legal aid for welfare benefits,
housing and debt matter in 2009-10, the number of acts of assistance
in each category, and the estimated savings expected to be made
as a result of the consultation paper's proposals is as follows:[113]
| Costs in 2009-10
£ million
| Numbers of acts of assistance in 2009-10
| Estimated savings to be made in consultation paper proposals (based on 2008-09 figures, rounded to nearest £1m) £ million
|
| Welfare benefits
| 28.3 | 143,865
| 22 |
| Housing | 59.9
| 184,944 | 12
|
| Debt | 33.1
| 147,196 | 17
|
108. The reasons given by the Government for
the removal of scope in these areas are as follows:
- These issues are of lower importance
than fundamental ones concerning safety or liberty because they
are essentially about financial or property matters
- Help and advice are available from a number of
other sources
- (In relation to welfare benefits) The accessible,
inquisitorial and user-friendly nature of the tribunal means that
appellants can generally present their case without assistance.[114]
We assess the validity of the three reasons given
to justify the changes to scope below.
The issues are of lower importance than fundamental
ones concerning safety or liberty
109. The Government does accept that "the
class of individuals bringing these cases is more likely to report
being ill or disabled in comparison with the civil legal aid client
base as a whole"[115]
and some of the providers of legal aid in this area gave us case
studies of the kind of people and cases which would be affected
by the proposed changes, for example:
Surinder Singh lives with his wife and one of his
two children. He has worked as an electrician for 40
years, but was made redundant in 2009 after being diagnosed with
Huntington's disease, which made him increasingly unable to work
safely. He applied for Disability Living Allowance and was awarded
the lowest rate for care, and nothing at all to aid his mobility,
despite the fact that he found it very hard to walk, and relied
on his wife to care for him day and night. He approached Community
Links who helped him make an appeal, which was successful, although
the whole process from start to finish took almost a year. He
was awarded the higher rate care and the lower rate for mobility,
which has made a huge difference to his ability to manage his
debilitating illness. (Community Links, AJ22, para 25)
Let's take a client who has a welfare benefit appeal
which relates to his or her disabilities or his or her housing
costs and without that welfare benefit income the client will
not be able to pay their housing costs to protect their family
home or have any income upon which they can feed their family
so as to ensure their family's health and well-being. If they
receive no financial assistance with their housing costs, no financial
assistance which reaches subsistence levels and no means of redress
via access to justice then as a society — we are leaving
families with no choice other than to turn to other perhaps illegitimate
means of feeding their families and keeping the roof over their
families heads e.g. to crime... (Ms H Williams, Ty Arian Ltd (Solicitors),
AJ47)
Sabir (not real name) was a 39 year old man with
mental health problems. After losing his job and going through
a difficult relationship breakdown Sabir ran into financial difficulty.
His claim for benefits was turned down, he fell into arrears with
his rent, received verbal threats about eviction proceedings from
his landlord and ran unmanageable debts on his credit card. He
came to BHT for assistance. Thankfully BHT's caseworkers were
able to successfully appeal his benefit decision, negotiate with
his landlord (avoiding unnecessary and costly eviction proceedings),
and agree a repayment plan for his credit cards. (Brighton Housing
Trust, AJ28, para 4.3)
110. The case studies suggest that while perhaps
not as fundamental as issues concerning liberty or safety, the
types of issues which people are assisted with by legal aid-provided
assistance are of very great importance to the individuals concerned.
Witnesses have also made the point that such problems, if not
dealt with at an early stage, can become exacerbated. Riverside
Advice told us
Cutting this particular legal aid SWL budget will
mean 'problems' will not be dealt with at an early 'preventative'
stage, which is imperative in terms of successful outcomes, and
essential in terms of preventing small 'problems' escalating into
major disasters for people. A Welfare Benefit issue for someone
with a mental health problem, unresolved through expert means
can soon turn into a debt and homelessness or hospitalisation
situation...[116]
Help and advice are available from other sources
111. A central argument put forward by the Government
to justify reducing the scope of legal aid is the availability
of assistance from alternative sources. For example, in relation
to welfare benefits, the consultation paper states that help and
advice is available from Job Centre Plus and the Benefits Enquiry
Line and, "in some cases, voluntary sector organisations
may provide some help and advice, for example AgeUK on Disability
Living Allowance, Attendance Allowance and other benefits. The
Child Poverty Action Group and Disability Alliance may assist
in some cases. Pro bono groups such as the Free Representation
Unit may also be able to assist in representation at tribunals."[117]
112. However, according to evidence given to
us by the Advice Services Alliance, this assertion has been disputed
by most of the groups cited:
we should point out that the consultation document
gives a misleading impression of FRU. .... It points
out correctly that FRU represents clients in tribunals.
It then illogically uses FRU's representation work in tribunals
as part of the justification for withdrawing Legal Help for initial
advice work in welfare benefits cases. FRU does not provide
initial advice to clients. The work that FRU does can therefore
be no part of the justification for withdrawing Legal Help in
this area". (Free Representation Unit)
"Unfortunately we do not have the resources
to provide direct advice to people who are claiming benefits".
(Child Poverty Action Group)
"Our concern is that while it is true that both
Age UK nationally and our partners in local Age UKs and Age Concerns
do provide some help and advice with welfare benefits it is most
often not at a level comparative to that provided through legal
aid". (Age UK)
"We are particularly concerned that Ministers
are made immediately aware that potential changes to Legal Aid
and reductions in support simply cannot be met by small charities
like Disability Alliance". (Disability Alliance)[118]
113. Citizens Advice Bureaux (CAB) are one of
the main providers of legal aid-funded advice, as well as other
types of advice which in some circumstances might be an alternative
to legal advice. In 2009-10, the Legal Services Commission provided
around 15% of income for bureaux, providing £27 million funding
which helped over 450 specialists deal with 43,234 welfare benefit
problems, 56,990 debt problems, 9,129 housing problems and 2,954
employment problems.[119]
Citizens Advice (the national body representing bureaux) is alarmed
at Ministry of Justice estimates that the not-for-profit sector
will lose up to 97% of their legal aid funding and predicts the
financial impact on bureaux will be as follows:[120]
| Category of law |
Current annual funding
| Projected funding
| Projected loss |
| Debt | £12,813,400
| £3,203,350 | £9,610,050
|
| Welfare benefits
| £8,789,711 | £0
| £8,789,711 |
| Housing | £2,733,540
| £1,749,465 | £984,075
|
| Employment | £769,580
| £0 | £769,580
|
| Community care |
£460,576 | £460,576
| £0 |
| Immigration |
£181,480 | £74,407
| £107,073 |
| Total | £25,748,287
| £5,487,798
| £20,260,489
|
114. Citizens Advice told us that they were extremely
concerned about the income cuts they faced, coming as they did
not in isolation but alongside reductions in funding from local
authorities and from the proposed discontinuation of the Financial
Inclusion Fund. They feared that the legal aid reductions "would
be very destabilising, and could present a critical situation
for the CAB network" and that the loss of income would "have
a significant impact on the ability of the service to deliver
not only legal aid, but also other client services."[121]
115. Law Centres too face funding difficulties,
fearing that, factoring in the impact of the proposed telephone
gateway for legal aid, almost 90% of their legal aid funding could
be removed. Juxtaposed with the cuts they expect from other Government
departments and local authorities, Law Centres believe they could
lose 70% of their funding.[122]
116. Funding concerns were shared by AdviceUK,
an organisation whose 860 members provide advice in the not-for-profit
sector. A survey of its members which started in summer 2010
found that 41% of them had already experienced funding cuts, 58%
expected cuts to be made in 2011-12, and 71% were subject to a
review of voluntary sector or advice funding. A more recent survey,
started in December 2010, suggested that the situation was even
worse: it found that 89.5% of respondent organisations were experiencing
major funding cuts, with an average of 64% reductions in advice
funding per agency. This will have an impact on the service offered
to clients: 80% of organisations responding said that the number
of clients they were able to advise would be reduced; 76% said
that particular advice projects or services would have to end;
68% said staff would be made redundant; and almost a third (32%)
said their organisations might have to close.[123]
117. Generally, there was widespread scepticism
from the not-for-profit sector that they would be able to fill
gaps left by the removal of legal aid, or that, as the consultation
paper suggests, Job Centre Plus or the Benefits Enquiry Line present
viable alternative sources of advice. The following points were
typical of those put to us by the not-for-profit sector:
The evidence of widespread cuts in funding for advice
services indicates that the suggestion in the Green Paper that
there are alternative sources of advice to pursue cases affected
is erroneous. Some suggested sources of alternative advice,
such as Job Centre Plus and the Benefits Enquiry Line are inappropriate.
They are not independent agencies. It is certainly not the
case that capacity exists to soak up demand spilled by reducing
legal aid scope. In the half-million cases cut loose, people may
well find no alternative source of legal advice. (AdviceUK, AJ32,
paras 4.1 - 4.3)
The consultation papers offer no evidence regarding
alternative funding for these kind of services, and we do not
believe it actually exists in any meaningful way. The Government,
in response to queries from MPs, seem to rest heavily on the CABx
service, ignoring the fact that Bureaux across the country are
losing funding at a frightening rate — from central Government,
through these proposals and the decision to cut the Financial
Inclusion Fund, from local government, due to cuts in local authority
spending, and from charities and trusts due to the recession cutting
incomes and increased demand for charitable funding. The simple
fact is that advice agencies cannot meet current demand for services,
and this demand will increase as changes to benefits, housing
and other matters are implemented. (Advice Network & Advice
Centres for Avon, AJ24, para 16)
The proposals will de-stabilise advice providers
and the consortia or partnership arrangements put in place by
advice providers to ensure access to essential services. The
combined impact of the legal aid reforms, the loss or reduction
of local authority funding and the loss of funding streams such
as the Financial Inclusion Fund could spell the end for the majority
of the not-for-profit advice sector. While other organisations
will seek to provide ongoing support for their client groups,
it will not be possible to replicate the services currently ensuring
access to the justice system for the most marginalised members
of society. (Greenwich Housing Rights, AJ27, para 4.3)
118. The Government accepts that the not-for-profit
sector faces a very difficult period and is exploring ways of
helping to alleviate those difficulties. The Financial Inclusion
Fund has funded a face-to-face debt advice programme since 2006
which employs around 500 specialist advisors in Citizens Advice
Bureaux and other advice agencies. The Financial Inclusion Fund
itself is to close on 31 March 2011. However, on 12 February,
the Government announced that the face-to-face programme, which
helps over 100,000 clients with complex debt problems each year,
was to be funded for a further year (2011-12) at a cost of £27
million.[124]
119. A further potential source of funding is
the £100 million Transition Fund announced in October. The
purpose of the Fund is to "provide grants to many organizations
to allow them to prepare for the future opportunities opened up
by the Big Society." The Cabinet Office has noted that,
while 75% of charities receive no funding from the state, some
organisations have become highly dependent on public funding and
are particularly vulnerable to the spending reductions being made
across the public sector. Successful applicants for funding had
to: be spending at least 50% of their total income on the delivery
of frontline public services; have approved annual accounts showing
that total annual income was between £50,000 and £10m
and that 60% of income came from taxpayer-funded sources; have
evidence that between April 2011 and March 2012 the organisation
would experience a reduction of at least 30% of the taxpayer-funded
income received for the delivery of frontline services; and have
free reserves which could pay the organisation's total expenditure
for no more than six months. Eligible bodies could apply for
grants of a value up to 50% of the reduction in taxpayer funded
income, up to a maximum of £500,000. Successful applicants
have been told they would be able to spend the funding on "the
changes your organisation needs to make to meet the programme
outcome. In some cases it may be appropriate for you to spend
a small amount of your grant on continuing to deliver services
but you will need to explain why this will help you achieve the
programme outcome".[125]
120. Applications opened on 29 November 2010
and closed on 21 January 2011. Nick Hurd MP, the Minister for
Civil Society, told us that a law centre (the Isle of Wight Law
Centre) was one of the first 18 organisations to be announced
as recipients of funds and that 93 providers of legal advice had
applied to the Fund. Mr Hurd emphasised that grants from the
Fund were "not funding for business as usual; it is funding
for change, funding for transition, and funding to organisations
who have the beginning of a plan to get out of the situation they
were in, not least in terms of trying to develop sustainable and
diverse income streams. That caused some frustration in the system,
but we had to set some eligibility criteria that were robust.
We had to send a signal that this was about trying to help organisations
build a more sustainable future.".[126]
121. The Transition Fund is not a long-term funding
source but rather, as Mr Hurd put it "a very short-term measure
to help people who have been placed in a hole, need some help,
and have a plan to get out of it themselves."[127]
Asked to give an example of the ways in which an organisation
concerned might diversify its income sources, Mr Hurd said "I
do not underestimate the difficulty of trying to develop more
diverse income streams or more entrepreneurial models that suggest
that you may have a more sustainable future, or put yourself in
a more robust position in order to benefit from the future opportunities
in terms of delivering public services that we are absolutely
committed to opening out."[128]
Mr Hurd confirmed that organisations which had not applied by
21 January had missed the opportunity to gain funding, although
he left open a slight possibility of some extension of the Fund:
"We are scrabbling round trying to find some opportunities
to top it up, but most members of the Committee will recognise
that there is not a magic money tree; there isn't a great deal
of money around. We recognise that there is a lot of demand for
the money, and are doing what we can to pull together resources
to try to top it up."[129]
122. Mr Hurd also cited the Big Society Bank
as a further means by which the not-for-profit sector might be
able to find funds for its work. On 14 February, in a joint statement
with Francis Maude MP, the Minister for the Cabinet Office, he
announced a strategy "to grow the social investment market
giving charities and social enterprises access to new, potentially
multi-billion pound, capital....The strategy explains the role
of the Big Society Bank as a cornerstone of the social investment
market attracting more investment from wealthy individuals, charitable
foundations and ultimately socially responsible everyday savers
in social ISAs and pension funds".[130]
The fund will be financed by an estimated £400million from
dormant bank accounts, with up to £100million being accessed
in the first year, with an additional £200million given by
the UK's largest banks. The Bank will act as a wholesaler and
use its balance sheet to co-invest, underwrite or guarantee investments
along with private sources of capital. Mr Hurd told us that the
Bank's objective will be to grow the social investment market
with "the ultimate goal" being "to make a much
better connection between the social sector and the trillions
of pounds of assets sitting in mainstream financial institutions
being managed on our behalf as savers....Social investment is
the bridge". Mr Hurd pointed out that "this will not
happen overnight; it is not a short-term panacea for the challenges
[faced by the not-for-profit sector]".[131]
123. We welcome the Government's
provision of funding for face-to-face debt advice for a further
year and the £100 million Transition Fund, designed to help
not-for-profit organisations change to a business model which
leaves them less reliant on public funds. However, long-term
concerns remain: how will sufficient debt advice be provided once
the deferred ending of the face-to-face service happens? How
many organisations will be able successfully to adapt their income
streams in the manner encouraged by the Transition Fund? What
will happen to those who cannot and the clients who use their
services? The answers to these questions are not known and the
Government should be prepared to extend further the provision
of face-to-face debt advice and offer a second round of Transition
Fund grants if necessary.
124. Mr Hurd said that the Government accepted
that it had a task to complete in looking at the ability of the
voluntary sector to pick up the slack left by the proposed removal
of legal advice in certain areas. He said that this was why the
Cabinet Office had become involved, and that it was carrying out
three relevant tasks: mapping the effect of cuts for this sector
on the ground; pulling together stakeholders to assess what can
be done to help the sector in the short — and long-term,
which should result in recommendations for action by the Government
and the sector itself; and facilitating the Transition Fund (which
we discuss above).[132]
125. Mr Hurd further noted that funding decisions
made by local authorities were extremely important, and that there
was an uneven picture across the country. In addition to the
mapping exercise already referred to he told us that "the
Secretary of State for Communities and Local Government [has]
made it clear that we are prepared to set what he calls tests
of reasonableness for the behaviour of local authorities —
in the proportionality of cuts, the notice given for cuts and
the time given to people on the wrong end of decisions to adjust
what they are doing. He stated those tests of reasonableness,
and also said that he is prepared to consider putting them on
a statutory basis. That is quite a significant move in response
to our very genuine concern about what is happening out there
as a result of decisions by local authorities."[133]
126. While the Cabinet Office has started taking
steps to co-ordinate other Departments on this issue, Mr Hurd
told us that there were some issues which were beyond the Cabinet
Office's remit, and where, consequently, we were not convinced
that there was sufficient direction offered from the centre.
For example, when asked whether the programme of face-to-face
debt advice would be continued beyond the extra year recently
announced, Mr Hurd said that was a matter for the Department for
Business, Innovation and Skills and that "the Cabinet Office
has been brought in really quite recently to pull this together.
This is all very recent. These are conversations that are ongoing
between officials and will be ongoing between Ministers ... but
this is all quite recent. The issue is clearly under review within
BIS, which has made that commitment for one more year —
what happens after that is uncertain. But there needs to be clarity
about it."[134]
127. Mr Hurd was also reluctant to comment on
the proposal we have mentioned above for a system of financial
sanctions whereby the DWP and other public bodies might be obliged
to pay for poor decision-making which caused work for the tribunals
and courts. Despite being an inherently cross-governmental policy
proposal, Mr Hurd said it was not his responsibility, but that
of the Ministry of Justice, and that he was "uncomfortable
going into terrain which is properly the responsibility of [MoJ
ministers]".[135]
128. We note that the Government
recognises the difficulties faced by the not-for-profit advice
sector. It is unsatisfactory that, on the Government's own admission,
the Cabinet Office has been brought in at a late stage. We welcome
the work it is doing to assess the situation and to find ways
of helping the voluntary and not-for-profit sectors, but we are
concerned that leadership and co-ordination across departments
has not covered all relevant areas. Representatives of organisations
in this field have made it clear they do not believe it will be
possible for their organisations to meet all the unmet demand
which will be created by the proposed changes to legal aid. That
assertion casts doubt on a key condition for the Government's
proposed reforms - that clients will be able to access non-legal
aid-funded sources of advice.
Self-representation
at tribunals without assistance
129. The third argument advanced by the Government
for the removal from scope of welfare benefits law is that the
inquisitorial, user-friendly nature of tribunals such as the First-tier
(Social Security) Tribunal - to which appeals are made - means
that appellants are generally able to present their case without
assistance. Legal aid is currently available for advice regarding
appeals to the Tribunal, although not for advocacy at it. Further
onward appeals to the Upper Tribunal do not qualify for legal
aid.
130. While the nature of tribunals means that
representation might not be necessary (and 72% of appellants in
the Social Security Tribunals are currently unrepresented[136])
HH Judge Robert Martin, President of the Social Entitlement Chamber,
told us that the absence of legal help prior to the hearing was
likely to have a number of adverse effects: "We will see
more people with cases with no prospects of success because they
have not been filtered out, as they are at the moment, through
good advice. We suspect that many citizens with winnable cases
will not reach the tribunal because, again, they are not getting
the effective support at that early stage. The absence of legal
help also means that cases will tend to be less well prepared
for the tribunal, which will extend the amount of time we have
to invest in the case to make sure that a good outcome is reached."[137]
Judge Martin also gave an example where, without legal help prior
to the tribunal, appellants might find themselves unable to present
their case adequately:
In many cases where a social security appeal turns
on a person's state of health, we see an appeal letter or correspondence
from the appellant which says, "My GP knows all about my
health problems. You are quite free to ring him up and he will
help you." But the tribunal really isn't in a position to
pick up the phone, interrupt a GP's surgery and say, "We
have an appeal on at the moment." Legal help comes in where
the advice worker can say, "The tribunal won't be doing that,
but I can do that for you," and possibly even pay for a short
medical report. The person then arrives at the tribunal equipped
with that evidence.[138]
131. A further difficulty for people trying to
navigate their way through tribunals is the increasing complexity
of the law. HH Judge Martin noted "when Social Security
Tribunals were first set up... The law that we used was encapsulated
in a very slim handbook. The reference materials that we issue
to our tribunals now extend to 7,500 pages spread over six volumes.
The ability of tribunals to act in that simple, accessible, informed
way is not assisted when the law itself becomes increasingly complex.
We endeavour to live up to the original reasons to justify tribunals
being informal, but that is against the formality of the court.
For many of the people who appear unrepresented it is still a
very daunting and stressful experience, no matter how friendly
we try to be."[139]
132. While the nature of tribunals
generally means that legal representation is not necessary, we
are concerned that the removal of legal aid for legal help could
cause more cases without a realistic chance of success to reach
tribunals (thus increasing the tribunals' costs). We are also
concerned that the ability of the most vulnerable people to present
their cases will be weakened because they will not have had help
and advice in preparing them. This could deny justice to the
individuals concerned and increase the time and expense necessary
to deal with the case at tribunal. The increasing complexity
of procedure in some tribunals has made it difficult for vulnerable
people to represent themselves. We urge the Government to initiate
consultations in order to develop proposals to make tribunals
more user-friendly and less legalistic.
Costs to the public purse
of removing legal aid
133. Citizens Advice gave us an example which
they say illustrates the point that early interventions in the
form of legal help paid for by legal aid can not only help vulnerable
people, but save greater funds having to be spent by the public
purse:
A 59 year old woman sought advice from a Lancashire
CAB about a benefits and debt problem. Her right leg had been
partially amputated in an operation to save her life, and her
husband had gave up work to look after her. The care and mobility
components of her disability living allowance (DLA) were reduced
when DWP reviewed her claim. Consequently her husband lost his
right to carers allowance. This meant a significant drop in their
household income and they were unable to afford essential expenditure
like heating. She asked for the decision to be reconsidered but
it was not changed. She began to feel unwell and was treated
for depression. A legal aid funded caseworker gave her advice
on the relevance of the Contributions and Benefits Act 1992 for
the various rates of the care component of DLA and lodged an appeal
under the Decision Making and Appeals Act 1998, supported by medical
evidence from her GP. The client's DLA was then restored without
her needing to have a tribunal hearing. This early intervention
saved substantial costs for both the DWP and the Tribunals Service
and reduced the costs to the NHS of the client's treatment for
depression. The cost of the help to the legal aid fund was £221
in total.[140]
134. Expanding upon this point, Citizens Advice
told us of a cost-benefit analysis they have carried out, using
data from the Civil and Social Justice Survey on the adverse consequence
costs of legal problems and the Legal Services Commission's outcomes
data from legal advice work which they state "sets off legal
aid expenditure against the savings achieved from early advice
(legal help) interventions. This analysis estimates that:
- For every £1 of legal
aid expenditure on housing advice, the state potentially saves
£2.34.
- For every £1 of legal aid expenditure on
debt advice, the state potentially saves £2.98.
- For every £1 of legal aid expenditure on
benefits advice, the state potentially saves £8.80.
- For every £1 of legal aid expenditure on
employment advice, the state potentially saves £7.13."[141]
135. Other witnesses cited the work carried out
by Citizens Advice and supported the argument that expenditure
on legal help could obviate the need for greater expenditure at
a later date. For example, Advice Network & Advice Centres
for Avon told us that "timely, high-quality advice saves
the state much more money than it costs, in decreased health,
housing, legal and other social expenditure from demand-led budgets
— cutting advice spending is a false economy."[142]
Similarly, Shelter asserted that "these proposals, if implemented,
are likely to drive up the need for civil legal aid rather than
reduce it and therefore increase costs to the taxpayer further
down the line".[143]
In oral evidence to us, the Ministry of Justice agreed that the
consultation paper's estimate of £350 million savings from
the reform of legal aid does not include any analysis of its impact
on other Departments.[144]
136. It has been put to us that
the removal from scope of many areas of social welfare law will
lead to significant costs to the public purse as a result of increased
burdens on, for example, health and housing services. We are
surprised that the Government is proposing to make such changes
without assessing their likely impact on spending from the public
purse and we call on them to do so before taking a final decision
on implementation.
Impact of scope changes: immigration
137. In looking at scope changes we have focused
mainly on family law and social welfare law, because these are
where some of the largest savings are proposed and much of the
evidence we received focused on them. We now look briefly at
two other areas of law where concerns were raised with us: immigration;
and education.
138. In 2009-10, £88.8 million was spent
on legal aid providing 101,633 acts of assistance within the category
of immigration.[145]
The Government is proposing to retain within scope immigration
detention cases concerning immigration or asylum applicants, or
persons to be deported or removed from the United Kingdom, who
are seeking to challenge their detention, or who are on bail and
are seeking a variation or extension of bail, or where they face
forfeiture of their bail. The Government contends that such cases
are sufficiently important, and that there are insufficient alternative
means of resolution, that they should remain within scope for
advice and representation before the First-tier and Upper Tribunals
and higher courts. Publicly funded legal assistance will also
continue to be provided for proceedings before the Special Immigration
Appeals Commission.[146]
139. The Government is proposing to remove from
scope immigration cases where the individual is not detained,
including those relating to citizenship, leave to enter or remain
for visits, study or employment and deportation. While the Government
recognises that some of these cases raise important issues concerning
family or private life, it notes that individuals are not at immediate
risk as a result of decisions, in contrast to asylum applications.
With regard to the cases to be removed from scope the consultation
paper states that individuals involved "will usually have
made a free and personal choice to come to or remain in the United
Kingdom, for example, where they wish to visit a family member...
or to fulfil their desire to work or study here."[147]
Further, the Government believes that, as tribunals are designed
to be user-friendly, and interpreters are provided free of charge,
individuals should be capable of navigating their way through
the system and representing themselves. They also consider that
the individuals concerned are not likely to be particularly vulnerable
(in contrast to asylum seekers).[148]
Based on 2008-09 figures, the Government expects to save annually
£12 million in relation to legal help and £6 million
in relation to legal representation as a result of the immigration
law scope changes.[149]
140. The Immigration Law Practitioners' Association
(ILPA) has questioned the premises put forward by the Government
to justify its scope changes, for example, with regard to the
contention that the issues concerned are largely a matter of choice.
ILPA argues that in fact these cases often concern Article 8
of the European Convention on Human Rights (the right to family
and private life) and are about "whether a person can be
joined by a spouse, partner, child or elderly dependent relative.
They are about what happens when a relationship breaks down.
They are about cases of children whose claims for asylum having
failed, cannot be returned to their country of origin because
their safety and welfare cannot be guaranteed. They are about
people who face removal from a country where they have lived for
many years, including since childhood."[150]
141. ILPA is particularly sceptical about the
suggestion that most people will be able to represent themselves
and makes the case that the Supreme Court (and before it the House
of Lords) has given more judgments on Article 8 matters in recent
years than on almost any other area of law, reflecting the complexity
of those cases. They also argue that "the tribunals may
have been designed to be simple to navigate, but they are not.
There is a plethora of statute law, caselaw, regulations rules
and guidance, relating not only to substantive matters but also
to procedure. Changes in the law are frequent, necessitating
understanding of previous provisions and transitional provisions.
The weight of precedent, from the European Court of Justice,
the European Court of Human Rights and the Higher Courts, is heavy.
It overlays a system that largely defies comprehension and is
not susceptible of interpretation by application of principles
of common sense". ILPA quotes a number of members of the
judiciary in support of their claims regarding the complexity
of the law in this area, including Lord Justice Longmore in AA(Nigeria)
v SSHD [2010] EWCA Civ 773:
I am left perplexed and concerned how any individual
whom the Rules affect (especially perhaps a student, like Mr A,
who is seeking a variation of his leave to remain in the United
Kingdom) can discover what the policy of the Secretary of State
actually is at any particular time if it necessitates a trawl
through Hansard or formal Home Office correspondence as well as
through the comparatively complex Rules themselves. It seems
that it is only with expensive legal assistance, funded by the
taxpayer, that justice can be done[151]
142. As with witnesses commenting on the social
welfare law changes, ILPA were not convinced that money would
be saved overall and said that expenditure would simply shift
elsewhere. They told us that
Complex questions of immigration, asylum and nationality
law will not go away but will fall to be dealt with in other parts
of the system. For example:
- Detention cases often involve
consideration of a deportation/removal case where the person is
being detained against removal
- People who might otherwise not have advanced
a claim for asylum may do so
- It is likely that will be an increase in public
law challenges (before the High Court) where otherwise the matter
might have been dealt with, at less expense, before a tribunal
- Challenges to refusals to fund a case will be
an area of litigation in themselves, and may prove more costly
than funding the cases directly.[152]
143. As with the social welfare
scope changes, the Government's contention that immigration law
(other than detention cases) should be removed from scope because
the issues concerned are of relatively lesser importance and that
the user-friendly nature of tribunals mean that individuals should
be able to navigate their way through them without publicly funded
assistance has been strongly criticised. Again, as with the other
scope changes, it seems likely that there will be consequential
costs for budgets other than legal aid, and we recommend that
the Government assesses these fully before deciding whether to
proceed with its proposals.
144. ILPA raised two questions
about the Government's proposals, namely: whether immigration
cases involving domestic violence will remain within scope; and
whether claims based on Article 3 of the European Convention on
Human Rights (prohibition on torture and inhuman or degrading
treatment or punishment) will remain within scope. We would appreciate
clarification of the Government's position on these areas.
Impact
of scope changes: education
145. The Government is proposing to remove from
scope all education cases (other than those which involve judicial
review, as in other areas). The consultation paper explains that
The legal aid scheme currently funds Legal Help (initial
advice and assistance) on a range of educational matters, such
as school admissions and exclusions, out of school provision,
bullying, school and nursery reorganisation proposals, and student
disputes with universities and further education institutions.
It also includes advice on appealing to the First Tier (Special
Educational Needs and Disablity - SEND) Tribunal and the Special
Educational Needs Tribunal for Wales. Legal aid also funds advocacy
on appeals from the First-tier (SEND) Tribunal, to the Upper Tribunal
and higher courts. Legal aid is also available for advice and
advocacy to bring civil law actions for issues such as damages
for negligence, and actions for breach of contract in provision
of education services.[153]
146. In 2009-10, spending on education-related
legal aid was £3 million, which provided 5,541 acts of assistance.[154]
The savings to be made from the education scope changes are minimal:
just £1 million from legal help (savings are rounded to the
nearest £1 million, as a result of which no savings are listed
for legal representation, although there will be some).[155]
The reasons given by the Government for removing this area from
scope are as follows:
- The issues, while important,
are not as important as the immediate threat to life or safety,
liberty or homelessness
- Some of the cases may arise from personal choices,
such as the conduct of children at school
- Educational damages claims are primarily about
money and, as such, are less important to fund than cases concerning
fundamental issues
- Where there is a strong case for damages, alternative
funding, such as a CFA, should be obtainable
- Those bringing cases are not particularly likely
to be vulnerable or unable to present their own case
- Legal Help for those appealing to the First-tier
(SEND) Tribunal is less likely to be justified because the Tribunal
is designed to be accessible for those without legal knowledge
- Alternative sources of basic help are in place[156]
147. The Legal Aid Practitioners Group told us
that, according to LSC statistics, at least 92% of education cases
are successful, and the majority relate to Special Educational
Needs cases. They argue that, given the small overall costs of
legal aid in education cases, "this represents extremely
good value for money for the Government". They point out
that much of the work is completed under the legal help scheme,
which pays at the rate of £53.60 per hour and that "the
private rate for experienced education lawyers is often between
£200 - £300 per hour." They told us that the types
of cases covered
include e.g. a disabled child unable to attend school
but where no alternative was considered. The child was out of
school for three years. Following legal advice an annual review
was arranged (a statutory requirement but it had not taken place
for three years) and the child is now in full-time specialist
provision. We have many examples of local authorities not complying
with their statutory obligations and disabled children being out
of school but after legal intervention, they did comply and the
child is now receiving education.[157]
148. Asked whether he feared the removal from
scope of this area of law would have an adverse effect, HH Judge
Robert Martin, President of the Social Entitlement Chamber, said
Yes. I agree that it will have a major impact on
the Special Educational Needs Tribunal. It is a high rate of success,
but what would count as success is any change in the original
decision which is of benefit to the appellant. Without legal advice,
because representation would not be covered, there is a risk that
more polarised positions would be taken and there would be less
willingness to compromise or go down the mediation route. The
unadvised litigants in person would not really be in a position
to evaluate an offer that had been made or compromise their intent
to say, "Well, we go for the whole aim of our claim."
There will be adverse effects, not only because it may make it
more antagonistic, but in my view because it would leave the unrepresented
appellant feeling that the proceedings have been less than fair
because of an inequality of arms. On the one side, the local authority
will have access to educational experts and will have reports
prepared. On the other, you are put in that defensive position
of only being able to challenge or dispute someone else's evidence.
You would not be in a position to put forward alternative proposals
by being able to afford your own expert evidence. So I think it
will have an adverse impact.[158]
149. On 9 March 2011 the Government published
its consultation paper on special educational needs and disability.
Referring to cases where parents and local authorities disagreed
about the special educational provision required for children,
the paper notes that, where mediation had been used in the West
Midlands, four out of five cases resulted in a settlement without
going to the tribunal. The paper therefore proposes that parents
and local authorities should always try mediation before a parent
can register an appeal with the tribunal. [159]
150. We do not believe that
it is generally in the interest of children with special needs
that public funds should have to be devoted to funding legal representation
in disputes about their needs. This inevitably diverts local
authority funding into paying for lawyers, experts and court proceedings
when those funds could be better spent on providing the facilities
which special needs children require. We believe that, in the
context of its consultation on special educational needs, the
Government should aim to reduce dramatically the requirement for
legal proceedings in this area.
Overall impact of proposed scope
changes
151. The scale of savings sought
by the Government requires changes to be made to the scope of
legal aid. However, we have outlined some concerns about the
impact of some elements of those scope changes and hope the Government
will address those concerns. The effect of doing so might be
to reduce the level of savings realised; however, we have set
out above some proposals for savings not covered in the consultation
paper which, if implemented, could help offset any shortfall in
savings accruing from the refinement of the scope proposals we
are advocating.
Impact of the proposals on the
national provision of legal aid
152. Providers of legal aid services have told
us of their fears that the changes to scope, combined with some
of the other proposed changes, such as the reduction to fee rates,
will lead to providers withdrawing from the market, with potentially
adverse effects for the provision of a national network of legal
aid. We have already discussed the situation of the not-for-profit
sector. Representatives of the legal professions have told us
of the difficulties the entire body of providers will face. The
Law Society told us that
The Impact Assessment accompanying the Green Papers
estimates that the proposals could lead to a 67% decrease in income
in rural areas and a 59% decrease in urban areas. The consequence
of this is likely to be that only the largest firms in cities
will survive by employing lower quality staff, as firms already
operate on the margins of viability. Inevitably expertise will
be lost. In particular, specialist firms and advice agencies
such as Law Centres and CABx, providing social welfare law services
(debt, housing, employment, welfare benefits, education) are likely
to be wiped out with catastrophic consequences for people in need.
There have been no remuneration increases in cash terms since
2004 and efficiency savings have already been made against inflationary
cost increases. The Society does not see how many firms can continue
to operate in this environment.[160]
153. The charity Legal Action Group (LAG) told
us that in 2000 there were around 10,000 providers of civil legal
aid and 2,925 providers of criminal legal aid. There are now
around 2,000 providers of civil legal aid and 1,697 providers
of criminal legal aid. LAG believes that if the scope and other
changes are made, about 60% of firms offering family law legal
aid will be forced out of the system, and in terms of civil legal
aid generally, they told us that
It is difficult to estimate accurately the total
numbers of providers which would be left in the system with such
a large number of contracts being cut. LAG believes it would be
around 900 firms of solicitors, but this figure could be much
lower as it would not be viable for many firms to continue in
the legal aid system especially with the proposed cuts to scope
in family law. Around 100 NfP providers might remain, but again
this figure could be much lower as the areas completely cut from
scope, such as welfare benefits have a larger impact on NfP agencies.
LAG believes if the government's proposals are implemented the
attrition in the numbers of providers over recent years will become
a rout and legal aid will cease to be viable as a nationwide public
service.[161]
154. LAG contends that solicitors continuing
to provide legal aid would tend to specialise in child protection
and domestic violence cases, and would be concentrated in large
urban areas, with people living outside these areas being unable
to access legal aid services. They are also concerned that there
might not be a sufficient number of firms to allow for conflicts
of interest and have called for a more detailed impact assessment
of the proposed changes in civil family legal aid to be undertaken,
in order to model the number and location of firms specialising
in family law which would remain in the system with a view to
ensuring that family lawyers remain within reasonable travelling
distances of the public nationally. LAG claims that the situation
is worse with regards to other areas of law and that "the
history of civil legal aid shows that the pattern of provision
on the ground determines whether the public can access their legal
rights. If no services are available the public are marooned from
both advice and representation in civil law. LAG fears that if
the planned scope changes go ahead this will be exacerbated, as
the remaining legal aid services will be further concentrated,
leading to a post code lottery for services, which the bulk of
the population will lose."[162]
155. The Government's impact assessment states
that "it is estimated legal aid providers would no longer
provide between £247m and £275m worth of current services....
For those services which are still provided, it is estimated legal
services providers would receive between £144m and £154m
less income. This would stem from the civil and criminal fee
reforms and from the telephone advice reforms." The assessment
makes it evident that it is not clear what practical impact these
reductions will have:
Given the uncertainty surrounding the possible client
response to these proposals, the impact on providers is also subject
to much uncertainty. The impacts on providers might take the following
forms:?
- there would be a loss of business
for some legal services providers which are contracted with the
LSC to provide legally aided services;
- there might be an increase in business for other
service providers, including perhaps alternative resolution service
providers or services which support self-resolution, which are
funded by people who previously used to receive legal aid.
The overall impact on providers would also depend
upon individual providers reliance on income from legally aided
clients. In addition the impact on providers is dependent upon
how they adjust to changing patterns of demand. For example, if
providers are able to cut costs and identify other efficiencies,
or if providers are able to move into other business areas the
impact on the them is likely to be lessened. [163]
156. In oral evidence Mr Djanogly disputed the
claim that legal aid would cease to be a national service, pointing
out that the £350million proposed expenditure reduction was
from a budget of £2.2 billion.[164]
We note
the fears expressed by some providers that the Government's proposals
could result in the end of legal aid as a national public service.
We are not convinced that this will necessarily be the case but
we think that, for several reasons, there could be significant
under-supply of providers in some areas of the country, or indeed
some 'advice deserts'. We note the Minister's assertion that
the savings to be made of £350 million have to be seen in
the context of an overall budget of £2.2 billion. The Government's
own impact assessment notes that there is "much uncertainty"
about the impact on providers and we urge the Government to conduct
a more thorough assessment of the likely effect on geographical
provision of each category of civil and family law before deciding
whether to implement the proposals.
157. While he sought to refute the notion that
the Government's proposals would result in the end of the national
system of legal aid, the Minister did accept that the avoidance
of legal aid deserts was an important issue and said that it would
be dealt with by two means: implementing competitive tendering
and introducing an effective telephone advisory service.[165]
158. Although the Government is reducing remuneration
rates paid to legal aid providers, it accepts that relentlessly
pursuing this approach is not sustainable in the longer term and
so proposes to introduce a model of competitive tendering for
services to replace the system of administratively set fees.
The objective is for the Government to define the services it
wishes to purchase and for suppliers to bid to deliver that work
according to their preferred business model, which should facilitate
innovation and profit. While the consultation paper recognises
that "a move to full market competition is likely to present
significant challenges in design and delivery" it is clear
that "competition is the right way forward" and intends
to introduce competitive tendering for criminal work in the first
phase, and to subsequently extend it to the provision of face-to-face
services for civil and family law. The Government is going to
consult on a competitive tendering model, with a view to opening
a price competitive tender in certain areas in 2012 with other
areas following on a rolling basis.[166]
159. The Government has begun
a separate consultation on the introduction of a competitive tendering
model for legal aid and its potential to encourage efficiencies
and innovation. We note the reference to this work by the Minister
in answer to a question about possible advice deserts and believe
that any competitive tendering model adopted should have as a
key objective the avoidance of such deserts. We look forward
to the outcome of the consultation exercise.
160. The other means by which the Minister hoped
the problem of advice deserts could be avoided was the introduction
of an effective telephone advisory service. The consultation
paper proposes to introduce "a simple, straightforward"
telephone service, based on the current Community Legal Advice
(CLA) helpline as a single gateway to civil legal aid services.
Thus, the vast majority of clients will make initial contact
with legal aid services through the telephone helpline, rather
than through face-to-face services. The potential savings through
offering services in this way are £50 - 70 million.[167]
The paper states that clients should be able to access information
and advice via the telephone and online:
- at a time and place convenient
to them;
- without needing to travel or wait for an appointment
with a face to face provider;
- over extended hours (compared with face to face),
enabling them to resolve their problems more swiftly, reducing
stress and anxiety;
- to obtain earlier resolution in order to help
prevent problems multiplying and escalating; and
- to help identify when Alternative Dispute Resolution
(such as mediation) would be the most appropriate route to problem
resolution.[168]
The Minister explained that "we see an effective
telephone advisory service as a way of helping those who are in
remote rural areas, those who are disabled and those who can't
afford transport. You can call up this advisory service and they
will call you back. You don't even have to pay for the phone call.
We see this as another way of directing our resources to where
they are most important and getting the best advice to people.
We think there is a lot we can do through the use of the telephone."[169]
161. While the Government's impact assessment
notes that a telephone service may be preferable for some clients
and may lead to greater consistency of advice and improved service
quality, it also highlights the potential drawbacks of such an
approach:
Delivering a greater proportion of advice by telephone
may cause access problems for some clients, for example due to
literacy issues, language barriers, problems acting on advice
given, or an inability to pick up on non-verbal cues. In addition,
telephone providers are likely to have diminished local knowledge.
The requirement to access services through the CLA Operator Service
also adds an additional layer of complexity for the client in
cases where face-to-face help is ultimately required or in an
emergency situation, and also represents a reduction in client
choice.[170]
162. Providers of services also told us they
were worried about the potential impact of having a single telephone
gateway. For example:
Telephone advice has been suggested as a way forward.
From RA's experience it would be impossible to successfully deliver
most of the casework currently provided face to face for clients
by telephone. There is a place for telephone advice, but it should
be part of a range of options, and is only suited for a limited
type of work, and for certain clients. The reality is that majority
of telephone advice get referred on to face to face advice for
complex matters. (Riverside Advice, AJ31, para 22)
As regards quality, whilst we recognise that telephone
advice can be both cost efficient, effective and convenient for
some clients, we are concerned that introducing a mandatory requirement
to access Legal Aid Services via the CLA helpline (save for 'emergency
cases') and driving the delivery of the 'vast majority' of casework
over the phone will have a detrimental effect. We have particular
concerns about the potential effectiveness of the delivery of
Legal Advice over the telephone in connection with asylum claims.
Many of these clients have experienced highly traumatic events
including rape, torture and the death of family members. It can
often take a period of time before clients feel able to disclose
what has happened to them. In addition it can be very difficult,
over the telephone, to gauge, whether the client and the interpreter
understand each other. It is the experience of BHT that face to
face interaction is, almost without exception, the most effective
way of building the trust necessary to take effective witness
statements in these situations. (Brighton Housing Trust, AJ28,
paras 3.6 and 3.7)
163. We accept there are concerns
about the ability of some vulnerable clients to access services
via a telephone helpline. However, the scale of the savings to
be made through the use of such a helpline (£50 - 70 million
annually) and the fact that some clients might benefit from such
a service, means that this is an option worth pursuing. We encourage
the Government to do so, but would also urge it to work with both
public and private providers of services to make sure the helpline
is designed in a way which makes it effective for vulnerable clients.
We urge the Government to monitor closely the effectiveness of
the helpline, particularly for vulnerable clients.
Impact of the proposals on courts
and tribunals
164. The Government's impact assessment says
of the likely effect of the reforms on the courts and tribunals:
The proposed reforms might lead to a reduction in
the total volume of court and tribunal cases. A reduction in total
case volumes might be associated with some types of one-off court
and tribunal capacity adjustment costs and with other types of
one-off court and tribunal capacity adjustment savings. The net
position is subject to further consideration.
In addition the proposed reforms might lead to an
increase in the volume of cases where clients choose to represent
themselves in court or at a tribunal without using Legal Representation
(litigants in person). It has been assumed that on balance any
such effect should not have a significant impact on ongoing court
or tribunal operating costs. [171]
165. We understand why the Government assumes
that reducing legal aid from certain areas of law is likely to
lead to a reduction in the number of cases reaching court in those
areas, and we think that assumption is probably correct in general.
However, some witnesses did feel that the Government's proposals
might lead to an increase in the number of cases reaching court.
For example, Greenwich Housing Rights said that
The proposed reforms in relation to scope and financial
eligibility are unlikely to reduce the number of cases in the
local civil court within the social welfare law categories. The
areas of housing law being removed from scope generate a small
fraction of the cases in the civil courts. The areas of housing
law remaining in scope generate much of the local court's civil
caseload, but such actions are initiated by landlords. We anticipate
that removing debt, welfare benefits and employment from scope
may actually increase the number of housing cases in the local
courts. The vast majority of clients assisted by [Greenwich Legal
Advice Services]with housing possession cases during 2009-10 reported
that the underlying causes of their inability to pay the rent
were debt, benefit, employment and family law issues. By removing
the majority of these issues from scope, clients will not be able
to access the advice and support they need to resolve problems
at an early stage. This will increase the pressure on tenants
and home-owners and increase the likelihood that rent and mortgage
arrears will escalate to the point that landlords and mortgagees
will initiate formal court proceedings. The lack of available
advice and support will increase the pressure on low-income and/or
heavily indebted families, leading to more complicated and serious
family law disputes (and therefore a greater number of civil court
cases).[172]
166. We received evidence about the likely impact
of increased numbers of litigants in person from Professor Richard
Moorhead (who conducted research on this matter along with Mark
Sefton for the then Department of Constitutional Affairs in 2005).
Professor Moorhead believes that reductions in legal aid will
discourage participation in court proceedings "where that
participation would (usually) be in the clients' interest (and
in the interests of justice)". His research found that the
largest group of unrepresented litigants were defendants in housing
and debt cases and that unrepresented claimants were relatively
rare, suggesting that usually claimants will only bring cases
if they can secure representation. Where claimants do wish to
bring proceedings in the absence of representation, they need
strong motivations to do so, and Professor Moorhead said that
this may lead to two particular classes of unrepresented
claimant appearing before the court: litigants operating in a
dispute where the emotional dimensions are very strong (which
may be expected to impact on litigant behaviour and make those
cases harder, and more resource intensive to manage) and litigants
who are obsessive or otherwise difficult. Our research study
found that obsessive/difficult litigants were a very small minority
of unrepresented litigants generally, but posed considerable problems
for judges and court staff. We also know from the Court of Appeal's
annual reports that they contribute to the large volume of unrepresented
litigants seeking to bring cases in the Court of Appeal (adding
cost into that part of the system). It is likely that this small,
but key, group will increase as a result of the changes increasing
court costs unpredictably but potentially significantly. The
other group: desperate litigants fighting over high-stakes issues
such as the future of their children may also increase costs within
the courts and for other relevant organisations (such as CAFCASS).[173]
167. Two other points from Professor Moorhead's
evidence are of particular interest. Firstly, that "a system
which is expected to successfully engage with unrepresented litigants
needs to rethink its structures, policies and approaches",
including (but not limited to) the training of judges, the simplification
of procedural rules and a reassessment of the role of court staff.
Secondly, that it is not clear whether the withdrawal of legal
aid in family cases will reduce the number of applications in
such cases or whether there will be an increased number of litigants
in person (or both). This uncertainty is caused by a lack of
historical data which leads Professor Moorhead to argue that "the
Ministry of Justice's capacity to comment meaningfully on the
significance of litigants in person must be in doubt in the absence
of such basic data in their system."[174]
168. We were interested to hear the views of
senior members of the judiciary concerning the impact of litigants
in person on proceedings. Asked whether they shared the surprise
of others commenting on the proposals at the assertion that any
increased time spent in dealing with litigants in person would
be offset by a reduction in the number of cases, Sir Nicholas
Wall said he did share that surprise and that
One of the aspects which disturbs me most is not
only the proposed withdrawal of public funding from that whole
sphere but also the fact that legal advice will not be available.
We in the family justice area rely very strongly on the lawyers
to give sensible, practical, down-to-earth advice which settles
cases. Most people settle their cases. It is only a minority who
fight. But, with the absence of any advice, it seems to me the
likelihood is that more cases will be contested. More cases will
be contested on the basis that they have no legal representation.
That will take longer, be more difficult and will slow the whole
process down very substantially.[175]
Sir Anthony May said that he shared the surprise
"in part" but that he did think "that to some extent
there will be a balancing out. I think the likelihood is that
if legal aid was withdrawn in Administrative Court cases one needs
to identify what they would be. You would get an increase in unrepresented
litigants and those individual cases would take longer and require
more court, judicial and administrative time. But I do actually
believe that there would be fewer cases."[176]
169. The Ministry of Justice told us that its
" impact assessment attempted to look at the possible impact
on HMCS, recognising on the one hand that there would probably
be some increase in litigants in person, which would be likely
to make some cases take longer, but on the other hand the best
analytical assumptions that we could bring to it also suggested
that there would probably be some reduction in the overall number
of cases. We accept that this kind of prediction of behavioural
change is extremely difficult. I don't think we would try to suggest
that there is any arithmetical certainty behind what are simply
best estimates."[177]
170. We asked the Department what steps it was
taking better to understand the impact of litigants in person
on the courts and tribunals system. They told us
The Department is pursuing three avenues of research.
One is a literature review on the impact of litigants in person
on the courts. This will look at international evidence as well
as domestic research. It will look at questions such as
- who they are, how many there
are, what are their motivations;
- what impact they may have on court processes;
- whether litigants in person have different outcomes
compared to litigants with representation;
- what action works in assisting litigants in person.
Ministry of Justice social researchers are conducting
the literature review, rather than an external researcher, as
they are better able to complete the project within the necessary
timeframe.
The second avenue of research is an analysis
of court case files for the Family Justice Review. Subject to
the number of cases obtained, we will explore this data to identify
any findings about unrepresented litigants. Lastly, we are exploring
the quality of administrative data held by HMCS with a view to analysing differences
between cases where litigants are represented and not
represented. This should enable us to better understand the impacts
and will help to underpin the analysis in the final Impact Assessments
due to be published alongside the legal aid consultation response
in spring 2011. In addition, there will be a post-implementation
review of any reforms.[178]
68 The Government's Consultation Paper, p 5 Back
69
Ministry of Justice, Legal Aid Reform: Scope Changes, p
16 Back
70
AJ 24, para 4 Back
71
AJ 27, para 2.2 Back
72
Ministry of Justice, Legal Aid Reform: Cumulative Impact, Equalities
Impact Assessment (EIA), p 9 Back
73
AJ 32, para 4.8 Back
74
AJ 34, para 18 Back
75
AJ 39, para 18 Back
76
QQ 379-381 Back
77
Q 399 Back
78
QQ 401 and 403 Back
79
Ministry of Justice, Legal Aid Reform: Cumulative Impact, Equalities
Impact Assessment (EIA), pp 11 and 23
Back
80
HC Deb, 19 Jan 2011, col 810W Back
81
Ministry of Justice, Legal Aid Reform: Scope Changes, Impact
Assessment, pp 16 and 17 Back
82
The Government's Consultation Paper, pp 59-60 Back
83
Ibid, pp 69-71
Back
84
AJ 16, pp 6-7 Back
85
AJ 05, 2.1.1 Back
86
AJ 16, p 9 Back
87
The Government's Consultation Paper, p 49 Back
88
AJ 48, para 4.2.1 Back
89
The respective figures for ancillary relief proceedings were £14.9
million and £1.9 million.http://www.parliament.uk/deposits/depositedpapers/2011/DEP2011-0354.pdf
Back
90
Q 145 Back
91
QQ 374 and 375 Back
92
Q 145 Back
93
AJ 16, p 8 Back
94
AJ 48 Back
95
Q 145 Back
96
Ibid Back
97
AJ 48, para 4.2.3 Back
98
The Government's Consultation Paper, pp 43-44 Back
99
Q 410 Back
100
AJ 60 Back
101
AJ 16, para 18 Back
102
AJ 12, para 14 Back
103
AJ 41, para 4.3.b Back
104
AJ 16 paras 19 to 23 Back
105
Q 148 Back
106
AJ 35 paras 10-13 Back
107
AJ 16 Back
108
AJ 16 Back
109
AJ 12, para 5 Back
110
http://www.justice.gov.uk/reviews/family-justice-intro.htm Back
111
AJ 48, paras 3.1 to 3.6 and 4.1.4 Back
112
The Government's Consultation Paper, p 44 Back
113
Ministry of Justice, Legal Aid Reform: Scope Changes, Impact
Assessment, pp 16 and 17 and HC Deb, 19 January 2011, cols
809-10W Back
114
The Government's Consultation Paper, pp 71-73 Back
115
The Government's Consultation Paper, p72
Back
116
AJ 31, para 21 Back
117
The Government's Consultation Paper, p 72 Back
118
AJ 44, para 4.6 Back
119
AJ 18, para 4 Back
120
AJ 30, para 5 Back
121
Ibid, para 6 Back
122
Q 107 Back
123
AJ 32, paras 3.4-3.6 Back
124
HM Treasury Press Notice, 12 February 2011, Funding of £27
million secures face to face debt advice programme Back
125
http://www.biglotteryfund.org.uk/transitionfund Back
126
Q 424 Back
127
Q 426 Back
128
Q 428 Back
129
Q 431 Back
130
Cabinet Office press release, CAB 027-11, Big Society Bank
could back social ISAs for everyday savers, 14 February 2011
Back
131
Q 436 Back
132
Q 420 Back
133
Q 423 Back
134
Q 443 Back
135
QQ 448 and 453 Back
136
Q 144 Back
137
Ibid Back
138
Q 164 Back
139
Q 159 Back
140
AJ 30, para 9 Back
141
AJ 30, para 10 Back
142
AJ 24, para 18 Back
143
AJ 34, para 36 Back
144
Qq 322-324 Back
145
HC Deb, 19 January 2011, cols 809-10W Back
146
The Government's Consultation Paper, pp 45-46 Back
147
Ibid, p 68 Back
148
The Government's Consultation Paper, pp 68-69 Back
149
Ministry of Justice, Legal Aid Reform: Scope Changes, Impact
Assessment, p 17 Back
150
AJ 19, p 5 Back
151
AJ 19, pp 5-6 Back
152
AJ 19, p 4 Back
153
The Government's Consultation Paper, p 64 Back
154
HC Deb, 19 January 2011, cols 809-10W Back
155
Ministry of Justice, Legal Aid Reform: Scope Changes, Impact
Assessment, p17 Back
156
The Government's Consultation Paper, pp 64-66 Back
157
AJ 41, paras 4.7i- 4.7vi Back
158
Q 153 Back
159
Department for Education, Support and Aspiration: A new approach
to special educational needs and disability,
Cm 8027, pp 54-55 Back
160
AJ 05, para 1.1 Back
161
AJ 21, pp 1-3 Back
162
AJ 21 Back
163
Ministry of Justice, Cumulative Legal Aid Reform Proposals,
pp 10-11 Back
164
Q 384 Back
165
Q 385 Back
166
The Government's Consultation Paper, pp 113-15 Back
167
Ministry of Justice, Legal Aid Reform: Provision of Telephone
Advice, Impact Assessment, p 2 Back
168
The Government's Consultation Paper, p 82 Back
169
Q 385 Back
170
Ministry of Justice, Legal Aid Reform: Provision of Telephone
Advice, Impact Assessment, pp 10 and 12 Back
171
AJ 20 Back
172
AJ 27, para 2.1 Back
173
AJ 20 Back
174
A J 20 Back
175
Q 143 Back
176
Ibid Back
177
Q 320 Back
178
AJ 49 Back
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