House of Commons - Government's proposed reform of legal aid

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Government's proposed reform of legal aid - Justice Committee Contents

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