Written evidence from the Brighton Housing
Trust (AJ 28)
1. Executive summary
1.1 BHT is a charity delivering a significant
amount of Legal Aid work in the Social Welfare and Immigration
areas of Law. Our evidence and recommendations relate to the following
concerns:
1.1.1 The proposals for telephone advice risk
face to face to such a low, sporadic level, that it will be difficult
to commission. We therefore recommend the Government consider
procuring mixed telephone and face to face contracts at a local
level.
1.1.2 The Telephone gateway and specialist casework
service will simply not be appropriate in certain situations (in
particular asylum where long interviews with interpreters and
sight of original documents are needed).
1.1.3 The removal from scope of Welfare Benefits
as an area of law threatens the effectiveness of work in other
areas. We recommend it is retained in scope until the social welfare
reform changes are embedded.
1.1.4 The removal of early stage preventative
work will lead to an increase in civil court cases (and an increase
in demand on other public services).
1.1.5 The proposals for Social Welfare Law will
seriously destabilise the Not for Profit advice sector at a time
when demand for their services is like to increase.
1.1.6 The proposals will deny Justice to vulnerable
people.
2. Background
2.1 Brighton Housing Trust ("BHT")
is a charity based in the City of Brighton and Hove. It has provided
legal advice since 1981. It has delivered services under Legal
Aid funding since 1989 and has offices in Brighton & Hove,
Eastbourne and Hastings.
2.2 We hold Legal Aid contracts in the "Social
Welfare" areas of Housing, Debt, Welfare Benefits and Community
Care. We also hold an Immigration contract. In the year to December
2010 we opened 5,428 new Legal Aid matters in total.
2.3 We are very directly involved in local Advice
Partnerships in both Brighton and Hove and East Sussex. These
partnerships bring together a range of local advice related services
from across the public, private and voluntary sector to work strategically
together to meet residents needs. The evidence we provide below
is therefore informed by both our own experience of the delivery
of legal aid services in this area and also our overall understanding
of local need and provision.
3. "What impact will the proposed changes
have on the number and quality of practitioners, in all areas
of law, who offer services funded by legal aid?"
3.1 We believe that the number of practitioners
will diminish significantly. We note that, although the Government
seek to deliver the vast majority of Civil Legal Aid via the telephone
helpline, they state that they are committed to retaining local
face to face provision for those who most need it. We are concerned
that the proposed cuts to face to face advice are so significant
local providers may find it difficult to achieve sufficient economies
of scale to make delivery of face to face services feasible.
3.2 Under the current system face to face providers
such as BHT are allocated with a set number of matter starts per
year. This allows us to forecast income and budget expenditure
on staff, premises, overheads etc. Our case mix currently comprises
a mix of "emergency" and less immediate issues. As we
manage the gateway to our service, we have the flexibility to
respond to emergency issues as and when they present.
3.3 Under the proposals it appears the CLA helpline
will sporadically refer a small minority of "appropriate"
cases to local providers for face to face assistance. The clients
in these cases will be usually facing immediate crises and deadlines
(such as loss of home) as these are the cases that the Government
proposes to retain in scope. To make this work, local face to
face providers must therefore be in a position to "drop everything"
and provide immediate assistance if and when the CLA refer a case.
We are concerned that the Government will face significant challenges
in commissioning such work.
3.4 We speculate that, perhaps, the Government
envisages private practice mixing private work with legal aid
work? If this is the case, we are concerned that many private
practice firms would not be willing to commit to prioritising
occasional emergency referrals from the CLA helpline over their
private clients (particularly considering that legal aid pay rates
are a fraction of commercial rates).
3.5 We are encouraged that the Ministry of Justice
say they will consider, when tendering telephone advice services,
how best to mitigate the impact on small firms who may otherwise
be less likely to win the contracts[49].
We recommend they give consideration to tendering mixed telephone
and face to face advice services at a local level. This would
allow local providers both sufficient predictable income to operate
and sufficient flexibility to respond to emergency face to face
need.
3.6 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.
3.7 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.
3.8 The following case study illustrates the
challenges in taking witness statements in asylum case "Bayo
(not her real name) was a 15 year old girl from Nigeria. She had
been picked up Social Services and had claimed she was fleeing
an arranged marriage in her home country. She was referred to
BHT for assistance and repeated her story to us. After a week
she disappeared from Social Services Care. She was found working
in a brothel by police eight months later but insisted she had
chosen to do out of her own free will. She returned to BHT and
maintained her story about fleeing an arranged marriage. Eventually,
after several months and a number of face to face appointments
she disclosed that she had been sold to traffickers by her family,
that they had provided her with a cover story regarding her arranged
marriage and that she had been so terrified of repercussions from
them that she had not dared deviate from it."
3.9 The replacement of a face to face service
with a phone based service for asylum cases will weaken the critical
relationships that have been forged over years between our legal
advisers and local BME community groups, migrant support groups,
various Local Authorities and local services such as women's refuges.
These relationships are critical to ensure immigration advice
is accessible to those who most need it and the best results are
achieved.
3.10 We are also particularly concerned that
the proposals to remove Welfare Benefit's from scope will have
a detrimental effect on the effectiveness of provision in other
areas of Social Welfare related law.
3.11 Welfare Benefit's advice helps to maximise
client's income by ensuring they receive everything they are entitled
to under the law. Effective benefits advice is therefore crucial
to achieving outcomes for people at risk of losing their homes
due to rent or mortgage areas. As an area of law it is often far
from simple or mechanistic[50]
and, in our experience, many clients facing homelessness greatly
benefit from the intervention of a specialist benefits adviser.
3.12 Whilst we are aware that it is the Government's
intention that Universal Credit will provide a simpler system,
this will not be phased in for a number of years. Furthermore
it is likely that the "phasing in" period will bring
even greater complexity as there will be two legislative frameworks
operating in parallel. We therefore recommend the government retain
Welfare Benefits within scope at least until the social welfare
reform changes are embedded.
4. "The Government predicts that there
will be 500,00 fewer cases in the civil courts as a result of
its proposed reforms. Which cases will these be and how will the
issues they involve be resolved?"
4.1 We do not see how the proposals will contribute
to any such reduction in the numbers of cases in the civil courts
in the areas of law in which we deliver services. In fact, we
are genuinely concerned that implementation of the proposals will
lead to an increase in civil court and tribunal cases that
could, and should, otherwise be avoided.
4.2 For example, in the area of housing law,
the Government proposes to limit assistance to cases relating
to the imminent repossession of a persons home, serious disrepair
of rented accommodation and county court appeals on a point of
law[51].
Of the housing cases we closed in 2009-10 we estimate only 20%
of fell within this narrow category. The advice and assistance
we delivered in the remaining 80% of cases was primarily directed
at resolving issues at an early stage thereby avoiding
unnecessary court action.
4.3 It is these early stage preventative interventions
that will no longer be funded under the proposals. The following
case study illustrates the potential impact: "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.". Clearly there is a significant
chance that, without BHT's early advice, Sabir's landlord would
have commenced eviction proceedings. By the time the matter reached
court it is likely Sabir would be deeper in debt and the situation
would be more difficult to resolve to the satisfaction of the
landlord. It is not unlikely, therefore, that Sabir would have
been ultimately evicted and would have subsequently, as a vulnerable
person, presented to the local authority as homeless.
4.4 The Government appear to concede that this
is an issue in the consultation paper. In relation to housing
and homelessness they state "We recognise that there are…
issues—for example, welfare benefits cases or general debt
problems—which, in time, could lead to a home being at risk
if they are not dealt with expeditiously"[52].
They conclude however that it would be "…inappropriate
to devote limited funds to a range of less important cases on
the basis that they could, ultimately, lead to more serious consequences
for the litigant".
4.5 The principle is not just limited to Social
Welfare and Housing Law. For example, we believe that, without
the early input of quality Immigration legal advice, many more
people will struggle with the leave application process, get turned
down and end up clogging up an already over-burdened Immigration
Tribunal system.
4.6 In our experience, early stage advice given
under the Legal Aid scheme often filters out unmeritorious claims
that would otherwise proceed to the courts or tribunals. Those
cases that do proceed to tribunals do so on the basis of evidence
and clear legal argument, thereby simplifying and streamlining
the inquisitorial process.
4.7 We consider that these proposals will prove
to a false economy in terms of the total impact on public finances.
An early stage debt, benefits or housing legal aid intervention
can successfully address a households financial problems at a
cost to the public purse around £200. Contrast this with,
for example, the costs of evicting a council tenant (recently
estimated by Brighton and Hove City Council to be in the region
of £9,500[53]).
5. "What action could the Government
be taking on legal aid that is not included in the proposals (for
example, on Very High Cost Cases)?"
5.1 We do not seek to give detailed evidence
in this area. We do, however, recommend that Government reconsider
whether the balance between savings in the criminal and civil
legal aid budget has been correctly struck.
6. "Do the proposals to implement the
Jackson report recommendations on civil court funding and costs
adequately reflect the contents of that report?"
6.1 We do not address this question in our evidence.
7. "What are the implications of the
Government's proposals?"
7.1 We are deeply concerned that the proposals
will increase both Social Exclusion and demand on health, housing
and social care services.
7.2 We note the Solicitor General's comments
that "Not every problem-be it debt, housing, family-related
or some other area of dispute-has to be tackled by a lawyer. We
need to refocus our attention to find solutions."[54]
.
7.3 In our experience, from working strategically
in local advice partnerships, not every problem of that nature
is currently dealt with by a lawyer: it is the legally
complex issues that get dealt with under legal aid funding. The
Not for Profit (NfP) advice sector already provide a range of
other advice related solutions for people, often, utilising volunteers
when appropriate.
7.4 Legal Aid is, however, a key source
of funding for the NfP advice sector and the Government predicts
this Legal Aid will fall by 77%[55]
as a result of the proposals. This will have a serious destabilising
effect on the very organisations that already deliver the "alternative
solutions" the Solicitor General refers to.
7.5 Other key funders of advice, such as the
local authority, cannot be expected to pick up the slack as they
will also be having to implement significant cuts during this
time and may well prioritise funding for their statutory services.
Without a clear strategy for alternatively resourcing and supporting
the NfP advice sector the Government risks the "perfect storm"
whereby increased need for advice relating to the reshaping of
welfare and public services coincides with a serious destabilisation
and decrease in provision.
7.6 We believe that the proposals will in fact
deny justice to vulnerable people. For example, in the area of
Immigration Law the government proposes to limit assistance in
immigration cases to those where clients are claiming asylum or
seeking to challenge detention. More than half (63%)—552—of
the new clients that were assisted for the year to December 2010
would not get help under the new system[56].
The Government state that "we do not consider that individuals
in [non asylum or detention] immigration cases are likely,
in general, to be particularly vulnerable….individuals will
generally be able to represent themselves…in tribunals that
are designed to be simple to navigate"[57].
7.7 Immigration Law is an increasingly complex
and frequently changing area of law (with nine relevant Acts of
Parliament since 1993 alone, not to mention a substantial number
of regulations and rule changes). The people affected are often
unfamiliar with UK laws and procedures and have limited support
networks. We are concerned that these proposals may have the effect
of "driving problems underground" and that people who
would otherwise regularise their Immigration status, find employment
and pay taxes will, instead, find themselves living on the margins
of society.
7.8 Many of the people we help with Immigration
problems are experiencing acute emotional distress and are simply
not able to resolve these problems themselves. One significant
area to be affected, already recognised by the government, are
cases involving people's human rights, particularly their right
to a family and private life (Article 8). This will involve cases
determining whether people can join their spouses, children, parents,
siblings etc. It will involve people who may have lived in this
country for years having to leave the country, being separated
from their family and friends. It will also include people escaping
domestic slavery. This is a profoundly difficult area of law that
both the Supreme Court and the House of Lords before it have continued
to give relevant Judgements on. There is no real alternative source
of advice and legal representation for most of the people who
will be affected. The Home Office is an enormous government department.
These proposals disregard the principles of the rule of law, access
to justice and equality of arms.
7.9 The following case study gives an indication
of the nature of the Immigration cases that will no longer be
funded under Legal Aid: "Alisa (not real name) was a young
Russian woman who came into this country following her marriage
to a British citizen. Upon arrival her husband embarked upon a
campaign of mental and physical abuse. He also raped her. He forced
their young child to verbally abuse her in adult ways. However,
due to her naivety and young age, she was unaware of her ability
to report this to the authorities. She continued to live like
this until eventually, after suffering further physical and sexual
assault, a neighbour befriended her and helped her and her child
to escape to a refuge. She was referred to BHT for Immigration
Advice. At this point she had been in the UK for over two years—the
point at which most spouses of British Citizens are able to secure
permanent residency. However, when BHT assisted her to apply for
further leave the home office dismissed all the supportive evidence
from the police, her GP the Women's refuge and her college and
turned her application down. Thankfully BHT successfully, appealed
against this."
January 2011
49 Para 89-91 Legal Aid Reform: Provision of Telephone
Advice Impact Assessment Back
50
For example in CIS/0546/2008, an appeal on a point of law relating
to whether a family should be denied their entire benefit income
for a period to repay an overpayment the Commissioner referred
to the relevant regulation as a "masterpiece of obscurity" Back
51
Paras 4.74-4.81, Proposals for the Reform of Legal Aid in England
and Wales Back
52
Para 4.79, Proposals for the Reform of Legal Aid in England and
Wales Back
53
See the "Turning the Tide Social Inclusion Pilot Evaluation"
p 30 Back
54
Parliamentary Adjournment Debate on Legal Aid Reform 14 December
2010 Back
55
Addendum to Legal Aid Reform: Cumulative Impact, Equalities Impact
Assessment Back
56
Our internal analysis indicates that these were the cases that
did not relate to Asylum or Immigration Detention. Back
57
para 4.202-4.203, "Proposals for the Reform of Legal Aid
in England and Wales" Back
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