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


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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Prepared 4 April 2011