Written evidence from the Rochdale Law
Centre (AJ 42)
Sadly, despite the Government's pledge to protect
the poor and vulnerable from the effects of public spending cuts
these proposals appear to ourselves to target precisely that group.
The proposals in their current form will lead, we
feel, to greater inequality of arms in many cases especially against
large employers or public authorities.
The proposed reduction in rates of pay will also
significantly affect the ability of providers to continue to deliver
publicly funded advice and representation within a system that
already lacks adequate resources.
The proposals are unlikely to result in a reduced
workload for the civil courts. We predict that there will be a
marked increase in the number of cases brought by litigants in
person which will clog up the system and increase the amount of
court time per case. This will be a drain on the already strained
resources of the court system. Even worse, people will be put
off from bringing or defending claims at all.
We propose that publicly funded legal services be
block funded in defined geographic areas with consortia being
formed by practitioners to commission services from appropriate
providers in their area.
What impact will the proposed changes have on
the number and quality of practitioners, in all areas of law,
who offer legal aid?
1. The impact of the Government's proposals to
remove vast areas of law from the scope of the legal aid system
is likely to be significant. Many private practices that undertake
legal aid work already subsidise the legal aid work they do from
other income streams. Legal aid work is already restricted and
the number of paid hours allocated to each case is woefully inadequate.
The lack of adequate funding means that many legal aid practitioners
have to put in hours of unpaid work to ensure that legal aid clients
receive a proper service.
2. The reduction in fees will make the need to
subsidise legal aid work more pressing, and many small to medium
sized firms will find that they are no longer able to subsidise
legal aid work, due to the economic pressure they will face.
3. The proposed cuts will impact even more significantly
on voluntary sector providers such as Law Centres, who also face
devastating cuts to the funding they receive from Local Authorities,
themselves under pressure to save money.
4. Previous reductions in legal aid funding have
already led to a reduction, over the past ten years, to almost
half of firms undertaking family legal aid,[91]
and the proposed cutting of legal aid to private law family matters
other than those that raise a human rights or public interest
issues, will lead to a large number of the remaining firms finding
that continuing to administer legal aid contracts will no longer
be possible.
5. The removal of legal aid from employment will
lead to a significant reduction in work for those practitioners
who only undertake claimant work, as many claimants will not be
in a position to afford legal advice. Employment practitioners
who work in the voluntary sector such as Law Centres are likely
to face redundancy as they are unable to undertake respondent
work.
6. Immigration practitioners face a large reduction
in the type of work they can undertake under these proposals.
This will lead to a further reduction in the number of immigration
practitioners. The reduction in the amount of work that can be
funded coupled with the cost of accreditation required for immigration
and asylum work could see a reduction in the number of people
entering this area of work.
7. Over the past few years the reduction in funding
for legal aid work has led to a decrease in the number of barristers
who do it. Those barristers who do undertake it face financial
pressure to diversify. This in turn will lead to a loss of specialist
support for practitioners.
8. Law firms continuing to undertake legal aid
work in social welfare law are likely, due to the uneconomic nature
of the work, to allocate the work to junior or inexperienced caseworkers.
This could lead to a reduction in the quality of advice available.
The reduction in legal aid specialists is more likely to be felt
in rural and smaller urban areas, and could result in significant
areas of the country becoming advice deserts.[92]
9. These proposals will have a significant impact
on voluntary advice services which are often only able to cope
with the large number of enquiries they receive, because they
are able to rely on referring clients to legal aid practitioners.
10. The quality of advice that the voluntary
sector can offer will also be adversely affected by the proposed
cuts to legal aid funding, because many voluntary sector advice
workers receive training and advice from legal aid practitioners.
In Rochdale, the Law Centre provides a programme of training on
issues such as immigration and asylum, housing, community care
and employment law. This training is aimed at volunteers and paid
workers in the advice sector.
The Government predicts that there will be 500,000
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?
1. It is questionable whether the Government's
proposals will lead to a reduction of 500,000 cases in the civil
courts. What is clear is that should the proposed reforms be implemented
there will far fewer cases in the civil courts which are funded
through legal aid.
2. It is our view that a large number of those
cases where a party would previously have been eligible for legal
aid will continue to be brought before the civil courts but they
will be conducted by litigants in person. Alternatively parties
may be deterred from accessing the justice system at all.
3. The proposed removal of immigration cases
from scope will lead to an increase in the amount of court time
needed for cases as unrepresented parties try to negotiate their
way through the legal process. The increase in litigants in person,
who have little or no knowledge of the judicial process, is likely
to result in an increase in the amount of time courts spend on
individual cases. This in turn is likely to result in an increase
in costs to the court service.
4. It has been suggested that where people have
brought complex legal cases before the immigration tribunal, and
those claims fail for the lack of legal representation, those
people have effectively been denied the right to appear before
the Immigration Appeals Tribunal.[93]
5. The removal of legal aid for immigration advice
is also likely to result in an increase in people seeking assistance
from MPs and their caseworkers.[94]
6. The Government predicts that the implementation
of their proposals may result in an increased use of mediation
as an alternative to "unnecessary" court action. However
in areas such as employment and family law, little account has
been taken of the work undertaken by specialist legal aid practitioners
who skilfully negotiate settlements at an early stage, thus reducing
the number of case brought before the courts.[95]
Non-availability of legal aid in such cases is likely to increase
the number of cases before the courts.
7. In divorce cases mediation already plays a
significant role. These proposals do not take into consideration
that mediation is only likely to resolve matters if both parties
agree to it. Mediation also needs to be introduced at an earlier
stage in the proceedings, but only where it is safe and appropriate
to do so.[96]
8. The proposals also fail to note that mediation
does not enable parties to obtain advice on whether any financial
settlement is in fact just. Lack of legal advice at this stage
could result in one or both parties requiring further access to
the legal advice in relation to housing, benefits or debt.
What action could the Government be taking on
legal aid that is not included in the proposals (for example,
on Very High Cost Cases)?
1. We propose that the Government reform the
delivery of publicly funded legal services along similar lines
to the reforms being proposed in the NHS.
2. The services provided by Law Centres in particular
operate in a way comparable with the NHS in that comprehensive
legal services are provided from basic advice to representation
in the higher courts, free at the point of need, regardless of
ability to pay.
3. We propose that legal aid practitioners form
consortia that would take responsibility for the legal aid budget
for a defined area and purchase the necessary services from providers
whether they be in the private, public or not-for-profit sectors.
As with GPs solicitors delivering publicly funded legal services
are in the best position to know the needs of their local community
and to commission services accordingly.
4. Appropriate safeguards are in place as solicitors
are already regulated by the Solicitors Regulation Authority whose
role is complemented by the independent Legal Services Ombudsman.
5. Were the Government to take such an approach
it would also enable them to cut the bureaucracy of legal aid
by abolishing the Legal Services Commission (LSC).
Do the proposals to implement the Jackson report
recommendations on civil court funding and costs adequately reflect
the contents of the report?
1. At paragraph 9.33 of the Government's Proposals
for the Reform of Legal Aid in England and Wales[97]
it is stated that if Sir Rupert Justice Jackson's proposals "were
introduced without any changes to the legal aid scheme, legal
aid would be a more attractive funding route because claimants
would keep all of the general damages awarded".
2. We disagree with this statement for the following
reasons:
(i) The Government assumes, incorrectly, that
legal aid and CFAs are interchangeable. They are not. For example
if a proposed claimant is seeking to bring a clinical negligence
claim, a solicitor is required to explore whether that client
is eligible for public funding. If they are they must be advised
of their likely eligibility and if they wish be referred to a
solicitor able to conduct such publicly funded work. The first
solicitor cannot just keep the case and offer the client a CFA.
Similarly a claimant who is financially eligible for legal aid
but whose claim has insufficient prospects of success cannot choose
legal aid over a CFA. In practice the choice between legal aid
and a CFA is rarely made on the basis of which of the two is more
"attractive".
(ii) The Government has ignored the fact that
in reality a CFA may already be more attractive to a client than
legal aid because of the presence of the statutory charge and/or
monthly contributions towards their costs.
3. At paragraph 9.42[98]
the Government suggests that positive efforts should be made to
encourage take-up of legal protection insurance by householders
as an add-on to household insurance policies, particularly in
housing and employment cases.
4. We are concerned that many housing clients
in particular whose cases may shortly be outside of the scope
of legal aid will not find that such insurance is affordable.
Many of the poorest and most vulnerable households cannot afford
contents insurance at all without the additional £15-£20
that legal expenses cover might cost (this is the figure suggested
by Sir Rupert Jackson). Research has suggested that those households
on the lowest incomes already face a £1,300 "poverty
premium" when buying goods and services such as insurance
because they do not have access to bank accounts or because of
where they live.[99]
5. Sir Rupert Jackson recommends the simplification
of housing law in accordance with Law Commission proposals as
one way in which costs in housing cases can be reduced (recommendation
no. 44). However the Government has not included this proposal
in their consultation and is seeking to make social housing tenure
more complex as set out in a separate consultation paper "Local
decisions: a fairer future for social housing".[100]
We support Sir Rupert Jackson's call for simplification in this
area. The case for doing so is also supported by other practitioners.[101]
6. Sir Rupert Jackson's final report recommended
(recommendation 16) that financial modeling should be undertaken
to assess the financial viability of a Supplementary Legal Aid
Scheme (SLAS) as the evidence does not support that such a scheme
would be viable. It is unclear from the Government's proposals
whether they intend to carry out such modeling as part of the
work that is to be done to enable a decision to be made on whether
to implement such a scheme or not.
7. We would urge the Government to consider as
part of this exercise that without an increase in general damages
for legally aided clients as well as those funded through a CFA
legally aided clients will lose out. In addition accessing justice
will cost more for legally aided clients when taking into account
the statutory charge that will already apply to client's compensation
if they were legally aided and the other side aren't paying their
costs, they may also be contributing to their costs as the case
progresses via monthly contributions and also a % take of a legally
aided client's damages seems to us to be another "poverty
premium". Why not take a percentage of all general damages
towards a SLAS regardless of the type of claim and how it has
been funded?
What are the implications of the Government's
proposals?
Employment cases
1. Many cases will be unsuitable for CFAs and
will not be picked up by the private sector. The lowest paid and
most vulnerable workers are likely to fall into this category.
These are also likely to be the individuals who do not have access
to membership of a Trade Union eg claims for payments of the minimum
wage, non payment of wages or non payment of holiday pay.
2. Employment laws are numerous and complex with
strict deadlines for bringing claims. It is very difficult for
many workers to identify when their rights are being infringed
especially those who are in less skilled jobs and who have learning
disabilities or mental health issues or for whom English is not
their first language. This may also result in many unmeritorious
claims being issued in the Tribunal as the "filter"
which early advice provides will not be there.
3. Breaches of employment rights can often have
a devastating effect on individuals and result in anxiety, depression
and loss of confidence. This would make it extremely difficult
and in many cases impossible for Claimants to confront employers
or former employers in the Tribunal without representation.
4. Although the Tribunal system was designed
to be accessible to litigants in person, in practice the law is
complicated and employers are almost always represented and have
the means to instruct an advocate. If legal help is no longer
available to Claimants this will result in increased inequality
of arms between the parties. The current cost per case of employment
advice is £230 which is a very small cost to ensure that
those who cannot afford to pay have access to justice.
5. Increasing numbers of litigants in
person are likely to cause problems for the Tribunal system itself.
Unrepresented litigants are less likely to comply with directions
and to understand the rules of evidence. Litigants may follow
the procedure but then be unable to face a former employer at
a hearing.
6. Claims with merits are more likely to succeed
with specialist qualified advice and representation. For example
over the past five years Rochdale Law Centre employment solicitors
have recovered £1,000,000 in compensation for clients which
has benefited the local economy and encouraged local employers
to comply with the law.
Housing cases
7. In the area of allocations/re-housing by social
landlords the provision of advice prevents homelessness and associated
trauma eg family break-up, loss of employment and interrupted
schooling. At Rochdale Law Centre we commonly see clients whose
homes are overcrowded or in serious disrepair, or who have physical
disabilities resulting in problems within their own accommodation
eg using internal stairs. Advice and representation at an early
stage enables these clients to make use of social landlord's review
processes and access suitable housing. This is a preventative
measure rather than intervention only being available when there
is a crisis.
8. Current proposals may also mean no redress
for tenants against unlawful evictions for clients who do not
want to be re-admitted to the property but may have lost belongings
and been severely traumatised. This may mean that landlords who
have behaved the worst ie where there have been threats of or
actual violence and intimidation, will remain unchallenged if
the client is too afraid to return.
9. The cost of a housing case is minimal £174
and the benefits to a family are often immeasurable.
10. These types of case are important to protect
the rights of the poorest and most vulnerable and these clients
will not be able to fund advice and representation in any other
way. Where the client's goal is to be housed rather than damages
CFAs other types of funding such as CFAs will be inappropriate.
Reduction in rates of pay
11. Civil Legal Aid rates have not been increased
for a number of years. The rates already make it extremely difficult
to provide services without additional funding from elsewhere.
The rates paid for legal aid are considerably less than the rates
recommended by the Courts for even a trainee solicitor. Many suppliers
have already given up contracts and are struggling given increasing
core costs such as premises and equipment.
12. The civil legal aid budget is relatively
small and cuts to this will target the most poor and vulnerable
in society. If the Government genuinely wants to build a fairer
society these groups should not be made to bear the brunt of savings
especially in a time when unemployment is high, state benefits
are being reduced and affordable housing is scarce.
January 2011
91 Resolution briefing paper, January 2011 Back
92
Jill Insley, a working life: the legal adviser, Guardian 22.01.11 Back
93
Community Sector Coalition Proposed legal aid cuts: why and
how to resist them January 2011. Back
94
ibid Back
95
Resolution briefing paper January 2011 Back
96
ibid Back
97
Ministry Of Justice Proposals for the Reform of Legal Aid in
England and Wales Consultation Paper CP12/10 November 2010 Back
98
ibid Back
99
Rachel Williams "Poor families must pay an extra £1,300
a year for basic goods and services" 11 January 2011
The Guardian Back
100
Department for Communities and Local Government Local decisions:
a fairer future for social housing 22 November 2010 ISBN 9781409826460 Back
101
See Garden Court Chambers response to the Government's proposals
for social housing at
http://www.gardencourtchambers.co.uk/imageUpload/File/Housing%20Team%20Responds%20to%20Government's%20Housing%20Plans.pdf Back
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