Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Justice Contents


3  Government underspend and access to legal aid

Underspend

12. In its November 2014 report, the NAO concluded that the Ministry of Justice had succeeded in its objective of making significant savings in the cost of the civil legal aid scheme, reducing its budget by around £300million a year at the current rate of expenditure, a higher than expected saving.[9] The Legal Aid Agency was funding "legal help in 326,004 fewer cases than would have been expected without the reforms. It agreed funding for representation in court in 36,537 fewer cases."[10] The report estimated that:

    If the Ministry had funded as many matters as it anticipated, we estimate that spending would have reduced by £268 million. The Ministry is on track to exceed spending reduction forecasts by £32 million because, following the reforms, the Agency is funding fewer matters than it had anticipated.[11]

The reasons for the underspend

13. We asked the Minister for Legal Aid if the Ministry of Justice knew why there had been an underspend in the civil legal aid budget. In response, Mr Vara emphasised that the National Audit Office figure was an estimate, and that reliable figures would not be available until 2018-19. Potential reasons for the underspend, Mr Vara told us, were that the Legal Aid Agency's debt collection system had performed better than expected; that they had seen a lower take-up of mediation than anticipated; and that "there are also many other agencies that do provide this sort of advice—law centres, citizens advice bureaux and so on. It may be that people are aware that there have been reductions in legal aid and they simply are not coming forward when, perhaps, they should be."[12]

14. We have heard evidence supporting Mr Vara's surmise that people eligible for legal aid are not accessing it because they do not have enough information on whether they are eligible. Most of our witnesses placed the failure to provide good public information on the Government's doorstep. Gillian Guy of Citizens Advice Bureau spoke for many of our witnesses when she told us: "The key message out there at the moment is that legal aid is not available for people. That is the premise upon which [potential litigants] start and upon which a lot of advisers start." Ms Guy described eligibility for legal aid as a "technical minefield".[13] Julie Bishop of the Law Centres Network criticised the new website which is the primary source of information on eligibility for legal aid as being a retrograde step from the direct.gov website which preceded it.[14] We note that, since the introduction of the changes, the Ministry of Justice has introduced an online eligibility calculator for providers and a legal aid 'checker' which are welcome developments.

15. We asked legal aid providers if the perception that legal aid was no longer available was a result of the campaign against the legal aid cuts rather than inadequate provision of public information by the Ministry of Justice. Jenny Beck, Co-Chair of the Legal Aid Practitioners Group, accepted that the campaign may have inadvertently had that effect but thought the lack of clear, easily accessible public information was still the primary problem.[15] Andrew Caplan, the President of the Law Society, said that legal aid providers were putting out "very clear" information on the services they offered but cost and difficulty reaching the people eligible for legal aid presented problems.[16]

16. Providers also expressed concerns about the information on eligibility given to those holding legal aid contracts. The NAO noted that, of providers responding to its consultation on the reforms "73% thought that the guidance on individual eligibility was either poor or very poor and 78% felt this way about the guidance on scope changes."[17] The Housing Law Practitioners Association said it had:

    been seeking clarification for over a year of various aspects of LASPO. The Ministry of Justice has refused to provide clarification stating that it is for providers to interpret LASPO for themselves. In the absence of guidance, many providers are interpreting LASPO narrowly as they simply cannot afford to take the risk that they will not then be paid for their work.[18]

17. The NAO report said that "The Ministry considers that scope and eligibility are set out clearly in the legislation."[19]

18. We recommend that the Ministry of Justice undertake a public campaign to combat the widespread impression that legal aid is almost non-existent. We are surprised that the Ministry of Justice did not undertake such a campaign at the time of the legal aid reforms given the magnitude of the changes to legal aid. The Government has a duty to ensure that the public are aware legal aid may be available as this is part of its commitment to ensure access to justice and cannot be left to legal aid providers who in any event may not have the resources to ensure it is effective.

19. We recommend the Ministry of Justice and the Legal Aid Agency improve their communication with providers on eligibility for and scope of legal aid criteria and that they should respond to questions in a timely manner. Failure to do so runs the risk that a legal aid provider will not take on an individual who is eligible for public funding, potentially denying that person access to justice.

20. We are not persuaded by the Minister's contention that people may not be accessing legal aid because they are getting all the legal advice they need from law centres and citizens advice bureaux. As we note later in this report, the extent of service available from not-for-profit organisations has been diminished by the legal aid cuts and they are struggling to meet increased demand.

SHORTFALL IN DEBT CASES

21. An examination of the reasons for the underspend by the NAO's report revealed a significant shortfall in the number of exceptional cases funding applications granted (funding for cases out of scope but where there are particular reasons why legal aid should be granted) and a significant shortfall in the number of legally-aided mediations. We consider these issues at paragraphs 30-47 and 139-158 respectively. The NAO found that the estimates for the number of funding grants for family, housing and mental health cases was reasonably accurate being within 7% of predictions overall while grants for family law matters were 4% lower than anticipated. Other areas of law, however, saw grants fall well short of the MoJ's earlier estimates:

    For example, the [Legal Aid Agency] expected 16,466 debt cases to start but actually only started 2,434 (85% fewer cases). We estimate that this equates to £2.6 million less than expected.[20]

22. A shortfall of 85% in the number of cases of debt advice is an alarming statistic given the conclusion of the Centre of Social Justice in its 2013 report Maxed Out that: "The rising cost of living disproportionately affects low-income households and is pushing many into problem debt."[21] In our 2011 report on the Government's original proposals for civil legal aid reform we expressed concern over the provision of debt advice following the implementation of reform and questioned how sufficient debt advice would be provided once the deferred ending of the face-to-face service concluded.[22]

23. Publicly-funded debt advice, together with education law and discrimination advice, can only be accessed through the Civil Legal Advice telephone gateway. Recent research for the Ministry of Justice on the operation of the CLA gateway revealed a significantly lower number of calls to it than anticipated, leading to the number of telephone workers being cut; poor public knowledge of the service including difficulties in finding it online; and a lower than expected number of referrals from the telephone gateway for face to face advice.[23] There were more positive findings about the accessibility of telephone advice, with its extended opening times, no need for an appointment and communication by remote means.[24]

24. We were told by Julie Bishop that the primary reason for the low number of calls to the telephone gateway, and therefore a primary reason for the underspend on debt advice, was poor public information.[25] Anita Hurrell, of Coram Children's Legal Centre, agreed that public information on the telephone line, in this instance in relation to education law advice, was inadequate: "We are finding that people just do not know about civil legal advice; they do not know about the number that they need to call; and they are not being told by all those agencies by which they probably should be told."[26] Judith March, Director of the Personal Support Unit, a charity which has ten centres across the country supporting litigants in person at court, said that "Over the last week, I asked all our staff to tell me about the gateway. It is never mentioned; nobody who comes to us ever mentions it. That is quite an interesting bit of evidence in itself."[27]

25. Our witnesses corroborated the finding that there was a low number of referrals made from the telephone helpline for face to face advice. The Mary Ward Legal Centre told us, despite the Centre being able to take on four debt cases from the gateway, that they had not received any referrals.[28] Julie Bishop also described a difficult experience for one client who was attempting to ascertain his eligibility for legal aid:

    We had a particular case that came from one of the law centres where a very vulnerable client, who had communication issues, was unable to contact the gateway. They had tried and failed; they had a very complex matter. The law centre spoke on the client's behalf, and it took them three hours to get through to the gateway. Three hours!...There [then] were seven exchanges of letters [on eligibility].[29]

Ms Bishop told us that the client would not have been able to access legal aid if it had not been for the work of the law centre.

26. This evidence reflected the finding of the research into the CLA gateway. The researchers found that, while adjustments for people struggling to use the gateway, such as speaking to third parties, worked well when implemented, they were not routinely offered.[30]

27. We conclude that failing to provide adequate public information on the Civil Legal Advice telephone gateway is one of the primary reasons why the gateway is underused. The underuse of the telephone gateway is one of the primary reasons for the underspend in debt advice as publicly-funded debt advice is only available through the gateway. We note with particular concern the finding from the Ministry of Justice's research that information on the Civil Legal Advice gateway is difficult to find online.

28. We recommend that the Ministry of Justice undertake an immediate campaign of public information on accessing the gateway for debt advice, as well as for the other areas of law it covers. Again, we are surprised that a concerted campaign of public information was not undertaken when the legal aid reforms were brought in and the telephone gateway was introduced.

29. In its response to this report we request the Ministry of Justice update us on its response to the recommendations in the research the department commissioned on the Civil Legal Aid gateway.

Exceptional cases funding- a "safety net" for the vulnerable?

30. The exceptional cases funding scheme was designed to ensure that the legal aid reforms did not put the Government in breach of its duty to protect individuals' European Convention or European Union rights.[31] During the passage of the Bill the scheme was described as a "safety net" to compensate for the Government's narrowing of legal aid.[32] It was also presumably intended to further the Government's objective of "targeting legal aid to those who need it most."

31. During the passage of the Bill through Parliament, the MoJ estimated that 5,000-7,000 applications for exceptional cases funding would be made annually, of which around 3,700 (74%-53%) would be granted.[33] The latest figures from the Legal Aid Agency, however, show that only 151 (7.2%) of the 2,090 applications for exceptional case funding made between April 2013 and September 2014 were granted (5% of applications were granted in April-March 2013-14; 14% in April-June 2014 and 14.7% in July-September 2014).[34] Of the 151 applications granted 90 (just under 60%) were for family representation at an inquest into the death of a relative. Of the other grants: 21 were for family law cases, 22 for immigration advice, two were for a housing case, two were for inquiries or tribunal cases and three were classed as 'Other'.[35]

32. We heard of a number of cases where, on the facts available to us, it appears surprising that exceptional case funding was not granted. Details of cases refused exceptional cases funding include an illiterate woman with learning, hearing and speech difficulties facing an application which would determine her contact with her children;[36] parents with learning difficulties who wished to contest their child's adoption but were £35 a month over the eligible financial limit;[37] a women with "modest learning difficulties" who the judge in the case told us was unable to deal with representations from the lawyer on the other side as a result of which she "now faces possibly not seeing her child again"[38]; and a destitute blind man with such profound learning difficulties he lacked litigation capacity.[39] In July 2014, at the beginning of our inquiry, the number of grants of exceptional funding for cases not involving inquests was sixteen. Julie Bishop of the Law Centres Federation, observed to us "Sixteen cases is not a safety net".[40]

33. The number of exceptional cases funding applications granted has been far below the Ministry of Justice's estimate. We have heard details of cases where the refusal of exceptional cases funding to vulnerable litigants is surprising on the facts before us. We conclude therefore that the low number of grants together with the details of cases refused exceptional cases funding means the scheme is not acting as a safety net.

WHY IS THE GRANT RATE FOR EXCEPTIONAL CASES FUNDING SO LOW?

34. Several of our witnesses criticised the quality of the decision-making for exceptional funding cases. These concerns took two forms: the approach, knowledge and abilities of the caseworkers at the Legal Aid Agency themselves; and, more significantly, criticisms of the formal guidance given to caseworkers to assist them in making a decision under section 10 of LASPO.

Lord Chancellor's Guidance and the Ministry of Justice's understanding of the exceptional cases funding scheme

35. We heard that section 10 of LASPO, which provides the statutory basis for exceptional cases funding decisions to be made, is supplemented by Guidance issued by the Lord Chancellor. The Guidance provides that:

    The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).

And:

    [Legal Aid Agency] caseworkers will need to consider, in particular, whether it is necessary to grant funding in order to avoid a breach of an applicant's rights under Article 6(1) ECHR. As set below, the threshold for such a breach is very high … will withholding of legal aid make assertion of the claim practically impossible or lead to an obvious unfairness in the proceedings?

36. The legality of the Lord Chancellor's Guidance has been challenged in the courts. In R (Gudanaviciene) v The Lord Chancellor,[41] the Court of Appeal concluded that the test for granting exceptional cases funding was that set out in the relevant sections of LASPO, and the means for determining whether that test was met was the relevant European Convention on Human Rights case law. The Lord Chancellor's Guidance therefore erred because it glossed the statutory test. The Court of Appeal said:

    There is no need for elaboration. When determining whether a complaint of a breach of Convention rights has been established, the ECtHR does not ask itself whether there has definitely been a breach or whether there has been a breach to a high level of probability. It simply asks whether there has been a breach. In our view, this approach should inform the meaning of the words "would be a breach" in section 10(3)(a).[42]

Of the five appellants who had had exceptional cases funding applications refused, the Court of Appeal found, on the correct interpretation of the law, three of those refusals were incorrect. The decision in Gudanaviciene is likely to increase the number of exceptional cases funding grants. It is not known whether the MoJ or one of the unsuccessful claimants intend to appeal the decision to the Supreme Court.

37. Mr Vara told us that "as far as the exceptional case funding is concerned, the answer, really, lies in the heading. It is meant to be exceptional. By definition, "exceptional" means that there is not going to be a very generous distribution of that particular fund unless the criteria are met."[43] This argument was explicitly rejected by the Court of Appeal in Gudanaviciene, which was handed down shortly after we heard from the Minister. The Court, headed by the Master of the Rolls, Lord Dyson, concluded:

    The fact that section 10 is headed "exceptional cases" and that it provides for an "exceptional case determination" says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.[44]

Mr Vara attributed criticism of the exceptional cases funding scheme to a misunderstanding of its purpose: "there is a belief that it is a discretionary fund and that, if you are turned down through the normal route, then, if you apply here, you might just be lucky, but that is not so."[45] We have seen no evidence to substantiate the Minister's contention that criticism of the exceptional cases funding scheme arises from a misconception as to its purpose. We note the Court of Appeal judgment which found that the Lord Chancellor's Guidance was unlawful, and that three of the five litigants who had been refused legal aid should have had their applications for exceptional cases funding granted.

Quality of decision-making and knowledge of caseworkers

38. The process of accessing the exceptional cases funding scheme was described to us as "onerous"[46] and "cumbersome" even for lawyers.[47] Catherine Evans, of the Southwark Law Centre, told us that the Legal Aid Agency showed "poor decision making and inconsistent decision making" and "failed to give paramount importance to access to justice".[48] Sarah Campbell from Bail for Immigration Detainees (BID) agreed, telling us "there are massive concerns about the quality of decision making".[49] Jenny Beck noted that "Islington law centre won a JR [on an exceptional cases funding refusal] just recently. Quite serious concerns were voiced by the judge who allowed it. It is not a system of "exceptional" if you have to take it to JR to access it, because often the case is over anyhow."[50] We heard that a lack of clarity over how the Legal Aid Agency approached a vulnerable client, as opposed to a legal case of great complexity, presented problems for those completing the application form. Emma Scott, Director of Rights of Women, said:

    There is a real lack of clarity about what the criteria is that…applications are being judged against. A particular concern…is where applicants have a particular vulnerability. It is not only the facts of the case and the complexities of cases but, also, there seems to be a lack of clarity around how cases are dealt with where applicants have particular vulnerabilities, such as mental health issues or English as a second language; perhaps they are very young or very old. We would like to see a much greater level of clarity for those making the applications…[51]

39. A further challenge for applicants was the lack of legal knowledge on the part of the Legal Aid Agency staff determining exceptional cases funding applications. Carita Thomas of the Immigration Law Practitioners' Association, said "I would respectfully submit that my experience of the exceptional funding decision-making team has not been very positive in how they understand immigration law and immigration clients. I would think that they need to have more specialised training in dealing with those or have an immigration team within that department who knows all about this."[52] Ms Thomas compared the experience of interacting with the exceptional cases funding team with that of applying for funding for court work to the Legal Aid Agency specialised team "I do not have to go through all the arguments about what article 8 is and what this immigration rule means, because those lawyers know it all inside out. So the process is far quicker."[53]

40. The lack of a specialised team dealing with applications for exceptional cases funding may be the reason why the Legal Aid Agency expect an application to be made on a fourteen page form[54] that takes lawyers, Jenny Beck told us, 3 to 4 hours to complete[55] because it requires a detailed explanation of the legal merits of the case. This is in addition to the time required to interview the prospective litigant to obtain the facts of the case[56] which may not be a straightforward process. Nicola Jones-King, Co-Chair of the Association of Lawyers for Children, told us:

    to get the information you need from someone who is vulnerable and troubled is difficult. On one occasion I got part way through it; there was no way I could get the information together for this very vulnerable young man, who could not manage his own affairs. His finances and things were dealt with by the local authority. To defend an application for a non-molestation order was what he was facing in court. He could not articulate what he needed to articulate to deal with that.

Ms Jones-King told us that "in the end I just went to court and dealt with it, which was not really an ideal solution but was what he needed at that time."[57]

41. The President of the Family Division, Sir James Munby, said he was aware of judges who had telephoned the Legal Aid Agency in cases where an exceptional cases funding application was in process:

    There are one or two specific individuals there who tend to be approached and who are in fact enormously helpful. But, anecdotally, and also in my experience, the logjam is often too big to be unblocked by a simple telephone call. The complexities of getting legal aid applications through are considerable, so I am not sure that a system of judges ringing up the Legal Aid Agency will solve the problems.[58]

42. Lawyers are only paid for completing exceptional cases funding applications if the application is successful. The low rate of successful applications, we heard, therefore has a depressing effect on the numbers of applications made. We were told by Sarah Campbell of Bail for Immigration Detainees that:

    we deal with over 3,000 cases a year. In the last 18 months we have only been able to successfully refer two people to solicitors to make exceptional case funding applications for them. The main reason for this is that solicitors know that they are very unlikely to see any money as a result of making applications…payment is only made if the applications are successful. The vast majority of applications are being refused by the Legal Aid Agency. It simply is not financially viable.[59]

Catherine Evans, of Southwark Law Centre, said the Centre had decided they would no longer make exceptional cases funding applications because it was not an acceptable use of charitable funds:

    We made an application for exceptional funding and it took a very experienced caseworker six hours to make the application—a case that she was very familiar with—and it was refused. In our view, it was an unreasonable refusal. We do not get paid for that. After that, we took the decision not to make any exceptional funding applications because it was not in the interests of the client and it was not in the interests of the charity to expend charitable funds on making exceptional funding applications.[60]

43. The exceptional cases funding scheme can, the Ministry of Justice website states, can be accessed directly by a litigant. The website encourages "clients" to complete the forms even if they do not have a solicitor but the website states that if applicants do not complete the forms "we can only give you a preliminary view based on your information."[61] We questioned the Minister and the Director of the Legal Aid Agency on whether they accepted that the form made the exceptional cases funding scheme inaccessible to those vulnerable people for whom the exceptional cases funding scheme is designed. Mathew Coats told us:

    The form is broadly designed for providers because it is the providers to whom we pay legal aid. It has always been clear that individuals can seek a preliminary view, but less clear about exactly how. So we have changed and updated the website to make sure that that has more information on that subject.[62]

Mr Vara also emphasised that the preliminary view system was available to people who had been unable to find a solicitors. From April 2013 to September 2014 only two of the 2090 cases considered by the Legal Aid Agency received a positive preliminary view. It is not clear whether those two applications were made by individuals without legal assistance, or indeed whether any application made by an individual without legal assistance has been successful.[63] In this context we note the observation of Dave Emmerson, of Resolution, that: "In informal discussions…[with] the Legal Aid Agency—they have almost agreed that, if a litigant in person is able to complete that form, they are almost able to show that they are able to represent themselves, so it is self-defeating."[64] We were also told that the public information on the availability of exceptional cases funding was poor. This reflected other comments about the inadequate provision of information on legal aid, both to the public and to lawyers which we consider at paragraphs 18 and 19.

44. There have been a significant number of judgments, particularly in the family courts, in which the judiciary have held that the problems faced by one of the parties were so significant that they were unable to try the case fairly unless the Legal Aid Agency reversed its refusal of exceptional cases funding.[65] We asked the Minister why this had been allowed to occur. Mr Vara view was that at least in "some" cases the refusal of funding was due to the applicants failing to submit "sufficient information". Mr Vara was confident that: "Had the applicants provided all the information in the first instance, they would have qualified without the judge having to make that steer in the first place."[66] Mr Coats told us:

    The exceptional case route was always likely and even designed to be changed by judgments and case law—and, indeed, it has around asylum and immigration. The rate of grants has changed accordingly. It was always the intention that the scheme would mature over a period of years and be influenced by the courts.[67]

45. The exceptional cases funding scheme has not done the job Parliament intended, protecting access to justice for the most vulnerable people in our society. This is because of the failure of the Legal Aid Agency, and the Lord Chancellor's Guidance, which was recently held to be unlawful, to give sufficient weight to access to justice in the decision-making process. The wrongful refusal of applications for exceptional cases funding may have resulted in miscarriages of justice. All agencies involved must closely examine their actions and take immediate steps to ensure the exceptional cases funding scheme is the robust safety net envisaged by Parliament.

46. The Legal Aid Agency compounded its error in mismanaging the exceptional cases funding scheme by failing to appreciate that the very low number of grants compared to the Ministry of Justice's estimate was a sign that the process was not working as Parliament intended. Urgent investigative and remedial action was required, and in failing to take it the Legal Aid Agency and the Ministry of Justice were failing to focus legal aid on the most serious cases and the most vulnerable litigants, which was their declared objective.

47. We were surprised to learn that exceptional cases funding applications are not determined by officials with specialist knowledge of the relevant fields of law. We are particularly concerned by the impact this has on the accessibility of the scheme for vulnerable individuals seeking funding. We recommend the Legal Aid Agency revise the staffing of its exceptional cases funding scheme so as to reduce the time taken for lawyers to complete the form and so as to make the process more accessible to laypeople.

Our conclusions on the reasons for the underspend

48. The underspend in the civil legal aid budget arose because the Legal Aid Agency and the Ministry of Justice failed to ensure that the people who are eligible for legal aid have been able to access it. The reasons for this failure include an overly restrictive and bureaucratic approach to the exceptional cases funding scheme; poor provision of information on the availability of and eligibility for legal aid; and a lack of understanding of the routes people take to mediation.

49. The impact of the underspend in the civil legal aid budget is that vulnerable people are unable to obtain access to justice. We heard evidence on the distressing consequences this can have. Paula Twigg, of the Mary Ward Legal Centre, described a recent encounter with a man who had mental health difficulties:

    I dealt with a man on reception who had a decision on employment support allowance…He did not know what to do; he did not understand. He kept focusing on the wrong bit in the letter, but he needed desperately to get a mandatory revision in against the decision and he just did not understand what to do. He did not live in Camden and we could not help him. I advised him to go to a CAB. He had already been to a CAB. They had said they had no capacity to deal with it and, anyway, he needed to see a specialist adviser. I am not sure what happened to him. I had nowhere else to refer him to.[68]

50. Ruth Hayes, of Islington Law Centre, told of us two people who had collapsed in their offices due to lack of food as a result of benefits sanctions they had been unable to resolve: "in one case the man had not eaten for six days…In another very troubling case, a woman collapsed who had two small children. She had been sanctioned for three months and was simply unable to feed the family."[69] People desperate to access legal advice but unable to do so are at risk of exploitation. For example, Bail for Immigration Detainees told us that "a lawyer who BID regularly refers cases to has informed BID that she has represented destitute women who are working in prostitution in order to pay legal fees."[70]

51. The National Audit Office concluded that "The Ministry does not know whether or not all those eligible for legal aid are able to access it. Therefore, it cannot be confident that it is targeting funding at those most in need."[71] The Minister did not accept that criticism:

    We have extensive measures in place to monitor what is happening…LASPO itself says that there will be a thorough review within three to five years after implementation, but we are not waiting for the three years. We have started the process and we are taking a view on what is being said.[72]

Despite these assurances the Minister was not able to tell us why there was a 85% shortfall in debt cases or why the grant rate for exceptional cases funding was so unexpectedly low. He had no real explanation for the underspend in the civil legal aid budget at all, and we were given no evidence on action taken to address the inevitable concerns about access to justice that must arise when such a significant and unexpected financial saving is made in the civil legal aid budget. We have heard ample evidence that legal aid is not reaching many of those eligible for it. We do not therefore accept the Minister's assurance that the Ministry has extensive measures in place to monitor whether vulnerable people are able to access legal assistance. Had that been the case it might have been expected that the Ministry would have provided us with the results of that monitoring process to date.

52. The Ministry of Justice needs to appreciate that a significant and unexpected saving in the civil legal aid budget requires immediate investigation as it may indicate a significant impairment of access to justice. Our examination of the reasons for the underspend reveals considerable weaknesses in the administration of measures intended to ensure access to justice for vulnerable people.

Residence test

53. In 2013, the Government brought forward a proposal to limit legal aid to people with a "strong connection" to the UK.[73] We took limited evidence on the proposed residence test as secondary legislation containing the test was withdrawn after the Government lost a judicial review in July 2014.[74] The case was decided against the Government on the grounds that the introduction of the residence test as secondary legislation under the Lord Chancellor's powers in LASPO was ultra vires. We understand the Government is pursuing an appeal which is likely to be held in the summer of 2015.

54. We note the conclusions of the Joint Committee on Human Rights that, while a residence test would not necessarily be a breach of the right to effective access to a court, the test would have to be carefully drawn to ensure it was not disproportionate. The Joint Committee had particular concerns over the application of the test to refugees, and to people without mental capacity to litigate, and over the lack of clarity of exemptions from the test for asylum seekers and victims of trafficking.[75] That Committee concluded in a later report that, in its opinion, the residence test applied to children would be unlawful. [76] The judgment in Public Law Project had the following examples of cases where the claimant may not have satisfied the residence test had it been in force:

    P, a severely learning disabled adult, who had been "forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time". With the benefit of legal aid and the involvement of the Official Solicitor, proceedings in the Court of Protection resulted in a determination that it was in P's best interests to live separately from his family in a small group home with his friends and peers and 24-hour care.[77]

P's family appears to have opposed the proceedings in the Court of Protection because they wanted to maintain access to his benefits. Another case noted by the High Court was:

    L, who had recently arrived in the UK for the purposes of refugee family reunion with her husband, and who would be unable to access legal advice in relation to the failure of the local authority to assess the needs of her autistic eight year old son because she had only been in the UK for three months.[78]

55. The Lord Chancellor told the court during the judicial review that the intention behind introducing the residence test was to save money.[79]

56. We question whether pursuing an appeal in the 'residence test' case is a good use of public money. It seems to us that the residence test is likely to save very little from the civil legal aid budget and would potentially bar some highly vulnerable people from legal assistance in accessing the courts. There is no reference that we can trace in the debates on the LASPO Bill to use of secondary legislation under the Bill's provisions in order to introduce such a test. We recommend that, if the Government wants to pursue this issue, it would be better to introduce primary legislation which can be properly debated and is open to amendment in both Houses of Parliament.

Legal advice and representation of children

CHILDREN AS PARTIES TO PROCEEDINGS

57. The legal aid changes did not distinguish between children and adults.[80] We heard concerns from some witnesses that children were facing particular difficulties in accessing legal advice and representation. Coram Children's Legal Centre told us that the legal aid changes had had a "profoundly negative impact on access to justice…on children's access to justice in particular."[81] We heard from witnesses that immigration, family and education law presented particular problems. Coram Children's Legal Centre told us that for children who have been trafficked or otherwise separated from their families "representing themselves is often not possible due to [their] young age, language barriers and significant vulnerabilities, and the extreme complexity of immigration law and the Immigration Rules."[82] The Centre said it experienced significant frustration in this area because, while the Centre could identify the legal issues in a case, the child involved was then unable to act on that advice.[83] Concerns over children's access to appropriate legal advice in education and family matters centred on the right for children to have their voices heard in matters affecting their welfare[84] and the requirement for all decisions about children's welfare to be made in their best interests.[85] Cafcass officers, who are involved in private family law cases where parents are unable to agree, work solely in the family courts and do not have jurisdiction elsewhere.[86] In September 2014, research commissioned by the Office of the Children's Commissioner concluded the legal aid changes are likely to have "negatively impacted" on children's rights under the United Nations Convention on the Rights of the Child.[87]

58. Carita Thomas, of the Immigration Law Practitioners' Association, told us that children's access to other sources of legal funding was highly variable:

    local authorities are more inclined to provide funding for immigration advice when somebody is under a care order. The legal team from the Howard League for Penal Reform have said that their experience when assisting young people who are in custody or in detention—care leavers—is that they have found it very difficult to get local authorities to pay, so the experience is highly variable. They have often had to take pre court steps in order to try and force local authorities to live up to their duties. So there is at the moment highly variable experience in getting local authorities to pay.[88]

59. The Coram Children's Legal Centre said it had made four exceptional cases funding applications on behalf of children, all of which had been refused. It noted that, in one case, the refusal letter stated material details about the applicant incorrectly including nationality, gender and timing of arrival in the UK. The Centre decided not to use more pro bono funding on making "futile" applications.[89] This reflects wider evidence we have heard on the exceptional cases funding process which is detailed at paragraphs 30 to 47. The Centre also noted a dearth of free advice on the issues most likely to affect children.[90]

60. Witnesses noted the knock-on costs from failing to resolve the legal problems faced by children included a long-term impact on their behaviour and even mental health; loss of contact with a parent; and struggling at school due to concerns about their situation. We received some helpful estimates of the cost to the taxpayer of establishing legal aid schemes for children in different areas of law including separated children's immigration cases "approximately 2490 children's cases per annum costing £1.1m" around £403 per case, and housing matters "approximately 430 cases per annum costing £100,000" around £233 each.[91]

SPECIAL GUARDIANSHIP ORDERS

61. The Association of Lawyers for Children told us that they were "particularly worried" that applications for Special Guardianship Orders by members of the extended family, made because the parents were struggling to look after the children, did not receive legal aid. The Association pointed out that the alternative, that the local authority take the children into care, would see the court application funded by the taxpayer in addition to the costs of looking after the child.[92] Other witnesses agreed. Dave Emmerson, of Resolution, said public funding for members of an extended family seeking Special Guardianship Orders, could save local authorities "huge sums".[93] Susan Jacklin QC, Chair of the Family Law Bar Association sounded a note of caution, however, when she told us that applications for this type of court order in private family law applications meant the parents of the child were also not represented.

62. Children are inevitably at a disadvantage in asserting their legal rights, even in matters which can have serious long-term consequences for them. We are particularly concerned by evidence that trafficked and separated children are struggling to access immigration advice and assistance. We recommend that the Ministry of Justice review the impact on children's rights of the legal aid changes and consider how to ensure separated and trafficked children in particular are able to access legal assistance. We also recommend that further consideration be given to the provision of legal aid in private law applications for Special Guardianship Orders where applicants are members of the extended family."


9   Implementing reforms to civil legal aid, NAO, HC 784, Session 14-15, November 2014, para 5. Back

10   Ibid, para 8 Back

11   Ibid, para 5 Back

12   Q 282 Back

13   Q 18 Back

14   IbidBack

15   Q 38 Back

16   Q 39 Back

17   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014, para 3.4. Back

18   Housing Law Practitioners Association (LAS0052) Back

19   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014, para 3.4. Back

20   Implementing reforms to civil legal aid, NAO, HC 784, Session 14-15, November 2014 Back

21   Maxed Out: Serious personal debt in Britain, November 2013, Centre for Social Justice.  Back

22   Third Report from the Justice Committee of Session 2010-11, Government's proposed reform of legal aid, HC 681-I Back

23   Civil Legal Advice mandatory gateway: Overarching research summary, Ash Patel and Catherine Mottram, Ministry of Justice Analytical Series 2014 Back

24   Ibid, Pg 20  Back

25   Q 19 Back

26   Q 202 Back

27   Q 20 Back

28   Mary Ward Legal Centre (LAS0028Back

29   Q 19 Back

30   Civil Legal Advice mandatory gateway, Findings from interviews with users, Dr Caroline Paskell, Nilufer Rahim, Jane Kerr, Natalie Jago and Jasmin Keeble, NatCen Social Research Dr Nigel Balmer, UCL Faculty of Laws, Ministry of Justice Analytical Series 2014. Back

31   Section 10 LASPO  Back

32   HL Deb 5 Mar 2012 : Column 1570 Back

33   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014 Back

34   LAA statistics bulletin June 2014, Table 8.1 Back

35   Figure 22 p27, Legal Aid Statistics in England and Wales Legal Aid Agency 2013-2014; Figure 23, p30, Legal Aid Statistics in England and Wales, Legal Aid Agency, Apr to Jun 2014; Figure 32, p35 Legal Aid Statistics in England and Wales, Legal Aid Agency, Jul-Sept 2014 Back

36   Re H [2014] EWFC 127 Back

37   Re D (A Child) [2014] EWFC 39 Back

38   Q 92 Back

39   See R (Gudanaviciene) v The Lord Chancellor, [2014] EWCA (Civ)  Back

40   Q 20  Back

41   [2014] EWCA (Civ) Back

42   Para. 31 R (Gudanaviciene) v The Lord Chancellor, [2014] EWCA (Civ) Back

43   Q 287 Back

44   Gudanaviciene para. 29 Back

45   Q 287 Back

46   Law Centres Network (LAS0057) Back

47   Q 93 Back

48   Q 201 Back

49   Q 152 Back

50   Q 20  Back

51   Q 110 Back

52   Q 178 Back

53   Q 177 Back

54   The form CIV ECF1 and accompanying guidance can be found at https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance Back

55   Q 60 Back

56   IbidBack

57   Q 93 Back

58   Q 274 Back

59   Q 152 Back

60   Q 202  Back

61   https://www.gov.uk/legal-aid-apply-for-exceptional-case-funding Back

62   Q 310 Back

63   Figure 22 p27, Legal Aid Statistics in England and Wales Legal Aid Agency 2013-2014; Figure 23, p30, Legal Aid Statistics in England and Wales, Legal Aid Agency, Apr to Jun 2014, Figure 32, p35 Legal Aid Statistics in England and Wales, Legal Aid Agency Jul to Sept 2014  Back

64   Q 92  Back

65   See eg Q v Q [2014] EWFC 31 Back

66   Q 309 Back

67   IbidBack

68   Q 186 Back

69   IbidBack

70   Bail for Immigration Detainees (LAS0098) Back

71   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014. Back

72   Q 289 Back

73   Transforming legal aid: delivering a more credible and efficient system, Ministry of Justice, April 2013 Back

74   R (Public Law Project) v Secretary of State for Justice [2014] EWHV 2356 (Admin) Back

75   Joint Committee on Human Rights, The implications for access to justice of the Government's proposals to reform legal aid (7th Report, Session 2013-14, HL Paper 100/HC 766) Back

76   Joint Committee on Human Rights, Legal aid, children and the residence test (1st Report, Session 2014-15, HL Paper 14/HC 234) Back

77   Public Law Project Para. 30 Back

78   Ibid, para.27 Back

79   Public Law Project Para 37 Back

80   Although Regulation 20, Civil Legal Aid (Procedure) Regulations 2012 provides that under-18s are exempt from using the mandatory telephone gateway when seeking legal advice on debt, education or discrimination.  Back

81   Coram Children's Legal Centre (LAS0034) Back

82   IbidBack

83   IbidBack

84   Article 3 (1) of the United Nations Convention on the Rights of the Child Back

85   Article 12 of the UNCRC Back

86   https://www.cafcass.gov.uk/about-cafcass.aspx  Back

87   Office of the Children's Commissioner (2014). Legal aid changes since April 2013: Child Rights Impact Assessment. London: Office of the Children's Commissioner Back

88   Q 134 Back

89   Coram Children's Legal Centre (LAS0034) Back

90   Ibid, (LAS0101) Back

91   IbidBack

92   Association of Lawyers for Children (LAS0062) Back

93   Q 83 Back


 
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Prepared 12 March 2015