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
Ibid. Back
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 (LAS0028) Back
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
Ibid. Back
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
Ibid. Back
68
Q 186 Back
69
Ibid. Back
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
Ibid. Back
83
Ibid. Back
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
Ibid. Back
92
Association of Lawyers for Children (LAS0062) Back
93
Q 83 Back
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