legal aid cuts justice

Legal Aid: why is the Government riding roughshod over the rights of the poor?

It is a well established part of the life of General Synod that the clergy and laity can submit motions for debate to the Business Committee. Synod time is both valuable and expensive, and to assist the Committee to prioritise the allocation of time to balance the agenda between necessary church business, topical controversy, and important but overlooked issues, a 100-member signature threshold of support is imposed on Private Members’ Motions.

That threshold has just been passed by a motion in support of Legal Aid. It does so on the scheme’s 70th anniversary, and already we have seen politicians seeking to ‘celebrate’ this necessary public service. Those working within the system find this as irksome as it is necessary, and barrister Carl Fender has been carefully briefing Synod members to support the following motion:

That this Synod, mindful that a justice system should be open and free from barriers of any kind, and also provide easy access to enable the most vulnerable and disadvantaged people in our society to seek professional help in bringing their claims before our courts and tribunals:
(a) recognise our legal aid system as an essential public service and fully endorse its preservation for the benefit of the nation;
(b) welcome the reports by Amnesty International and the Bach Commission about the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and note both their findings about its impact on the most vulnerable and disadvantaged groups in our society and their recommendations for reform of the current system; and
(c) call on Her Majesty’s Government to respond positively to these reports and explore ways of alleviating the impact that the 2012 Act has had on these groups.

It is low key, but behind the text a huge crisis for justice has been developing. Members of Synod gathered in York to hear the extent of the problem of access to justice from the head of Legal Aid Services, Richard Miller. Richard and I were formerly partners; he is passionate about ensuring that the rhetoric of access to justice is properly resourced. There is no point in Synod or Parliament pressing the needs of the poor if there is no lawyer within reach willing and able to translate paper rights into reality. With his consent I reproduce Richard’s address:

In 2013, the Government implemented the Legal Aid, Sentencing and Punishment of Offenders Act – known colloquially as LASPO. This Act made cuts to value of around half a billion pounds to the £2 billion legal aid system. To put that figure in context, Health spending is around £125 billion. The total Legal Aid budget is a fraction of the annual increase in the Health budget.

Legal Aid is the means by which the poorest in society who need legal assistance to deal with criminal, family and social welfare law issues can get the advice and representation they need in order to secure justice.

Cutting the help available by 25% has had a devastating impact on the poorest and most vulnerable people.

The main effect of LASPO was to cut the type of cases for which Legal Aid is available. Before the Act, you could get help for any issue of English law apart from a small handful of case types that were excluded.

After the axe dropped, you could generally no longer get help with a family breakdown unless you are a victim of domestic violence. You can no longer get help when the DWP wrongly assesses you as fit for work or takes away your Personal Independence Payment. You can’t get help if you are unfairly dismissed. You can’t get help if you are facing deportation, as the Windrush generation discovered to their terrible cost. You can’t get help if you are given negligent medical treatment, with the sole exception of birth injury cases.

You can get help if you are, or are going to be made, homeless, or if your rented home is in such poor disrepair that your health is being affected. You can’t get help with any other housing matters, which means that you can’t nip problems in the bud before they escalate.

This is why the United Nations Rapporteur on extreme poverty commented this year on the contribution of the Legal Aid cuts to poverty in this country: “the number of civil legal aid cases declined by a staggering 82 per cent between 2010–2011 and 2017–2018. As a result, many poor people are unable to effectively claim and enforce their rights, have lost access to critical support, and some have even reportedly lost custody of their children. Lack of access to legal aid also exacerbates extreme poverty, since justiciable problems that could have been resolved with legal representation go unaddressed.”

A lot of these problems were predicted when the Bill was going through Parliament. The usual response from Government Ministers was that they had included in the Act an exceptional funding provision that would tackle all the injustices Parliamentarians were concerned about.

Needless to say, in practice this proved not to be the case. The Government estimated that around 5-7,000 cases a year would come through the exceptional funding process. But the rules were drawn so narrowly, and the process they developed was so complex, that in the first year there were only 70 applications granted; and 54 of these were for inquests, which were covered previously, so only 16 cases related to those areas cut by LASPO. The numbers have improved somewhat. Last year almost 1,700 grants were made for cases other than inquests. But in the context of a drop from over 785,000 cases a year to only 140,000, this is a drop in the ocean which is leaving tens of thousands of vulnerable people without the support they need.

One factor that contributed to the low number of applications is that it can take four hours to put together an application for exceptional case funding that has reasonable prospects of success, and lawyers don’t get paid for that time. The low number of grants then created a vicious circle, where lawyers were understandably unwilling to spend so much time on cases unpaid when there was such a remote chance of the client being granted legal aid.

To overcome this problem, the LAA introduced a system to allow clients in person to submit an application for an “indication” as to whether exceptional funding is likely to be granted. But if you can successfully argue that your case meets the complex legal provisions of the Exceptional Funding Test, you have proved conclusively that you don’t need a lawyer to make a complex legal argument. It is the ultimate Catch-22 situation.

The inevitable conclusion is that the safety net doesn’t work.

Another area of huge concern is the rules concerning domestic violence. From the outset, the Government agreed that legal aid should be available for family breakdown issues for victims of domestic abuse. However, they then undermined this safeguard by setting up complex rules requiring that the victim of abuse provide a specified form of documentary evidence proving the abuse. This could be a conviction of the other party, a medical report or a letter from Government domestic violence support agencies. Many of these are difficult to get. Doctors inevitably charge a fee for such letters. And the Legal Aid Agency constantly raised petty objections to the forms of evidence provided as a way of rejecting applications. The organisation Rights of Women produced research showing that around a third of those contacting them about domestic abuse could not meet the rules.

Since 2013, the position has got better. Officials and new Ministers recognised early on that the rules had been drawn too tightly, and there have been a number of changes to relax them. They are still not perfect, but they are not the massive barrier they once were.

Perhaps the bigger problem now is the means test. For most areas of law, you can only get legal aid if you can show that you are poor enough to qualify. If your income is above around £23k, you will not qualify for legal aid. If it is below that figure, there is a complex calculation done, which makes fixed allowances for certain expenses, and then determines if you get legal aid for the whole case, get it subject to a contribution, or don’t get it at all.

The thresholds and allowances used to be increased every year in line with inflation. They have now been frozen since 2009. This means that every year, fewer and fewer people are financially eligible for Legal Aid. Last year, we published two reports – one on civil legal aid and one on criminal legal aid – showing that people below the Joseph Rowntree Foundation minimum income standard are either being asked to pay contributions they can’t afford, or even are being deemed too rich to qualify for any help at all.

To put that in context, in the 1980s, around 80% of households qualified for some help with Legal Aid. It was recognised that lawyers, like doctors, are expensive. It was recognised that legal rights, like medical treatment, are fundamental to a fair society, and that people need help affording the costs of defending and enforcing them.

The 2013 cuts added another nasty twist to this. Before then, people who were on means tested benefits automatically qualified for Legal Aid. Now they have to have their capital assessed; and their capital includes any equity in their homes, albeit subject to disregards. This means that someone on means tested benefits who owns their own home will generally not qualify for legal aid. Yet it is utter nonsense to suggest that someone in this position could borrow money against their equity in order to fund legal costs. If you are poor enough to qualify for Legal Aid on income grounds, you will never be able to get a loan – at least not from any reputable source.

The last thing I want to touch on before handing over to Mark is remuneration rates. The rates paid to lawyers for doing Legal Aid work have not increased in cash terms since the 1990s, and indeed have been cut several times during that period. In the 1990s, Legal Aid rates used to be around 10-15% below what lawyers would charge private clients. Now Legal Aid pays less than a quarter of the rates for private clients. Typically a Legal Aid lawyer might start work on around £18-£22k, and can aspire at the peak of their career, if they are lucky, to earn up to £45k. This in a profession where commercial firms start their newly qualified lawyers on over £100,000.

This is why we are seeing “advice deserts” springing up. The Law Society has published a number of “heat maps” demonstrating the problem. A couple of key examples: in housing, over half the population lives in a local authority area without a Legal Aid housing provider. Given that we are often talking about people who are about to lose their homes because they can’t afford their rent, the idea that they can afford to travel long distances to get advice is quite absurd.

And the position in crime is even worse. There are now several counties in the country where we have no lawyers under 35 doing criminal defence work, and a growing number of local areas where there are none under 50. This is why the Law Society has launched a campaign about the crisis in the criminal justice system, and published a report last month highlighting the problems.

The Bible has over 130 references to justice, among which we are warned:

Do not deny justice to your poor people in their lawsuits‘ (Ex 23;6); ‘Do not deprive the foreigner or the fatherless of justice, or take the cloak of the widow as a pledge‘ (Deut 24:17); ‘For the Lord is righteous, he loves justice‘ (Ps 11:7).

Habakkuk records: ‘..the law is paralysed and justice never prevails.The wicked hem in the righteous so that justice is perverted (1.4). Matthew warns us: ‘It will be bad for you teachers of the law and you Pharisees! You are hypocrites! You give God a tenth of the food you get, even your mint, dill, and cumin. But you don’t obey the really important teachings of the law — being fair, showing mercy, and being faithful. These are the things you should do. And you should also continue to do those other things‘ (22:22).

Synod has a heart for the poor, having expressed support for asylum seekers, travellers, claimants, and the homeless, and doubtless we shall have future concerns for other minorities needing access to justice. None of those motions, however, will have any practical means of translating fine words into practice unless we resource the Legal Aid scheme appropriately. Mark Hatcher, Special Advisor to the Bar Council, put the cost to government in perspective: “The combined budgets of the Ministry of Justice and the CPS are a tiny fraction of total government expenditure. The Department for Work and Pensions (DWP) spends less in three weeks than what the Ministry of Justice spends in a whole year. DWP spends the whole of the Legal Aid budget by breakfast time on 4 January. The NHS spends it by bedtime the following day. Is Justice so much less valuable?”

The Bible is clear that it is not. We hope and pray the General Synod of the Church of England will take up the cause in its next sitting.