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Civil Law

The impact of legal aid cuts

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean “litigants in person (LiPS) achieve worse outcomes compared with their represented counterparts.”

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Some lost their jobs due to the pressure, while others got into debt due to court issues, including paying for photocopying and travelling to and from court.

Meanwhile, seven in 10 reported they might ‘think twice’ about taking a case to court themselves if they could not afford a lawyer.

The charity said it was only after people had been through the process of going to the family court that they realised the value of having a lawyer, with 70% saying that instructing a professional would have benefited their court experience. The lack of professional support has also placed intolerable pressure on the court system.

Gillian Guy, chief executive of Citizens Advice, said: “For people representing themselves in the family courts, whether in a divorce case or to keep the legal right to see their children, the workload to prepare can be unmanageable. In extreme cases people are quitting their job so they have the time to do research before going to court.

“The stress of making your case against qualified barristers and navigating complex court processes without the right guidance can make existing mental and physical health problems worse.”

In January the lord chief justice, Lord Thomas of Cwmgiedd, delivered a warning about the legal aid situation in England and Wales. “Our system of justice has become unaffordable to most,” he said. “In consequence, there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Three years after the government scrapped legal aid across much of civil law, more ‘advice deserts’ are emerging in the sectors that remain in scope. Several parts of England and Wales now have inadequate housing law cover which could give rise to potential conflicts of interest. A number of areas have no cover at all.

According to the ‘Gazette’ the Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

From the usual spokesperson for the Legal Aid Agency we learn that the ’vast majority’ of England and Wales have access to LAA-funded housing advice. “We constantly monitor the situation across the country and we are actively seeking new providers in two areas,” the spokesperson said. “Legal aid is a vital part of our justice system but we must ensure it is sustainable and fair for those who need it, those who provide services and for the taxpayer, who pays for it.”

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The Court of Protection

The Court of Protection (COP) was established under the Mental Capacity Act 2005. It has jurisdiction over questions relating to both health and welfare and financial affairs, and is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.

This week the Court ruled that people unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty.

In a judgement, achieved by way of four test cases (JM & others), where no appropriate representative could be found for reasons including resource constraints, Mr Justice Charles, vice president of the Court of Protection, said: “I do not agree with the Secretary of State that it is appropriate for the COP to direct the applicants to take steps to provide or identify a person or persons who the COP could so appoint in these test cases or cases in the class represented by these test cases. The main reasons for this are:

  • the applicant authorities have no statutory duty to do this,
  • there is at present no available pool of people who are ready, willing and able to accept such an appointment by the COP,
  • absent constructive discussion with and help from central government there is no reasonable prospect that any such pool of people will or should be created by applicant authorities within a    reasonable time-scale or at all,
  • the applicants in the test cases have expressly confirmed that as they have no statutory duty to do this they will not do it, and
  • it is unlikely that other applicant authorities would take a different view.”

Mr Justice Charles ruled that: “In my view, the primary responsibility to provide a resource that enables the COP either to make such appointments or to otherwise meet the minimum procedural requirements in these test cases and cases in the class they represent falls on the Secretary of State, or on the Secretary of State together with the applicant authorities.”

In this unprecedented judgment, Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

As reported in the ‘Gazette’, Law Society president Jonathan Smithers said: “Anyone living with dementia, Alzheimer’s or a learning disability must receive treatment that is in their best interests, whether they are in a hospital, care home or a family home….The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people’s rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people’s rights are threatened.

“We recognise that the Court of Protection, local authorities’ and government budgets are stretched,” he added. “But those who are least able to defend themselves should not be sacrificed on the altar of austerity. Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

The full text of RE: JM, AMY, JG, MM and VE, Neutral Citation Number: [2016] EWCOP 15, can be found at:

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Law Society submissions to the Bach Review

The ‘Gazette’ reports that the Law Society is considering how an innovation fund could help legal aid solicitors harness new technology to improve access to justice.

In a submission to the Labour party’s legal aid review, the Society said there was “scope for innovation” among solicitors to produce “bespoke technological solutions that reflect their businesses and meet the needs of their clients.”

Inevitably there are doubts whether solicitors could afford the investment required. “The Society is therefore looking into whether there might be scope for an innovation fund, whereby grant funders would make grants to firms that have ideas for ways of using technology to improve access to justice,” the submission states.

In its submission to the review, the Society identifies the Partnership Initiative Budget, which operated under the former Legal Services Commission, as a precedent. “We are still in the early stages of considering this idea, but our initial thinking is that such a fund might be generated from a combination of private, third sector and public sector sources,” the submission states.

The Society also suggests that alternative approaches to civil legal aid remuneration should be considered. “We believe it is worth looking again at the fundamental point that legal aid currently works on the basis of paying individually for each of millions of pieces of advice provided.”

The submission points out that “there is a precedent in the form of the old block contracting system for the not-for-profit sector where the provider was remunerated on the basis of caseworker hours rather than for each individual case.”

The Law Society also warned that civil legal aid cuts will result in an increase in costs to the tax payer because failure to get early expert legal advice can result in people’s problems escalating dramatically, when they could have been nipped in the bud.

Law Society president Jonathan Smithers said: “Successive governments have repeatedly cut back the legal aid budget and this review provides a crucial opportunity to consider the fundamental question of how to restore and protect access to justice for everyone in the 21st century, regardless of their economic circumstances.”

Smithers said: ‘There is an imbalance of power and knowledge when legal advice is solely available to wealthy individuals, corporations and state bodies, and not to ordinary people. There are significant cost savings for society if people can obtain expert legal advice and representation,” adding that “early legal advice can forestall an escalating sequence of problems that in extreme cases can result in issues like homelessness. Prompt intervention can also help people to find a solution that doesn’t involve the courts.”

“The current legal aid system needs reform,” he said. “The capital means test for benefit claimants and evidential burdens for domestic violence determine who qualifies for legal aid help. These are preventing victims of domestic abuse from accessing legal aid in family cases. When no other realistic option exists for someone to assert their legal rights, funding from government must be available.”

‘Technology can improve access to justice, but proposals for digital courts will not remove the need for solicitors, who play a vital role in overcoming the barriers that people face in obtaining justice,” he said.

Labour is to present the findings of Lord Bach’s legal aid review at this year’s party conference in the Autumn.

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Domestic violence legal aid time limit invalid

Last year the High Court rejected a legal challenge from domestic violence charity Rights of Women over the lawfulness of rules that require domestic violence victims to provide a prescribed form of evidence to apply for family law legal aid.

However, in The Queen (on the application of Rights of Women) v The Lord Chancellor and the Secretary of State for Justice, the Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. Read the full story

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“Access to justice should be considered a fundamental right” – Corbyn

Labour leader Jeremy Corbyn has called on the government to initiate an immediate review of cuts to civil legal aid.

The coalition government reduced the scope of civil legal aid through the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) and has committed to a review of the policy by April 2018.

The reforms reduced spending on civil legal aid by £300m a year, but the National Audit Office last year said the wider costs to the public sector had not been factored in because the Ministry of Justice did not anticipate how people would respond to the changes.

Read the full story

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Deep divisions between the government and judiciary over court fees

In his annual report to parliament, Lord Chief Justice Lord Thomas of Cwmgiedd said our system of justice has become unaffordable to most. In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed.

He particularly drew attention to the steep increases in court fees, which judges formally opposed, meaning that the judiciary “whilst accepting the decisions by parliament to increase fees, remains deeply concerned about the effect on access to justice.” Read the full story

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Increased demand for free legal representation

The Bar Pro Bono Unit (BPBU) was established in 1996 to assist mainly civil claimants who could not afford legal fees but were not entitled to legal aid. It receives 90 per cent of its funding from the Bar, barristers’ chambers and individual barristers.

Overall 42 % of solicitors undertook pro bono work in the last twelve months. 49 % of solicitors working in private practice, 63 % of solicitors working in sole practices and 43 % of solicitors working in the largest firms (81+ partners) undertook pro bono work. Read the full story

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Legal aid restrictions

The government has loosened a controversial restriction preventing some victims of domestic abuse from accessing legal aid.

Domestic abuse victims currently have to provide evidence that abuse has taken place within the past 24 months in order to qualify for legal aid. A technical provision in the civil legal aid (procedure) regulations 2012 meant that when cases reached a final hearing, legal aid could be withdrawn if the evidence was considered to be out of date.

Having listened to concerns from representative groups, a spokesperson for the MoJ said the government was “absolutely clear that victims of domestic violence must receive legal aid in order to break free from abusive relationships.” He added: “Ministers have agreed to amend the rules so that victims of domestic violence can be confident they will receive the support they need.”

Law Society president Andrew Caplen expressed pleasure that the government had fixed ‘this unconsidered technicality’. The change follows intense lobbying by the Law Society and other practitioner groups. The Society argued that it could not have been parliament’s intention to grant legal aid initially only for it to be withdrawn in the middle of proceedings.

Another set of legal aid restrictions is now the subject of an action before the court of appeal. The restrictions delay prisoners’ rehabilitation and mean that thousands of prisoners are being prevented from starting rehabilitation because they are denied legal aid for parole board hearings.

Concerns over the removal of legal aid from internal prison hearings have focused on problems that inmates have in moving to open prisons so they can begin courses that pave the way to eventual release. It particularly affects prisoners serving indeterminate sentences.

The appeal, brought jointly by the Howard League for Penal Reform and the Prisoners’ Advice Service, argues that taxpayers are now having to pay to keep prisoners inside for longer than is necessary. According to the charities’ submission, without a move to open conditions a standard indeterminate-sentence prisoner will almost certainly never be released.

The barrister representing the Howard League for Penal Reform and the Prisoner Advisory service, said that all areas of prison law have been removed from the scope of legal aid in what amounts to a systematic unfairness.
She said: “Many prisoners cannot access the process themselves. Prisoners live in a closed world. They can’t access outside resources. They can’t go to the Citizens Advice Bureau. The complaints systems and the ombudsman system do not provide the fairness that is lacking [in the current system].”

She added that there was no provision for funding in exceptional cases. “There’s no flexibility here. Nothing can be done.”

The Legal Aid Agency argues, Kafka-like, that inmates who have not yet served their sentence tariff are not entitled to legal aid because their liberty is not at stake. The Ministry of Justice maintains that the internal prison complaints system and the prisons ombudsman are capable of dealing with the problem. That remains to be seen.

The court of appeal reserved judgment.

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Gove to challenge the “dangerous inequality at the heart of our system”

In a speech given today at the Legatum Institute, justice secretary Michael Gove said that there will be further court closures as he seeks to build a more efficient and streamlined justice system.

The government is reviewing the existing court estate and will shut those that are not running close to capacity. The government closed 142 courts in the last parliament. “It makes more sense to deliver a more efficient court estate than, for example, make further big changes to the legal aid system,’ he said. Read the full story

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Promises, promises

When the coalition came in they made a refreshing start by throwing out some of Labour’s worst excesses on civil liberties. Together the two parties saw off the kneejerk demand for 42 days’ pre-charge detention, prefiguring the later coalition partnership which did, for a time, seem to have at least some feel for freedom. ID cards were abandoned, DNA samples of innocent citizens were destroyed, and – with Ken Clarke at the Ministry of Justice – there was an overdue attempt to challenge mass incarceration. Read the full story

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