Oral evidence: Impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, HC 311Tuesday 21 October 2014

Oral evidence, 21 October 2014.

Witnesses

Carita Thomas, co-convener of Legal Aid Subcommittee, Immigration Law Practitioners Association, Denise McDowell, Director, Greater Manchester Immigration Aid Unit, and Sarah Campbell, Bail for Immigration Detainees, gave evidence.

Chair

Welcome, Ms Thomas, from the Immigration Law Practitioners Association, Ms McDowell from the Greater Manchester Immigration Unit and Ms Campbell from the Bail for Immigration Detainees organisation. We are very grateful to you for coming in to help us this morning as we seek to analyse what has been happening under the Legal Aid, Sentencing and Punishment of Offenders Act. At this point we want to look at it in regard to immigration cases. I am going to ask Mr Chishti to start.

Rehman Chishti

On the point about access to legal advice on immigration, I have a few questions for you. First, apart from a return to pre‑LASPO levels of funding, what one change would you like to see to the current legal aid landscape for immigration cases to assist with access to justice? I will start with Sarah Campbell.

Sarah Campbell

What I would like to focus on is the exceptional case funding scheme. Obviously, there has been some discussion already about that. During the passage of LASPO, Parliament was told that the exceptional case funding scheme would provide a safeguard to people where there is a risk of their rights being violated if they could not access legal aid. Our experience in practice is that it is not accessible for the vast majority of detainees and that the system is not functioning—it is not fit for purpose. That is the key thing that we would like to see changed. As you are probably aware, very many people in immigration essentially are now no longer able to access legal aid to challenge their removal or deportation. Our experience is that, even when their cases are very compelling, they are also not able to access exceptional case funding. For example, we deal with cases including single parents who have lived in the UK for very long periods, sometimes since they were children themselves. They have children here, for example, who may be British citizens. They are not able to access legal aid to challenge their deportation. The application process is complex. When we speak to detainees, often they do not know what the exceptional case funding scheme is, never mind how they go about applying for it. In some cases we deal with people who have mental health problems and who are illiterate. In any case, even if they are quite capable, they very often do not have the legal knowledge to know what the legal tests are that they would need to pass to show that their case has merit. They need legal representation. They cannot access it very often. For example, 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, so 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. Providers might be able to make one or two applications, but they cannot keep doing this. It is not viable for them to do that. That is a huge problem. Also, as you may be aware, there are massive concerns about the quality of decision making if people are able to access the scheme, but our experience is that people cannot access the scheme in the first place most often.

Chair

I am going to ask you some further questions about the exceptional cases later.

Carita Thomas

If I may, I would like to mention two on the wish list, just coming from our diverse membership. No. 1 is something that ILPA has advocated for a long time—introducing some sort of polluter-pays mechanism whereby the Home Office would have to feel the pain in their pocket of making poor decisions. Obviously, the idea is to incentivise good decision making, get things right the first time and therefore increase access to justice by ensuring people do not have to go through a long court process and obviously rack up costs in the public domain, and get their decisions correctly at the very beginning.

Chair

That is, incidentally, a view which this Committee has put forward in previous reports.

Carita Thomas

Yes, but also the Low Commission have recommended it recently as well in relation to immigration, which is encouraging to see. The second thing on the wish list would be—

Chair

You are going to have to speak up again and a little more slowly.

Carita Thomas

The second wish list recommendation that we would have is payment in immigration cases up front as opposed to at the end of a case. This is just to recognise the particular nature of immigration work, which can be very long and drawn out. One of our members recently said to me that 80% of the applications that he had made, or the firm had made, had taken over a year to resolve. Personally, I know from my experience of cases that, if you are applying for extensions of leave to remain, it can take up to two years or more to get a decision—initial claims for asylum can take a year or more, and fresh claims more than a year. In this particular legal environment, where the Home Office also have no investment in their staff to make decisions quickly, providers may not simply be around in two years or more because we are seeing more and more leaving the profession. There is already a precedent from the Community Legal Advice Centre scheme for payments to be made at the beginning of a case as opposed to the end. That might help the sustainability of good providers and, therefore, access to justice by keeping them in business.

Rehman Chishti

Do you have anything to add to that?

Denise McDowell

I would add another one on to my wish list, which was about article 8, and specifically article 8 in relation to children. We see extremes now of distress from families who are separated, or who are facing a very uncertain future and have no legal right to represent themselves before the courts because there is no funding for that case. They are families, they are individuals and they are children, who have a right under the European Convention, but they have no right to representation because they are too poor to afford it.

Rehman Chishti

I was going to ask about article 8 later on. Do you want to come in on that?

Nick de Bois

I would not mind following up a specific point. I would just like to pick up your last point, which sounds an understandable position that you are making, but I am an outer London seat with a considerably high number of immigration cases. Time after time after time I have people come in to see me with cases going back as far as 10 years, where they have, first, overstayed their legitimate visa, they have then left the country, illegally re‑entered the country and sometimes done this two or three times. They get married and have children, all in the knowledge that they have no right to be here. My question is this. If this is their behaviour, whatever motivated it, is it fair that a taxpayer should pick up their case when eventually they try and do it under article 8 of the Human Rights Act?

Denise McDowell

You have given an extreme example.

Nick de Bois

No, I have not. It is a common example, I am afraid.

Denise McDowell

Okay, but the issue often in those cases is not about the parents and what the parents may have done, wrongly or rightly, but it is about the children. Those children have established a private life and a family life within the UK, and the courts have to recognise that those children have a right in and of themselves, and that is where the attention should be, rather than on the parents and what they may or may not have done.

Nick de Bois

I accept that, but the question I am asking is, is that something you think the British taxpayer should reasonably be expected to do?

Denise McDowell

Yes.

John McDonnell

Aren’t you simply arguing that the child’s voice should be heard and represented?

Denise McDowell

Absolutely. It is about the right to be heard. That is the argument.

Nick de Bois

I am well aware that that is the point and I accept the point, but I would like to finish my line if I could, please. At the end of the day, choices have to be made because of the situation in which the country found itself in 2010 and I am just saying, are there not alternatives? Are there not decisions, first of all, that the parents should have made? Are there not alternatives—advice centres, pro bono—out there that might help these cases? I am not convinced that the burden should fall on the taxpayer and I am just asking you to explain why you think it should.

Denise McDowell

It is almost impossible to be able to find pro bono advice to be able to represent people in those situations. There are very few advice centres left. The MOJ’s own statistics show that the number of legal aid providers in 2012-13 was about 870, and in 2013-14 there were less than 90. So advice provision—

Chair

There were less than—what was the figure?

Denise McDowell

Less than 90. Advice provision has been decimated in the last 18 months, so there are far fewer places that anyone can go to. We have already heard that pro bono advice is under extreme pressure anyway and there is a limitation to what can be provided there, but these are people who have a human right—an arguable right.

Nick de Bois

Fair enough; you have made that point well. Your ultimate argument is that it is a burden for the taxpayer to pick up or a responsibility for the taxpayer.

Denise McDowell

I think it is a responsibility. If a child has rights under the European Convention, then it is a right and the state should be able to provide that child with the right to at least representation in decisions that will affect them for the rest of their lives.

Rehman Chishti

Just moving away from our state for a moment, why has the number of immigration cases in the first‑tier tribunal remained steady, when the number of matter starts has significantly declined?

Carita Thomas

I would like to answer that, if I may. Speaking from my personal experience, as I have already mentioned, immigration cases take a long time to resolve. I have cases that began before April 2013 that are in the first‑tier and upper tribunal at the moment. That longevity of cases is masking the true impact of the cuts, in a sense. Also, the importance of the issues at stake does mean that, even if somebody is unrepresented, then they will still seek to go to the tribunal. One of our members who supports applicants to make claims and go through the appeals process, who is not providing legal advice, has said that people who come to them for help when they cannot get legal assistance, if legal aid has been refused, for example, in an asylum case, will all go to the tribunal because the issue is so vital to them.

Jeremy Corbyn

I have a brief supplementary. Do you have any estimates of the amount of time, energy and money on legal aid or non‑legal aid that is spent in pursuing the Home Office not replying to letters, lost files, lost information and inability to simply answer normal letters within a timely period? I have cases that have gone on for 18 years, where the Home Office has systematically lost files after files after files.

Carita Thomas

The worst case examples I have are of people who had made claims in 1999 and were only resolved last year.

Chair

I am going to have to ask you to speak up.

Carita Thomas

I am sorry. I was just agreeing with Mr Corbyn that I have had cases that began in 1999 and were only resolved last year. The issue of legal aid cases is that we work on a fixed fee, so, with regard to the amount of money in pursuing the Home Office, you would be unlikely to get to three times the level of a fixed fee by simply writing chasing letters. You have to wait until you come to a point where the delay is so extreme that you may need to take court action in order to get some decisions out of them. Obviously then, if you are successful, you could claim the costs back from the Home Office, which in most cases we manage to do.

Nick de Bois

Ms Thomas from the ILPA, you have referred, in your experience, to local authorities paying legal fees. I think that was in your submission. Can you tell me, if you like, in what type of case that happens? I must confess, in my what seems vast experience of immigration cases, I have not come across that in my constituency, so I would be curious to know what type of case.

Carita Thomas

There is no specific actual duty on the local authority to—

Nick de Bois

I appreciate that.

Carita Thomas

Under the Children Act, obviously they need to make sure that they see that the identified needs of children and young people are met. Immigration advice can be a part of that.

Nick de Bois

They have done something to your sound. It is echoing around the room, or is it just me?

Chair

The sound engineer is trying to make sure we can hear.

Carita Thomas

The feedback that we have had from one of our colleagues, Anita Hurrell, who is from Coram Children’s Legal Centre, is that 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.

Nick de Bois

Perhaps we could follow that up because that is the sort of example of a knock‑on cost that you have been talking about to the public purse in immigration cases following these changes. Could you just give me some other examples of areas where knock‑on costs are, if you like, the hidden costs that you have identified?

Denise McDowell

I can give an example of one of ours. We have had one recently where the father was facing removal and we were appealing a decision to remove the father, where in the judgment the judge commented that, because of the father’s relationship with the child, and the way that the child had responded to the father and how his behaviour had improved dramatically, it was in the interests of the public purse that the father remained in the UK in order to look after the child, in order to save money in the future that was likely to occur from the child’s behaviour and likelihood to be involved in problems at school and further on in life.

Nick de Bois

I appreciate that. I am not quite sure that that is as a direct result of the legal aid cuts. I was trying to see where the hidden costs might be. I take the point you are making; somebody is looking ahead there.

Denise McDowell

This was a case that was not funded by legal aid.

Nick de Bois

Okay. I suppose where I am going is, have you seen the knock‑on costs being picked up somewhere else because legal aid is not funding it? That is what I was driving at.

Sarah Campbell

The point, in a sense, is that this person has been very fortunate. They have accessed pro bono assistance. The vast majority of people will not access that. We deal with a lot of separated family cases, where parents are in immigration detention, they are facing removal or deportation and they cannot access legal aid. But in a lot of the cases that we deal with their children have been born and brought up in the UK; they may be British citizens. It is very unlikely they will be removed, and there will be costs as a consequence of the parents’ removal. For example, if the children are left in care there will be direct costs, but there will also be indirect costs, including where there is another parent outside detention. This is what Denise was alluding to. We know from psychological studies that where parents are separated from children for other reasons—for example, where parents go to prison or children are taken into care—then there are far worse outcomes very often for children in terms of education, health and their likelihood of offending. There have not been those kinds of longitudinal studies in an immigration context.

Nick de Bois

I was going to ask, is there any quantitative analysis put on that? Has any been done as to what is the hidden cost? It is a perfectly legitimate question and I take your point. Or is it too early, because we have heard from Mr Corbyn that there are cases going back 19 years that have not been resolved? I have cases going back 10 or 11 years that have not been resolved. Is it too early to tell?

Sarah Campbell

Those types of studies have not been done, to my knowledge. We did our own study, which we published last year, which looked at the cases of 111 parents who were separated from 200 children by immigration detention. Quite a small proportion of those parents were removed, but at that time there was legal aid available. There is no longer, so it is reasonable to suspect that more parents will be being removed. There are very serious consequences for children already when parents are in detention, in terms of children having nightmares and not being able to perform well in school; there are very serious emotional impacts. Obviously, that is not a peer-reviewed psychological study, but from the available evidence it is at least fair to say it is likely that there will be costs to the state. The other point I just wanted to make as well in relation to this was the cost of detention. Very many people we see in detention now cannot access legal aid to resolve their immigration matter. They are being held in detention as a result of that. If they could access legal aid, two things could happen. One is that if they access competent legal representation and they did not have merits to their case, legal representative could advise them of that. If they did have merits to their case it could be pursued, but neither of those things can happen for very many people. We are seeing people in long‑term detention, their case cannot be resolved and there may be other barriers to removing them—for example, lack of travel documents. That is another issue in terms of cost.

Denise McDowell

Can I give you another example that we have? We have it where in the family courts there may well be a custody battle or children facing going into care where one parent, who is potentially a long‑term carer, has unresolved immigration status and the family court judge will direct that the immigration status of the parent is resolved quickly, in order to be able to make decisions about the long‑term custody and care of that child. Those are the types of cases that social services or children’s services will then come to us with, in order for us to resolve.

Nick de Bois

Although I think that is more systemic failure within the Home Office than anywhere else that drives that problem.

Chair

Will they fund that? If it is their view that the child should be taken into care, then somebody else is going to have to fund the other side of that case, are they not?

Denise McDowell

That is right, yes. It depends. If the judge has taken the view that the parent may well be the best custodian of the child, then they are more likely to pay for the legal advice. If they do not, then they will not pay.

Chair

Could I just ask this question? In this area of decision making and law, is there an effect which flows from the fact that the client may have a secondary interest in protracting the case? The primary interest is to get an early decision to be allowed to remain, but, failing that, the secondary interest is in not having an adverse decision to throw you out of the country. Is that an effect that has to be counteracted in some way if you are trying to decide how far the taxpayer should be involved?

Carita Thomas

In my experience, all clients want their cases decided as soon as possible.

Chair

They do not what, sorry?

Carita Thomas

In my experience, all clients want their cases decided as soon as possible, so they do not wish to protract things—protract any proceedings.

Chair

You mean a client would prefer an unfavourable decision that they cannot remain to the case going further for another year or two.

Carita Thomas

They would prefer a favourable decision, but at least if you get a decision then you can act on it, and hopefully there may be a remedy through judicial review or an appeal. Then you might get in front of a decision maker who is more reasonable than the Home Office.

Jeremy Corbyn

It is an interesting point because I see the stress levels of people just not knowing, particularly asylum cases where I have people wandering the streets of London for years on end with lost letters, lost files, and they just want a decision. They need to know what they can do. They are frightened of being deported but they are frightened, also, of just not knowing what their future is. Do you give counselling to people in this sort of situation or do you refer them for that?

Denise McDowell

We do not give counselling, but what we are aware of is that we are often trying to maintain people’s mental health. People are in a situation which is unbearable; they are neither moving forward nor being removed, and a decision, in one sense, would be better because they would at least know where they stand. We know that our ability to communicate, to get decisions from the Home Office, is so difficult it is almost unimaginable. If you have not dealt with the Home Office to the extent that we have, it is almost impossible to understand how difficult an organisation they are to work with, and how they do not make decisions or they make wrong decisions constantly that need to be appealed and need to be challenged.

John McDonnell

On the issue of the protracted nature of the cases, if you are one of those 1,000 people whom I claim as my constituents in Harmondsworth and Colnbrook, in detention, you will want a decision at the first opportunity either way, will you not? Isn’t that what you find?

Sarah Campbell

Yes. The other point to make is that, with regard to the exceptional case funding scheme, as I said, our experience is that most detainees cannot access the scheme, but if they do, and they are fortunate to find a legal representative, their case has merit and he is going to challenge a refusal, that is an extremely protracted process. We do know people who have been in immigration detention. One young man I know of has been in immigration detention for 19 months and he is awaiting a decision on a challenge to refusal for exceptional case funding, so he is not even getting to the point where the actual immigration matter is being addressed; but that is another concern.

Chair

I did say earlier we would ask you something further about exceptional case funding. On that point, is there some way in which the exceptional case funding scheme could be made more accessible and less creative of costs for the solicitor making the application?

Sarah Campbell

Yes, there is. One of the changes which we would like to see is that at the moment there is a merits assessment and a means assessment, so the solicitor is looking at whether there is merit to the case but they are also looking at a detailed assessment of the client’s means. What we would suggest is that, initially, in the application process, it is just merit which is assessed and then, if there is merit to the case, the means are sorted out later. That is one of the issues. Another issue which we were discussing in terms of making the process more streamlined would be looking at the quality of decision making and making more specialised teams at the Legal Aid Agency to deal with the cases, because that is something which would make the application process much easier. There have been a lot of problems with the quality of decision making.

Carita Thomas

I would just come in on that and agree with Sarah. My limited experience of making exceptional funding applications is that I found I had to explain a large amount of immigration law in order to try and put my point across. If I contrast that to the experience of applying for public 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.

Chair

Where is the lack of knowledge?

Carita Thomas

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. Just to pick up on your question again, I also think that it would very helpful to have some initial funding of any kind to help solicitors to mitigate the risk of taking on these cases so that they are more inclined to assist people to make the applications at the first instance, rather than having to wait to the end to see if you are going to be successful and get paid.

Chair

Thank you very much indeed. We are very grateful to you for your help. We have another team of witnesses. Examination of Witnesses

Witnesses

Ruth Hayes, Islington Law Centre, Catherine Evans, Southwark Law Centre, Anita Hurrell, Coram Children’s Legal Centre, and Paula Twigg, Mary Ward Legal Centre, gave evidence.

Chair

Welcome to our third group of witnesses this morning, a multi-skilled group of witnesses—in other words, covering several different areas. We have Ruth Hayes from the Islington Law Centre, Paula Twigg from the Mary Ward Legal Centre, Catherine Evans from the Southwark Law Centre and Anita Hurrell from the Coram Children’s Legal Centre. I am going to ask Mr Chope to open this part of the questioning.

Mr Chope

I have been taken by surprise about that. Would making limited funding available for expert reports at the beginning of a case, without access to funding for legal advice, improve access to justice?

Paula Twigg

Without a doubt, in our experience. One of the big losses since the legal aid cuts has been exactly that, in particular with welfare benefit cases concerning sickness and disability benefit appeals. The lack of access to a report from a GP or a consultant has quite a considerable degree of bearing on the outcome of a case. On average, a GP will want to charge about £80 for the said report, and, in our experience, most GPs will want to charge something. What we are finding is that, because we can no longer help people with claiming back that matter as a disbursement, clients have to go off and request that information themselves and they find they cannot afford to pay the fee. So what they are getting offered is basically a copy of their medical records, which is just a long list of all the things that they have come in about since way back, and it just is not helpful to present that as an argument within your case. A tribunal is not going to trawl through pages and pages of medical reports to see how that might apply to particular criteria within that benefit that they are claiming. That is certainly the case, and it is the same for disrepair cases with expert reports and surveyors’ reports or cases in support of homelessness applications where someone has ill health.

Mr Chope

Would you put this at the top of your shopping list for changes to the current legal aid landscape to assist access to justice?

Paula Twigg

In terms of the small amount that that would cost, that would go some way to helping people. In regard to wanting to bring other things back, there is a strong case to be made for welfare benefits coming back into scope—at the very least housing benefit for possession cases, but there is an argument to make for welfare benefits coming back into scope. The reason for that is that it is a very complicated area of law. There are five Sweet & Maxwell volumes covering social security law. It is extremely complicated. It is not simply a case of making a claim. I agree with what you said about it being madness, in the sense that there is still a high degree of poor decision making, but until that decision‑making quality is improved it is highly unjust to deny people the access in order to challenge those decisions. I have been doing this for a long time now and poor decision making has been a feature of the benefits system for many, many years. Until that is rectified, people need to be given those means. We find that round about 75% of the clients we help with welfare benefits have a disability or ill health and a long‑term ill health condition, and so we are having to turn away people who are very vulnerable. Also, the fact is that it is interlinked with other areas. We did a little snapshot of our county court duty scheme, where they list possession cases for rented accommodation and mortgaged properties. These were all people who were facing repossession or eviction, and every single sixth defendant had housing benefit or another benefit issue that needed to be looked at. Had that been addressed, there is a very strong argument that they would not have been before the courts in that case. The issues vary between someone having large rent arrears caused by a housing benefit overpayment that had never been looked at to see whether it could be challenged. We find that, when you look at it, there is often underlying entitlement that reverses the housing benefit overpayment just because of miscalculations. I appreciate that the housing benefit calculations are not always straightforward because people have complicated lives or they go in and out of employment and their wages fluctuate. Other cases concerned people who have made a claim for personal independence payment and not received anything at all months and months later, and no decision has been made because there are problems with delays in decision making. Another person had their JSA and housing benefit suspended but did not understand why because they had severe mental health problems. In our experience, welfare benefits coming out of scope, especially at a time of major welfare reform, is a particular concern.

Catherine Evans

Also, in immigration cases, one of the problems that we have is where clients have severe mental health problems and they have a possible article 3 claim, but what we are concerned about is the risk of paying for an expensive psychiatric report and only finding the Legal Services Commission will say it is not an article 3 case but an article 8 case. I have no doubt that they would recoup that money from us, so we are quite reluctant to obtain reports in those cases for clients who are very vulnerable, and some of those clients are street homeless. It is very difficult to get funding from other sources to cover those disbursements.

Ruth Hayes

Could I also add that the point was raised earlier about the availability of pro bono services? Often, what undermines effective pro bono provision is a lack of funding for reports, particularly when you would say that often there is a need for some funding stream for complex casework, but often you need to establish the entitlement of the client or the situation accurately. Access to funding in those circumstances would make a significant difference.

Catherine Evans

When you make a funding application it is very difficult to assess what disbursements you need. I would also include interpreters’ fees as well because clients obviously have language barriers and need interpreters’ fees.

Mr Chope

All your organisations are publicly funded, to a lesser or greater extent. Why don’t you decide, using your own resources, on those cases where £80 or £40 on a report is going to make the difference between access to justice and not getting it? Why don’t you spend your own money?

Catherine Evans

We do and we turn people away. We have to turn a number of people away. At the moment we are working with street homeless organisations, advising street migrants. We can only take very few of those cases on. It is not sustainable for a law centre to take on all of those cases. As I say, we do use some of our money and we have raised some money from private sources for disbursements for interpreters’ fees, but that is not sustainable because the need is too great. Every week we turn away 30 immigration cases.

Mr Chope

Just as an example, how much money does Southwark Law Centre get from public funds?

Catherine Evans

Our funding is £600,000; £300,000 of that comes from the Legal Aid Agency and other funding is from contracts with Southwark council. We are limited to what we can use the funding on. We get other funding from charitable funds and charitable trusts.

Ruth Hayes

If I could say, it is really very rare to get public funding which is not specifically targeted for specific services. For example, we get funding from our local authority to provide an outreach service to their tenants, but we could not choose to use that money on reports for clients of another part of our work. It is very, very unusual to receive any sizeable sums which are unrestricted and could be used for any purpose the organisation chose.

Mr Chope

Do you think that the funding you get from local authorities can sometimes cause you to be inhibited in naming and shaming those local authority housing benefit administration departments for their incompetence?

Ruth Hayes

I do not think our local authority would say that. I can see the issue and there is a need. Certainly, for clients it is very important that services are seen to be independent. Where the relationship is a good one and we get to meet with senior management in the local authority quarterly, and they ask for examples of where their own policy and procedures are not being followed properly because that is very valuable learning—it sometimes identifies a training need for their staff—it is a waste of public money to be attempting to evict tenants, for example, over a resolvable issue. Where it works well, there are real opportunities to improve standards at a local level and that is very valuable.

Mr Chope

Can I ask one specific question? Does the issue of legal aid funding for children need to be addressed separately from the main scheme?

Ruth Hayes

Yes.

Anita Hurrell

Maybe I can answer that question. Certainly something needs to be done about children and young people’s access to justice. This has come up not just from specialist children’s organisations but across the board, and has been highlighted in particular by the Office of the Children’s Commissioner and the recent child rights impact assessment that was done. Something definitely needs to be done for children and young people, and we can talk a little bit more about what that might look like. We have to think about those cases where a child is bringing the proceedings themselves—children and young people’s own cases where, clearly, they cannot represent themselves; they cannot be without legal aid; they cannot be without legal representation. We are seeing a few cases where local authorities are having to step in and pay the bill. We should also look more widely at all of the cases that we are talking about today because pretty much all of the cases that we are talking about can impact on children. A housing disrepair case has an impact on a child’s well‑being. An employment law case has an impact on the family’s income and on the child’s welfare. A private law family case is obviously about the welfare arrangements of children, so it is about looking both at those cases where a child is the party but also more broadly at what can be done about the impact of the legal aid cuts on children.

Chair

You are making it sound as if there being a child in a family is a reason for bringing every case into scope.

Anita Hurrell

Not necessarily. I just wanted to highlight the danger of thinking that something could be done for a particular group of children and then the child rights issue being over. We do not see that that would be the case. We see that something most definitely needs to be done for children’s cases, but we have to look more broadly at all of the legal aid cases and see all of the kinds of impacts on children and on children’s rights.

Chair

I am going to turn to Mr McDonnell, but with an apology to both Mr Chope and Mr McDonnell for taking them in a different order from the one they anticipated.

John McDonnell

You have answered most of the questions. I just want to raise this point. You raised the issue about housing benefits and welfare benefits coming back into scope generally. What impact are you finding the huge increase in the sanctions regime has had?

Paula Twigg

We are seeing a lot of that. You would not know this, but we only have funding from Camden council now because we lost our legal aid contract. We are a pan‑London provider and we were able to help round about 1,200 people a year to resolve the welfare benefits legal issue. Now we can only help about 300 people a year. That is purely Camden funding and our Camden funding is restricted to help people who live, work or study in Camden. We are turning one in four people away who present from other boroughs, and some of those issues are sanctions issues. We are finding a lot of people we see have mental health problems. I dealt with a man on reception who had a decision on employment support allowance. I know it is slightly off what you are saying. 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.

Ruth Hayes

We have had two examples recently of people collapsing in local agencies as a result of having no income. In one case the man had not eaten for six days, and there is obviously not only a human cost to that but in terms of the cost to the health service that is significant. 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. So there are very acute costs being felt by individuals because of a lack of access to specialist help, but also that will be presenting; those children cannot be doing well in school.

Jeremy Corbyn

I have a very brief supplementary back to Mr Chope’s earlier question because it is a fairly fundamental one. All law centres receive some degree of public funding, either through local authorities or legal aid or whatever else it is. Does that in any way ever inhibit you from taking legal action against public authorities, be they local government, DWP or anybody else, so that you can act as independent lawyers just in the same way that any other independent lawyer would act?

Paula Twigg

Absolutely no way. It can’t. We would not enter into that funding room. It is very much understood. With our Camden contract, for instance, it is very much understood that we will be taking action against the local authority, and we do. Where Camden are turning people away and saying they are not in priority need for a homeless application, we will be challenging them. We do take them to court. It is the same with the housing benefit department. As Ruth has said, what is quite good about those arrangements is that you can feed in social policy issues and get to the issues that you were mentioning about systemic failures.

Jeremy Corbyn

I understand that and that, in a sense, is understood and is a slightly separate issue, but I want to be absolutely clear for the record that there is no inhibition, because of the funding source, on you taking legal action on behalf of vulnerable clients.

Catherine Evans

If you look at the law reports, you will see there are a number of actions taken by law centres against their own local authority. There is one in the Court of Appeal at the moment. There is another law centre in Southwark—Cambridge Law Centre— and they are taking an action against Southwark. They are funded by Southwark and they have a case in the Court of Appeal against the London borough of Southwark regarding a housing decision. Because we are lawyers, we fully understand our independence and the local authorities understand our position.

Ruth Hayes

Because law centres employ practising solicitors, they would be under a professional obligation to act in the best interests of their clients and therefore could not be fettered in their judgment in that way.

Nick de Bois

I just want to talk briefly about costs-shifting and other impacts, which is a theme developing. A number of practices have said that significant costs-shifting is occurring because advice can only be accessed when it becomes serious or requires court time to resolve. Apart from, obviously, more money, have you thought about how this can be tackled? For example, I notice in some evidence—I think it was from the Mary Ward Centre—they were talking about the false economy of the large narrowing of the huge number of cases that are now falling within the scope, which has meant that people can only access legal aid at a very urgent stage. You talk about a vast amount of debt work focused on early intervention to avoid emergency action and costs associated with going to court. Although it is obviously coming from a legal centre, is that advice that can be dispensed elsewhere? I have noticed in constituency cases that we are having to signpost people or try and offer advice elsewhere. Is that something that needs to be developed further if it is not going to go back into a legal process, and can it avoid a legal process?

Paula Twigg

We have a contract with Money Advice Service via a tool where we can provide debt advice, which is fantastic, but we are not able to do as much detailed casework as we would have done when we had a legal aid contract. We had 400 matter starts for debt, and we now have four under our housing and debt matters.

Nick de Bois

Because they have gone elsewhere or they are not being dealt with?

Paula Twigg

I have never understood why we only have four debt matters. It seems to be a nominal amount. Every contract holder in the housing and debt contract has a nominal amount, partly because the assumption is that it is going to go through the gateway and get dealt with through the telephone gateway. There are issues that, if you do not nip them in the bud at the early stage, will go all the way through the court system, and so if you are looking at things like bankruptcy, or even with debt, where a charge is being applied to a property, at the moment an order for sale is in scope but the charging order element is not in scope. That is the bit that precedes the order for sale, but once you get to the order for sale stage there is often very little argument, legally, you can make. These are quite complex matters.

Nick de Bois

I agree with that. I am not a lawyer and I am surrounded by them, so I find it rather difficult. I get that stage. I am trying to compare. When were you normally getting involved pre-LASPO, and was there an element that, really, perhaps you should not have been involved in it, or could it have been sourced elsewhere, and does that need beefing up? I am trying to understand at what stage a lawyer would get involved to help. Where were you getting involved to help at that stage?

Paula Twigg

Those sorts of figures are the complex bankruptcy cases.

Nick de Bois

It is at that stage they come to you? You are not working with them early on?

Paula Twigg

They may come to us a bit earlier on. It may be they have come to us with council tax arrears and have bailiffs knocking at their door. It may only be a little bit later that the local authority is trying to apply for a charging order. The first thing that we do when we see someone with a debt is to say, “Are they liable for that debt?”

Nick de Bois

Have they seen anyone else before coming to you? I suppose that is what I am exploring, because there is an element of personal responsibility here but a lot of people, I understand, bury their head until it gets too late and then they turn to a lawyer. Should we be doing more to make people go elsewhere?

Paula Twigg

In our experience we find that people often try and resolve things. I would say about 80% of clients try to resolve it themselves. They have done all sorts of things. Some have gone to debt agencies where you can pay and have got themselves into an awful mess. Last time, when we did our evaluation and spoke to a number of clients, it was surprising how many people said, “I tried to resolve these issues myself.” Some people, as I say, get into an awful mess if they try to go down the legal process route. They get it all wrong and they have messed it all up for themselves, and that is quite common.

Nick de Bois

The Southwark Law Centre submitted a comment on employment law, saying that the removal of employment law from scope had led to an increase in exploitative behaviour by employers unlawfully deducting wages—pretty outrageous stuff. I have to ask this: what evidence do you have or is that anecdotal evidence? What is there to support this increase in that behaviour directly linking it to, if you like, an increase in the changes in the laws?

Catherine Evans

We are a law centre so we can only give anecdotal evidence. I can only give evidence within the scope of a law centre. We do not have money to do research. That is for other organisations to answer.

Nick de Bois

Are you aware of any other research?

Catherine Evans

No, I am not. As I say, I manage a law centre. We are not a research organisation. Yes, it is anecdotal evidence from our employment lawyer, who goes to the local citizens advice bureau to give advice by appointment. We have a partnership arrangement with the local citizens advice bureau, and they refer cases to us that are complex and need a lawyer. He has noticed a considerable increase in the number of unlawful deductions from wages by large multinational companies. At the law centre we deal with people and we advise people who are on low incomes and zero contracts—cleaners and security guards. He has referred some clients to the advice line, and in several cases it is very difficult for the clients to deal with those advice lines. One is that they are not advertised, so people do not know about the advice lines. If you have people who have difficulty managing their papers or communication, it is very difficult for them to access advice and people give up. Also, at the same time, the fees are putting people off. Although there are fee remissions, the fee form is 54 pages long. Even our employment lawyer was a bit aghast about having to complete a form that is 54 pages.

Nick de Bois

Did you say there is a form they have to submit that is 54 pages long and that is what anyone seeking to take action at a tribunal—

Catherine Evans

That is my understanding from the employment lawyer.

Nick de Bois

It is 54 pages long. Okay, I hate that. It could be done in about two when I was an employer, so I am with you there.

Catherine Evans

Then with Acas. He is saying that these large companies are acting with impunity because they know that there is no penalty for them.

Nick de Bois

What I am trying to do is get some context because I do not doubt that these actions have been happening, but are you able to give me any context even in Southwark Law Centre’s experience of how many cases we are talking about?

Catherine Evans

No, I cannot.

Rehman Chishti

Coming on to the point about the Ministry of Justice and the Legal Aid Agency, how could the Legal Aid Agency be reformed to reduce bureaucracy while ensuring legal aid applications are properly determined?

Paula Twigg

It is interesting thinking about this. The money that we get from the local authority is for exactly the same work that we would have done under legal aid and is vastly different in terms of the reporting requirement. Pre the cuts to legal aid, we employed someone full time to administer the contract. That is purely submitting the fixed fee and what were then the exceptional cases funding—now escape fee funding—cases. There was one full‑time person to submit those cases and now it is a part‑time person. I do not think it is necessary for every single escape fee case to be assessed by looking through all the papers. We have been getting many rejections which we are successfully appealing. We had a very large housing case which was reduced by £30 because the assessor had decided that a 60- minute initial attendance for the client was felt to be too much. We appealed, showing that the evidence was all there anyway in the first place of why a 60-minute initial interview was not too little. It was a very complicated urgent homelessness case. I could go on. There are lots more examples.

Ruth Hayes

I did bring something along. This is 151 pages. This is just the guidance on codes for reporting under the legal aid contract, so we would—

Chair

The guidance for what?

Ruth Hayes

It is the guidance for reporting; it is the guidance for codes. It is Guidance for Reporting Controlled Work and Controlled Work Matters. You will see the scope, because the reporting framework is so very, very complicated. Every time there is an error there are significant delays, which I imagine are due to backlogs at the Legal Aid Agency. Changing one field on one spreadsheet can take four months and we do not get paid until that has happened. We had a recent case where the client’s immigration status meant we had incorrectly, in error, suggested that VAT should be applied when it should not. So what should have been fairly straightforward—this client should not have had VAT applied—has been a very complex process with a fair amount of time at our end and the Legal Aid Agency’s time. The other issue that we feel quite strongly about is a return to devolved powers for certificated work, where it used to be that we were able to make that decision ourselves. That work is at risk, so if the Legal Aid Agency felt that in fact we had inappropriately devolved powers they are not obligated to pay us, so it is not like a blank cheque to providers. Now there are significant delays, which is adding to the stress on the court’s time because we are sometimes having to provide a witness statement to explain why we have not been able to comply with their requirements. A return to that would save significant time and also costs at both ends.

Anita Hurrell

We would just echo that the bureaucratic burden has become extremely onerous. This has even been pointed out in court judgments. For example, with cost limitations, you have to apply three or even seven times to have a cost limitation extended. That, in theory, allows the Legal Aid Agency to do some kind of projecting of its overall costs, but we would say that the administrative burden, both on us as providers and on the Legal Aid Agency processing those applications, is disproportionate to that aim.

Rehman Chishti

Let me move on to the second point. Why do you think so few exceptional funding applications are granted in the first place?

Catherine Evans

To your first question, I would say that it does not appear to me that access to justice is paramount to the Legal Aid Agency. Unfortunately, it seems to be a processing costs and processing claims bureaucracy, to the detriment of the providers, with poor decision making and inconsistent decision making. There is a recent case in the courts of judicial review where Collins looked at the decision making in exceptional cases and said the decisions made were unreasonable or Wednesbury unreasonable, which is a very high test for a local authority or for a public body.

Rehman Chishti

Does anybody else want to say anything on exceptional funding? Let me move on. We have heard evidence that the telephone gateway is not working as it should. How can it be improved to fulfil the role for which it was developed in the first place?

Anita Hurrell

We are one of the three education law providers of legal aid nationally. As you know, education law now goes through the telephone gateway for those areas that were protected under LASPO—those areas that remain in scope. The problems that we are seeing really fall into two categories—the problems of those who cannot get through, which obviously we do not see through that route but we do see through another service that we provide, which is the Department for Education-funded Child Law Advice line, which is a national line providing free advice. 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. We also find that people are being put off if English is not their first language and that it is just an incredibly complicated system to explain to clients. For example, when somebody contacts us about immigration advice and they have an education-related issue that could potentially be in scope, and I explain to them that they have to call back to a different number called CLA and then they might be put through to us as an education law provider, it is just very difficult for people to understand, so there are a whole host of problems related to people not getting through. Then what we are finding is that when people do get through there are some problems about the operator service saying that an issue is out of scope, but they might be wrong and if, eventually, it does get through to us, that problem transpires. We just think that they would benefit from better training on eligibility. For example, judicial reviews in education law are quite difficult to identify, when an admissions appeal can become a judicial review or exclusion cases can become judicial reviews. It is getting a little bit better in our experience, but there need to be some improvements in recognising the legal matters.

Ruth Hayes

Could I say we have had some experience? Like Southwark, we also do employment law. We have seen a real rise in discrimination cases coming to the law centre. A number of those people have attempted to access the discrimination gateway phone line. We have spent two and a half hours with one client, trying to get the case taken on, even though in our opinion it had significant merit. The client had a disability which affected both her neck and her concentration, and, without our support, which is funded through the local authority, she would never have been able to make that case. She then received four or five different letters in the space of about three days. She found it very difficult to submit paperwork by post. She was anxious about papers going astray so she paid for recorded delivery on what was a very low income. Most of the clients we have seen, interestingly, relate to areas like pregnancy and emergency parental leave, for example. People do not even think that they have a discrimination case. It wouldn’t occur to them to call, but many of our clients simply do not have a phone line with credit that would enable them to stay on the phone for very long. Many have issues with literacy and would require someone to look at their papers. It is not a very cost-efficient system for some people. Shelter do quite a lot of work on looking at channel shifting from face‑to‑face. It was interesting earlier to hear their comments. What they found was that, although there is a real benefit to telephone advice, it meets the needs of a different group of clients from those people who have accessed face‑to‑face help.

Catherine Evans

Going back to the exceptional, I have just remembered that we did have one. 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.

Chair

Thank you very much. We are very grateful to the four of you. We much appreciate your help. Oral evidence: Impact of changes to civil legal aid under the LASPO Act 2012, HC 311 2