Legal aid cuts, disability and the silent storm hitting our community

This week the UN found the UK’s austerity measures to have been “punitive”. To understand their true impact on disabled people, we must also look at what’s happened to our justice system.

Mitchell Woolf
23 November 2018

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Twenty years ago Mary-Ellen was fulfilling her vocation working as a nurse. She had recently bought a property, in what was then an unfashionable part of London, without knowing how quickly her body would succumb to a rare, cruel and debilitating health condition. Her illness has meant that while her mind and her sense of compassion for those around her has not diminished, she has been left with significant and at times crippling disabilities that have robbed her of her independence and will only worsen.

Prior to the changes to legal aid in 2013 resulting from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Mary-Ellen would have been financially eligible for legal aid. Since her disability forced her to give up work, her only income is her DWP benefits which would have made her automatically eligible. However, post-2013, the value of her home now puts her over the financial threshold.

Therefore, during a period in which Mary-Ellen has faced three attempts by her Local Authority to make significant and unlawful cuts to her care package, she has found herself unable to pay for legal support or be eligible to receive legal aid. Her property, highly adapted to meet her needs – a cost she had to bear herself – has become a legal millstone around her neck when faced with an immediate cut to her care provision.

Unable to release any equity in the knowledge that falling behind with repayments would result in losing her home, the repeated attempts to reduce her care package without going through a lawful assessment process have heaped immense distress and anxiety on the undeserved pain that is part of her everyday existence.

This is why the Law Society are campaigning that, as part of their review of the legal aid cuts, the government should change the financial eligibility rules so that people do not have to forgo a reasonable standard of living (like selling their home) in order to access justice.

It is only when one sees the cumulative effect of the cuts to legal aid together with other austerity measures and the rhetoric that has accompanied the culture of cuts, that we get a clearer view of the crisis faced by many of the most vulnerable in our society.

The government has removed many areas of law from the scope of legal aid. This includes most cases in housing, benefits, family and child welfare law. This means that many thousands of people have life-changing problems for which they cannot seek legal support.

A UK Supreme Court Judge recently lamented that even where legal aid is provided, the low remuneration rates for legal aid lawyers mean that it can be a challenge to find lawyers prepared to take on challenging cases. Despite tabloid claims that ‘fat cat lawyers’ cream off legal aid, for legal aid lawyers working in community care law, the hourly rate for attending a judicial review hearing, for example, remained at £36.40 (a fraction of commercial rates) for nearly twenty years. With the ushering in of the 2013 legal aid changes, this rate was reduced by approximately 10% to £33.30.

Lawyers are responding to legal aid cuts by moving away from financially unviable areas of work into areas that are economically sustainable. So, while many lawyers are able to side-step the impact of these legal aid cuts, the real impact is felt by the huge number of vulnerable people trying to find legal aid representation to challenge decisions that are having a fundamental impact on their health and wellbeing. One consequence is a significant rise in the number of people who have to represent themselves in Court facing experienced and skilled lawyers on the other side.

Many firms are moving away from taking legal aid cases for reasons that most would regard as financially prudent. Law Centres are reducing services or closing due to the significant cuts in their funding. The UK is now home to various legal aid deserts – regions of the country where no legal advice is available at all.

The adverse consequences are not just geographical they are also generational. With fewer opportunities to gain experience and with many saddled with the significant student debt, there are now limited opportunities or incentives for fresh and otherwise enthusiastic young lawyers to commit themselves to legal aid work. This will mean that the knowledge and experience that is so important to people learning specialist areas of law will not be passed down.

Given the importance that some legal aid cases have had domestically and internationally, we can see another long-term detriment arising from the cuts. For example, the Belmarsh case was a landmark legal aid case, which led to the House of Lords ruling that national security considerations cannot always override civil liberties.

It is easier to justify cuts to services that disproportionately affect the most vulnerable when much of the narrative fed to the public (especially at the start of the austerity period) equates the receipt of benefits as a badge of dishonour. This was bolstered by widespread messages over-estimating the amount of benefits people receive and assertions about the level of benefit fraud that are significantly exaggerated from the estimates found in more empirical studies.

The austerity policies assume that vulnerable people will find other (unidentified) ways to ‘make do’ if the State cuts fundamental services and support. This carelessly ignores the harsh ramifications cuts will have – both on the lives of those affected and on the wider economic wellbeing of the community.

The economic costs borne by taxpayers in supporting people in hospitals, mental health provision and in the criminal justice system is always likely to be significantly greater than the cost that would have been incurred if adequate social care provision had been forthcoming in the first place. A National Audit Office Report into the effect of cuts to social care across the NHS led to the Head of Strategy at NHS Providers to comment that “years of cuts to local authority budgets have led to a significant squeeze on adult social care. The knock-on effect has been felt across the NHS including hospital, community, mental health and ambulance services.”

Then there is the human cost.

The cost to the children and adults in the criminal justice system, often with undiagnosed disabilities, whose files regularly throw up a litany of ‘lost opportunity moments’ where appropriate support might well have changed the direction of their lives.

The cost to the health and wellbeing of disabled and vulnerable people who find themselves isolated, depressed and unable to cope without key support.

A recent report estimated that there were around 120,000 excess deaths due to spending constraints in the austerity period (2010-2017) than would have been the case if pre-austerity spending (2001-2010) had continued. Restrictions on health and social care spending was found to be a possible explanation for this. An investigation revealed that 449 people had died on the streets or in temporary accommodation in the UK in the year following October 2017. With the availability of legal advice to challenge life-threatening situations, perhaps these figures would not have been so dramatic.

During a time of austerity, it is extremely concerning when a government uses its power to compromise the right of access to justice and further disadvantage the most vulnerable in our society. Where the State withholds support vital to a person’s life, that person should be able to challenge the decision.

The brutal combination of cuts to services and legal aid has been compounded by demonising language that has seen those people most severely affected treated with indifference and even hostility. The devastation that this causes on numerous levels is unlikely to be understood by someone until it happens to their child, parent, partner or grandparent.

Without meaningful, and in all likelihood radical, steps to confront the issues that face our community, we will persist with a system that costs us far more than it saves both economically and in terms of the cost to the health and wellbeing of children and adults unlucky enough to be in need of vital State support.

The government are reviewing the legal aid cuts. This is the last chance to tell them you care. Please take three minutes to write to the Lord Chancellor, sign this petition and write to your MP.

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