Shine A Light

Legal aid reform proposals: immoral, inefficient and anti-democratic

Deborah Padfield, a Citizens Advice Bureau specialist adviser, offers a systematic breakdown of the potentially disastrous effects of proposed cuts to legal aid. She concludes that the cuts not only risk leaving the most vulnerable without access to the law, but in many cases may increase public sector costs, as cases are left until they reach crisis point.

Deborah Padfield
14 January 2011
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Deborah Padfield, a Citizens Advice Bureau specialist adviser, offers a thorough breakdown of the potentially disastrous effects of proposed cuts to legal aid. She concludes that the cuts not only risk leaving the most vulnerable without access to the law, but in many situations may increase public sector costs, as cases are left until they reach crisis point. In the process, she picks apart the government's multiple justifications for the cuts, including the arguments that they will discourage a culture of litigation and check over-dependence on the state. 


 

Cutting the budget or reforming the system?

In her article for OurKingdom, Yasmine Seale explores and challenges the Coalition government’s approach to civil legal aid. They are proposing, as she says, not merely to cut its budget but to reform public policy in relation to the 61-year-old system of the state provision of legal aid. Geoffrey Bindman, writing for OurKingdom in 2008, drew a parallel between legal aid and the National Health Service, both being fundamental to a more-than-notionally democratic system.

It's a good parallel. We are not talking about fat-cat lawyers and greedily litigious clients here, as George Monbiot argues in his recent Guardian article. Indeed, existing policy is already destroying the dying breed of small, local legal aid solicitors.

I attended a ‘hospital managers meeting’ at our local psychiatric hospital yesterday; running parallel to Mental Health Tribunals, hospital managers have the duty of assessing whether detained patients should have their ‘sections’ renewed. I met a man who now has no representation because the local mental health solicitor with whom he’d worked for years had not had her contract for managers’ meetings renewed. Her legal aid contract has been cut radically in favour of a couple of national firms. 

Local advice centres such as Citizens Advice Bureaux don’t house fat cats, either. As a specialist CAB adviser partly funded by the Legal Services Commission (LSC), this week I heard that we’d succeeded with another benefits appeal for a seriously mentally ill woman. Her life would have been made even more impossible had she not won, and she could not have done it alone. She has also received legal help to get an injunction against a former partner following recent acts of intimidation against her. Under the proposed regime, legal help would not be available for either situation.

Legal aid, efficiency and effectiveness 

According to under-Secretary of State Jonathan Djanogly, the rationale for reforming civil legal aid is that litigation has spread too far into everyday life. The problem, he suggests, is two-fold. Firstly, people are turning to the courts rather than to less costly forms of conflict resolution, doing so moreover to counter not only genuine wrongs but also those for which they are themselves responsible. Yasmine Seale caustically highlights Djanogly’s use of school exclusion as an example of the latter. And secondly, people have become over-dependent on the State, demanding help rather than tackling issues which need no specialist skill. 

Underlying these arguments put forward by the Coalition government is the ideological belief that removing the dead hand of the State can set free a society made up of citizens whose equal rights are upheld by sufficiently equal power. In this, they build energetically on Labour’s mantras of choice and personal responsibility, epitomised perhaps by the personalisation agenda in adult social care. The Coalition merely takes it far further; see for example the Localism Bill. Government rejects the argument articulated by Yasmine Seale, that access to justice will be denied as a result of its legal aid proposals: vulnerable people, they say, are to be protected by the Big Society. Here, as everywhere, we are moving from a polity where voluntary and private sectors augment the state sector, to one where state provision of basic infrastructure and emergency services undergird voluntary and private sectors. It is a qualitative, not a quantitative change. 

The government’s arguments, though, contain two major fallacies. Firstly, whatever one’s ideological stance, the voluntary sector lacks capacity to fill the gaps in provision for vulnerable people left by abrupt state withdrawal. Equally empirically, nor can those vulnerabilities be set aside either as minor or as the products of choice or irresponsibility. Furthermore, legal aid funding does not simplistically fuel litigation; government’s proposals relate less to the withdrawal of legal representation than of legal help, which is significantly responsible for tackling problems before they reach the court.

One of Djanogly’s stated aims is to avoid litigation as far as possible. Working at the Citizens Advice Bureau, I share that aim – though not as an alternative to enabling people to access justice in the courts where necessary. Therefore I disagree with his conclusions as laid out in the proposed cuts. I would instead argue that taxpayers’ money is well spent on specialist advice that can preclude the need for court action, whether or not it be called ‘legal aid’.  

Access to justice

A quick glance at the existing and proposed situation. According to the Lib Dem peer Lord Thomas of Gresham, more than 300 specialist CAB caseworkers have in the past year dealt with 40,000 welfare benefit cases, 60,000 debt cases, 9,000 housing cases and 3,000 employment cases; and these caseworkers have been paid for ‘using legal aid funding’, which for the most part will not continue. Current proposals allow only for debt and housing advice directly related to threat of eviction. They cut all legal help for benefits issues, for employment save where discrimination is involved, and for all less critical debt or housing questions. Also to be removed from scope are family cases save those directly involving violence or child abduction, immigration save for detention cases, all education cases and more. Government argues that these criteria for continued aid will protect the most vulnerable people.

Legal aid for discrimination cases will be welcome, but these are a tiny subset of the closely related cases falling below the legal radar. There is no clear dividing line between what counts as legal discrimination and what doesn’t.  Cambridge CAB acts for clients under equalities legislation, funded by the Equality and Human Rights Commission. But we work with hugely more people caught in debt, benefit or housing tangles because the complexities involved effectively discriminate against people with minimal resources of knowledge, confidence, energy and/or time.  

Employment and benefit tribunals are designed to render legal representation redundant; people facing employment tribunals are not as a group regarded as vulnerable. In most benefits cases, according to Jonathan Djanogly, ‘individuals will be able to prepare their appeal to the First-tier (Social Security and Child Support) Tribunal without formal legal assistance. The appellant is required only to provide reasons for disagreeing with the decision in plain language’.  

The trouble is, what counts as ‘plain language’ depends not least on confidence, energy and clarity of thought, three staples of mental wellbeing. It depends also on familiarity with systems and modes of argument, access to information and powers of self-expression, all of which are unevenly distributed across our social (including ethnic) mix.

Djanogly’s statement is as contentious as disingenuous. In 2008, Geoffrey Bindman suggested that the growing need of legal aid was in part a consequence of government’s constant output of complex legislation and regulation, combined with the expansion in public and private sector expenditure on legal advice to safeguard their interests. This, he argues, ‘greatly increases the needs of ordinary citizens, with regular jobs that now exclude them from legal aid, to have to defend themselves, challenge actions and interpretations, and pursue reasonable claims.’

Moreover, anyone who represents benefits claimants knows the difficulties that people (understandably) find in articulating their difficulties. This is particularly so when they are asked to hypothesise. How would you cope if x? What impact would y have on you? As inquisitorial bodies, Tribunals have responsibility for actively exploring the cases before them. But, however skilful and well disposed they may be (as indeed some are), members must find legal reasons for admitting a claimant’s arguments. They have limited time for teasing out the implications of half-articulated responses and translating them into available legal grounds. Some, in my experience, have little such inclination. The idea of the ‘benefit scrounger’ is neither new or rare.

In its consultation document, the government asks for views on the disproportionate correlation between debt and illness/disability. Which comes first, the debt or the illness? Either. The two feed on each other. Indeed, the correlation undermines Jonathan Djanogly’s argument that ‘straightforward’ matters of law such as benefits claims do not need specialist advice, suggesting as it does (not surprisingly) that illness or disability go with an inability to cope.

Take one tiny example. The ESA50 medical questionnaire for people claiming Employment and Support Allowance is a crucial component of the Work Capability Assessment (WCA). It is intended as a self-assessment tool, suitable for use at home by people who will often be unsupported: such is the nature of disability. According to Malcolm Harrington’s independent review of the WCA, ‘46 per cent of claimants found the questionnaire difficult or impossible to complete, with this increasing to 57 per cent for people with mental health conditions. Nearly half the claimants received help in completing the questionnaire, but around three in four people with problems speaking English or literacy problems needed help with it.’

There is a significant difference between feeling that a decision is unfair and recognising that it is challengeable in law. The latter judgment is rarely ‘straightforward’. Removing legal help and representation could well be a double-edged sword. Courts may clog up with ineffective and time-consuming – because inexpertly presented – claims by litigants in person: lacking advice on the available grounds for or likelihood of success, a good many people may be inclined to have a go.

It is more likely that less confident or less energetic people will not challenge bad decisions.  Michael Moorhead and Mark Sefton were commissioned by the Home Office to conduct a study of the effects of litigants in person (LiPs) on courts in 2005. Richard Moorhead provides this summary:

‘What the research essentially shows is not that litigants in person gum up the courts with vexatious cases and applications (though some do) but that most struggle to participate in their cases if they participate at all.  Where they do participate, the evidence suggests they do so sporadically; they sometimes damage their own interests as a result; and they probably create more work for their opponents and the courts themselves.  The main impact of reforms which reduce the number of represented litigants will be to reduce the number of cases that are brought or defended . . . ‘

Not knowing the availability of relief, many people will probably accept unjust outcomes.

The government’s Equality Impact Assessment (EIA) recognises that several groups protected by discrimination law, notably women and mentally ill, disabled and ethnic minority people, will be disproportionately affected by the legal aid cuts, with ill or disabled people being particularly hit by removal of advice on debt and – unsurprisingly – benefits. Though they are not protected, presumably people with literacy problems will be similarly affected. These impacts are said to be justified by the overall aims of deficit reduction and reform (and hence safe from challenge under the European Convention on Human Rights). In a written Commons answer (29 November 2010) on the financial and social impacts of removing legal aid from education, Jonathan Djanogly said that ‘The Department did not commission research, or carry out a formal evaluation of research.’ The repetitive near-emptiness of the EIA is not therefore surprising. By concentrating solely on the numbers affected within each protected group, it skates over the extent to which the removal of legal aid will remove access to law for those individuals.

To quote a cross-bench peer, Lord Elystan-Morgan in a Commons debate on legal aid: ‘Will the Minister face the stark reality of the situation: namely, that there is little point in citizens' fundamental rights being enshrined in statute if those rights cannot be upheld, where appropriate, in the courts of law? Does he recollect the studiedly sarcastic words of a High Court judge spoken 80 years ago? “The courts of this land are open to all, exactly the same as the Ritz hotel”.’

The government’s consultation document proposes that all legally aided advice be channelled through a telephone triage system.  A 2010 Legal Aid Group survey found that debt and benefit enquiries were twice as likely to be made by the poorest people (social classes DE), than by people in all other social groups combined; people in the DE groupings were also twice as likely to use local advice centres in preference to telephone advice-lines or websites than were ABs. I have major concerns about the suggestion that local advice agencies be straitjacketed in their modes of making advice available, particularly to financially poorest clients. We are constantly engaged in re-evaluating how best to reach our full range of potential clients. We know very well that there is no one answer; if there were, I do not believe it would be this one. 

Compounding the problem

As Yasmine Seale says, while legal help is to be retained for housing or debt issues directly related to eviction, there is no help with the problems – debt, housing or benefit-related – which build up to that crisis. Similarly, family law problems will be funded only where violence or other abuse is directly an issue, not during the prequel.

From CAB experience, these are distinctions hard to understand. In practical terms, managing housing-related debt is entwined within the overall income-and-expenditure picture, including other debts. Trying to divide them would be a high road to ineffective management and administrative time-wasting. In my work I don’t tackle family issues, but they sometimes confront me. Particularly where household tensions are rising because of a long-running struggle to secure payment of benefits, I have at times become concerned about the wellbeing or safety of a client or of her or his children. In such circumstances, the CAB has to gauge the appropriate suggestions or referrals, but it is impossible to draw a clear line between a family where there is potential violence and one where there is not. What counts as violence? And what degree of certainty is needed? Lifelong emotional scars may form well before overt violence appears. To demand of family law advisers that they make such an eligibility assessment in the same way as they check the client’s bank statement is grotesque.

From a CAB perspective, there is another seriously baffling aspect of government policy. We ceaselessly beg people to bring their problems to us quickly, before debts spiral, time limits are passed and conflicts become irreconcilable – even violent. Failure to catch problems early creates bigger ones downstream, involving far greater costs to individuals, families and the public purse. That is the argument being made against cuts in every sector of the economy; in this unsexy area of human misery, it is very directly true. The proposals allow for claims for repairs against landlords to be covered by legal help only where they can be offset against a repossession action. Therefore fewer tenants will be enabled by an adviser to negotiate the need of repairs with their landlord; more will – in desperation or by default – live with the problem until it becomes part of a threatened eviction. To shift such issues from negotiation to litigation seems notably perverse. Similarly, the more swiftly and effectively a cessation of council tax payment can be sorted, the fewer the local authority court actions against penniless debtors.

Assistance available?

Legal aid is an unnecessary cost since ‘there is advice and assistance available from the voluntary sector as well as, for example, the Benefits Enquiry Line’, says Jonathan Djanogly. The latter is an empty phrase, as anyone acquainted with the struggling and often undertrained staff at the department for work and pensions contact centres will know. There are proposals for DWP staff to have more proactive responsibilities towards claimants facing potential problems, but those will need funding and staffing if they are to reach reality.

That leaves the voluntary sector. The Disability Alliance wrote at once in response to the Ministry of Justice’s consultation document to correct its statement that the DA was able to offer help and advice on benefits: ‘It is factually incorrect and extremely misleading. The implication that charities like Disability Alliance are available to help people in the advent of Legal Aid cuts misrepresents the reality that we do not provide such support.’  The Communities Secretary Eric Pickles has said in the Commons that local authorities would be ‘foolish’ to give local advice agencies, including CABx, a ‘hammering’. ‘They have to re-structure, they have to change and they have to share services. If they do not do that, they will rue the day when they cut back on Citizens Advice and similar voluntary organisations.’  Such a sermon on thoughtful re-structuring must ring hollow to councillors whose attempts to work strategically are shot to pieces by front-loaded cuts, for which they have to carry the can.

My local authority is among the middling-fortunate, with mid-range cuts. My CAB colleagues and I agree with Eric Pickles’ judgment on our value to local authorities, though might distance ourselves from his cynicism in propounding it. Local authority and health services routinely refer people to us for advice; we bring money into the area through successful benefit claims and save them money in evictions avoided and debt repayments managed. But whether they will be able to continue financing us is another matter. CABx – including my own – have a remarkable record of surviving in spite of all odds. The odds, though, look heavily stacked in the coming years. While we are not wholly dependent on any one funding stream, like every voluntary sector body we will be dangerously shaken by each loss of income in the lean years of increased demand ahead.

Finally, I do not buy the argument that legal aid is disproportionately large in comparison with other economies. That conclusion depends on selective use of the data. English and Welsh legal aid may be ‘significantly more costly’ than in continental Europe, but according to York University’s Ministry of Justice-commissioned report, we also spend less on our court system: our adversarial system tends to shift costs from court to legal representative – or to litigant in person. 

Thinking again?

Yet I am not a great fan of Legal Service Commission funding for advice centres, at least for CABx. Over-dependence on any public sector body is not good for a determinedly voluntary organisation that claims the right (and duty) to monitor failures of public systems. That principle is true of funding by local authority and health service as well as by central government. The 71-year-old Citizens Advice Bureau network is so well embedded in the national life, and is signposted as a source of advice on so many statutory agencies’ letters, that we have constantly to remind people that we are indeed independent.

There are other problems. LSC funding is unwieldy, with its merits test and means test and endless electronic form-filling. We do not have time to waste on frivolous cases, and most of our non-legally-aidable clients are financially only just over the dividing line; it is galling to have to spend so much precious staff time on assessing, recording and checking eligibility.

The strictness of the criteria means, too, that we have to be sure of foot to avoid distortions to the services we can offer. CABx are and must be there for whoever comes, whatever their problem: that is our rationale. It is also a highly efficient way of working. My work is funded by LSC and other sources. The people who come to see me nearly all have mental health, learning or literacy problems; quite often a combination. I can deal with both issues which pass the legal help ‘merit’ test and those which do not. The latter are often relatively simple to sort out – for me, the disengaged professional. They are not so for people for whom every letter or phone call is a nightmare. We have this flexibility because our Chief Executive has managed to secure it: because we aren’t solely dependent on the largely inflexible legal aid budget. Over-dependence would kill the CAB.

Because we are of value to central and local government departments, often helping to make good their errors (not least as a result of the pressures on staff and funding that they face), we should be undergirded by public funds. It does not matter whether such funding be called ‘legal aid’. Pay us at a slightly lower rate to show we are not dependent; strip away the merits and means testing; assure us of long-term baseline funding; that would be a deal I could live with. 

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