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The view from the legal aid trenches post-LASPO
This column documents evidence of the effect of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Readers are invited to send in relevant information for publication. Please see below for further details.
One year on from the introduction of the main provisions of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, what is life like for those on the legal aid frontline? Fiona Bawdon finds that the cuts have left firms battle-weary and feeling under siege from the Legal Aid Agency (LAA).
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CAROLINE O’DWYER
Yes, legal aid still exists
If anything, the campaign during the passage of the LASPO Act to create public awareness of the Act’s assault on access to justice may have been a little too successful.
As we reach, this month, the first anniversary of the introduction of the main provisions of the Act, lawyers in the legal aid trenches report that some potential clients assume that there is now no public funding left at all. Even some members of the legal profession are apparently under a similar misapprehension.
The leading legal aid firm Ben Hoare Bell Solicitors has just produced a leaflet (‘Legal aid still available for your housing problems’), pointing out funding remains in important areas, including where someone’s home is at risk.
Steve Kirwan, managing director of Nowell Meller Solicitors and a member of Resolution’s national committee, says: ‘We may have done too good a job. It is quite astonishing really, even some family lawyers think there is no legal aid available anymore.’
A failing failsafe
If the LASPO Act has bitten less in certain areas than some might believe, in others it has had a predictably drastic impact. According to Ministry of Justice (MoJ) figures, since its introduction just 35 clients have been granted exceptional funding under section 10 of the LASPO Act, which was intended to provide a failsafe, a backstop guaranteeing access to justice to those who would otherwise be denied it because of the legal aid scope cuts.
Not only is the number granted well under the 2,000 predicted by the MoJ, but, at 1,151, the number of applications is a fraction of the 5,000–7,000 cited by the government during the passage of the bill. One reason is the length and complexity of the application process, with payment only forthcoming if an application is successful. With 95 per cent of applications having come from firms (just 62 came direct from clients) and only three per cent in total being granted, that is still an awful lot of firms doing an awful lot of work for which they will not have been paid. An experience at least some may be reluctant to repeat. The MoJ does not specify if any of the 35 successful applications came from clients, but given the complexity of the process, a catch-22 response might be that any client capable of making an application for exceptional funding clearly does not actually need it.
The figures have fuelled calls by the Low Commission and others for a radical overhaul both of the criteria, and the way in which they are applied by the LAA. One solicitor says that the perception in the profession, borne out by a grant rate of just three per cent, is ‘even if your client is blind and in a wheelchair and doesn’t speak English, so long as they’ve got someone who can go along with them, they won’t get funding’.
Despite the lower than cited numbers, Lord Faulks QC recently reassured the House of Lords that there is no cause for concern, and the system is working as intended. (Cynics among the profession point out that, rather than being disingenuous, as far as his latter point is concerned, he may be speaking entirely accurately.)
‘The Treasury is driving it, and to hell with the client’
As well as reductions in scope, one of the other most significant LASPO Act changes was to replace the Legal Services Commission (LSC) with the LAA. The MoJ insists that there have been significant improvements following the LAA’s inevitable teething problems: average call waiting times of 20 minutes soon after launch have fallen to two minutes; 98 per cent of applications are now processed in ten days.
It is a rosy view not shared by all practitioners. Nicola Mackintosh, newly made an honorary QC in recognition of her tireless work in community care law (an area which escaped the scope cuts), says there has been ‘a step-change’ in relations with the profession since the advent of the agency, to the detriment of clients (see page 4 of this issue). She says: ‘The approach to the administration of legal aid has gone from: “This client is legally entitled to assistance from the state to gain access to justice. Once you pass that threshold, we, the government agency, will help you to help your client.”’
The ‘healthy tension’ that existed in relations with the LSC has been replaced by ‘an atmosphere of total mistrust’.
While seasoned observers may struggle to remember the LSC being described in such wholly positive terms during its existence, Mackintosh is not alone in believing that the client has fallen out of focus.
Steve Kirwan says: ‘The clear impression practitioners are getting is that it is the MoJ and Treasury driving it – and to hell with the client.’
Both put the problem down at least in part to the departure of experienced legally-qualified LSC staff from the LAA. ‘Now, they don’t really understand and they don’t really care, because their future, their promotion, is dependent on achieving the financial goals they have been set’, says Kirwan.
However, what some in the profession describe as LAA nitpicking, with applications being refused on the most spurious grounds, the LAA characterises as vital scrutiny for ensuring proper use of public money. ‘We are having to reject a significant number because they have not been signed or because incomplete means evidence has been submitted’, says an LAA spokesperson. (The LASPO Act introduced means-testing for clients on some previously passporting benefits, such as income support.)
However, Kirwan says that it is not just with applications, but extensions, and in actually getting paid for work done, where there are problems. He cites the example of a recent case, where his firm submitted an application for an extension to cover the hearing in a family case: ‘We got no reply, no reply. We tried emailing, phoning. The hearing date came and went. The agency then said: “We now can’t extend the certificate, because we can’t do it retrospectively.”’
In another case, the LAA refused to pay a bill because the barrister’s fee note did not match the amount on the firm’s bill. The discrepancy had arisen in the first place because, for unexplained reasons, the LAA had paid the barrister one penny less than his actual bill (which his clerk had not bothered to query at the time).
While this kind of approach may be frustrating for firms, for clients it can be devastating, he says. He tells of a domestic violence victim living in a refuge, who in her understandably fraught state wrote in her legal aid application that she had no intention of returning to her former home. The response of the agency was that, if she had no intention of returning home, the capital exemption on the property did not apply, so if she wanted legal aid to defend the proceedings involving her children, her contribution would be £54,000. ‘That is what they said in their letter’, says Kirwan.
The ‘community legal companion’
The first Karen knew her ex-partner had moved their eight-year-old son to a new school was when she arrived at the school gate to pick him up. A bemused member of staff had to tell her the boy was no longer a pupil there.
Unsurprisingly, the parents ended up back in court. The father, who initiated the action, could afford legal representation. Karen could not. With legal aid scrapped for private family cases, she faced the prospect of having to deal with the case on her own. Which is where an innovative scheme set up by Keele Law School came in.
James Simpson, 21, is a third-year law student, and member of Community Legal Outreach Collaboration Keele (CLOCK), whose ‘community legal companions’ helped Karen draft a statement rebutting her ex’s claims. As well as drafting and form-filling, companions can also accompany people into court, helping with note-taking, dealing with papers and generally assisting. Simpson says that their mantra is, ‘we can’t advise, we can only assist’. Volunteers are trained, insured, policechecked, bound by confidentiality and (unlike McKenzie friends) pre-approved by the court, so sure of a warm welcome from the judge.
Despite the limitations of their role, Simpson says that the companions make a significant difference to people who are entirely at sea when they turn up at court unrepresented. Even the briefest assistance can be better than nothing, he says.
In one family case, he got to speak to the father only after the usher had already called the parties. ‘We had a five-minute chat, and then we were in court. Everything he told me about the case, that he thought was important, was not the main point’, he says. It was a complicated case, where the man was subject to a non-molestation order and the Crown Prosecution Service was deciding whether to prosecute him for assaulting the mother of his baby.
Another time, a man with poor English, who could barely read, approached the companions and simply asked: ‘I want to see my kids. Can you help?’
Dr Jane Krishnadas, the law lecturer who co-ordinates the project, stresses that it is not intended to be a replacement for legal aid. She says: ‘We are not duplicating, we are not trying to fill a gap. We are just trying to make sure people are aware of their entitlements.’
Simpson previously had his sights set on becoming a barrister, but his CLOCK experience has changed his mind. Having seen at first-hand how much the justice system is creaking, he has decided to become a teacher instead.
■ CLOCK is a collaboration between Keele Law School, Stoke-on-Trent Combined Court, local law firms and community groups. Its community legal companions assist in family, asylum and immigration, housing, welfare benefits and criminal cases. See: www.keele.ac.uk/law/legaloutreachcollaboration/.
The family solicitor
Like all good family lawyers committed to the non-confrontational and amicable resolution of disputes, Steve Kirwan always makes a point of going up and saying a friendly ‘hello’ whenever it is a litigant in person on the other side. ‘Go away. I’m not talking to you’ is not uncommonly the not-so-friendly response. Requests for an indication of their case, or what they are going to ask the judge, may get a similarly dusty response, he adds.
The scrapping of legal aid for most private family cases means that the number of people representing themselves has inevitably increased. However, even where legal aid is available, LAA delays in approving payments may mean that the lawyer cannot attend the hearing. Says Kirwan: ‘Instead, the client turns up with a letter from the solicitor, saying, “Terribly sorry, judge. I know we have got this two-day hearing and all these experts to cross-examine, but we are not getting paid, so we are not coming.”’
It is a scenario Kirwan has seen played out repeatedly. In one recent case involving his firm, both parties ended up unrepresented in this way, he adds.
At least in that case, some kind of equality of arms may have been maintained, unlike another ‘sorry case’ he had dealt with earlier that week. In this instance, a barrister had agreed to act for a mother at a family hearing free of charge, but then could not attend when the court changed the date. The firm could not find anyone else, so applied for a new date. ‘We explained she hadn’t got legal aid, but were told the advocate not being available is not a reason to change the hearing.’ The woman, whose ex-partner was represented, went along to court alone. ‘The clerk said, “You’ve got to do it now”, which meant crossexamining him herself.’ Kirwan says: ‘She was in tears to us on the phone. We tried to give her a few tips, but her legs just turned to jelly.’
The immigration clients
When government ministers decided to remove non-asylum immigration work from legal aid, it is a fair bet they did not consider the impact on the likes of Aubrey,* a hard-working single father (and grandfather), who has been living in the UK nearly all his life.
Aubrey has been suspended from his job for five weeks, and counting; three of those weeks have been without pay. His 26-year-old daughter and seven-year-old granddaughter live with him, and he is the only breadwinner in the household. (He has cared for his daughter since she was five, after her mother’s mental health deteriorated.)
As someone who always ticked the ‘Black British’ box on official forms, and who had arrived in the UK legally 40 years ago (never having returned to his native Jamaica), it never entered Aubrey’s head that anyone would question his right to live and work here. ‘I thought I was going crazy’, he says.
When his work first asked him to bring in proof of his immigration status, he did not think much of it. His original passport (with its ‘indefinite leave to remain’ stamp) had been lost some years before, but, unperturbed, Aubrey brought in his P60 and P45 which, he assumed, proved that he was entitled to work. He always had worked, with no difficulty, which must mean that he was entitled to work, surely? When he was told that this was not enough, he brought in more documentation, including ten years’ worth of tax records: again, not enough. Eventually, after a disciplinary hearing – his first ever – he was suspended from work.
His employer, a big public limited company, offered no help other than to suggest that he go to a Citizens Advice Bureau (CAB). The CAB, apparently unaware of the legal aid changes, sent him to a Law Centre®. The Law Centre explained that because of the removal of legal aid, it was not able to help, and referred him to a migrants’ charity in a neighbouring borough. The charity wrote to his MP, who also tried to assist (albeit there was little he could do). Fortunately for Aubrey, before turning him away, the Law Centre receptionist printed him out the right form, and one of its solicitors, who was passing by, took the time to give him pointers as to the kind of documents the UKBA would accept as proof he had been in the UK since 1973.
Without the kindness of the Law Centre staff, Aubrey says he would have been stuck: ‘The form doesn’t specifically guide you. Whereas this lady, she said, “You need to do a, b, c and d”. So, since I did a, b, c and d, the process actually speeded up, because she pinpointed what I needed to do – and I did that.’
Whereas Aubrey had been planning to send in a stack of household bills dating back as far as he could find them, the solicitor told him he needed to get hold of his father’s and brother’s passports, details of the doctor his parents first registered him with as a child and his primary school records.
In Aubrey’s case, it is fairly certain that his status can be resolved – it is just a question of when. The stakes are pretty high, though. Each additional day’s delay, caused because he had to do it all himself with minimal expert help, only increases the likelihood that he will lose his job, or fall into arrears with his rent and bills. He assumes that the immigration status problems which may cost him his job would also stop him being able to claim benefits. What would happen to his family then is something he has not yet been able to bring himself to contemplate.
Whereas Aubrey’s situation, for all its frustrations, is clear-cut, the removal of legal aid means that others with more complicated and difficult immigration cases are denied the chance to have them fully argued before an immigration court.
■ Aubrey’s story will feature in LAG’s forthcoming ‘Chasing status’ research, due to be published later this year.
Clayton1Names have been changed. is a Jamaican national and former member of the British Army. After doing tours in Afghanistan in 2005 and 2007, he left the Army in 2008. Soon afterwards, he began drinking heavily, and in 2010, was diagnosed with post-traumatic stress disorder (PTSD).
Clayton’s life continued to spin out of control, culminating in his stabbing a man in the chest. The attack was not premeditated; the knife just happened to be there; Clayton says he was provoked – the man insulted British soldiers in Afghanistan and said that it was a shame he had not been killed there; it was just a single blow. Nevertheless, it was a serious offence – the victim nearly died – and Clayton received a six-year prison sentence. On release, he would face deportation. Once in prison, Clayton tried to turn his life around: he undertook treatment for alcohol addiction and anger management; he signed on for every course going: business, IT, construction, carpentry, catering, plumbing, plastering and bricklaying, among others; and he sought help for depression and PTSD. After serving three years, he was released, and then put in immigration detention, where he remained for three months, before being bailed.
Anxious to avoid being separated from his young son, Clayton sought legal advice from a highly regarded law firm on fighting deportation. The firm’s response was not what he had hoped for: not only was there no legal aid anymore, his case was hopeless, anyway.
Jared Ficklin, the Garden Court North Chambers barrister who handled Clayton’s bail application, takes a different view. The firm was wrong to simply dismiss the prospects for appeal because of the seriousness of the offence, without taking into account other factors, he believes. ‘I think he’s got a real run at it’, he says.
Ficklin believes that, with the right advocacy, a court might accept that Clayton’s service in the British Army as a soldier weakens the public interest argument in favour of deportation, something which has been previously recognised by some senior immigration judges. ‘Particularly as his medical condition [PTSD] relates to that service.’
Pre-LASPO, Clayton would have qualified for legal aid to challenge on article 8 grounds (right to family life). Post-LASPO, such claims are, of course, precisely the kind of appeals the legal aid cuts were aimed at hampering. They are the government’s ‘big bugbear’, Ficklin acknowledges.
Nevertheless, Ficklin remains undeterred. Licensed to do direct access work, he has agreed to take what will be a complex and challenging case for a nominal fee. ‘I think this is one of those where it will make a massive difference for him to be represented.’
Although an ‘energetic and proactive person’, left to himself Clayton would have no realistic chance of winning. He would not have realised the ‘overwhelming importance’ of having family members and his probation officer, if possible, attend the tribunal in person. Nor would he have had much prospect of ‘forcing the court to acknowledge that the public interest in favour of deportation is diminished – not to belittle the offence at all – because he has been in the army’, says Ficklin.
Ficklin is not suggesting that, even with an experienced advocate on board, the case is a shoe-in. Even if the court agrees that the public interest in favour of deportation is weakened by Clayton’s Army service, whether it weakens it enough to stop the deportation is another issue. But at very least Ficklin’s involvement means that if this soldier, wounded psychologically while in the service of the UK, is deported, and effectively permanently separated from his young son, it will be after having the chance to put his case.
 
1     Names have been changed. »

About the author(s)

Description: Fiona Bawdon - author
Fiona Bawdon is a freelance legal affairs journalist and founder and co-organiser of the LALY awards.