The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought about enormous cuts to initial advice and assistance on civil matters.

Legal aid is still available for advice on the loss of a person’s home and their homelessness, but advice on the causes of homelessness – welfare benefits, loss of employment, separation and divorce – remains out of scope. Much asylum work remains in scope (May 2015 Legal Action 19), but the vast majority of immigration advice is out. In prison law (April 2015 Legal Action 16), advice is still available on issues that affect the length of time a person is detained, even if not for advice on conditions while in detention. In family law, legal aid is still available in proceedings where the state removes children from the home, if not for private law divorce and custody cases.

In this context, it should be remembered that, although many forms of discrimination were unlawful for decades (see the Race Relations Acts 1965, 1968 and 1976, the Sex Discrimination Act 1975 and the Equal Pay Act 1970) before being incorporated into the Equality Act (EA) 2010, it is also highly relevant in a human rights context in that it is prohibited – to some extent and where linked with another right – by article 14 of the European Convention on Human Rights.

What is clear is that the numbers have now dropped hugely. The latest figures in the MoJ statistical bulletin (Legal Aid Statistics in England and Wales January to March 2015, 25 June 2015) show the number of legal help matter starts for discrimination was down to 1,602 in the year to 31 March 2015, with just 11 legal aid certificates granted in the same period.

Legal aid is, of course, not the only funding for discrimination cases that has been lost. Largely because of the historic failure of providers to take up discrimination cases under legal aid funding except under employment provisions, in 2006 the Disability Rights Commission devised a ground-breaking scheme in partnership with the Law Centres Network to raise the profile of, and bring cases on, unlawful disability discrimination in services.

A dozen law centres took part and began to run these cases under grant-funding arrangements, relying on law centres being best able to provide services appropriate to their localities. The success of the scheme survived the merger of the Disability Rights Commission into the EHRC and broadened the scope of the arrangements. While the government was later very critical of the EHRC’s lack of organised statistics, it remains the case that this scheme provided the equivalent of several thousands of legal help matter starts. At the same time as the government issued its consultation on reducing the availability of legal aid, it also removed the ability of the EHRC to provide this type of grant assistance to the voluntary sector to combat unlawful discrimination.

The EA 2010 prohibits unlawful discrimination in a wide-ranging set of situations, typically where an individual has suffered a detriment from an organisation, whether an employer or a provider of services.

EA 2010 Pts 3–7 cover the following areas:

Finally, there is the public sector equality duty (EA 2010 Pt 11). This is not directly enforceable except by way of judicial review. It is, however, an important tool for anyone working in public law, which is of course still within scope.

This presents a professional dilemma for any employment adviser faced with the fairly routine case of a discriminatory dismissal from work. A claim in the employment tribunal would have to take the form of a single claim for both unfair dismissal and unlawful discrimination. Legal aid is available for advice, assistance and (in the EAT) representation on the part of the claim relating to discrimination but not the unfair dismissal part. A competent adviser running the discrimination element has professional duties to advise appropriately on the unfair dismissal claim, given that it would be almost impossible to refer on part of a claim so inherently tied up with the discrimination element. However, a provider risks sanctions from the Legal Aid Agency (LAA) on audit if it is considered that work has been claimed out of scope, or it risks having to carry out work for free, endangering the viability of the organisation. There is simply no satisfactory answer to this position.

Legal aid for freestanding claims of discrimination, however, is designed to be available only through the mandatory telephone gateway. Advice and casework in such instances are generally only available by telephone and are provided by just three firms under contracts with the LAA (meaning they are the only firms affected by this dilemma).

There are only limited exceptions:

Having said that, even if a client is exempt from the gateway, they can still only get advice from the three providers that hold discrimination contracts.

For this reason, the definitions published by the LAA rightly acknowledge that some cases may fall within more than one category. For instance, the category definitions for the 2013 standard civil contract state:

For this reason, providers with contracts in other areas of law may wish to consider how best to serve their clients by acting on issues of unlawful discrimination that arise within the context of a case that is in scope of their contracts.

Nevertheless, it is frequently clear what the landlord’s motive is. In a typical case, where the reason for the landlord issuing possession proceedings is because the tenant’s housing benefit has stopped being paid, the legal aid adviser is limited to advising on whether the landlord has complied with the procedural requirements. Unless there is a technical defect that might give rise to a defence, the adviser can only really advise the client that the papers are correct and that they will be evicted unless the landlord can be persuaded to change their mind. What the adviser is no longer able to do is to advise or provide assistance with the underlying benefits issue, even though this might benefit both landlord and tenant equally and keep the individual in their home, incidentally saving resources for the court service and the local authority’s housing department.

However, consider the case where there is reason to believe the s21 notice was given because landlord has found out that the tenant has become pregnant. Pregnancy and maternity are protected characteristics under EA 2010 s4.

EA 2010 s35 provides that a person who manages premises (which would include a private landlord) must not discriminate against a person who occupies the premises by evicting them. In this case, the discrimination would be direct discrimination as defined in EA 2010 s13 – treating this tenant less favourably than they would treat another because of her pregnancy.

Even where the court appears to have no discretion but to order possession, the aspect of the case of LB Lewisham v Malcolm [2008] UKHL 43, 25 June 2008 that is still good law is that ‘[i]f, by seeking an order for possession, a landlord is acting in a way the legislature has held to be unlawful, then, again, the court cannot make such an order. The court would be permitting, indeed facilitating, an unlawful act’ (Lord Neuberger at para 160).

So there is a valid defence to a claim for possession, but that defence includes detailed consideration of the EA 2010 issues. Here it is significant that, unlike the welfare benefits issues, the discrimination issues are clearly within the scope of LASPO (Sch 1 Pt 1 para 43) as well as within the housing contract category definition.

There is support for this viewpoint in a frequently asked questions document issued by the LAA on 19 April 2013. Question 75 is clear:

It is not just about the homelessness provisions (HA 1996 Pt 7) but also the operation of the housing allocations or waiting list (HA 1996 Pt 6) for people who meet the definition of homeless.

Suppose the tenant above seeks help from the local council about her housing benefit problems. When she informs the staff she is facing eviction, she is inaccurately told she can apply to go on the council’s housing register but must produce a passport or official immigration document as part of the government’s new rules requiring landlords to carry out immigration enforcement.1This refers to a misunderstanding of Immigration Act 2014 s22, which was in force from 1 December 2014 only in the West Midlands.

The incorrect treatment of the homelessness duties clearly falls within the category definition. Because she is homeless, she can also receive legal aid for advice on the Pt 6 issue: the incorrect information about joining the housing register. However, an adviser may recognise that the demand to produce a passport indirectly discriminates against British citizens. This is because those citizens of other countries with an entitlement to social housing are very much more likely to have either an actual British passport (if naturalised) or equivalent documents. A British citizen needs no such documentation or passport and many people do not have them.

This could give rise to a claim for unlawful, indirect race discrimination. Potentially, the client could bring a claim in the county court for a declaration, damages and (if the council really persisted even after an initial approach from the legal adviser) an injunction requiring amendment of its policy or practice.

Such a claim would be within the scope of LASPO and within the scope of the housing category definition above.

The case would also appear to come within the public law category.

In this situation, there is an argument to say the advice sought is in relation to immigration-related detention powers referred to in LASPO Sch 1 Pt 1 para 25(1) – ie to reporting requirements relating to detention under Immigration Act 1971 Sch 3.

The advice in this situation would include advice on rights and remedies under the EA 2010 in a situation that is within the category definition for the immigration/asylum contract.

One relatively simple example might be a failure by a care company contracted by a local authority to provide correspondence to a visually impaired person in a suitable format.

A less clear, but still potentially viable, case might be about the practice of scheduling care visits for a disabled person with diabetes. Advisers will come across frequent cases of unreliable care provision. However, where a disabled person relies on carers to prepare meals, the effect of irregular visits may have a greater impact on someone who requires regular meals to control diabetes. The strength of a case under the EA 2010 would depend greatly on the precise circumstances but could potentially be brought by a provider with a community care contract.

Where such cases are viable, it would be appropriate to bring them with the backing of a legal aid certificate. EA 2010 cases in the county court are frequently allocated to the fast track or multi-track because of the importance of the case to the parties, the complexity of the case, the amount of evidence involved and the non-financial remedies. Non-financial remedies are particularly important in such cases because they relate to the way care provision is actually carried out.