“As a result of cuts to legal aid, junior lawyers are not being trained in discrimination law.”
On 14 November 2018, YLAL’s London group held its first joint meeting with the Discrimination Law Association. One of the main issues discussed was the Equality and Human Rights Commission’s (EHRC’s) ongoing inquiry
into the extent to which legal aid provides effective access to justice for individuals who raise a complaint of discrimination, an area of concern for many social welfare practitioners.
Louise Whitfield, a partner at Deighton Pierce Glynn and a public law and discrimination specialist, explained that her interest in discrimination law developed through listening to her clients, many of whom have protected characteristics. Clients were increasingly frustrated with the focus on state bodies required by judicial review and instead wanted to challenge discriminatory policies and practices by private companies that were, in practical terms, of greatest concern to them on an everyday basis. For example, one group of disabled clients told Louise: ‘Run some cases which mean we can get on transport in the morning.’
Before the cuts to scope brought in by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Louise was able to do this kind of valuable work through legal aid. Since LASPO came into force, however, the picture has been bleak. Louise observed that only three providers are permitted to give initial advice on discrimination issues (under ‘legal help’). As her firm is not one of these, if she is to be paid for her discrimination work it has to concern a state body. In practical terms, therefore, she can help a disabled prisoner but cannot assist with complaints about the Royal Mail refusing to deliver post to a Traveller site or a transport company failing to make reasonable adjustments for disabled passengers.
Louise observed that the impacts of LASPO’s cuts to legal aid have been exacerbated by other reforms. For example, the small claims limit was lifted to £10,000 in 2013. As damages for discrimination are typically low, the value of many claims (even serious ones) will be under this threshold such that they have to be brought in the small claims court. This is problematic because even if a claimant succeeds, costs will not be recovered.
Practitioners are losing their skills because opportunities to undertake discrimination claims outside the context of employment law are few and far between.
The upshot of all of this is that practitioners are losing their skills because opportunities to undertake discrimination claims outside the context of employment law are few and far between. Further, and of particular concern to YLAL, junior lawyers are not being trained in this important area of law and are not gaining valuable experience.
Even in the rare instances when a private law discrimination claim may be possible, it is very difficult to advise on the prospects of success, given the paucity of case law. Such uncertainty represents additional risk for potential claimants and is therefore a further barrier to access to justice.
Working towards a solution: the EHRC’s inquiry
Fortunately, it was not all bad, as change – or at least the first steps towards change – may be on the horizon. Stephanie Murphy, a senior associate at the EHRC, explained that the commission became so concerned that victims of discrimination were being denied legal aid that, in September 2018, it used its powers under Equality Act 2006 s16 and Sch 2 to launch its inquiry into the matter.
In summary, the inquiry will focus on:
1how discrimination cases are funded by legal aid;
2how many individuals receive legal aid funding for discrimination claims;
3whether there are barriers to effective access to legal aid;
4whether some individuals experience specific difficulties in accessing legal aid, for example, language or literacy difficulties, or because of a protected characteristic;
5the operation of a mandatory telephone gateway as the access point for most discrimination advice; and
6in light of the above, whether legal aid provides effective access to justice for individuals who complain of discrimination and whether improvements could be made to reduce barriers and improve access to justice.
The EHRC’s preliminary evidence-gathering stage is now over and the results are being examined.
In circumstances where practitioners are wary of the government’s (recently postponed) findings resulting from the LASPO review, the input of the much-respected EHRC can only be viewed positively. It is one thing to minimise the fears of individual practitioners and firms on the basis that their evidence is merely ‘anecdotal’, but quite another to disregard evidence-based concerns raised by the statutory body that is tasked with the promotion and enforcement of the country’s equality and non-discrimination laws. With this in mind, YLAL eagerly anticipates the EHRC’s report and its recommendations in respect of access to justice.