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SOLICITORS JOURNAL Justice Gap series Unequal Unequal before the law? The future of legal aid before the law? The future of legal aid he Justice Gap refers to the increasing section of the public too poor to afford Ta lawyer and not poor enough to qualify for legal aid. At the heart of any notion of a decent society is not only that we have rights and protections under the law but that we can enforce those rights and rely upon those protections if needed. To that end, the Attlee government introduced our system of legal aid in 1949 as a fundamental building block of the welfare state. The architects of that welfare state decreed that legal aid shouldn’t be restricted to those people ‘normally classed as poor’ but should also include those of ‘small or moderate means’. Something has gone wrong. That scheme is in danger of being reduced to a minority sink service. Eligibility for legal aid dropped from 80 per cent of the population in Attlee’s day to less than one in three of us. This publication is part of a series co produced by Jures and Solicitors Journal about closing the justice gap.
Michael Mansfield QC
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contents
Unequal before the law? Contents The future of legal aid 1. Foreword 3
2. Introduction 5
3. Executive summary 6
4. The commission 7
5. Legal aid: 1949 – 2011 9 SOLICITORS JOURNAL 6. The case for legal aid: individual testimonies 15 ! Group editor Jean-Yves Gilg 7. The case for legal aid: the rule of law 47 ! Series editor Jon Robins 8. The case against legal aid: the arguments for ! Editorial assistant changing the current system 51 Joanna Kelly ! Design editor Andrew Wood 9. Findings of the panel 55 ! Group sales manager Chris Handley Appendix 1: overview of the 2010 green paper 65 ! Publisher Paula McQuillan Appendix 2: who would get legal aid if the proposals in the green paper are implemented? 67 ! Offices 6-14 Underwood Street Appendix 3: letter from Jonathan Djanogly 70 London, N1 7JQ Phone 020 7490 0049 Appendix 4: acknowledgments 72 Fax 020 7566 8238 Email [email protected]
All rights reserved; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publishers. Photos of the panel debate on legal aid by Young Legal Aid Published by: Wilmington Publishing and Information Limited, Lawyers and Haldane Society used by kind permission of a Wilmington Group company. Ripon Ray. Contact: [email protected]
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Linda Lee SJ_Justice Gap June 2011:Layout 1 06/06/2011 09:47 Page 3
foreword
1. Foreword foreword Protecting individuals for the benefit of society as a whole
hat would happen if three cannot be enforced, the rule of law is disinterested people looked into meaningless. The commission also found Wthe question of why we have legal that legal aid prevents unnecessary public aid and what would be the effect of reducing expenditure by tackling problems early thus funding? saving greater expense for other government The Commission of Inquiry comprising agencies. Dr Evan Harris, Diana Holland and the The Law Society has expressed grave Reverend Professor Nicholas Sagovsky have concern about the impact of the proposed no vested interest in the issue. They have legal aid cuts on the types of cases examined taken a dispassionate look at the facts and by the commission which is why we launched reported on their findings. They have the Sound Off For Justice campaign considered the value of legal aid both to the (http://soundoffforjustice.org). individuals receiving assistance and to society Although some may accuse the society of as a whole. looking out for solicitors, the commission has The testimony the commission heard from no interest whatsoever in protecting lawyers individual clients was very powerful. and their incomes. They have expressed But powerful and moving as individual many of the same concerns that we have, cases are, of even greater importance is the sometimes in even stronger language. The commission’s recognition of how failure to more that people look at this subject deal with individual cases could impact on dispassionately and objectively, the greater society as a whole. Legal aid is a vital part of the understanding of what these cuts would ensuring that everyone is equal under the law. mean, for the clients affected, for the public Government and others including some who purse, and for society as a whole. are rich and powerful such as landlords, We commend this report as a valuable spouses, employers, and pharmaceutical addition to the debate. companies, ignore or are ignorant of the protections that should be offered to individuals. Without legal aid these wrongs Linda Lee could not be corrected. If parliament’s law President of the Law Society of England and Wales
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introduction
Michael Mansfield QC © Ripon Ray
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introduction
2. Introduction introduction
ccess to justice’ is not just about Liberal Democrat MP Evan Harris, the canon access to the courts or litigation. It of Westminster Abbey, the Reverend Nicholas ‘A is a much broader concept. It Sagovsky and Diana Holland, assistant encompasses a recognition that everyone is general secretary of the trade union Unite, entitled to the protection of the law and that weighed up evidence they heard at the rights are meaningless unless they can be session as well as written submissions from enforced. It is about protecting ordinary and the recipients of legal aid and experts. vulnerable people and solving their Unequal before the law publishes the findings problems. Yet the law is complex such that of the three panellists, non-partisan and most ordinary people with small or even independent-minded experts who all have a moderate means cannot access the law long track record of promoting social justice without help. in their communities. By their own account, Earlier this year MPs were given a series they are relative strangers to the specifics of of powerful, sometimes uncomfortable, legal aid. For this reason, their balanced reminders as to the important role of legal aid consideration of all the evidence both ‘for’ in protecting access to justice in our society. and ‘against’ reducing legal aid and their key The event took place in the House of findings serve as a critical warning as to the Commons on 2 February 2011. It was importance of legal aid at a time when it is organised by the Haldane Society of Socialist under threat. Lawyers and the Young Legal Aid Lawyers. This is the third publication, edited by Jon The Commission of Inquiry into Legal Aid Robins, produced by Jures (www.jures.co.uk) was a unique event. The exclusive focus was and published by Solicitors Journal in the about examining what kind of safety net our Justice Gap series which aims to shine light on system of publicly funded law provides for different aspects of access to justice. The ordinary people, sometimes poor and ‘Justice Gap’ refers to the increasing section of vulnerable, who rely upon it. the public too poor to afford a lawyer and not A series of ordinary people who have poor enough to qualify for publicly funded used legal aid gave testimony before a legal help. distinguished panel of non-lawyers in a crowded committee room 10. The former Michael Mansfield QC
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executive summary
3. Executive summary
he Commission of Inquiry was convened to investigate the role
T © Ripon Ray and importance of legal aid to our society, considering both the cases for and against reducing legal aid. The commission comprised three eminent non-lawyers: Dr Evan Harris, Diana Hol- land and Canon Nicholas Sagovsky. For more informa- tion about the commission, see Chapter 4. Panel members: Michael Mansfield QC, The commission first con- Reverend Professor Nicholas Sagovsky, Diana Holland sidered the workings of the current legal aid system, its history and development and its Conservative Lawyers. This evidence is cost. This information is set out in set out in Chapter 8. It comprises the Chapter 5. case against legal aid. The commission considered both oral Having considered the evidence the and written evidence on the importance commission makes the following of legal aid from individuals who have findings, which are set out in more detail benefited from publicly funded legal at Chapter 9: work. This testimony is set out in 1. legal aid is vital to protecting Chapter 6. The commission also the rights of vulnerable people; considered a number of reports and 2. legal aid is vital to upholding documents as to the importance of legal the rule of law; aid in upholding the rule of law. This 3. legal aid is essential to holding the evidence is summarised in Chapter 7. state to account; The sum total of this evidence comprised 4. cutting legal aid is a false economy; the case for legal aid. 5. a holistic approach is needed in The commission also considered the providing legal aid; arguments for reducing legal aid 6. cuts to legal aid will drive out contained in the government’s 2010 committed lawyers; green paper on legal aid together with 7. cutting legal aid is not a fair or reports from Policy Exchange, the Adam effective way to reduce unnecessary Smith Institute and the Society of litigation.
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the commission
4. The commission
he Commission of Inquiry into Legal currently the director of the Centre for Aid was organised jointly by the Evidence-based Policy and is a vice-chair THaldane Society of Socialist Lawyers of the Liberal Democrat Federal Policy and Young Legal Aid Lawyers (YLAL). Committee. He writes a blog for The Guardian We were asked by the two organisations on science and civil liberties.
to report on the legal aid scheme overall and the commission the extent to which it is important to ‘access Diana Holland: assistant general to justice’. secretary (equalities and organising) of Unite The commission was prompted by the the Union. She leads on the women, race and publication of a Ministry of Justice green equalities agenda. She has many years’ paper, Proposals for the Reform of Legal Aid in experience negotiating on equal pay, family England and Wales, issued in November 2010. policy, union equality representation and The paper proposed sweeping cuts to legal harassment with a range of employers. She is aid (summarised at Appendix 1). However, a long-standing campaigner on poverty, the commission’s remit was broader than the violence against women, migrant domestic scope of the green paper itself. workers and the under-representation of The commission consisted of three women, black, Asian and ethnic minority, independent members: Dr Evan Harris, disabled, young and LBGT workers. She is a Diana Holland (assistant general secretary of former president of the Confederation of Unite) and Canon Nicholas Sagovsky. The Shipbuilding and Engineering Unions. She is panel, for whom legal aid was a relatively a member of the TUC Women’s Committee, novel area, carried out its work unpaid and Equality Act Senior Stakeholder Group, the came to task with open minds, determined to chair of Global TUC Women’s Committee hear both sides of the arguments for and and of International Transport Federation against reducing legal aid. Women Transport Workers. She is national Labour party treasurer and has given Dr Evan Harris: formerly the Liberal evidence to select committees. She was Democrat MP for Oxford West and previously a member of the Equality and Abingdon between 1997 and 2010, and Human Rights Commission Equal Pay spokesman on human rights and equality Group, the Equal Opportunities Flexible and from 2003-2010. He served on the Joint Part-time Working Inquiry and the Minister’s Committee for Human Rights between 2005 Disability Advisory Committee. and 2010. He is a leading advocate of freedom of expression, a trustee of article 19 The Reverend Professor Nicholas and co-founded the Libel Reform Campaign Sagovsky: until recently sub-dean at in 2009. He was an officer of the All-Party Westminster Abbey. He has contributed to Group on Refugees and is a member of the debate on key social justice issues such as BMA Medical Ethics Committee. He is benefit levels, debt, the community charge,
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the commission
the financial crisis and asylum. After Tower Hamlets Law Centre, and from the graduating from Oxford he worked at the Child Poverty Action Group, Bail for Mayflower Centre, Canning Town, and as Immigration Detainees, the PCS Union, a teacher at Scott Lidgett Comprehensive Liberty, the Howard League for Penal School in Bermondsey. Then, after Reform and the Young Legal Aid Lawyers. ordination, he was a curate in Newcastle- upon-Tyne before moving to Cambridge for graduate studies. He was appointed vice principal at Edinburgh Theological College, © Ripon Ray and later dean of Clare College, Cambridge. More recently, he was William Leech professor in applied christian theology at Newcastle University and then professor of theology and public life at Liverpool Hope University. Nicholas was a commissioner on the Independent Asylum Commission, which comprehensively reviewed the UK Dr Evan Harris asylum system. His most recent book is entitled Christian Tradition and the Practice The commission made a point of of Justice. contacting organisations which had The panel was assisted by Michael expressed or, in their view might express, Mansfield QC, who acted as counsel to support for the principle of cuts to the legal the inquiry. aid system: the Adam Smith Institute, the With the assistance of law centres and Policy Exchange, the Taxpayers’ Alliance and solicitors’ firms (see Appendix 4), Haldane the Society of Conservative Lawyers. They and YLAL obtained testimony for the were invited to attend a further oral evidence commission to consider from a large number session or to make submissions in writing. of individuals who had benefited from legal The Adam Smith Institute and the Taxpayers’ aid. Most of the testimony was provided in Alliance did not respond. writing and is reproduced here at Chapter The Society of Conservative Lawyers told four. us that they had no ‘party line’ on the The central feature of the commission’s availability of legal aid and gave us a copy of inquiry was an event in parliament on its pamphlet Access to Justice which contains 2 February 2011 where the commission essays by individuals on the funding of received oral evidence. The event was litigation. The Policy Exchange agreed to open to the public and was well-attended. respond in writing to questions. The commission heard evidence from In producing this report the commission Mrs Whitehouse, EP, Steven, Subera and Zoe has considered all of the evidence and Kealey. Two participants, Stella and testimony set out above as well as various SH, had recorded videoed testimony. The responses to the green paper and other commission also heard from Kathy Meade, contemporary and historical documents on housing and community care solicitor at the legal aid system.
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legal aid: 1949 − 2011
5. Legal aid: 1949 – 2011
egal aid, often described as the fourth necessary, to represent them in court. The Act pillar of the welfare state, needs to be was a direct result of the recommendations of understood in context, including its the Rushcliffe committee, who reported to
L 2011 origins, its development over the years, its parliament in May 1945. Lord Rushcliffe − cost and recent proposals for change. envisioned a scheme where barristers and
solicitors in private practice would be paid 1949 Some history by the state to provide legal advice. His report The modern system of legal aid was created made a number of very simple yet highly by the Legal Advice and Assistance Act principled recommendations which went on to 1949 1. The Act was part of sweeping social underpin the new scheme. These included reforms introduced by Attlee’s post-war that: Labour government. ! Legal aid should be available in all courts Before the Act legal aid consisted of limited and in such manner as will enable assistance for impoverished defendants in persons in need to have access criminal cases as required by the Poor to the professional help they require. Prisoners’ Defence Acts of 1903 and 1930. In ! Legal aid should not be limited to those addition, the Criminal Appeal Act ensured who are “normally classed as poor” but legal aid was available for appeals against a should include “those of small or conviction for murder; death by hanging moderate means”. being the mandatory penalty for those ! Those who cannot afford to pay anything unsuccessful in their appeals. The system was for legal aid should receive this free of far from comprehensive – in 1938 of the 19,079 cost. people sent to prison by the police courts only ! There should be a scale of contributions 327 had been granted legal aid. for those who can pay something toward Legal advice for poorer litigants in civil costs. cases, on the other hand, relied heavily on the ! Cases should be subject to a merits good will of lawyers prepared to work for test as well as a means test. free. In the period between the first and ! The cost of the scheme should be borne second world wars, it became increasingly by the state, but the scheme should not clear that this was not sufficient. Social be administered either as a department upheaval and changes to the law meant of state or by local authorities. demand for divorce was increasing. ! The legal profession should be It was against this backdrop that the 1949 responsible for the administration Act was drafted. The Act represented the first of the scheme. coherent attempt to provide a comprehensive ! Barristers and solicitors should receive system of state-funded legal aid. The idea was adequate remuneration for their services. to allow for litigants of modest means Although often described as the fourth pillar to be assigned a lawyer to advise them and, if of the welfare state, legal aid has traditionally
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legal aid: 1949 − 2011
been provided by private law firms. Service running civil legal aid. All legal aid is Initially legal aid was predominantly used now subject to both a means test and a merits in criminal and divorce cases. But in the test to ensure that public money is not decades that followed the inception of the granted to those who can afford to pay or for scheme, cultural, social and legal changes cases that are either bound to fail or meant legal aid began to be used for other inconsequential. areas. There was an increased emphasis on areas of law such as housing, welfare rights, Criminal legal aid immigration law and employment. Such Broadly speaking, criminal legal aid pays changes went hand in hand with the for advice and assistance from a solicitor establishment of the first law centres in the for anyone being questioned by the police 1970s; a movement that sprang from a belief in connection with a suspected criminal that ”the legal aid scheme had failed to offence, advice and assistance in connection address the legal needs of the poor and with any criminal matter (for example, disadvantaged”.2 preparing a case for court) and represent- Until 1988 the legal aid scheme was ation in court by a barrister or solicitor. administered by the Law Society. Questions Currently, advice in the police station is free arose about conflicts of interest as the body to any person being questioned in connection administering legal aid funds was also the with a criminal offence irrespective of their body representing the lawyers who were paid means. Outside these circumstances anyone out of the fund. To remedy this, the wanting to apply for criminal legal aid is administration of the scheme was transferred subject to a means test, except recipients of to the newly created Legal Aid Board. Job Seekers Allowance or Employment By the mid-1990s fears arose that the Support Allowance. Different means testing scheme was not being directed at the right is used depending on whether a person is in cases. A large proportion of the non-family the magistrates’ or Crown Court. However, legal aid was spent on personal injury cases the threshold is set relatively low with anyone and there was less emphasis on social welfare. earning just over annual minimum wage Simultaneously, the cost of legal aid was being subject to a means test . outstripping inflation. It was in order to Criminal legal aid is also subject to an remedy such problems that the Access ‘interests of justice’ test. This test considers, to Justice Act 1999 was introduced, fundam- for example, whether a person faces entally changing the legal aid scheme. imprisonment or whether they face losing their livelihood. In the Crown Court, where Legal aid today the defendant may often face a more severe The Access to Justice Act 1999 created the penalty than in the magistrates’ court, Legal Services Commission, the body which the interests of justice is automatically is today charged with the administration of met. Means testing in the magistrates’ the legal aid scheme replacing the old Legal court combined with the interests of justice Aid Board.3 The scheme is split in two with test results in around one third of all the Criminal Defence Service administering defendants being granted legal aid (green criminal legal aid and the Community Legal paper 3.39).
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legal aid: 1949 − 2011
Civil legal aid be refused if the prospects of success Civil legal aid is available to pay for advice are unclear or poor. and assistance on a wide range of issues ! If the claim is primarily a claim for currently including family disputes (for damages, legal aid for full representation example, divorce and child contact proceed- will be refused unless the prospects of ings), debt, education, immigration, employ- success are more than 50 per cent. ment, housing, mental health, community ! If the claim is not primarily a claim
care, welfare benefits and asylum. Civil legal for damages, legal aid for full represen- 2011 − aid sometimes extends to representation in tation will be refused unless “a
court by a barrister or solicitor, though this reasonable private paying client would 1949 depends on the specific area of law involved. be prepared to litigate”. Civil legal aid can take the form of initial advice and assistance (‘legal help’) and full Civil legal aid is not available for businesses public funding to cover representation in and does not fund personal injury cases, court proceedings. boundary disputes, company or trust law. Before full public funding can be granted to Civil legal aid is also not available to fund an individual, there is a rigorous merits test representation before most tribunals (the that must be met so as to ensure that what are mental health and immigration tribunals deemed to be unworthy legal cases are not being the main exceptions). However, for funded by legal aid. There is some variation in tribunals, such as those covering the merits test depending on the specific area employment and welfare benefits, legal aid of law and whether or not it is representation can provide initial advice to the client, but the or just advice which is needed. However, in funding stops at the court door. Some most instances the following broad principles individuals are able to obtain pro bono apply: representation at these tribunals. Despite the ! Legal aid will only be provided where lack of funding for a lawyer to represent a there is ‘sufficient benefit’ to the client to client at a tribunal hearing, many people are justify work being carried out. able to benefit from advice and assistance to ! Legal aid will only be provided if it is prepare their cases. reasonable for the matter to be publicly Civil legal aid can, in certain circumstances funded having regard to any other such as divorce cases, take the form of a loan. potential sources of funding such as In divorce cases the loan is often secured on a conditional fee agreement, insurance or the home. The ‘statutory charge’ applies other persons or bodies who can reason- where an individual has recovered or ably be expected to bring or fund the preserved money as a result of having case. received legal aid to be represented at court. ! Legal aid may be refused if there are The statutory charge means that the Legal complaint systems, ombudsman schemes Services Commission is entitled to receive any or forms of alternative dispute resolution costs that it has paid out in legal aid from the which should be tried before litigation is money recovered. pursued. Civil legal aid has increasingly become ! Legal aid for full representation will the preserve of the poorest in society.
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legal aid: 1949 − 2011
According to Ministry of Justice figures, reported that the actual median salary of a 80 per cent of those receiving legal help legal aid solicitor in 2009 was a rather more and around 90 per cent of those receiving modest £25,000 per annum.6 legal representation were in the poorest Meanwhile, the viability of private practice 20 per cent. When the civil legal aid scheme legal aid firms is at risk. In a survey conducted was set up in 1950 it provided 80 per cent of by the NAO, one in six firms said they were the population with a means-tested not making any profit from criminal legal aid entitlement to legal aid. By 2009 this had cases. A significant minority (14 per cent) of fallen to 36 per cent of the population.4 those surveyed were on the verge of walking away from criminal legal aid work, stating How much does the government that it was “very unlikely” that they would spend on legal aid? still be conducting criminal legal aid in five In 2008-09, according to the Ministry of years.7 The primary reasons for this were the Justice, the total spend on legal aid was lack of profitability and the likely introduction £2.1bn.5 Of this £1.182bn was spent on of best value tendering – a process where criminal legal aid and £0.917bn on civil legal firms will need to bid competitively with each aid. This breaks down as 1.6m and 1.3m other for legal aid contracts. individual acts of assistance for criminal and New entrants to legal aid are finding it civil issues respectively. Most criminal legal increasingly hard to obtain training contracts aid advice is given in police stations and and to sustain a career in legal aid work.8 magistrates’ courts, but more money is spent on assistance at the Crown Court. International comparisons Since 2003-04 criminal legal aid spend Britain’s legal aid system is often compared has decreased by 12 per cent in real terms, favourably to that of other countries. The and civil legal aid expenditure has decreased government describes it as “one of the most by 15 per cent. Despite this the number of comprehensive, and generous in the world” cases has actually risen during this period. (green paper 3.41). The NAO notes that £22 The National Audit Office (NAO) credit the per capita is spent on criminal legal aid, more rise in the need for civil legal aid as being a than any other comparable developed nation direct response to the economic climate. except Northern Ireland.9 However, the NAO points out that these differences are partly The state of the market attributable to the greater defence costs The legal aid budget is a politically charged inherent in Britain’s adversarial legal system, issue. Government announcements concern- in contrast to other jurisdictions where judges ing cuts are often accompanied by the release play a greater investigative role. Over the of information about how much the highest period of time which the NAO analysed, over earning legal aid lawyers are paid. In 2008-09 one million more prosecutions were bought five barristers were listed as earning in excess in England and Wales than in any other of £700,000 per annum for criminal defence country under comparison. work. While the variation and the complexity of the fee structures across legally aided work Proposals for changes to legal aid makes it difficult to generalise, The Guardian Since 2005, there have been more than 30
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legal aid: 1949 − 2011
Michael Mansfield QC, Reverend Professor Sagovsky, Diana Holland 2011 − 1949 © Ripon Ray
government consultations on the future of will no longer be available for many legal legal aid, culminating in Proposals for the issues including education, debt, welfare Reform of Legal Aid in England and Wales – the benefits, private family law (except where government’s 2010 green paper on legal aid. domestic violence is present), housing (except This consultation was published by the where there is a direct risk of homelessness), government in November 2010 with the aim immigration and employment. of achieving in the region of £350m of savings The financial eligibility criteria will be from the legal aid budget. The paper tightened so that fewer people are eligible for proposed the most radical changes to legal legal aid. The paper also proposed further aid in modern times. reductions in lawyers’ fees and that criminal A summary of the key proposals are set out legal aid “become subject to competitive at Appendix 1. If implemented, civil legal aid tendering”.
Notes for Chapter 5 1. See generally: A Elson ‘The Rushcliffe Report’ (1946) The Funding Code Criteria; Legal Aid Reforms: Scope University of Chicago Law Review Vol. 13(2) 131-144; Changes Impact Assessment Steve Hynes and Jon Robins, The Justice Gap (2009, 4. Lord Justice Jackson, Review of Civil Litigation Costs: Final LAG); Report of the Committee on Legal Aid and Legal Report, December 2009, pages 68-69 Advice in England and Wales (Cmd. 6641); T Bingham, 5. See green paper (chapter 3) and NAO, The Procurement The Rule of Law (2010, Penguin) pages 86-89l; Lord Jus- of criminal legal aid in England and Wales by the Legal tice Jackson, Review of Civil Litigation Costs: Services Commission, November 2009 Preliminary Report Volume One, May 2009; the Access to 6. The Guardian, 17 November 2009 Justice Bill: Legal Aid Research Paper 99/03 7. Solicitor summary for criminal legal aid 2. Law Centres Federation, History and Funding of 8. Young Legal Aid Lawyers, Legal aid lawyers: the lost Law Centres generation in the ‘national crusade’ on social mobility, 3. See generally: Legal Services Commission, 2010, Legal February 2010 aid in the courts – a guide; Legal Services Commission, 9. NAO, page 14, paragraph1.8
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the case for legal aid: individual testimonies © Ripon Ray
Jeremy Corbyn MP
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the case for legal aid: individual testimonies
6. The case for legal aid: individual testimonies
his chapter sets out the testimony received by the panel. The accounts presented here are from recipients of legal aid, practitioners and the charity sector. This testimony Taimed to present the personal impact of legally aided work on individuals, families and communities. It constitutes the positive case for legal aid. Names have been changed or abbreviated so that the individual cannot be identified except where the person has specifically agreed that their full name be used.
Debt I was running up more debt on credit cards. I was taking credit cards from banks offering individual testimonies zero per cent balance transfers which I would Abbi received help in relation to her student use to pay off other credit cards. By moving debts. Help from a legal aid solicitor the debt around I was trying to keep the inter- allowed her to gain a debt relief order, est low, but I wasn’t able to pay anything off. freezing her debts and relieving the stress I managed to get a job in July 2010 through caused by her financial situation the Future Jobs Fund – a council-run pro- gramme working through the Job Centre to get am 25 years old and I live in Hanborough in people back into work from benefits. The job IOxfordshire with my partner. I have been was in design and development at an e-learn- living there for about a year. Before that I was a ing company, which was great. It was exactly student at Leeds University for four years. the kind of job I was looking for. However, it While I was at university I found it very diffi- was part time and only paid £140 per week. cult to make ends meet. My student loans only Unfortunately I was earning so little money just covered my rent and nothing more. I had and my partner was out of work so I still some part-time work – bar jobs and things – wasn’t clearing my debts. By that time I owed but I was still finding it difficult to cover essen- about £12,000 in credit cards and the interest tial living costs. My parents do not have much was building up. It is so hard when you are this money and were not able to give me any extra much in debt. It feels like any money you are financial support. As a result I ran up signifi- earning is just being thrown into a bottomless cant debts on credit cards and overdrafts to pit to make the minimum payments and get- fund my course and the costs of living. ting the extra charge every now and again After I left university I moved in with my when a payment is missed. I went online to try partner in Hanborough. With the way things and search for options and heard about a debt are at the moment I could not find a job relief order. I thought this might be able to help straight away. I was receiving Job Seekers so I went to the Citizens’ Advice Bureau to ask Allowance but it was extremely hard to make about it. They referred me to a solicitors’ firm. ends meet. I really wanted to start working. My solicitor explained what a debt relief
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the case for legal aid: individual testimonies
order does. It is a bit like a less severe form of Without legal aid, people in my situation bankruptcy. It freezes all your debts for a year could end up turning to crooked money and if your financial situation does not signifi- lenders and getting involved in bad situations cantly improve then all your debts are wiped making their lives even harder. clear. It imposes a lot of restrictions on a per- son but I realised this was a way that I could Immigration and asylum finally clear my debts and have the huge financial weight lifted off my shoulders. My solicitor explained to me that I would Ahmed, an asylum seeker from Iran have to leave my debts for about six months and a survivor of torture, received before I applied for an order. Because I had been help with his asylum claim moving the debt around a lot and paying off some credit cards with others, the court might hile in Iran, I was imprisoned and not accept that I was unable to pay off the debts. Wtortured in February 2000 for three My solicitor wrote to all my creditors and months and again in August and September arranged to freeze my debts and for me to 2002. I’m a long-term counselling client of the only make token payments. This really Medical Foundation for the Care of Victims of helped me. The credit card companies had Torture North West. been putting pressure on me to repay all of my I had help from a solicitor based in London. debts. After they received my solicitor’s let- I managed to go to meetings but I failed to ters they stopped the telephone calls and attend lots of appointments because of my warning letters. This was a great relief. deteriorating mental health. I was afraid to In November 2010 I went back to my speak to people and rarely had money to solicitor and filled out the forms to apply make a call so I could only ring my lawyer for the order. My solicitor sent it off and occasionally about the progress of my asylum within a few days I heard that my application case. My asylum application was refused and was accepted. I lost my subsequent appeal. Getting this order was so important for me. In March 2007 I was made homeless and my Being free of the debt is such a massive relief; I mental health got worse. My solicitor offered can start afresh. I managed to get a full-time to make a new claim for asylum but I was told position at my job and I am now earning £210 I would have to pay for this. By then I was very per week. I still do not have much money to low, living in difficult conditions and clearly play with but at least I am not just throwing didn’t have money to pay for a lawyer. money away. At this time the Medical Foundation I could not have done it without legal aid. referred me for an initial appointment with There was no way I could afford to pay for Greater Manchester Immigration Aid Unit in legal help. I needed a solicitor or an adviser to May 2007. I was regularly sleeping on the write to the debt companies for me. Without streets at night and had no money whatso- their letters I don’t think they would have ever. My only regular contact was the weekly agreed to freeze my debts. It was incredibly counselling session. I also frequently dropped useful to sit down with somebody, go through into the Medical Foundation offices between all of my papers and plan for the future. sessions for emotional support, to wash and
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to be indoors. I found the company of We bought a house together in Chingford in others so difficult. 2004 after obtaining a mortgage from Halifax. The GMIAU agreed to meet me at the Med- About two years later, my husband remort- ical Foundation and with my familiar coun- gaged the house with Northern Rock and we selling interpreter. We talked about a new redeemed the mortgage from Halifax. He told asylum claim but I had little faith in being able me this was because the new mortgage was at to explain myself. But the new solicitor had a better rate and he wanted extra money to more experience and skills in working with decorate the house. I did not really under- clients with vulnerable mental health and stand at the time but I signed all the relevant meeting in a safe setting allowed me to documents because my husband told me too. explain what I’d been through to make a Then in October 2006 my husband took out fresh claim. I arranged appointments so a further loan from Barclays, secured against that I would see my counsellor immediately our house. Again I did not really understand after the solicitor. the procedure but my husband made me sign The new claim was made in December the documents relating to the loan. I also had individual testimonies 2007 and I applied and was accommodated to speak to someone from Barclays over the while the claim went through. I was granted phone to say that I agreed to the loan. indefinite leave to remain in December 2009. Although I had said that I agreed, in reality I I’m still severely traumatised and I hope that did not know what was going on. Whenever I I can now address this more fully without fear had questioned my husband about this loan of return to Iran. It is clear I would not have or the previous mortgage he became angry been able to access legal representation and shouted at me. He would threaten to without legal aid, but, most importantly, leave me if I didn’t agree to sign the docu- without the care and expertise shown by ments and would even threaten me physi- GMIAU in working with the most cally. I felt I had no choice but to agree. My vulnerable survivors of torture. husband always took care of that side of things. He also lied to me about how much Debt and housing money we were borrowing. He told me the loan from Barclays was for £20,000 but I found out later on it was actually for £60,000. Simi Azmi received legal aid to help In July 2008, when our second child was just with her debt and housing problems a few months old, I found out that my hus- after her ex-husband ran up tens of band was in a relationship with another thousands of pounds of debt woman. In fact he had married this other woman in a religious ceremony. When I found n 2009 I was forced to seek legal assistance this out my husband left me and our children. Ibecause of debts that I owed from various It was only after this that my husband told me loans that my husband had taken out. My hus- the true extent of the loans he had taken out band and I had married in 2003. It was difficult after I questioned him about them. As well as at first as our families did not approve of the the Barclays loan he had taken out another marriage because I am originally from Pak- loan of £30,000 and had huge credit card bills. istan but my husband’s family is from India. Around the end of 2008 I started getting
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letters from Barclays saying that I was in to get rid of the majority of my debts. How- arrears. I was not working at the time. I had ever, it was not enough to prevent me from two young children and my husband had losing my home, as Northern Rock managed always been the financial provider. I was to get a possession order against me. scared and I did not know what to do. I got a After the order was made I was terrified. letter from the bank’s solicitors in early 2009 The thought of being homeless with my chil- that threatened to repossess my house. At this dren was making me so stressed that I was stage I realised that I had to do something or becoming ill. However, my solicitors helped my children and I would become homeless. me apply to my local council for accommoda- I went to a consumer credit agency for tion. They gave me temporary accommoda- advice and they put me in touch with my tion and even recently granted my application solicitors. They were amazingly helpful. They for permanent accommodation. arranged for me to have legal aid funding for my case, which was vital as I had absolutely “We would be lost without no resources at that time. I was unable to even legal aid and the lawyers who approach my family for assistance as we still carry out this work. They got had not repaired our relationships after falling out over my marriage. My solicitor me my life back” went over my finances with me and I realised how bad the situation was. There were two If I hadn’t been granted legal aid I do not loans secured on our house that I jointly know what I would have done; I was totally owned, and there were even some credit card lost. I had no money and no one to turn to to bills that were in my sole name although it get help from. I would not have been able to had been my husband who had used them. represent myself and I would not have been My solicitor told me that I could file for able to get myself declared bankrupt. I would bankruptcy which would clear my debts. have probably had a lot of my possessions I knew this was a big decision but there was repossessed and when my house was taken not any other way out that I could see. I just away I would have been left homeless wanted to be able to start afresh and forget with my children. about what my husband had done to me. Since I was successfully declared bankrupt My solicitor helped me go through the my life has been so much better. After my hus- process of filing for bankruptcy. There was band moved out I was receiving letters from so a huge amount of work and forms to fill out, many creditors threatening action against me but my solicitor was fantastic. There is no and saying bailiffs would be sent round to take way I would have been able to do it without my possessions. I was so stressed and scared them. I would not have even known how to that there were times when I could not even go about applying for bankruptcy and I sleep. Now things are so much better; I have a definitely would not have been able to roof over my head and I am able to start again. get together enough evidence to have a I really did not have any options other than successful application. legal aid. It can be so difficult for people in a My application was allowed and I was similar situation to mine without resources declared bankrupt in May 2009. That helped or any friends or family to approach for help.
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We would be lost without legal aid and the Around this time I began to receive help lawyers who carry out this work. They got from a charity and they referred me to solici- me my life back. tors for help with my housing situation. My solicitors wrote to social services threatening Community care, housing, court action unless they conducted an assess- immigration ment and housed me until the assessment could be completed. In the end social services decided that I was so ill that they would house AB received legal aid to obtain advice me and provide me with financial support. in his community care, immigration, In time my health gradually improved and I asylum support and housing cases was able to move out of social services accom- from the same firm of solicitors over modation into housing provided by the Home two to three years Office. However, the Home Office wanted me to move away from London. Although my arrived in the UK a few years ago after flee- health had improved a little, I was still in need individual testimonies Iing persecution in my home country. I of the support I had from the local medical and claimed asylum and was granted a limited charitable services. My solicitors made repre- amount of leave to remain in the UK. Before sentations to the Home Office to say why it was my leave ran out I applied for further leave to important for me to stay living in London and remain. However, there was a mix up at the these were accepted. Home Office and they claimed they had not I also received help from the immigration received my application. department at my solicitors’ firm. I renewed When I had been awarded leave to remain my application for leave to remain and last in the UK I had been granted permission to year I was granted indefinite leave to remain. work. I was also allowed to claim benefits to My Home Office housing came to an end and help me pay for food and rent. I began to look I made an application as homeless to the local for work and recover from my terrible experi- authority. I did this because I had nowhere ences in my home country. else to go. After my leave ran out my benefits stopped. At first the local authority refused to accept This meant that I could not afford to pay my an application from me. They also refused to rent and around three years ago I was evicted provide me with emergency housing, even from my home for rent arrears. After my evic- though I had already been evicted and I had tion I had to sleep on the streets. During this provided evidence of my medical conditions. time I was attacked on quite a few occasions. I I asked my solicitors for help. Again they also became ill very quickly and eventually I wrote an urgent letter asking the local author- ended up in hospital around a year later. I was ity to provide me with housing and accept an diagnosed with a long-term illness and I was application (as I understand they are under a also suffering from severe depression because legal duty to do). They threatened to take my of my situation. case to court if the local authority did not do After a few weeks the hospital wanted to this. Luckily very quickly the local authority discharge me. They referred me to social serv- agreed to accept an application and to place ices. Social services refused to help me. me in emergency housing. A few months later
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the local authority accepted that they had a also suffer from depression. I received hous- duty to make sure there was housing avail- ing benefit to help me pay my rent. able for me to live in. In 2009 my landlord contacted me to say It was really important for me to get legal that the market value of the flat was much advice when I was in hospital. They wanted to higher than what I was paying and they discharge me, but I had nowhere to go. It was wanted to increase my rent by £500 per my solicitors who managed to persuade the month. Housing benefit would not cover this local authority to look after me because of my increase and I could not afford the extra, so I illness. If I had not been housed then I feel my was facing eviction. health would have got a lot worse. After my landlord started court action to I would not have been able to pay for my evict me I approached my solicitor. Unfortu- solicitors on a private basis as I had no income. nately my solicitor advised me that I did not The charity I was involved with had tried to have a good chance of avoiding eviction. I was help me get housing from social services, but, very worried about this because I did not have as they could not start court proceedings, I any money or savings to fund a deposit for a think social services were just able to ignore new home. I was worried that I would be them. homeless. However, my solicitor told me that I think the legal aid system is great. All of because of my medical problems the local my housing, immigration and other legal authority may have a duty to re-house me issues have been resolved and this couldn’t once the court made a possession order. have happened without legal aid. I believe it is In the end the court did allow my landlord’s very important to have this support. claim for possession and I was evicted. After this my solicitor helped me apply to the council Housing for emergency accommodation. I was placed in a hostel with shared facilities. My anxiety and paranoia were making it extremely difficult for Caroline received legal aid after she me to live there with lots of different people. was evicted from her flat and became My solicitor wrote to the council and managed homeless. This helped her to prove to to persuade them to provide me with self- the council her need for accommoda- contained accommodation until they made tion because of her severe mental a final decision on my homeless application. health problems I was very grateful for this. A few weeks after I made my application egal aid helped me when I was evicted the council made a decision that they did not Lfrom my home after my private landlord have a duty to house me because my mental increased the rent and I could no longer afford health problems were not severe enough. My to pay it. solicitor helped me ask for a review of the I had lived in my home for around 20 years. council’s decision. She suggested that I would I had not worked since 2004 on account of my need good medical evidence to help with my quite severe mental health issues. I suffer case, but this was difficult. from agoraphobia, paranoia and severe anxi- When I was examined by my GP he diag- ety which causes me to have panic attacks. I nosed only ‘mild depression’. There is
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nothing mild about it – at that time I had had time before I can get my own home, so I am two complete breakdowns since 2004 and had feeling positive and can start looking forward overdosed three times. I had had only brief to life again. appointments with my GP and one with a psychiatric nurse, which is why I think they Housing did not fully understand my problems. The breakthrough came when my solicitor arranged for me to see a private psychiatrist Rosamund During had advice and who assessed me for more than one and a half representation in her housing case, hours. The psychiatrist confirmed that I was enabling her to defend eviction pro- suffering from a number of serious mental ceedings following the break-up of health conditions and that my health would her marriage be at risk if I were made street homeless. With the help of this extra evidence and the needed legal help after my landlord started fantastic work of my solicitor the council court action to evict me for rent arrears. I
I individual testimonies accepted my case and overturned their origi- was in the process of splitting up with my hus- nal decision. This was around the end of band. He was due to move out of our family October 2010. home and had stopped paying the rent, which I had no idea about. As a result, our landlord “This case felt like life and started possession proceedings against us. death for me. I was so worried I was still living there with our four chil- about losing the emergency dren, so I was really worried about what I was going to do. I was on a low income and could housing and becoming street not afford to pay off all of the arrears. I homeless” approached the Citizens Advice Bureau, but was told my case was too complicated for Legal aid was really important in my case. them to help me. However, they provided me There is no way that I could have explained with a list of solicitors’ firms that do housing my situation to the council in the way that my work and I subsequently approached one of solicitor did. The pressure of trying to sort it the firms which agreed to take on my case. out myself would have severely hit my mental My solicitors applied for legal aid so that health. Also I could not have paid privately they could help me defend the eviction action. for the psychiatric report. Without this report, They explained my problems to my landlord I don’t think I would have won my case. If and the court. Eventually the court agreed not legal aid is cut, people like me will not get the to evict me as long as I continued to pay an help they need in future. amount towards my arrears each week. This case felt like life and death for me. I was My rent payments are now manageable. so worried about losing the emergency hous- I’m in the process of having the tenancy trans- ing and becoming street homeless. Since win- ferred into my sole name and I feel that I have ning the case, my life is so much better. I feel now got through a very difficult time. optimistic and am looking forward to viewing I was delighted with the help I received from potential properties. It is now just a matter of my solicitors using legal aid. I do not feel that I
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could have represented myself in the posses- not the father, following which immigration sion proceedings. I really needed their help. refused leave to enter and indicated that they were investigating the practicalities of remov- Immigration ing him. Social services brought the child to me for advice and to conduct his appeal. Claude was at this stage still struggling to fol- Vicky Guedalla is a retired solicitor low the instructions he had been given by those and former partner in Deighton who sent him here – to the effect that he had Guedalla. She recently retired after lived here before and had come to rejoin his 25 years as a legal aid lawyer. She father even though this was manifestly not so. gives details of several young clients The first crack in his facade came with his who required her advice and delightfully typical childish outrage at being assistance for immigration claims in told that his passport made him just seven years difficult and sometimes tragic old: “That’s not right! I’m eight already! I had my circumstances birthday before I came!” And as trust between us built it became possible for him to reveal his am horrified by the government’s proposal real name and what he actually remembered of Ito end public funding in all but asylum and his life before being sent to the UK. detained cases. If the regime now proposed It appeared that he was an orphan who had had been in place during the past quarter of a been living for some time in the house of century clients such as these would have been someone he believed to be his grandmother denied access to legal advice and assistance. but with a number of other children whose relationship to himself, if any, was unknown ‘Claude’ to him, some of whom had left for different The little boy I will call Claude arrived unac- destinations abroad. The suspicion of a child companied from Congo on a passport which trafficking operation arose. indicated its bearer to be seven years old and At first instance appeal, conducted on contained an indefinite leave to remain human rights grounds, the judge made an stamp. Immigration officers were doubtful, egregious error of law and found that as there and interviewed the man, a Congolese were no specific removal directions yet in national with indefinite leave to remain, who place there was no valid appeal before him. met him at the airport. The man claimed that The case had to go to the Upper Tribunal to the child was his son returning from a trip correct this, and was remitted back for fresh back to Congo, but he demonstrated no inter- hearing. The end of the story was that, since est in the child’s welfare, and the interaction there was no one to whom he could safely be between them showed no familiarity. Immi- returned in Congo, Claude was granted dis- gration declined to entrust the child to him, cretionary leave to remain and continues to but instead granted temporary admission live with his foster family, with whom he had into the care of social services pending further quickly formed strong bonds. Under the gov- enquiries. He was placed with a foster family. ernment’s proposals it seems that, because DNA testing undertaken by social services Claude was not an asylum seeker, he and his showed that the man at the airport was indeed carers would have had no access to publicly
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funded legal assistance and would at best join a relative who had been granted excep- have been left in limbo with no secure status tional leave to remain here. Jamal learnt Eng- for an indefinite period, or at worst returned lish, went to school here, got part-time work to who know what hazards in Congo. while continuing to study and became a British citizen. Meanwhile, the Red Cross traced his ‘Paul’ mother to a settlement in Ethiopia, where she The child I will call Paul was also eight years was living with his older married brother and old when he was brought to see me by his social his family, supported by his brother’s work as a worker. He was from Jamaica, where he had bus driver. But then news came that his brother been abandoned in infancy by his mother, had been killed in a road accident, and his whose whereabouts were unknown but widow died in childbirth shortly afterwards. understood to be somewhere in the USA. Paul This left the elderly mother in sole charge of had been cared for thereafter by his paternal two toddlers and a baby. grandmother, but when he was six she died in a fire which he was blamed for causing. Rejected “Legal aid is needed to ensure individual testimonies by his family in Jamaica, his father brought him that meritorious cases are to the UK, left him to the care of a purported fought to an appropriate ‘uncle’ and ‘aunt’, and left the country. Paul was brought to the attention of social services conclusion, through the higher by his school who suspected ill-treatment and courts if necessary, if the were concerned by his highly disturbed behav- system is to have any integrity. iour. He was taken into care and placed in a specialist therapeutic home. A full care order Asylum is not the only human was subsequently obtained. right, and the rule of law Paul was then brought to see me for advice should be protected from on regularising his immigration status. I pre- pared his application. Eventually he was budget cuts” granted indefinite leave to remain. I was then able to assist in the preparation of his applica- Jamal immediately assumed full financial tion for registration as a minor for British citi- responsibility, struggling to send money from zenship, giving appropriate advice on the his meagre wages. As soon as he was able to approach to the question of parental consent find full-time employment so that he could in such circumstances. Where will those car- meet the requirements of the immigration ing for children like Paul be able to turn to for rules, he travelled to Ethiopia to take his immigration legal aid help in the future if the mother and the children to the British present proposals go through? embassy in Addis Ababa to apply for visas to come to the UK as his dependents. The appli- ‘Jamal’ cations were refused on the grounds that The client I will call Jamal is from Somalia. He there was no evidence of the relationships. was a little boy when fighting overwhelmed Jamal turned to me for advice and I was able Mogadishu in 1991 and his family scattered. to prepare and conduct the appeals. DNA evi- He was later granted a visa to come to the UK to dence (which Jamal would not have known
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how to obtain by himself, even if he could been properly presented, as two of my examples have afforded it) proved the relationships to above show. Legal aid is needed to ensure that the satisfaction of the judge, but the appeal meritorious cases are fought to an appropriate was lost at first instance because of an erro- conclusion, through the higher courts if neces- neous interpretation by the judge of the sary, if the system is to have any integrity. Asy- requirement for adequate accommodation. So lum is not the only human right, and the rule of the appeal had to go to the higher tribunal law should be protected from budget cuts. which ordered a complete re-hearing, result- ing in the appeals being allowed. Family The old lady and her grandchildren are now here living with Jamal, who continues to support them. Where will future ‘Jamals’ be SH received legal aid to secure the able to turn for legal advice and representa- home she had shared with her tion in time of dire need? abusive partner
Not good enough I needed legal help after my partner became These are just three examples of many that abusive and I found myself and my children spring to mind of non-asylum cases where without a home. access to publicly funded legal assistance was We had bought our home together before our crucial in matters of profound importance to children were born. Over time our relationship clients. Children like Claude and Paul have not began to break down. My partner started to ‘chosen’ to live in the UK, any more than Jamal drink more and he would be abusive towards had done – and neither the adult Jamal nor his me. Although he was not physically violent, he grandmother had chosen to shoulder family would threaten me physically and was emo- responsibilities in such tragic circumstances. tionally abusive. He was aggressive and con- It is not good enough for the government to trolling and would shout at me over nothing, protect access to legal assistance in asylum telling me I was worthless. Sometimes he and detention cases, and to pretend that other would take my bank cards and keys and leave aspects of immigration law do not impact pro- the house for long periods, leaving me stranded foundly on the lives of many who are not in a in the house and unable to go anywhere. position to pay privately for lawyers and who I became afraid for myself and my children. have not chosen the situation in which they I decided that I had to get out of the relation- find themselves. It is such an unrealistic dis- ship. Eventually I moved out of the home tak- tinction in so many cases that it would be bet- ing our two children with me. This was an ter not to attempt it at all. extremely difficult time for me. My youngest Neither is it good enough to pretend that the child was only one-and-a-half years old and I tribunal can itself stand surrogate for independ- had not yet returned to work. My partner had ent representation in cases where appellants are provided for us financially and so I had no unrepresented. It might do its best but is not resources of my own that I could access. I was itself infallible as to matters of law (which having to stay with a friend, but it was not at unrepresented appellants cannot be expected to all suitable because the children and I were all argue for themselves) even when a case has having to share the same bed.
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Although I was joint owner of our home After the court hearing, the judge granted and I was taking care of our children, my part- an order saying that I could move back into ner refused to move out. Because of his my home with my children and my partner aggressive and unreasonable behaviour, I had to move out. found it impossible to talk to him or negotiate Without legal aid I would not have been with him in any way about the use of our able to get the help I needed. I would have home or dividing up our assets. Whenever I either been forced back into an abusive rela- did try to discuss these issues with him he tionship or had to move to a refuge with my would be domineering and aggressive. I two children. realised that I needed assistance, which was when I approached a firm of solicitors. “Without legal aid I would not My solicitor was absolutely fantastic. She have been able to get the help told me that I could apply for a court order to I needed. I would have either get back into my home. I was worried as I had very little money to pay for legal help. I had no been forced back into an individual testimonies access to money because everything had been abusive relationship or controlled by my partner. However, my solici- had to move to a refuge with tor told me that I could get help through legal aid and she sorted it all out. my two children” At first my solicitor wrote to my partner to try to resolve the case before going to court. I know that the government talks about However, he refused to respond to any of my people being too ready to use the courts as a solicitor’s letters or other correspondence. first answer to their relationship breakdown Therefore we had to go to court. problems, but in my case I had no choice. My It was really important to me to have help partner was being totally unreasonable and from my solicitor and also my barrister. They there was no way to negotiate with him with- explained what would happen during the court out bringing him to court. I needed a greater proceedings and what I would have to do. I had power than myself to deal with him and for never been to court before and I had no idea him to listen to. It is people in situations like what the procedure was. I was really worried. mine that the legal system is there to protect. At the preliminary hearing my partner rep- resented himself. He was emotional in court Discrimination and tried to control the hearing. I was very upset by his behaviour. At the second hearing he turned up at court but left before the hear- Mrs Hughes received legal aid ing started. During the hearing my barrister for advice and representation in cross-examined me. If my partner had had to a disability discrimination claim do this, or if I had been forced to cross-exam- ine him, I think the hearing would have suffer from multiple sclerosis and a lung descended into some kind of slanging match Icondition. Due to my ill health I am because the situation was so emotional and dependent on my wheelchair to move around highly charged. outside and sometimes indoors. My husband
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cares for me full time. They telephoned a national charity to ask for We have many people in our community advice on what I could do. The charity told who have mobility problems including the me that if I continued with a claim under the elderly and other disabled people. Most Disability Discrimination Act and I lost then shops in our town have made adjustments, the company could take my home away. I some by simply having bells outside their was very worried about this and it almost front doors so that people with mobility made me gave up. problems can let them know when they need help to gain access. Larger stores “I do not think the company have level floor access. would have listened to me or Around three years ago one of the larger changed its behaviour without stores closed down and the owner applied for planning permission to subdivide to create my solicitor’s persistence. They two new units. As my husband is chair of the had tried to ignore me, but local access group, he was given the planning they could not ignore him” application to look at. The application together with an ‘access statement’ said that level access would be maintained. Eventually one of my local council contacts Sometime in summer 2008 before the shops gave me the name of a solicitor in London were finished, I was concerned to see that one who had acted for other disabled people in the of the shops now had an eight inch step out- past. I contacted the solicitor and he told me side which people had to use to gain access. straight away that I could apply for legal aid In November when the shop opened for busi- to help me take on the company. ness I asked to speak to the manager of the After listening to my story and doing some shop about the issue. She could not say what initial investigation my solicitor wrote to the the company would do about it. I sent the company, warning them that I would go to company emails and letters asking them to court unless they took action to address the remove the step or put in a ramp. The com- discrimination that I was suffering. The com- pany did not answer me. pany still refused to remove the step or put in I was certain that the shop was breaching the a ramp. In the end, we had to issue a claim. Disability Discrimination Act, but I did not As part of the claim, my solicitors obtained know what to do about it. Over the next few a report from an independent disability months I contacted the council, my MP, the access expert. He found that not only was the building inspectors and the minister for dis- step a problem, but also within the shop itself abled people. This made no difference. Some of they had not taken reasonable steps to adjust them did not even answer my requests for the shop for disabled people to use. help, which was extremely difficult as under My claim moved closer to a hearing and the DDA it is only the disabled person who can probably because of this pressure the com- take a case forward. That meant nobody else pany eventually admitted that they were could have helped me complain. liable under the Disability Discrimination I visited my local Citizens Advice Bureau. Act. They agreed to install an internal ramp at
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the shop, which has now been done. They also UK for two years before our marriage. After our agreed to pay my solicitor’s legal costs, which wedding I moved to the UK to start our married means that the legal aid money will be repaid. life together. I was granted a residency permit I understand that the government is pro- that allowed me to stay initially for two years. posing changing the rules about who will be This was renewed in 2003 and I was granted able to get legal aid funding in the future. Peo- residency for another five years. Very quickly I ple who own their own home, like my hus- settled in and the UK became my home. band and I, may not be eligible for help. I am During our marriage my husband was abu- concerned about this. I could not have sive, domineering and controlling. Sometimes afforded to pay privately for a solicitor, as we he was physically violent with me. I was very are on a very low income (receiving pension unhappy. I had not thought that my husband guarantee credit and disability benefits). would treat me this way after our marriage. Without legal aid I would not have been able However, I felt I had no choice but to remain in to force the company to comply with the Dis- the marriage and do what my husband told me. ability Discrimination Act. I had already done After our first daughter was born my hus- individual testimonies as much as I could without going to court. With- band suggested we travel to India to visit his out my solicitor’s help I would not have known family and show them our new daughter. how to go about taking the company to court. I After we had been there for a month or so, my do not think the company would have listened husband returned to the UK. He suggested to me or changed its behaviour without my that I stay an extra month for a holiday which I solicitor’s persistence. They had tried to ignore thought sounded fine, and so we agreed that I me, but they could not ignore him. would fly back to the UK the next month. I really appreciated my solicitor’s help While I was in India I found out that I was throughout this case. He was great and pregnant again. My husband told me that it explained everything to me every step of the would be better if I stayed out in India a little way. It was wonderful to feel that someone longer so that our families could care for me was on my side against a big company. If legal while I was pregnant. I was not sure about this aid is withdrawn to others in a similar situa- because really I wanted to return to my home tion, I believe that discrimination will possi- in the UK. However, I was expected to be sub- bly increase, as large bodies realise that the missive to my husband and so I felt I had no vulnerable in society do not have the means to choice other than to go along with his wishes. contest their actions. Over the next few weeks and months each time I suggested coming home to the UK my Immigration husband would make an excuse as to why it was better for me to stay in India a short while longer. Even after I had our second daughter my hus- Kamaljeet received legal aid funding band did not allow me to travel to the UK. He for her immigration claim made excuses each time I asked to return home. A short time later my husband stopped call- am originally from India. In 2001 I married ing and he refused to accept my calls. There Imy husband, a Dutch national of Indian was no way of my getting in touch with him. It descent. He had been living and working in the became clear to me that my husband had
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abandoned me in India. The Home Office then notified me that they After I tried to get my passport from my intended to remove me from the country. I husband’s family I found out that the Home was distraught. I did not have any money left Office had revoked my residency permit a as I had spent all of my savings on legal fees. few months ago. When my husband had My parents had even had to sell some of their returned to the UK the first time he had writ- possessions in India to send me money. The ten to the Home Office and told them that we thought of being forced to return to India dis- had been divorced. They had then revoked tressed me greatly. I could not return as an my residence permit. abandoned wife with two young children – I This period was incredibly distressing for would be treated as an outcast again. me. It was terrible living back in India. I felt like a complete outcast, isolated and “In India I was isolated ridiculed. My husband was well known and and absolutely miserable. My respected where I was living. I found out that he had told lies about me and said that it was husband had lied to me and my fault we had split up. I also found out that abandoned me, but I was the he had been in a relationship with another one who was being blamed for woman back in the UK since early on in our marriage. The other woman was also origi- it and had to live with that nally from my husband’s family’s home town shame. Now that I am back in which added further to my embarrassment the UK I am so much happier. and shame. I was desperate to return to the UK along with my children. I felt it was I would not have succeeded important to return to my home where I had without legal aid” built my life. After a lot of time and effort on applications In desperation I spoke to a family friend in I eventually managed to obtain a temporary the UK who was an immigration barrister. He visa for me and my children to return to the recommended a different firm of solicitors for UK. I stayed with relatives in Reading and me to approach, which I did. paid an immigration lawyer to help me apply My solicitors were fantastic. They were the for leave to remain. The solicitor did not men- first people who told me that I could qualify tion that I could have received legal aid. for legal aid. It was through their work that I Instead I struggled to afford their fees. discovered that the Home Office had made The case was taking a long time. Finally my several mistakes with my applications. At my solicitors told me that the Home Office had hearing, the Home Office representative refused my application. I wanted to appeal the admitted that several mistakes had been decision but I couldn’t afford to pay my solici- made and that I should have been granted res- tors any more. I wrote to the Home Office idency. After this hearing I was granted leave myself to appeal the decision but they sent me to remain in the UK. the wrong forms to fill out. By the time they I have now been able to rebuild my life. In realised they had made this mistake the time India I was isolated and absolutely miserable. period for appealing the decision had expired. My husband had lied to me and abandoned
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me, but I was the one who was being blamed tiny amount of financial security and having for it and had to live with that shame. Now that no legal representation. I am back in the UK I am so much happier. I My solicitor, Kat, argued with the Legal would not have succeeded without legal aid. I Services Commission that my mother was not spent everything I had trying to get back to the able to contribute to the funding of the UK and then fighting to stay there. It was only inquest. The anxiety about funding the case when I got legal aid that my case was resolved. simply added to the stress and upset. Legal aid was eventually granted so that we Inquests had representation at the inquest. I cannot imagine how other families cope without the support that we had. Without legal aid and a Zoe Kealey’s brother died in solicitor to go through the case step-by-step Wormwood Scrubs. It took the family my family would never have gained any some time to obtain legal aid for them understanding of the law and the legal to be represented at the inquest responsibilities these agencies had towards individual testimonies my brother. Kat liaised continuously with my am the older sister of Darwin Stanley family and fought our corner in a way that we IKealey, who died on 12 September 2008 in would never have been able to do. HMP Wormwood Scrubs. Darwin was a loved Together, we worked through what hap- and cherished member of our family. pened to Darwin and what went wrong: When Darwin died my family had no idea On 10 September 2008 Darwin was arrested of what lay ahead. Few details were passed to for common assault and taken to Kensington us except that Darwin had hanged himself at Police Station. While in police custody he Wormwood Scrubs. The weeks following his repeatedly self-harmed. He was placed in a death were spent in shock and making CCTV-monitored cell, the footage of which arrangements for his funeral. shows my brother systematically removing We had no understanding of the financial every item of clothing and tying it around his legal costs of obtaining legal representation to neck in an attempt to strangle himself. All his find out what happened to my brother. As clothing was eventually removed and he was Darwin died in a government institution we left in the cell completely naked. The footage simply assumed that the government would also shows my brother repeatedly banging his fund this. However, to our astonishment we head against the wall and running across the found that our family’s limited financial cell with his head down until he hit the wall, means were to be extensively scrutinised. My apparently knocking himself out and collaps- mother, who is a part-time cook suffering ing naked on the floor. When police officers from a serious disability and with very lim- visited him in the cell Darwin told them that ited savings, was asked to contribute to the he had nothing to live for and that he “might costs of legal representation. The savings that as well end it”. she had had been left to her by my late father Darwin’s vulnerability was obvious. While and was his attempt to provide for her in her in police custody he was seen by three sepa- old age. She could not believe that she was rate medics, who all noted varying levels of going to have to choose between losing her risk of self-harm or suicide. Although an entry
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was made on the custody record of Darwin’s Darwin’s risk of suicide or self-harm while on attempts to self-harm, this was not communi- entry to prison. Prison staff stated this was cated to staff employed by the private escort because they would always rely on Serco staff company, Serco Limited, which took him to to have produced a suicide/self-harm warn- West London Magistrates’ Court the follow- ing form to identify any prisoner at risk. This ing morning. did not happen. Any prisoner who is transferred into deten- Darwin was then examined by a nurse tion is accompanied by a document called the (employed by Hammersmith and Fulham Pri- Prison Escort Record (PER) to record any risk mary Care Trust) who failed to examine his of self-harm. The custody sergeant responsi- medical records or the PER. ble for Darwin failed to detail Darwin’s many On the morning of 12 September 2008 Dar- attempts to self-harm, and failed to complete win was found hanging in his cell. the form correctly in accordance with the Darwin was 28 at the time of his death. The Standard Operating Procedures operated by jury at Darwin’s inquest, which concluded in the Metropolitan Police. This fact was recog- March 2010, identified no less than nine fail- nised in an independent investigation carried ings on the part of the police, Serco, the prison out by the Independent Police Complaints and the PCT. The jury found that Darwin died Commission. As a result of the police’s fail- of an act of self-harm “in part because the risk ures to document Darwin’s risk of suicide or of taking his own life or harming himself was self-harm, Serco staff had limited details not recognised and appropriate cautions were about his vulnerability. not taken to prevent him from doing so”. But Darwin’s PER form did contain a ticked My brother’s death was a tragic incident box informing Serco staff that Darwin was at which could have been prevented if any one risk of suicide/self-harm. The Serco policy of the people responsible for his care had relating to suicide and self-harm clearly states taken the time to consider the evidence avail- that Serco must open a suicide/self-harm able to them in accordance with their various warning form when there has been any procedures and policies. If this had happened attempt to self-harm in custody in the past Darwin would have been placed under obser- month. This did not happen. vation which could have prevented his death. Darwin pleaded guilty to common assault As a result of the jury’s findings, the deputy at West London Magistrates’ Court and was coroner for West London, Elizabeth Pygott, sentenced to 112 days in prison. He was trans- wrote to the Lord Chancellor, Sir Paul ported by Serco staff to HMP Wormwood Stephenson (then commissioner of Police for Scrubs where he arrived at approximately the Metropolis), the chair of NHS Hammer- 6pm on 11 September 2008. smith and Fulham PCT, the secretary of state On arrival at the prison, staff had available for health and the chairman of Serco Group Plc to them the PER, which briefly noted his risk to make a report in accordance with rule 43 of of suicide and self-harm, as well as medical the Coroner’s Rules 1984. This rule provides reports from the medics at Kensington Police that, where evidence at an inquest gives rise to Station which detailed some of his attempts at concerns that circumstances create a risk that suicide/self-harm. None of these documents other deaths will occur, action should be taken were considered for the purposes of assessing to prevent or reduce the risk of future deaths.
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In her letter, Pygott stated: ‘‘It is the lack of with the emotional heartache while at the common understanding about how the PER same time trying to pursue legal arguments should be used which gave rise to serious con- about the scope of inquest. How could any cerns in this case and has potential disastrous family be able to listen to how their loved one consequences for other detainees.” died at the same time as considering the evi- dence being given by witnesses and thinking “When we arrived on the up questions? first day of the inquest it was Without the help of our legal team we would never have known what happened to incredibly daunting. There Darwin. Darwin’s death was a tragedy and were eight interested parties has left a hole in our family that will never be in total, all of whom were filled. Yet I consider that we were the lucky ones to receive legal aid and to have a legal legally represented. I do team representing us. My family has found not know how we would have some solace in the knowledge that the state individual testimonies been able to cope without has been notified of the failings identified by the jury, and we hope that no other family will our barrister” have to suffer in the way that we have.
All this information would never have Education come to light without the support and assis- tance I received from my legal team. Kat Craig of Christian Khan Solicitors and Marina L is the mother of a 16-year-old boy Sergides of Garden Court Chambers worked with Asperger’s syndrome. She has tirelessly to obtain and scrutinise all the docu- battled with her local authority for mentation and ensure that evidence was a number of years to secure for her heard to explain the circumstances surround- son the help that he needs with his ing my brother’s death, and to ensure that education such deaths may be prevented in the future. When we arrived on the first day of the would be very concerned if the funding of inquest it was incredibly daunting. There Ilegal assistance with educational tribunals were eight interested parties in total, all of was withdrawn. whom were legally represented. I do not While most parents have the ability to know how we would have been able to cope understand the procedures, some do not and without our barrister. She fully understood this impacts upon their child’s ability to access how intolerably upsetting it was to relive the an appropriate education. The procedures final hours before my brother’s death. can be confusing and complex. This is stress- As a family we needed to hear what hap- ful enough, but if you consider that you are pened to Darwin to be able to grieve and cope also emotionally involved then this makes a with our loss. We also wanted to ensure that difficult situation even worse. It is often phys- any failures and missed opportunities were ically and mentally tiring just being the parent properly identified. I could never have coped of a child who is going through the tribunal
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process. The added stress of having to coordi- what we have. Frustratingly, so many profes- nate alternative education for your child is sionals involved have told me ‘off the record’ underestimated. he has been neglected but none are prepared I have to care for my eldest son and his to put pen to paper to support us for fear of younger sibling and hold down a part-time rocking the boat with the local authority. job. The fight – and I do not use that word I do not excuse my son’s behaviour which lightly – has been incredibly time consuming led to him being removed from mainstream and physically and mentally draining. teaching. My argument is that he was failed Children and young people with special without the right environment and support to education needs (SEN) have a big enough enable him to be educated appropriately. challenge just getting through the day. They To obtain a fair and reasonable outcome, I and their families have to adjust their lives to feel that a third party who is not emotionally cope with life-long conditions that impact on involved and who is working in the neutral every aspect of family life. It can be incredibly best interests of the child, at a time of consid- difficult to access appropriate educational erable stress, is a provision that should not be provision for some of these children. Budget withdrawn. constraints are understandable, but every child has legal and moral rights to a fair and Debt advice appropriate education. Too often they are placed in mainstream schools with a lack of qualified SEN teaching staff or the appropri- Leena received help with her debt ate provision is out of the area and that can problems. Her solicitors helped her mean residential placement. collect the evidence needed for In my experience, my son has been neglected a successful bankruptcy application by the local authority with regard to his educa- tion. He has spent considerable periods with- needed help from legal aid when my debt out formal education and is now receiving a Iproblems became too much for me to limited education which does not meet all his deal with. needs. I have attended many, many meetings My debt problems had started around 1999 where I often feel there is a hidden agenda and after I lent my brother around £25,000. Our the local authority is covering itself. I had to use parents’ landlord (a local authority) had told the legal right to obtain an assessment of my them that they were going to sell the property. son to obtain a formal diagnosis when it was Both of them were elderly and unwell and we blindingly obvious there were concerns. He did not want them to move. So, my brother has suffered not only in not having an appro- suggested he could buy their home, which priate education, he is a bright and capable would mean they could stay there. young man, but his social skills have been I lent the money to my brother, for which I impeded and he is now very reclusive. had to borrow a lot of money myself, and he Ultimately his case is likely to end up in promised he would pay it back. Despite his court, not through choice but because he has promise he never repaid me. I did not have been so let down. He deserves better and I anything in writing from him and my parents would not want another family to go through passed away shortly afterwards, so there was
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nothing I could do to prove that he owed me help get back to work. Last year I took a teach- the money. ing assistance course and I am currently tak- My debt issues became worse when I lost ing an access to social work course. I hope to my job. I had been on a low income anyway be working again soon. and struggling to afford debt repayments, but Legal aid was so important for me. I had when I became unemployed they became absolutely no financial resources and without impossible to manage. it I would not have been able to get assistance. I had tried dealing with my debt problems I know that I would not have been able to do on my own. Before losing my job I managed the bankruptcy application myself; it was just to agree a freeze on some of my debts and was too complicated and there was so much to do. making token payments on others. However, If I had not got the fantastic assistance I that meant the interest on the debts was received through legal aid I probably would soaring. I was receiving threatening letters have lost a lot of my property to the bailiffs. from creditors saying that they would send Alternative sources of advice are just not round bailiffs. I had thought about bank- enough. Whenever I went to the Citizens’ individual testimonies ruptcy but I would not have known how to Advice Bureau it was very difficult to get an go about making an application and I was appointment because they were so busy. If I afraid of the embarrassment. did get an appointment I would end up seeing By the end of 2009 I decided I had to do a different person each time who would not something. The letters from creditors were be familiar with my case. I think it would be coming all the time and any money that came terrible if legal aid was cut for debt issues – in was disappearing straight away. I people in my position would have no chance approached my solicitors in October. They of having their problems resolved. were incredibly helpful and sorted every- thing out for me. They went through my Housing and welfare benefits finances with me and told me I could apply for bankruptcy. I thought this would be my best option because I just wanted to be able to DM received legal aid for help with start again. I had so much debt that I could not his homelessness case see any other way out and it was ruining my life. I have two young children and I was find- n 2006 I applied for help with my housing to ing it increasingly difficult even providing the Imy local authority. They agreed to fund the essentials for them. deposit for a private-rented home. After I My solicitor helped me put the evidence found one that I could afford (along with together and make the application. There was some help from housing benefit) my family a huge amount of paperwork and there is no and I moved in. way I could have done it all by myself. After I I began to get into trouble with my rent made the application, it was accepted and I when my housing benefit was reduced. I was declared bankrupt. found out later that after a year in my home a Things are so much better now. I have been rent assessment officer had decided that the able to get back on my feet and I am trying to rent was too high for the type of flat and the better myself. I am currently volunteering to area I was living in. Therefore the council
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reduced my benefit by £50 every week. I had enough space for all of the family. Our found it difficult to make up the shortfall on friends could only put us up for one or two my limited income from part-time work, and nights at most. so my rent arrears increased. The next day my partner went with the chil- I tried to speak to the council about my hous- dren to a local law centre. She explained her ing benefit claim and to ask why it had been personal circumstances and what had hap- reduced. Nobody could clearly explain why it pened. The law centre said that they could not had been suddenly reduced after one year. help her as they were very busy. However, the In the end the rent arrears were so high that law centre solicitor put our case on an email my landlord started a possession claim group of local lawyers and advisers to ask if against me. At that time I did not realise anyone in the area could help her. My solicitor that I could get legal help to defend the land- saw the law centre’s email and agreed to help. lord’s claim. As it was a private tenancy, I thought that he was able to evict me whenever “If my partner had not gone to he wanted. The court made a possession order against me without a hearing. the law centre that day then When my family and I were evicted we our family could have been applied as homeless to the local authority. We forced to live in separate were placed in emergency hostel accommoda- tion. This housing was not very good but we homes with different friends were grateful to have a roof over our heads. while looking for a new home” The council investigated our case and even- tually made a decision that they could not The following day we went to my solicitor’s continue to house us because they said I had office. She immediately wrote an urgent letter made us homeless by not paying the rent. I to the council asking the housing department didn’t think this was right – I had been paying to accept the review and provide more emer- the rent, it was just that it was too high for me gency housing while they carried out their to manage. The council’s decision letter said review. My solicitor also asked social services that I had 21 days from the date of the letter to to help because my young children were at ask for a review. They also said that we would risk of being homeless. The letter warned the have to leave the emergency hostel within a council of court action unless they agreed to short space of time. house our family. Luckily, shortly after receiv- I handed in a letter to the council’s offices to ing my solicitor’s letter the council agreed ask them to review their decision. However, to provide us with emergency housing the council refused to do this, saying that I had that same day. missed the deadline to request the review and After this my solicitor investigated what had they could not accept my request after this. happened with my last tenancy. She got a copy As the council had refused to review my of my housing benefit file and found the rent case, our emergency housing was terminated assessment decisions. From this she could see and we were evicted. My partner and children that it was not my fault that the rent had went to stay with a friend for one night. I become unaffordable. She wrote detailed rep- stayed with one of our other friends as neither resentations to the council about this and other
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issues in my case. In the end they agreed to from my landlord (a local authority) and move overturn their original decision. They accepted to a new home, where he would not be able to that they have an ongoing duty to make sure find me. that my family has somewhere to live. I asked the council to transfer me. I showed I am very grateful to my solicitor and legal aid them pictures of my bruises and injuries. I for helping my family with this case. If my part- gave them police records and crime reference ner had not gone to the law centre that day then numbers. My case went to the emergency re- our family could have been forced to live in sep- housing panel but they turned me down. arate homes with different friends while look- Apparently I did not have sufficient evidence ing for a new home. Also, it would have been to show that my life was seriously at risk. difficult for me to find a new home because of After the council turned me down I did my low income and previous history. We could not know what to do. My mum suggested have been living apart for a long time. that I get some legal advice from a housing Without my solicitor’s help I could not have solicitor. That is when I contacted a firm to known or explained to the council the reason ask them to help me. individual testimonies why my housing benefit had reduced and my My solicitors wrote a letter and referred me rent became unaffordable. I could not have paid to another council’s homeless person’s unit. I for legal advice, as my part-time work does not was placed in a safe house immediately. I fled bring in much money and I have my partner and my previous home with my son. We left all our young children to look after. I am thankful for belongings and clothes. We just escaped and I the work that my solicitor did for me. was in the emergency hostel accommodation for around eight months. The new council Housing accepted that they had a duty towards me and my son as a homeless family fleeing violence in my old home. I was placed on a waiting list EM received help escaping an for a new home and eventually I was granted a abusive partner temporary home with a housing association. I have just recently been offered a more secure, n 2007 I approached a housing solicitor for permanent home for my son to grow up in. Ihelp. I had been trying to escape an abusive I am very happy now everything is over. My and physically violent ex-partner. Even son and I can live in peace knowing that my ex- though we were not together he would still partner does not know where we are and I am come and go from my home whenever he thankful for being able to get legal aid to help wanted. It felt like he had complete control me with my case. If legal aid had not been over me and because we had a child together it available to help me then I do not know what I was difficult for me to avoid him. would have done. I could not have done this When he was at my home he would start on my own. arguing with me and sometimes become physically violent. When I rang the police he Welfare benefits would disappear before they arrived. They were never able to catch him and arrest him. Instead they advised me to apply for a transfer Mr and Mrs Mansell were helped
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by free legal advice to retain their live with my partner. Our son was born in pension credit 1976 when I was still living away from the house. Shortly before my mother passed away am writing this letter to express my concern in January 1978, my partner, our son and I Iabout the proposed legal aid cuts. I found moved into her home. At that stage my part- myself in difficulty recently following a deci- ner and I took over the tenancy. I’ve lived here sion by the DWP to refuse to pay me any pen- ever since. My partner passed away in 2001 sion credit. They also told me that I had been and my son moved out not long after, so since overpaid by more than £11,000. This left me then I have lived here alone. with barely any income for my wife and I, and In February 2010 I received a letter from my we struggled to survive on what we had. landlord informing me they were going to With professional welfare benefits advice increase my rent to £250 per week. My rent at we were able to prepare for a tribunal hearing the time was only £125 and I was receiving against the decision to refuse pension credit. housing benefit to pay for it. I contacted the We were successful in this. We were also able council but they told me housing benefit to quickly change the decision that we had to could only cover £165 per week. The changes pay money back to the Pensions Service. would take effect from April 2010 so I did not The rules involved in the Pension Service’s have much notice. I knew that I would not be decision were complex and not easily under- able to afford to pay the extra rent, so I was standable. We also found that the Pension very worried. Service itself confused the issue further in I initially approached Enfield Council advance of the hearing which would have Housing Advice for assistance. They helped made it nearly impossible for us to deal with me challenge my landlord’s decision as he the case on our own. was legally required to give me six months’ I would not be able to afford to pay for legal notice of a change in rent. advice and would support legal aid continu- This meant I was able to put back the date of ing to support people like myself. effect of the new rent until November 2010. However, I was still extremely worried as I Housing did not know how I was going to pay the extra rent. The only income I receive is from hous- ing benefit and my pension which is very Jean Martin had help to stop her small and only just covers my outgoings as being evicted they are. Housing Advice then referred me to a solic- needed legal help when my landlord tried itors’ firm. They were absolutely great. They Ito increase my rent to a level I could not advised me that because I had been living in afford. I live in a rented house in Enfield the house for I was a protected tenant under where I’ve lived most of my life. My parents the Rent Act. This meant that the landlord were the original tenants of the house and could not lawfully raise my rent to the level he they already lived there when I was born in wanted. They managed to sort out the whole 1943. I lived in the house from my birth up thing for me by helping me apply to court to until 1975. At that stage I moved out briefly to establish that I was a protected tenant.
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My solicitor rang me in early December We were living with a Somali friend, who 2010 to say that the court had accepted that I after few weeks asked us to leave her house, was a protected tenant. He informed me that so we became homeless. The solicitor who this meant that if my landlord wanted to was representing us at that the time did not increase my rent in the future it would have to give us the right support and advice, and as be an allowable increase and it would very a result our asylum claim was refused and likely be covered by my housing benefit. As the case was closed. yet my landlord has not tried to change my rent again. I was so happy when I heard this. “For us, the law centre has All the worry and stress had been like a lead weight around my neck. It had made me ill been a lifeline, and I am sure it and I was even taking anti-depressants which has been and continues to be I had never had before. the same for many others. I will There is no way I would have been able to stay in my house without legal assistance. My always be grateful for the help individual testimonies solicitor told me that being a protected tenant I received” under the Rent Act is very rare. I definitely would not have been able to discover it by A friend told us about Hackney Commu- myself. If it had not been for my solicitor I am nity Law Centre and how the housing sure my landlord would have raised my rent solicitor was extremely helpful and support- and I would have had to leave my home. ive. We had nowhere to sleep the night we That is why legal aid is so important for went to the law centre. The housing lawyer people like me. I have been lucky, I got help, contacted various departments of the council but there are so many people out there who and got a court order over the telephone. We still need it. were placed in a bed and breakfast at one o’clock in the morning. Asylum law, housing and At the time, we also had immigration welfare benefits problems. The immigration solicitor at the law centre was not only helpful, she was understanding, caring and compassionate. The following is a letter from Thanks to her, our immigration case was Souleikha Mouhamed who received reopened. We went to court to appeal the help from Hackney Community decision by the Home Office and we were Law Centre for both asylum and successful. We were then granted housing problems refugee status. Since then the law centre has helped us to be y mother and I came to the UK in rehoused by the council, and is helping with MDecember 2002, as we fled the civil our request for a transfer (my mother is dis- war in Somalia. My father was murdered abled and we live up a flight of stairs). They in the civil war, and to this day we do not have also represented my mother once at the know whether my brothers or sisters are lower tribunal for my mother’s Disability dead or alive. Living Allowance appeal and we are waiting
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for another hearing. because of his behaviour and our situation. I We have moved on with our lives now, became withdrawn. I began to spend almost all and I am about to complete my university of my time in the house just with our daughter. degree. One day I may work in the NHS. I was I did not have support from my family at the horrified to learn about drastic proposed legal time. I began to drink heavily and ended up aid cuts, which would mean that in the future developing a serious alcohol addiction. the law centre would not be able to help Our marriage deteriorated further. We people like us with benefit and money advice, would both be violent towards each other, immigration and housing problems. I would particularly when I had been drinking a lot. ask the government to rethink. I did try to leave my husband a number of The law centre has been so helpful to times during this time but he would always me and my mother. It’s a place dedicated to threaten me. He told me that he would make helping people like us. For us, the law centre sure he got custody of our daughter and that has been a lifeline, and I am sure it has been I would never see her again. and continues to be the same for many others. On one occasion my husband and I had I will always be grateful for the help I received a serious fight. The police were called to the and thank both our solicitors from the bottom house. Our daughter was only three at the of our hearts. time and, because my husband and I had been violent with each other, social services Childcare and family became involved. Over the next year things were awful. Child Protection was working with me and my hus- EP received help in the wake of the band, but because of his drug addiction and break up of an abusive relationship my alcohol addiction we were getting worse. in relation to divorce and care I was so miserable that I was just giving up on proceedings life. I did not have the energy or the will to try and sort myself out. As part of our work with married my husband in 2002. Soon after- social services my husband and I had agreed Iwards we began to have problems. My hus- not to be around our daughter at the same band previously had a high-profile job as a time. When social services found out that we banker in London, although when we met he had broken that agreement they began court had left his job and was living off capital. He proceedings to take my daughter into care. had lived a party lifestyle and at the time we This was when I first approached my got married he had an addiction to cocaine. At solicitors. I was worried about how I was the time I was naive and didn’t realise how going to pay for her because I was not work- severe the problem was. We attempted to deal ing and we had huge financial difficulties. with this by moving away from London, but However, my solicitor told me I could qualify this didn’t work. for legal aid funding. Over the next few years my husband’s behav- My solicitor was amazing. She was incredi- iour became worse. He was older than me, very bly supportive, far beyond her professional domineering and controlling. He was also duties. At that time I was so unhappy, I was an physically abusive. My health began to suffer alcoholic and in an abusive marriage. I was
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unable to function properly as a mother. My resolved, such as contact arrangements for the solicitor helped me every step of the way. children, and my husband was being During custody proceedings the judge extremely uncooperative. He was determined strongly recommended that I seek a residen- to obstruct any progress and managed to drag tial treatment programme for my alcohol out the proceedings for a long time. My solici- addiction, which I did. While I was in the resi- tor was a great support throughout. There is dential programme the court made a special no way I could have done it myself. I was still guardianship order in favour of my father. so fragile at the time and my husband would say nasty, abusive and untrue things about me “Over the next year things during the hearings. The idea of going were awful. Child Protection through that without the legal assistance I had was working with me and my is inconceivable. It took a long time, but in the end things husband, but because of his improved. I have stayed off alcohol, my sec- drug addiction and my alcohol ond daughter is now off the child protection individual testimonies addiction we were getting register and in February 2010 the order giving my father special guardianship of my first worse. I was so miserable that daughter was revoked. My husband also got I was just giving up on life” treatment for his addiction and was able to give up drugs. He got a new job and lives abroad now. Our divorce was finalised in Around this time I realised that if I was ever October 2010 but we have been able to build going to properly repair my life I needed to an amicable parental relationship for the sake get out of my marriage, so, with the help and of our children. support of my solicitor, I started divorce pro- Now I am a functioning parent and I’m ceedings. At that stage I was pregnant with starting to rebuild my life. It is still difficult our second daughter. Because Child Protec- thinking about all that has happened but I am tion had been involved with us for so long, so much better than I was. I am indebted to my our second daughter was placed on the child solicitor. She was unbelievably supportive. It protection register when she was born. was more than just a professional relation- After I completed the residential pro- ship. She helped me see that I was never going gramme although I had stopped drinking I to improve my life unless I got out of my abu- still had difficulties. I was still very emotion- sive marriage. When I was at my worst I ally weak. I suffered from anxiety which was needed someone whose professional duty it made worse by the continuing difficulties was to be honest with me. with my husband and the stress of the divorce Without legal aid I do not know where I proceedings, and I often had panic attacks. would be now. I had no resources of my own After a short time in temporary housing I when I left my husband. Neither of my par- moved in with my father who was still caring ents was financially stable enough to lend me for my oldest daughter. money and my husband had left us in such a The divorce proceedings took a huge dire financial situation at the time that I could amount of time. There were many issues to be not borrow money. Without the assistance I
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got through legal aid I probably would have my children. Because of the work undertaken lost both my children and may still have been by my solicitors, I can now move on with my an alcoholic and in a violent relationship. life and work on building a better future for myself and my children. Family and debt advice I knew from research on the internet that I was entitled to legal aid. I am alarmed to think that people in my position will find it increas- Steven had help in family contact pro- ingly hard to have access to legal aid funding. ceedings and advice on his debt issues In certain circumstances I believe going to court is the only satisfactory option available. needed legal advice to petition for a divorce I am about to partake in mediation, which is Iagainst my wife. Most importantly, I not ideal for someone in my circumstances – wished to put in place arrangements to see my the distance between myself and my ex makes two children. In addition, I had major debts this option impractical. I find no comfort in incurred during the marriage that were solely the fact that both parties are entitled to change in my name. their minds. However, the benefit of obtain- In relation to my debt situation, my solicitor ing a court judgment is that it provides cer- recommended a debt relief order which tainty and both parties know what is expected meant that, although this affected my credit of them and the consequences. This is particu- rating, I did not have to pay my debts unless I larly important when negotiating rights to see had sufficient disposal income. This has pro- my children. vided great relief to me and means I have suf- ficient money to see my two children. Community care and housing “I am now going through a divorce and have formal Subera received legal aid after her arrangements in place to see local authority refused to house her and her 12-year-old sister my children. Because of the work undertaken by my received help from my local law centre solicitors, I can now move Iwhen I was applying to the council for accommodation. on with my life and work on I am from Bangladesh originally and I building a better future for moved to the UK with my father and two myself and my children” younger brothers in 1999 when I was around nine years old. In 2005 my father became sick and was taken into hospital. He passed away My solicitors have provided me with excel- shortly afterwards. I was only 15 at the time lent advice and support. Without them it and I was left trying to look after my two broth- would be hard to think of the possibility of a ers, aged 14 and ten, by myself. After a short decent life. I am now going through a divorce while my school found out about the situation and have formal arrangements in place to see and informed social services. All three of us
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were then taken into foster care. I was housed one week to leave my home. in a placement separate from my brothers, I approached my local law centre for help. which I found difficult and upsetting. They had given me housing advice when I Shortly after turning 18, I moved to London first arrived in London and I thought they had and began to live in a supported housing been really great so I went back to them. scheme for young people. I had been accepted The law centre advised me that I could to study psychology at a London university. apply to the council for emergency accommo- I had been living in the supported housing dation. I went to the council but they refused for about three months when I got a phone to provide emergency housing. They told me call from my mother in Bangladesh. She that it was my fault that I was homeless as I told me that she was suffering from cancer. was voluntarily looking after my sister. At the time my little sister was just 12 years My adviser helped me obtain a statement old and still living with our mother in from social services that confirmed I was my Bangladesh. sister’s sole guardian. They also helped me My mother told me that she had become so put together evidence that my mother was individual testimonies sick that she could not care for my sister any- sick and unable to care for my sister. I had evi- more. There were no other family members dence to show that I could not secure my own who could take my sister in and already some housing. Even with this evidence to support family members were talking of marrying my me and the support of social services, the sister off. My mother was extremely worried. housing department still refused to house me She asked me if I would care for my sister and and my sister. They told me that if my sister I said I would. A few days later my mother really did not have anyone else to care for her sent my sister over to London with one of her then I should put her into foster care and stay friends. This was in June last year. The friend in the supported housing by myself. then went back to Bangladesh, leaving me to I was shocked and devastated when the look after my sister. council told me that. I was simply trying to do I had not been able to make any plans what was best for my sister and it felt like I for my sister’s arrival as this had all happened was being punished for that. I had promised so suddenly. Unfortunately my sister was not my mother I would take care of her and there allowed to stay with me at the supported was no way I could put her into foster care. I housing scheme as it only housed people over had been in foster care myself and knew the 16 years old. At first I tried to hide the fact that difficulties that go with it. I did not want to my sister was living with me just until I could put her through that. find somewhere else to live, as I knew they At the end of the week I had to move out of would ask me to leave and we would be my home. Social services had agreed to pro- homeless. I could not arrange anywhere else vide housing for me and my sister for a short for us to live because I had very little money time while my application for housing was and few resources. In the end I had to tell the being processed. I knew that the social serv- people at the housing scheme about my situa- ices housing was just a temporary solution tion. They told me that if I wanted to live with and I was so worried because I did not know my sister I would have to leave. There was no what was going to happen to us. Every time I way I could abandon my sister, so I was given spoke to the housing department I got the
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same response, no matter how desperate I assistance I would either be homeless or I said my situation was or how much would have had to put my sister into foster evidence I provided. care. This kind of help is so important for peo- When I told the law centre this they imme- ple like me who have so few resources and diately wrote to the housing department. My who are just trying to make a life for them- case worker told me that the housing depart- selves and their families. ment was definitely wrong to refuse my application. In the letter she demanded a Housing review of the decision and threatened court action unless my sister and I were provided with emergency housing. The council did Mrs Whitehouse received help when review the decision and confirmed that they her landlord tried to sell the house in have a duty to make sure that my sister and I which she had been living for almost have somewhere to live. Within the next cou- 50 years ple of days we were provided with temporary accommodation in a two-bedroom flat. needed help from a solicitor when I received Ia letter from my landlord’s solicitor saying “We are still living in that she wanted to come and speak to us about our flat. The solicitor came round shortly after temporary housing but this and told my husband and I that my land- I am currently bidding for lord wished to sell our flat. The solicitor told us permanent accommodation that there was nothing we could do to prevent this and that it would be unwise to try and fight for us. Already our situation it in court as we would definitely lose. is so much better” The prospect of being moved from our home was terrifying. We had lived in our flat We are still living in temporary housing but since 1962. We were elderly (my husband I am currently bidding for permanent accom- was 79 at the time of our trial and I am now modation for us. Already our situation is so 78) and we had hoped to stay living in much better. We have some stability and I am our home until we were no longer well able to concentrate on my studies at university enough to do so. and taking care of my sister. I have managed to Our landlord showed us another flat that find a school for her and she is doing well. we would be moved to if we agreed to leave I would not be in this situation if it was not and I did not like it at all. There were few win- for the help I received from the law centre. dows so it was much darker than our flat. They were so supportive of me throughout, Also, although it was still within our local not just with the legal side of things but also area, it was a very different community. personally. Every time I approached the hous- Our flat is on a lovely street and I am ing department myself I was refused with the involved in my community. I am president of same excuses. It was only when my case- Housing for Young Employed Men of Limited worker intervened and wrote to them directly Means (HYELM), an organisation that pro- that any progress was made. Without their vides affordable housing and facilities for key
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workers and young people (of both genders In the end we trusted our barrister’s opin- now) of limited means in London. I also act as ion and agreed to appeal. It was lucky that we trustee for the InterChange Trust, an organi- did, because when the case went to the Court sation based in Hampstead that provides of Appeal we won with a unanimous verdict. activity programmes for youngsters, some All three judges said that our landlord’s case with difficult backgrounds, often involving was extremely weak and they were quite mental health or physical disability issues or critical of the first judge who had sided criminal backgrounds. I also founded the with our landlord. Netherhall Neighbourhood Association in 1983 and remain on its board. “The prospect of being My neighbours are even more important to moved from our home was me now that my husband has passed away. terrifying. We had lived in our They often help me with chores such as giving me lifts to do my shopping and they recently flat since 1962. We were turned up unexpectedly to clear my front elderly – my husband was 79 individual testimonies steps during the snow and ice. More than that, at the time of our trial and my flat has been my home for nearly 50 years and moving to this other flat would have been I am now 78 – and we had like moving to another world. hoped to stay living in our I felt it was important to get some legal home until we were no longer advice about what was happening to us. We approached a tenants’ advisory group in well enough to do so” Camden who provided a list of solicitors that would deal with housing issues like ours. Unfortunately my husband was not alive to The solicitor we found was fantastic. see that decision, as he had died from a heart She told us that we qualified for legal aid attack while the appeal was still ongoing. I am funding and arranged it all for us. We thought sure it was not the sole cause, but I also have we had a good case but unfortunately at the no doubt that the stress of this whole situation first court hearing we lost. However, our bar- was part of what caused my husband’s death. rister told us that she could not believe that we I am completely indebted to legal aid. At had lost the case. She said that in her opinion the time of the case my husband and I were the judge had been clearly wrong and that we long retired and had survived on benefits for a should appeal. long time. My husband used to work as a free- My husband and I were initially wary of the lance filmmaker, producing, directing and idea. The whole situation had been incredibly filming. It did not pay much though as he was stressful and had affected our health. We were often out of work and he had not made any not sure if we could stand the stress of drag- provision for our old age such as a pension. If ging it out further. Also, I felt awful about tak- we had not received legal aid we would have ing further money from the public purse to had no way of funding this case. We would fund our case, even though my solicitor had have had to move out to the flat that our land- explained to us that it was our right and that lord was offering, leaving our home of 50 this is what it was there for. years and all our friends, without knowing
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that our landlord had no right to do this. much from social services. I thought I was not I did not want to have to take public fund- getting much information or support. It felt ing for this case, but there was not any alterna- like they had just forgotten about me and tive. Luckily, because we won the case my my grandson. landlord was required to pay all our legal costs so all of the money we had received went “My grandson was taking back to the government. When my solicitor a long time to settle in. When told me that I was almost as happy about it as I was about winning the case. My husband and he first moved he was upset I were vulnerable people, and vulnerable peo- and showed the emotional ple need to have the support of legal aid. strain. He was worried that (The Court of Appeal decision can be found on Bailii: Whitehouse v Lee [2009] EWCA Civ he had betrayed his dad 375.) and was suffering from nightmares and bed-wetting” Family
My grandson was taking a long time to Yvonne received legal aid to help settle in. When he first moved he was upset apply for guardianship of her and showed the emotional strain. He was grandson, after he suffered from worried that he had betrayed his dad and was abuse from his father suffering from nightmares and bed- wetting. Sometimes he felt resentful towards wanted advice on what I could do when my his dad and he would be cold and rigid Igrandson was taken by social services fol- around other family members. He didn’t lowing accusations that his father (my son) like to be embraced and I think his dad had been physically abusing him. sometimes told him that the rest of us didn’t The police removed my grandson after an love him. anonymous phone call to them concerning I began to think that I wanted a more formal child abuse. My son, who was later arrested, arrangement in place for looking after my phoned me when his child was taken away. grandson. I was concerned that my son would I contacted the police and found out that my be able to come and take him away whenever grandson had been taken by social services so he wanted. When I decided that I needed I went to their offices. advice I went to the Citizens’ Advice Bureaux. I was allowed to take my grandson along There was no indication that the CAB could with a social worker to visit a child protection assist me and they gave me a list of local officer and a doctor. At first he wouldn’t say solicitors’ firms to visit. what had happened but he later described the I picked the firm that was closest to my violence to the doctor. After we had seen the home. I’m not sure what I would have done if doctor I took my grandson home to live with it had been further away. I didn’t have any me and my two youngest children. help looking after my grandson and had to Over the next few weeks I didn’t hear take him to school and collect him. It would
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have been very difficult for me if there had from the way he holds himself that’s he less been no local legal aid advice available. tense and more relaxed. He is opening up and My solicitors they told me what my options expressing himself more – his dad always cut were, including applying for a residence his hair short but he decided he wanted an order or special guardianship order. I took Afro. I wasn’t sure about it myself but we’re some time to think about it. I liked the sound beginning to see who he really is. of a special guardianship order. It sounded I think having call centres as the first point like the role I wanted to have where I would of contact would be a mockery of the legal have the same rights as a parent when mak- system. When I needed legal advice I was ing decisions about my grandson. I also vulnerable and felt that I needed someone to wanted to ensure that he couldn’t just be talk to face to face, not over the phone. I don’t taken away again. With the SGO in place it think legal aid costs too much – you can’t put would mean someone would have to get a a price on things that are priceless. If you court order to take him from me. remove this funding then it would cause even I was also happy because I could explain all more breakdown in society. individual testimonies this to my grandson. He was having a diffi- If I had not been able to afford legal advice cult time and was worried that his dad could then I might have tried to represent myself. take him back at any time. He wanted to be But I don’t know how I would have dealt with able to visit his dad but he didn’t want to live all the paperwork or known who to chase and with him. for what information to help my case. It I went back to my solicitors and told them I would have felt as if it was me up against all wanted to apply for an SGO. They told me the other authorities involved. In the end it that I would have to get a residence order in was the court that got the local authority to do place first, and then I could apply for an SGO. all the things it should have been doing in the They applied for the orders for me, putting all first place. Before the court hearings no infor- the evidence and information together. I do mation had come from social services; it had not think that I could have done this on my all come from the solicitors. I felt like social own – I needed the help of those who were services were waiting to see what everyone qualified and able to work on my behalf. else – the police, the courts, and so on – would I’ve been to court around four times do. throughout this process. Each time a solicitor I am very grateful to legal aid and my solic- has been there with me, which I have found a itors for their help so far. The school says that great support. In that time my son was my grandson is a changed child. He was banned from direct and indirect contact with always able academically, but now he has his son. He also received a two-year sus- blossomed and no longer bottles things up. I pended sentence. I haven’t got the SGO quite don’t think that could have happened with- yet but we’re going to court again in a couple out taking the action that I did. of months and I’ve been told that I should get Without legal aid my grandson would be it then. living in an uncertain and unsafe situation. Since coming to live with me my grand- There would have been a constant risk that son’s come a long way. The bed-wetting and his father would come and take him away at nightmares have tapered off and you can see any time. He can’t do this now.
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the case for legal aid: the rule of law © Ripon Ray
Shami Chakrabarti
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the case for legal aid: the rule of law 7. The case for legal aid: the rule of law
herever law ends, tyranny begins” was how 17th century philosopher John Locke summed up the rule of law. We considered a range of evidence and “Winformation to the effect that the rule of law is integral to a democratic society and that legal aid is a vital component of this.
What is the rule of law? the idea of ‘equality of arms’, i.e. that the For the late Lord Bingham, a former senior dice should not be loaded against one law lord, the rule of law meant: “All persons side or the other. and authorities within the state, whether pub- lic or private, should be bound by and entitled The importance of the rule of law to the benefit of laws publicly made, taking The rule of law is central to our modern sys- effect (generally) in the future and publicly tem for protecting human rights. The first of administered in the courts.”1 the major human rights documents drawn up the rule of law That is, everyone must adhere to the law, no after the Second World War was the Universal one should be above it, and everyone should Declaration of Human Rights, adopted by the have the protection of the law when they need it. General Assembly of the United Nations on According to Bingham, the rule of law 10 December 1948. The affronts to humanity encapsulates a number of different principles, committed during the war were still fresh in including: the minds of the commission, chaired by ! Equality before the law: the laws of the Eleanor Roosevelt, which drafted the declara- land should apply equally to everyone. tion. The preamble to the declaration says “it ! Ministers and public officers at all levels is essential, if man is not to be compelled to must exercise their powers in good faith, have recourse, as a last resort, to rebellion fairly, for the purpose which they were against tyranny and oppression, that human given to them, without exceeding the lim- rights should be protected by the rule of law”. its of such powers and not unreasonably. It is precisely this principle, among others, ! The law must provide adequate protec- upon which the European Union is founded. tion of fundamental human rights. Article 2 of the consolidated version of the EU ! Access to justice: as an unenforceable right treaty states: is of little value to anyone, everyone should “The union is founded on the values of have the means to resolve their disputes respect for human dignity, freedom, democ- without prohibitive cost and as a last resort racy, equality, the rule of law and respect for people should be able to go to court to have human rights, including the rights of persons their civil rights determined. belonging to minorities. These values are ! A fair trial: procedures for resolving dis- common to the member states in a society in putes should be fair. This encapsulates which pluralism, non-discrimination,
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tolerance, justice, solidarity and equality “[T]he state should properly understand that between women and men prevail.” properly funding the civil and family justice In 2008, the then leader of the opposition, systems is as essential a part of a society com- now the British prime minister, David mitted to the rule of law and to open democratic Cameron, declared his commitment to the rule ideals, as is properly funding the criminal jus- of law stressing its importance to British society: tice system. It is essential in this way because “There’s a long list of things we might the three systems are in fact no more than three include in any description of our national facets of an indivisible whole and it is that character, or ‘Britishness’. But I don’t think whole that is or should be the living embodi- we need engage in some protracted exercise ment of our commitment to the rule of law.” to define our shared values. We can do it in a It is well established that legal rights are mean- single phrase. Freedom under the rule of law. ingless without the means to enforce them: This simple, yet profound expression ‘‘Ibi jus ubi remedium as the courts used to say explains almost everything you need to know when Latin was still in vogue. The language about our country, our institutions, our his- may have fallen out of favour since the Woolf tory, our culture – even our economy. It is why reforms, but it cannot be denied that the truth British citizens are free men and women, able expressed by the claim that where there is a to do what they like unless it harms others or right there must be a remedy remains as valid is explicitly forbidden. And why no one and today as it did in 1702. The truth expressed here nothing is above the law. These shared values, is one that those interested in civil justice in enshrined in our constitution and institutions general, and access to justice in particular, have over centuries, are the foundation of our long understood. It is a truth that Bentham, civilised society. They are democratic, pro- that great 19th century philosopher and gressive and protect our human rights.” 2 reformer, noted when he attacked what would These points were echoed in the Ministry soon become known as our, then, Dickensian of Justice’s 2010 green paper on legal aid, civil justice system on the grounds that its inad- which states that “the government strongly equacies rendered ‘talk of equality, rights, lib- believes that access to justice is a hallmark erty and justice’ a chimera. In the absence of a of a civilised society”. means to effect a remedy through which to enforce legal rights and obligations, the lan- The role of legal aid guage of rights is meaningless. As our Ameri- We have considered a broad cross-section can cousins are known to say, talk is cheap.” 3 of evidence on the role of legal aid in uphold- Lord Justice Jackson in his comprehensive ing the rule of law. The judiciary is particu- review of civil litigation costs also recognised larly outspoken on this. Lord Bingham the importance of the legal aid system in explains in his book is that “denial of legal maintaining access to justice, stating: protection to the poor litigant who cannot ‘‘…the vital necessity of making no further afford to pay is one enemy of the rule of law”. cutbacks in legal aid availability or eligibility. Lord Clarke, former Master of the Rolls, The legal aid system plays a crucial role in pro- argues that the government cannot simply moting access to justice at proportionate costs pick and choose what parts of the justice in key areas… The maintenance of legal aid at system it funds. He says: no less than the present levels makes sound
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economic sense and is in the public interest.’’ 4 the rule of law fairly”, encouraging people Lord Neuberger, Master of the Rolls, has been “not to respect rules and regulations and not equally forthright. In his keynote address to the comply with social norms and expectations”. Law Society and Bar Council in 2009, he said: Similarly the impact assessments note the “Today, not least because of the effects of the potential for “reduced business and economic credit crunch, many countries are finding it dif- efficiency” as “failure to enforce rights and ficult to fund legal aid. Economic reality must, not applying the rule of law may undermine of course, play a part. It must play a part in any work incentives, business certainty and the future reform. But we should still ask how we operation of markets”. manage to find ourselves in the situation that Campaign group Liberty stressed to the the total (criminal and civil) legal aid budget panel the constitutional role of legal aid in for 2008 came to no upholding the rule of more than the total “Access to the courts to uphold law and protecting NHS budget for two individual rights does more human rights. It weeks. Reverting to than simply vindicate the described legal aid as Heber Smith, the rule “fundamental to of law and the individual in the particular enforcing individual defence of the realm circumstances of his or her liberties across the the rule of law are the most funda- case. Successful challenges board and ensuring a mental and well- thriving culture of established duties of set precedents, raise rights”, saying: government: if either awareness and help to instill “Access to the courts fails, the more human rights considerations to uphold individual recently developed, rights does more high-profile and into public sector than simply vindi- expensive govern- decision making” cate the individual in ment services, such as the particular cir- the provision of health, education and social cumstances of his or her case. Successful chal- security, become impossible or of little value. lenges set precedents, raise awareness and Why some might ask, as a society, are we will- help to instill human rights considerations ing to invest so little on legal aid, when both the into public sector decision making.” 6 unacceptably unfair effects on individuals and Liberty’s evidence stressed that human the fundamental risks to society rights are illusory without legal aid to help of the denial of justice to many citizens are enforce them: “[E]ffective access to the courts so profound?” 5 is an integral part of the human rights regime The impact assessments published along- as a whole. Without publicly funded legal rep- side the government’s 2010 green paper set resentation many individuals will be effec- out in alternate terms the effects tively precluded from seeking redress and of cutting legal aid. They warn of the “wider thus denied access to an effective remedy.” social and economic costs” of cuts and say It also pointed out that cuts to legal aid reducing legal aid may result in “reduced would create an inequality of representation. social cohesion” as a result of “failure to apply “The principle of equality of arms will never
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be achieved if publicly funded legal represen- erly funded public legal system, those unable tation is of a lesser quality than privately to afford private representation will have funded representation, or is so scarce as to be either poor quality representation or none at in practical terms unavailable.” all. If ordinary people cannot access justice The evidence suggests that, without a prop- then the rule of law is undermined.
Notes for Chapter 7 1. Tom Bingham, The Rule of Law (2010, Penguin London) Final Report, December 2009 page 8 5. Lord Neuberger MR Keynote address, the Law Society 2. Speech to the Foreign Policy Centre, 24 August 2008 and Bar Council Opening of the Legal Year Ceremony,
3. Lord Clarke of Stone-cum-Ebony, Hope springs 30 September 2009 eternal: The Mary Ward Legal Advice Centre 6. Liberty, Response to the Ministry of Justice Proposals for Annual Lecture the Reform of Legal Aid, February 2011 4. Lord Justice Jackson, Review of Civil Litigation Costs: © Ripon Ray
Reverend Professor Nicholas Sagovsky
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8. The case against legal aid: the arguments for changing the current system
he panel considered arguments for reducing legal aid in depth. The government’s 2010 legal aid green paper provides a comprehensive case for reducing legal aid. We also Tinvited the Ministry of Justice to participate in the event on 2 February 2011. Jonathan Djanogly, under-secretary of state for justice, declined to attend the evidence session but responded in writing (Appendix 3). We made a point of contacting organisations which had expressed or, in our view might express, support for the principle of cuts to the legal aid system. We approached the Adam Smith Institute, the Taxpayers’ Alliance, the Society of Conservative Lawyers and the Policy Exchange. Of these organisations the Taxpayers’ Alliance and the Adam Smith Institute did not respond. We have considered the latter organisation’s publication Access to Justice: Balancing the Risks . The Society of Conservative Lawyers told us that they had no ‘party line’ on the availability of legal aid and provided us with a copy of its publication Access to Justice which contains essays by individuals on the funding of litigation. Policy Exchange offered to reply to written questions. We also considered their publication Controlling Public Spending: How to Cut 25% , and an article by their director entitled How can we get the legal aid bill down? changing the system changing Too much unnecessary litigation reserve taxpayer funding for legal advice and and legalism representation for serious issues which have A recurrent theme in the documents is that sufficient priority to justify the use of public there is too much unnecessary litigation in funds subject to people’s means and the mer- society. Or, as the Adam Smith Institute puts its of the case. The proposals would ensure it, legal aid is encouraging “risk-free specula- that legal aid continues routinely to be avail- tive litigation”.1 In support of this, in his letter able in cases where a litigant’s life or liberty is of 20 January 2011, Jonathan Djanogly states: at stake, or where they are at risk of serious ‘‘The scope of legal aid has widened enor- physical harm, the immediate loss of their mously over the years and we believe that this home, or where they face intervention from has encouraged people to bring their prob- the state in their family affairs which may lems before the courts too readily, even when result in their children being taken into care.” the courts are not well placed to provide the This mirrors the stance taken by the Lord best solutions. This has led to the availability Chancellor Ken Clarke, introducing the legal of taxpayer funding for unnecessary aid green paper to the House of Commons: “It litigation. The aim of our proposals is to cannot be right that the taxpayer is footing the
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bill for unnecessary court cases that would that the insurance market could step in more never have even reached the courtroom door as the state withdraws, providing before-the- were it not for the fact that somebody else event legal expenses insurance to a much was paying.”2 wider portion of the population (something The implication is that the taxpayer is fund- we are investigating at Policy Exchange).”4 ing cases which are either trivial or could be better solved by other means. Neither the gov- Taking responsibility ernment nor the Adam Smith Institute cites A third criticism of the legal aid system, any specific examples of unnecessary litiga- implicit in the government’s green paper, is tion funded by the taxpayer. that individuals are not taking sufficient However, Ken Clarke has given education responsibility for their problems. The govern- law, where current funding is only for ment states that “in many matters, we would preparatory work, as an example of over- expect individuals to work to resolve their legalism: “It is simply not right for the tax- own problems, rather than resorting to litiga- payer to help inject an element of what is tion at the cost of the taxpayer” and that their really legalism into problems that should in proposals have been guided by a desire to the end be resolved taking into account the encourage people “to take greater personal best interests of the child from an educational responsibility for their problems” (green point of view.”3 The green paper proposes to paper, paragraphs 2.11 and 4.3). scrap education altogether from legal aid. Closely linked to this is the idea that cases which have arisen from a personal choice made Not always necessary by an individual are less worthy of public fund- The second principle criticism directed at the ing. For example, the government states: current legal aid system is that public funding “There is a range of… cases which can very may not be necessary to resolve the dispute. often result from a litigant’s own decisions in For example, the government in proposing the their personal life, for example, immigration areas of law which it considers should be cases resulting from decisions about living, removed from the scope of legal aid have been studying or working in the United Kingdom. guided by whether or not the individual might Where the issue is one which arises from the be able to present their own case without legal litigant’s own personal choices, we are less advice or representation; whether alternative likely to consider that these cases concern sources of funding such as conditional fee issues of the highest importance” (green agreements or insurance might be available; paper, paragraph 4.9). or whether there are alternative routes to reso- lution, such as advice from a voluntary organi- Too expensive sation or the existence of an ombudsman. The fourth point which is made is that our To the same end Policy Exchange advocate current system, which costs in the region greater reliance on the voluntary sector of £2bn per year (green paper, paragraph 2.9), and assert: is simply too expensive. To this effect, the “There is also significant scope for bringing Policy Exchange says “funding for what is the new money into the system to help moderate most generous legal aid system in the world demand on the taxpayer. One possibility is cannot be sustained at current levels” and
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Dr Evan Harris
that while the government proposed reforms from the reports is that the legal aid system are “significant” they “still leave us with one has expanded beyond that which was origi- of the most expensive legal aid systems in the nally intended. world” and could go much further.5 The Lord Chancellor, Ken Clarke, when Similarly, the government has made introducing the government’s green paper to repeated references to the fact that our legal parliament on 15 November 2010, stated: aid system is expensive when compared “I believe that there is now a compelling case changing the system changing to other jurisdictions, labeling it “one of the for going back to first principles in reforming most expensive such systems in the world” legal aid. The current system bears very little and that: “While comparisons with other resemblance to the one that was introduced countries are difficult… evidence suggests in 1949.” that we spend more legal aid than other com- Similarly the green paper notes that: parable countries in Europe and elsewhere” “Although economic recovery is one of the (green paper, paragraph 2.9). main drivers, legal aid is, in any event, in need of fundamental reform. It is an expensive Grown beyond original intentions scheme which has expanded far beyond its The fifth and final criticism that we have noted original intentions” (paragraph 1.7).
Notes for Chapter 8 4. Neil O'Brien, director of Policy Exchange, ‘How can we 1. A Barton, Access to Justice: Balancing the Risks, page 3 get the legal aid bill down?’ The Daily Telegraph 2. Hansard, 15 November 2010 5. Ibid; A Lilico, H Sameen and E Holmes (Policy Exchange, 3. Ibid 2010) Controlling Public Spending: How to Cut 25%
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Kathy Meade
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9. Findings of the panel
e carefully considered the arguments both for and against reducing legal aid in eco- nomically challenging times. In receiving evidence, we were struck by the key role Wlegal aid plays in a diverse range of issues that we all consider essential for a healthy society: these included fairness before the law regardless of wealth and fighting for the right result, whether it be keeping your home or uncovering errors by the state that have caused the death of a loved one. Our eight findings are firmly rooted in the evidence we received:
(1) Legal aid is vital in protecting the Afro. I wasn’t sure about it myself but we’re rights of vulnerable people beginning to see who he really is.” We were struck both by the importance of the 18-year-old Subera gave oral testimony to issues and the vulnerability of those who told the commission about how her local authority their stories. The impact on the well-being of refused to house her and her 12-year-old sis- any of these people had they not received ter, until she was helped by legal aid lawyers legal aid would have been devastating. From at the Tower Hamlets Law Centre: the testimony which the panel received, the “I tried to hide the fact that my sister was following stood out as examples that under- living with me just until I could find some- pin this finding: where else to live, as I knew they would ask Mrs Whitehouse, who received legal aid to me to leave and otherwise we would be home- help to successfully challenge an attempt by less… In the end I had to tell the people at the her landlord to evict her, said: housing scheme about my situation… I was “The prospect of being moved from our given one week to leave my home.” home was frankly terrifying. We had lived in Steven, who had legally aided representa- our flat since 1962. We were now elderly (my tion to help him arrange contact with his chil- husband was 79 at the time of our trial and I dren and resolve his debt issues, also gave oral am now 78) and we had hoped to stay living in evidence to the commission, saying: “I can our home until we were no longer well now move on with my life and work on build- enough to do so.” ing a better future for myself and children.” Yvonne, who received legal aid to help gain EP, who received legal aid for her
guardianship of her grandson who had been divorce and to help her when her local panel findings abused at the hands of his father, spoke of the authority started care proceedings to remove change which this made to the child’s life: her children, described her life before these “Since coming to live with me my grand- problems were resolved: son’s come a long way. The bed-wetting and “Over the years my husband’s behaviour nightmares have tapered off and you can see became worse. He was older than me and very from the way he holds himself that he’s less domineering and controlling. He was also tense and more relaxed. He is opening up and physically abusive. My health began to suffer expressing himself more – his dad always cut because of his behaviour and our situation. I his hair short but he decided he wanted an became withdrawn. I began to spend almost all
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of my time in the house just with our daughter. When a new block of shops was built near I did not have support from my family at the her house which she was not able to access in time. I began to drink heavily and ended up her wheelchair, legal aid enabled her to bring developing a serious alcohol addiction.” a disability discrimination claim to have the The experiences of EP mirror those of SH problems rectified. who described in her testimony what life was AB who received legal aid across a spec- like before legal aid helped her gain occu- trum of interwoven areas including commu- pancy of the home she had shared with her nity care, immigration, asylum support and abusive partner. housing, described how his problems spi- “Over time our relationship began to break raled before his solicitor was able to help down. My partner started to drink more and he him achieve stability: would be abusive towards me… He was “My benefits stopped because I was no aggressive and controlling and would shout at longer entitled to receive them. This meant that me over nothing, telling me I was worthless. I could not afford to pay my rent and around Sometimes he would take my bank cards and three years ago I was evicted… I had to sleep on keys and leave the house for long periods, leav- the streets because I had nowhere else to go… I ing me stranded in the house and unable to go was attacked on quite a few occasions. I also anywhere. I became afraid for myself and my became ill very quickly and eventually I ended children. I decided that I had to get out.” up in hospital around a year later. I was diag- Souleikha Mouhamed, who received assis- nosed with a long-term illness that meant I had tance from Hackney Community Law Centre problems with my physical health. I was also for his asylum and housing applications, suffering from severe depression.” described his life before he found sanctuary: Finally, Simi Azmi, who received legal aid “My mother and I came to the UK in Decem- to help with her debts and her housing prob- ber 2002, as we fled the civil war in Somalia. My lems after her husband had ran up tens of father was murdered in the civil war, and to thousands of pounds of debt against their this day we do not know whether my brothers house and in her name, described her situa- or sisters are dead or alive.” tion before legal aid helped her to file for Leena, who received legal aid to help her bankruptcy successfully: with her debts, said in her evidence: “I was scared and I did not know what to “I had so much debt that I could not see any do. I got a letter from the bank’s solicitors in other way out and it was ruining my life. I early 2009 that threatened to repossess my have two young children and I was finding it house. At this stage I realised that I had to do increasingly difficult even providing the something or my children and I would essentials for them.” become homeless.” Mrs Hughes described her physical disabil- The picture painted by the evidence we con- ities to the commission: sidered is clear. Many of those who receive “I suffer from multiple sclerosis and a lung legal aid are among the most vulnerable in condition. Due to my ill health I am depend- society. They include the elderly, the disabled, ent on my wheelchair to move around outside the abused, children and the mentally ill. They and sometimes indoors. My husband cares each have legal rights which they would not for me full time.” have been able to enforce without legal aid.
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They have a wide variety of complex problems tolerance, justice, solidarity and equality that raise issues of homelessness, destitution, between women and men prevail.” domestic violence and the separation of fami- Without a properly funded public legal lies. Such issues are not only of great personal system, those unable to afford private importance to the individuals involved but are representation will have either poor-quality of importance to any society as a whole as they representation or none at all. If ordinary are rightly problems which a forward-think- people cannot access justice then the rule of ing society should strive to eliminate. law is undermined. There can be no sem- The panel regards it as wholly correct that blance of equality before the law when those legal aid is available to help these individuals who cannot afford to pay a lawyer privately solve their problems and rejects outright any go unrepresented or receive a worse kind change which would result in these individu- representation than those who can. als going unaided, their difficulties unsolved and their rights denied. “The picture painted by the (2) Legal aid is vital in upholding evidence we considered is the rule of law clear. Many of those who Every person we heard testimony from was receive legal aid are among entitled to the protection of the law. Without legal aid they would not have received this the most vulnerable in society. protection. It is on this basis that our second They include the elderly, the finding is that legal aid is vital to upholding disabled, the abused, children the rule of law. The panel was strongly influenced by com- and the mentally ill. They each ments made by members of the judiciary, both have legal rights which they former and current, such as the late Lord would not have been able to Bingham who described “denial of legal pro- tection to the poor litigant who cannot afford enforce without legal aid” to pay [as] one enemy of the rule of law” .1 That the rule of law is fundamental to our We have considered the argument that democracy can be seen clearly in article 2 of personal life choices should play a part in the consolidated version of the EU treaty whether a person is entitled to legal aid. For
which sets out the values and ideals upon example, this argument would mean that a panel findings which the EU is built and to which we con- person should not be entitled to legal aid if tinue to aspire: their problem arises from a choice to come to “The union is founded on the values of the UK to study. This argument does not take respect for human dignity, freedom, democ- into account the complexity of human life and racy, equality, the rule of law and respect for error. For the rule of law to work effectively, human rights, including the rights of persons legal aid must be available where injustice belonging to minorities. These values are would otherwise follow. common to the member states in a society in We received persuasive evidence from which pluralism, non-discrimination, campaign group Liberty. Liberty’s evidence
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stressed that human rights are illusory with- appropriate cautions were not taken to pre- out legal aid to help enforce them: vent him from doing so’. “Effective access to the courts is an integral “As a result of the jury’s findings, Her part of the human rights regime as a whole. Majesty’s deputy coroner for West London, Without publicly funded legal representation Elizabeth Pygott, wrote to the Lord Chancel- many individuals will be effectively pre- lor, Sir Paul Stephenson (then commissioner cluded from seeking redress and thus denied of Police for the Metropolis), the chair of NHS access to an effective remedy.” 2 Hammersmith and Fulham Primary Care We agree with this statement but wish to Trust, the secretary of state for health and the emphasise that upholding the rule of law chairman of Serco Group Plc to make a report requires more than upholding those rights in accordance with rule 43 of the Coroner’s which are classed as ‘human rights’, i.e. those Rules 1984. This rule provides that where evi- rights which are specifically protected under dence at an inquest gives rise to concerns that the Human Rights Act 1998. There is simply circumstances create a risk that other deaths no point in having any legal rights at all – be will occur, or will continue to exist in the that a right to a home, a right to asylum, or a future, action should be taken to prevent the right to have contact with one’s children – if occurrence or continuation of such circum- those rights can not be enforced. As Lord stances, or to eliminate or reduce the risk of Clarke puts it, “talk is cheap”. 3 death created by such circumstances.” The importance of legal aid in holding the (3) Legal aid is essential to holding state to account for its failings was also clear the state to account from the evidence received from Subera and Legal aid plays a vital role in holding the state from EM, whose cases had been handled in an to account for its mistakes and failings, and overtly inappropriate manner by the state. ensuring that they do not happen again. For example, when Subera told her local While philosophically this may fall within the housing department about her plight and that ambit of our second finding, we felt that this of her 12-year-old sister: issue was so important that it should be “The housing department still refused to addressed distinctly. house me and my sister. They told me that if Of all of the evidence that we considered, my sister really did not have anyone else to care there is no case which illustrates this point for her then I should put her into foster care.” more poignantly than that of Darwin Kealey, Similarly, EM related to us her experience who was found hanging dead in his cell at after she approached her local authority to ask HMP Wormwood Scrubs on the morning of it to transfer her to a property away from her 12 September 2008. He was 28 years old: abusive partner: “The jury at Darwin’s inquest, which con- “I asked the council to transfer me. I showed cluded in March 2010, identified no less than them pictures of my bruises and injuries. I nine failings on the part of the police, Serco, gave them police records and crime reference the prison and the Primary Care Trust and numbers. My case went to the emergency re- found that Darwin died of an act of self-harm housing panel but they turned me down. ‘in part because the risk of taking his own life Apparently I did not have sufficient evidence or harming himself was not recognised and to show that my life was seriously at risk.”
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Vicky Guedalla, retired immigration solici- pay Paul’ transfer of funds around the public tor, also gave us details of a number of young purse, the minister is overlooking the potential clients who required her advice and assistance benefit such a policy would have in providing a for immigration claims. She helped them over- financial incentive to public authorities to get turn wrong decisions by the Home Office and their decisions right first time.” 5 obtain support from social services or the If savings are to be made from public expen- Home Office where it had been wrongly diture then we regard such solutions as prefer- refused. In one memorable instance she able to reducing legal aid. It would be wrong in described the decision which she helped to principle for the state to tolerate bad decision overturn as being an “egregious error of law”. making by public bodies while at the same time Liberty, in its written evidence, stressed the removing the ability of ordinary people to hold long-term benefit of correcting such mistakes: those bodies to account for their mistakes by “Access to the courts to uphold individual reducing legal aid. rights does more than simply vindicate the individual in the particular circumstances of (4) Cutting legal aid is a false his or her case. Successful challenges set economy precedents, raise awareness and help to We see considerable force in the argument instill human rights considerations into that cutting legal aid is a false economy as the public sector decision making.” 4 provision of legal aid to solve problems early Without legal aid, decisions such as those on creates significant savings further down described above would remain unchallenged the line. We note that this has been recognised and the failings of the public bodies would by the Ministry of Justice in the impact assess- stand unnoticed and uncorrected. The panel ments accompanying its 2010 green paper on regards the ability to hold the state to account legal aid. 6 These set out the potential for as a fundamental facet of the rule of law. Where reductions in legal aid to cause: legal aid is necessary to achieve this it should ! Increased resource costs for other depart- always be provided. ments. If civil and family issues are not While alternative forms of legal funding are resolved effectively people might continue beyond the remit of this Commission of to rely upon the state, including because Inquiry, we have considered with interest the failure to resolve one issue may lead to report of the Justice Select Committee, which another arising. This may include health, recommends that bad decision making by pub- housing, education and other local author-
lic bodies be penalised through the principle ity services including services provided by panel findings that ‘the polluter pays’. the voluntary and community sector. ‘‘[W]e think there is potential for… a ‘polluter ! Increased transfer payments from other pays’ principle to be extended considerably, departments. Similar to the above, with the DWP (and other public authorities reduced resource transfers from the legal whose decisions impact upon the courts and tri- aid fund might lead to increased financial bunals) required to pay a surcharge in relation transfers to the poorest, e.g. via welfare to the number of cases in which their decision benefits or tax credits. For example, peo- making is shown to have been at fault. We think ple who previously received legal aid that in rejecting this idea as a ‘robbing Peter to might use up their own savings in future
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to finance a case, and in so doing they This placed an increased burden on the local might pass a benefits threshold. authority housing department as well as local healthcare facilities. This economic cost was in Citizen’s Advice quantify these “knock-on addition to the devastating human cost. costs” as follows:7 When coupled with the human cost to the ! For every £1 of legal aid expenditure on vulnerable and socially excluded of reducing housing advice, the state potentially legal aid, the panel finds these increased eco- saves £2.34. nomic costs are unacceptable. These knock-on ! For every £1 of legal aid expenditure costs provide a strong argument for maintain- on debt advice, the state potentially ing levels of legal aid at least at the level they saves £2.98. are currently at. ! For every £1 of legal aid expenditure on benefits advice, the state potentially (5) A holistic approach is needed saves £8.80. in providing legal aid ! For every £1 of legal aid expenditure For legal aid to be effective, a holistic on employment advice, the state poten- approach must be taken. That is, it must tially saves £7.13. allow a person to solve all of their interlocking legal issues and not just discrete aspects of The extent of the false economy of legal aid them. In considering the evidence the panel cuts was clear from the individual testimony was struck by how certain legal issues are that we received which demonstrated the often interwoven with others. For example potential for unsolved legal problems to spiral EP, who gave oral testimony to the panel, out of control. For example, AB who received described how the domestic abuse which she legal aid across a spectrum of interwoven suffered at the hands of her partner exacer- areas including community care, immigra- bated her alcoholism. Increasingly she found tion, asylum support and housing, described herself unable to look after her children at how his problems spiraled before his solicitor which point the local authority initiated was able to help him achieve stability: proceedings to take them into care. “My benefits stopped because I was no Legal aid helped her defend the childcare longer entitled to receive them. This meant that proceedings and divorce from her husband. I could not afford to pay my rent and around It was only by solving this entire web of issues three years ago I was evicted… I had to sleep on that EP was able to break away from her abu- the streets because I had nowhere else to go… I sive husband, move on with her life with her was attacked on quite a few occasions. I also children and start studying. became ill very quickly and eventually I ended The legal issues (domestic violence, child- up in hospital around a year later. I was diag- care proceedings and divorce) cannot be neatly nosed with a long-term illness that meant I had separated out. If legal aid were not available for problems with my physical health. I was also any one of these issues then the outcome of EP’s suffering from severe depression.” case might have been very different. In this instance a lack of benefits advice early Equally, in her oral evidence, Laura Janes of on escalated to result in homelessness, together the Howard League for Penal Reform spoke with physical and mental health problems. of a young person who she had represented
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for a number of years who had just been interlinked and each problem must be released on parole. He had come from a trau- addressed if there is to be resolution. This matic background, fleeing from Kenya with means that legal aid must be available across his mother at the age of six years, and from a the spectrum of legal issues which affect indi- young age had been moved from pillar to post viduals. Any attempt to remove legal aid from through the care system with his needs never certain areas of law, for example debt, on the truly being met by social services. He became basis that those issues are less important then involved in crime and was sentenced to a long another of law, say housing, is overly simplistic. term of imprisonment at the age of only 16. In custody he made exceptional progress win- (6) Cuts to legal aid will drive out ning a national music prize, and mentoring committed lawyers other children in the prison. We are concerned that cuts to legal aid will result in committed lawyers withdrawing “There can be no semblance from the legal aid profession. of equality before the law In her oral evidence, Shami Chakrabarti, when those who cannot afford director of Liberty, referred to Tony Blair’s stated intention to “derail the gravy train of to pay a lawyer privately go legal aid”. Ms Chakrabarti described this as a unrepresented or receive a “wicked misrepresentation” in her testimony worse kind representation and we agree. We were impressed by the com- mitment and dedication of lawyers working in than those who can” legal aid who gave testimony to us. Ms Janes, in To secure his release on parole, Ms Janes her capacity as chair of the Young Legal Aid explained that she had to battle with social Lawyers, emphasised to us that in her experi- services to ensure that he would have a home ence young legal aid lawyers entering the pro- to go to when he was released; fight with the fession were uniformly motivated by social prison service to ensure that he was not justice and frequently spent long periods of moved to an adult prison, undermining his time undertaking unpaid internships or low- rehabilitation; stop the Border Agency in their paid paralegal work and accumulating large attempts to deport him; before finally, suc- amounts of debt to achieve this. cessfully, representing him at his parole hear- We are aware that lawyers in private practice ing. The young person is now employed as a earn considerably more than those dependent
mentor in the community working with other on legal aid. We are aware that there are a hand- panel findings young people from troubled backgrounds to ful of barristers, principally conducting criminal ensure that they do not make the same mis- defence work, who are paid large sums from the takes that he did. If the young person had not legal aid scheme. We are sympathetic to the Law been able to get help for any one of his varied Society’s proposal that no individual should and complex legal issues then the final out- earn more than £250,000 per annum from legal come might not have been such a happy one. aid. However, we believe that these few high- The finding which we make is that to solve a earning barristers are unrepresentative of legal person’s problems effectively, he or she must be aid lawyers as a whole. On 17 November 2009 treated as a ‘whole person’. Legal problems are The Guardian published a survey of public sector
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pay rates. The average salary of a legal aid solici- (7) Cutting legal aid is not a fair or tor – after several years of experience in the job – effective way to reduce unnecessary was £25,000, number 74 in the list, lower than litigation average salaries of social workers, environmen- Cutting legal aid should not be used as a blunt tal health officers, nurses or indeed the public instrument to attempt to reduce litigation. We sector median salary of £27,686. agree in principle that the taxpayer should not be funding unnecessary or trivial litigation. We “Shami Chakrabarti, director also agree that alternative dispute resolution of Liberty, referred to Tony and mediation can assist in achieving justice for Blair’s stated intention to litigants and should be used where appropriate. However, we consider that the appropriate ‘derail the gravy train of way to achieve these goals is through proper legal aid’. Ms Chakrabarti use of the existing restrictions on legal aid described this as a ‘wicked which already mean that legal aid will only be provided where: misrepresentation’ in her ! There is “sufficient benefit” to the client testimony and we agree” to justify work being carried out. ! There are no viable alternative Our principal concern is that cuts to legal sources of funding. aid will mean that fewer and fewer committed ! Alternative steps to bringing the case lawyers will be able to work in this area. Ulti- have already been explored. mately, this can only mean that the vulnerable ! The prospects of success are reasonable. clients who rely on these lawyers will lose out. ! “A reasonable private paying client would By the same token we are concerned any fur- be prepared to litigate (in non-money ther cuts to remuneration for legal aid lawyers claims) or where the prospects of success will mean that firms will not be able to subsist as are over 50 per cent (for money claims).”8 it will no longer be financially viable for them to practice in those areas of legally aided law. If these criteria are used robustly then legal aid At the oral evidence session, Kathy Meade will not be available for unnecessary litigation. of the Tower Hamlets Law Centre spoke The alternative of cutting legal aid is not a fair about how increasingly stretched the means of achieving this goal as it will not pre- resources of the law centre are becoming. The vent the rich, or businesses, from litigating, it centre now faces considerable cuts if the pro- will only prevent poorer more vulnerable peo- posals contained in the government’s 2010 ple from litigating to protect their rights. green paper are implemented. If law centres Equally, cutting legal aid is not necessarily an like Tower Hamlets are forced to close then effective way to reduce litigation. Many of those who live in that area will not be able to those who gave evidence to us were defendants get the legal help they need. This will be to the in legal proceedings, so the litigation had been detriment of the individuals who lose out on initiated by a person or organisation that did the protection of the law but it will also be to not receive legal aid. One example is Rosamund the detriment of communities as a whole who During: “I needed legal help after my landlord rely on these local services for support. started court action to evict me for rent arrears...
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I do not feel that I could have represented was only too clear from the testimony which we myself in the possession proceedings.” received that legal aid funds cases that are of Cutting legal aid will not prevent such liti- great importance both to the individuals con- gation. It will simply mean that either the cerned and to society as a whole. We note that weaker party will be unrepresented or will be around half of the cases which the commission deterred from pursuing justice altogether. received evidence on would not qualify for legal aid if the proposals in the green paper are (8) Findings specific to the implemented (see Appendix 2). None of these government’s 2010 green paper on cases involved large sums of compensation and legal aid reform so it is difficult to see how a conditional fee Finally, at the time the commission was receiv- agreement would work. In each of these cases ing evidence, the government was consulting legal action was the individual’s last resort. on the content of its green paper Proposals for the Second, we understand that it is the inten- Reform of Legal Aid in England and Wales. There- tion of the government that much of the legal fore, in addition to its more general findings advice which is currently provided by solici- the commission considers that it is appropriate tors and advice agencies across the country to comment on these proposals in light of the will instead be provided through a telephone evidence that it has considered. advice service. We consider that such a devel- The first point to make is that we understand opment would be profoundly unwise. It was that the government’s proposed cuts are clear from the evidence which we received intended to preserve legal aid for “those who that many legally aided individuals are too most need it, for the most serious cases” (green vulnerable to communicate their problems paper, paragraph 2.2). In making this assess- over the phone. For example, Yvonne, who ment they have considered “whether the conse- gained guardianship of her grandson with the quences of the case at hand are objectively so help of legally aided advice, stated: “I think serious as to add weight to the case for the pro- having call centres as the first point of contact vision of public funds” (paragraph 4.13). The would be a mockery of the legal system. When implication is that the cases for which they pro- I needed legal advice I was vulnerable and felt pose that legal aid should no longer be available that I needed someone to talk to face to face, – which corresponds to nearly 70 per cent of not over the phone.” cases for which legal help was granted in the Kathy Meade of the Tower Hamlets Law year 2008/09 (paragraph 43) – are not suffi- Centre also made the practical point that try-
ciently important to justify public funding, or ing to take instructions over the phone takes panel findings could be resolved or funded by other means. much more time. While we agree with the principle that legal Third, we are concerned with the govern- aid should not be available for trivial issues or ment’s intention to replace legal aid for advice be used to fund unnecessary litigation, we are and representation in family proceedings unconvinced either that legal aid is being with funding for mediation only. Many of the used to fund unnecessary cases or that the family cases which the panel considered government’s proposal would ensure that the involved incidences of domestic violence. For most serious cases are still funded. example, JG who needed legal aid to gain cus- As we have set out in our findings above, it tody of her children after her husband took
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them away without warning: “My husband poor” but should include “those of small or had been physically and emotionally abusive moderate means”. towards me. On one occasion the abuse was so Before the 1949 Act, legal aid consisted of bad that he was arrested and bailed to stay limited assistance for impoverished crimi- away from me.” nals, whereas civil legal aid was virtually non- Mediation may not be appropriate in such existent and legal advice for poorer litigants cases. Where mediation is appropriate, we in civil cases relied heavily on the good will of believe it should be properly funded and not lawyers prepared to work for free. The Act forced on the parties involved. Mediation is was drafted at a time when social change, only likely to be successful if both parties such as increased demand for divorce, and the enter into it freely. social reforms of the early 20th century were Fourth, and finally, we are concerned that leading people to recognise that a more com- the government considers that cuts to legal aid prehensive system was needed. When the are needed as the legal aid scheme has civil legal aid scheme was set up in 1950 it pro- expanded beyond its original intentions. vided 80 per cent of the population with a The Lord Chancellor, Ken Clarke, when means-tested entitlement to legal aid. By 2009 introducing the government’s green paper only 36 per cent were eligible. Almost 80 per to parliament on 15 November 2010, stated: cent of those receiving legal help in 2009 and “I believe that there is now a compelling case around 90 per cent of those receiving legal for going back to first principles in reforming representation were in the poorest 20 per cent legal aid. The current system bears very little of the population.10 resemblance to the one that was introduced The green paper proposes that legal aid in 1949.”9 should no longer be available for the majority We disagree with this reasoning. The origi- of civil cases, and that eligibility for civil legal nal intention of the legal aid scheme, as set aid should be reduced further so that only down by the Rushcliffe Committee, was that the very poorest are eligible for legal aid. legal aid should be available in all courts and Remuneration for criminal cases will also be in such manner as will enable persons in need reduced. This to us seems to be a retrograde to have access to the professional help they step which overlooks the history and context require. The idea was that it should not be lim- of the legal aid scheme and runs contrary to ited to those who are “normally classed as the intentions of its founders.
Notes for Chapter 9 5. House of Commons Justice Committee Government's 1. Thomas Bingham, The rule of law (2010, Penguin), proposed reform of legal aid: Third Report of Session page 88 2010–11, HC 681 Volume I 2. Liberty, Response to the Ministry of Justice Proposals for 6. Legal Aid Reforms: Scope Changes Impact Assessment the Reform of Legal Aid, February 2011 7. Citizens Advice, Towards a business case for legal aid, 3. Lord Clarke of Stone-cum-Ebony, Hope springs eternal: July 2010, page 2 The Mary Ward Legal Advice Centre Annual Lecture 8. Legal Services Commission, Funding Code Criteria 4. Liberty, Response to the Ministry of Justice Proposals for 9. Hansard, 15 November 2010 the Reform of Legal Aid, February 2011 10.Legal Aid Reforms: Scope Changes Impact Assessment
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appendix 1
Appendix 1: overview of the 2010 green paper
he following is a brief synopsis of the “serious wrongdoing” to be excluded. changes to legal aid proposed in the ! Claims arising from allegations of abuse Tgovernment’s 2010 green paper on and sexual assault. legal aid. ! Community care. ! Domestic violence where there is objec- (1) Changes to the scope of civil legal tive proof of the violence consisting of aid ongoing (or recent) legal proceedings for Legal aid will no longer be available for the domestic violence; where there is a court following issues: order in place relating to domestic vio- ! Debt matters where the client’s home is lence; or where there is a conviction for not at immediate risk. domestic violence. ! Education. ! Family mediation in private law family ! Employment. cases. ! Other housing matters. ! Housing. ! Immigration where the individual ! Immigration detention. is not detained. ! International child abduction. ! Private law children and family cases ! Mental health. (where domestic violence is not present). ! Judicial review. ! Welfare benefits. ! Public law children. ! Ancillary relief cases where domestic ! Legal help at certain inquests. violence is not present. ! Discrimination proceedings. ! Clinical negligence. ! Environmental matters. ! Tort and other general claims. ! Consumer and general contract. (2) Changes to the financial eligibility ! Legal help for the Criminal Injuries criteria for civil legal aid Compensation Authority. Property value to be considered: Currently a person will be ineligible for Legal aid will remain available for legal aid if they have more than £8,000 of the following issues: disposable capital. During assessment the ! Asylum. LSC disregards the first £100,000 of equity ! Claims against public authorities which and the first £100,000 of their mortgage. involve the abuse of position of power; The government proposes to remove this
and/or significant breach of human equity disregard and extend the mortgage appendices rights; and/or negligent acts or omissions disregard to £200,000 (£300,000 for low- falling very far below the required stan- income pensioners). dard of care. Claims which involve only Increased contributions from capital:
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appendix 1
The government intends to increase contri- a single telephone gateway, although the butions which people should make towards scope and extent of this is not clear. From the their legal aid costs from their capital. Those limited information in the paper, it could who have between £1,000 and £3,100 of dis- replace almost all initial face-to-face legal posable capital will pay a flat fee of £100. advice with a mandatory phone service.
Increased income contributions: (4) Changes to the fees which Currently those who have a disposable legal aid lawyers are paid monthly income which is between £315 and The fees which are paid to lawyers for £733 have to pay contributions toward their undertaking civil legal aid work are to be legal aid bill up to a maximum of 20 per cent of reduced by ten per cent across the board. disposable income. The government pro- Competitive tendering is to be introduced for poses that this be increased to 30 per cent. legal aid contracts, whereby legal aid contracts will be awarded by the LSC to those firms that Abolition of benefit passporting: can undertake the work for cheapest. Those who are in receipt of income-based Job Seeker’s Allowance, Employment Support (5) Changes to criminal legal aid Allowance, Income Support or Guarantee There is to be greater use of ‘fixed fees’, State Pension Credit will no longer be auto- whereby a fixed amount is payable for a legal matically ‘passported’ onto legal aid. The aid lawyer to undertake a particular piece of rationale is that those who receive these bene- work irrespective of the amount of time fits may have up to £16,000 savings. Normally which that work takes. Fixed fees are a person who has more than £8,000 in savings to be used to incentivise early guilty pleas, so would not be eligible for legal aid. This that the longer a case goes before the means, in effect, that the rules are more gener- defendant pleads guilty the less their ous for those on benefits. lawyer will get paid. Competitive tendering is also to be introduced. Abolition of pensioner disregard: Currently pensioners who have less than £315 disposable income per month are subject to a more generous eligibility threshold in that they can have up to £100,000 in savings and still be eligible for legal aid (the pensioner dis- regard). The government proposes to abolish this pensioner disregard.
(3) Changes to the way civil legal services are delivered – the single telephone gateway Currently, clients are free to obtain legal advice through a solicitor of their choice in person. The paper proposes introducing
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appendix 2
Appendix 2: who would get legal aid if the proposals in the green paper are implemented?
his appendix is intended to illustrate have to make do with the advice they receive the impact of the government’s 2010 over the phone. It seems eminently possible Tgreen paper on legal aid on the that a number of very vulnerable people will individuals who gave testimony to the panel. struggle to communicate their problems over The list below aims to set out which of these the phone and will miss out on the help to individuals would still receive legal aid if which they are entitled. The list below does the proposals in the green paper are not take into account whether telephone implemented. In some instances the advice would have been suitable for the individual would still be eligible for help with person. a certain part of their problems, but not with Finally, the green paper proposes that the another. In these instances the list includes financial eligibility criteria for legal aid be views of panel as to whether that person tightened. It will become harder for pension- would have been able to satisfactorily resolve ers, homeowners and those on benefits to get their problems. legal aid. Those on very low incomes will The list below only considers whether a per- have to pay increased contributions toward son’s problem falls within one of the types of the cost of their case and that might deter peo- law for which legal aid will still be available. ple from seeking legal advice. Since the panel So, for example, legal aid will no longer be received no information on the financial available for debt advice if the proposals in the resources of those who gave evidence, no green paper are implemented so anyone with a comment has been made as to whether the debt problem would not get advice. However, person would still be financially eligible. the effects of the green paper are substantially Where the list says that a person would still more wide ranging than this. It seems likely get legal aid, it must be read with the caveat that many firms will not be able to continue ‘Assuming there is a solicitor to help them, providing legally aided advice because lower they are able to manage with telephone volumes of work and a cut in rates will make advice and they are not financially ineligible.’ publicly funded work non-viable and this will create legal aid advice desserts where it Abbi becomes difficult or impossible for people in Abbi, the graduate with debt issues who had certain areas of the country to get help. recently secured a part-time job, would no
The green paper also proposes that every longer be eligible for legal aid to help resolve appendices person should have to go through a her debt issues. Without legal aid, by her own ‘telephone gateway’ to get legal advice. Some admission, she would not have been able to will be referred on to solicitors, others will apply for a bankruptcy order and her
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appendix 2
numerous creditors would not have stopped den on social services who were caring for haranguing her. him in other ways.
Ahmed Caroline Ahmed, the torture survivor from Iran, would Caroline, who has severe mental health still be eligible for legal aid with his asylum issues, would still be eligible for legal aid to claim but would not be eligible for advice on help with her housing applications after she applying for asylum support. The testimony became homeless. shows that Ahmed’s traumatic background and his mental health problems meant that a Rosamund During stable environment was crucial to his ability Rosamund, who faced eviction, would still be and willingness and to make the claim for asy- eligible for legal aid. lum. It may be that without help and advice to apply for asylum support he would not have Vicky Guedalla been able to carry on his asylum claim. Vicky Guedalla provided evidence of a num- ber of extremely young and vulnerable chil- Simi Azmi dren who she has advised and represented in Simi, whose husband took out a number their immigration cases. None of these chil- of loans and mortgages in her name, would dren would be eligible for legal aid. not receive legal aid to help her resolve her debt issues though would still get legal SH aid to help he obtain local authority SH had an abusive partner who subjected her accommodation after she became homeless. to domestic violence. There is a high likeli- In the view of the panel, early legal advice on hood she would not get legal aid. The green her debts might have meant that she never paper proposes that legal aid should be avail- lost her home in the first place and the able in this type of case where there is ‘‘objec- expense of local authority accommodation tive evidence’’ of the domestic violence. The might have been avoided. threshold is a high one and the victim must show that there are either ongoing legal pro- AB ceedings relating to domestic violence, a AB, who had fled persecution in his home court order relating to domestic violence or a country and was suffering from long-term ill- criminal conviction for domestic violence. ness and depression, would still get legal aid On the face of it, the domestic violence in SH’s for his asylum claim, for his community care case does not make the grade. As well as this issues and to help him when he was homeless. the domestic abuse which she experienced However, he would not be eligible for legal was not physical, rather it was emotional and aid to help him with his asylum support psychological. The green paper implies that issues. AB is clearly an exceptionally vulnera- legal aid will not be available for this type of ble person. Not having legal help with his asy- abuse. lum support would certainly have impacted harshly upon his welfare and, in the circum- Mrs Hughes stances, would likely have increased the bur- Mrs Hughes, who has MS, would still get
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legal aid for her disability discrimination EP claim. EP, who became increasingly dependent on alcohol as her husband became increasingly Kamaljeet abusive, would still get legal aid for the court Kamaljeet would not get legal aid to help with proceedings when the local authority tried to her immigration appeal. take her daughter into care. However, there is a good chance that she would not get legal aid Zoe Kealey for the divorce proceedings as she lack suffi- Zoe would still be eligible for legal aid. cient ‘objective evidence’ of the domestic vio- lence. This is crucial in her case, as it was only L by obtaining a divorce that she was able to L would not get legal aid for advice on how to make a fresh start. best represent her severely autistic child at the Education Tribunal. Steven Steven would not get legal aid for his divorce Leena proceedings, where contact arrangements Leena would not get legal aid to help her were put in place so that he could see his chil- resolve her debt issues. dren.
DM Subera DM would still get legal aid to help him when 18-year-old Subera and her 12-year-old sister he became homeless. would still get legal aid to help them when they became homeless. EM EM would still get legal aid to help her and Mrs Whitehouse her son when they became homeless. There is a real possibility that Mrs Whitehouse, who together with her husband Mr and Mrs Mansell faced eviction from their home of 50 years, The pensioners Mr and Mrs Mansell would no would not get legal aid. This is because they longer get legal aid to help overturn the had been offered somewhere to live and so refusal to award them pension credit or to dis- were ‘merely’ facing the loss of their home pute the £11,000 which it was claimed that and not homelessness. they owed. Yvonne Jean Martin Yvonne would still receive legal aid to Jean Martin would still get legal aid to contest help her apply for the guardianship of her his eviction from his home. grandson.
Souleikha Mouhamed appendices Souleikha, the homeless asylum seeker, would still get legal aid for his asylum claim and homelessness issues.
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appendix 3
Appendix 3: letter from Jonathan Djanogly
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appendix 3 appendices
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appendix 4
Appendix 4: acknowledgments
aw centres, individuals and solicitors' firms who assisted in the gathering of testimony and/or contributed to the event on 2 February 2011. First and foremost we would like Lto thank all of those who gave testimony to the panel. Thanks also to the Haldane Society and the Young Legal Aid Lawyers who had the idea for the event and spent a lot of time on organising it. Special thanks to Katherine Craig, Russell Fraser, Simon Behrman, Michael Goold, Majida Bashir, Declan Owens, Katie Brown, Marjha Golding, Chris Loxton, Felicity Williams, Connor Johnston, Omar Khan, Ellie Cornish, Sally Cheshire, Vicky Fewkes, Joanna Fleck, Benjamin Grant, Paramjit Ahluwalia, Laura Janes, Sophie Khan, Anna Morris, Marcela Navarrete, Owen Greenhall, Rosemary Tackley, Carita Thomas, Samuel Hawke, Sophie Wood, Liz Davies, Margaret Gordon, Charlie Dobson, Mark Dobson, Ripon Ray, Rachit Buch and Jeremy Corbyn MP. This publication was made possible with generous support from the Law Society, Richard Elsen, Jon Robins and Gus Sellitto at Jures, and Solicitors Journal.
We would also like to thank the following organisations: 1 Pump Court Chambers Doughty Street Chambers Fisher Meredith LLP Foster & Foster Garden Court Chambers GMB Hendon branch Hackney Community Law Centre Hansen Palomares Hodge Jones & Allen LLP Immigration Law Practitioners Association Medical Foundation for the Care of Victims of Torture Mitre House Chambers Philcox Gray & Co Pierce Glynn Sheffield Law Centre The Howard League for Penal Reform Tower Hamlets Law Centre Turpin & Miller Wainwright & Cummins
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K?<>FM SOLICITORS JOURNAL Justice Gap series Unequal Unequal before the law? The future of legal aid before the law? The future of legal aid he Justice Gap refers to the increasing section of the public too poor to afford Ta lawyer and not poor enough to qualify for legal aid. At the heart of any notion of a decent society is not only that we have rights and protections under the law but that we can enforce those rights and rely upon those protections if needed. To that end, the Attlee government introduced our system of legal aid in 1949 as a fundamental building block of the welfare state. The architects of that welfare state decreed that legal aid shouldn’t be restricted to those people ‘normally classed as poor’ but should also include those of ‘small or moderate means’. Something has gone wrong. That scheme is in danger of being reduced to a minority sink service. Eligibility for legal aid dropped from 80 per cent of the population in Attlee’s day to less than one in three of us. This publication is part of a series co produced by Jures and Solicitors Journal about closing the justice gap. Michael Mansfield QC ures (pronounced 'JOOR-REZ') is a new independent research company and thinktank dedicated to Jthe legal services market. Our aim is to be a leading source of considered, independent-minded and thought-provoking commentary on the law in a way that informs and influences debate within the profession and beyond. Jures brings law and research together. www.jures.co.uk R.R.P: £9.99 ISBN : 978-1-85783-172-6 Edited by Jon Robins 2011 © Solicitors Journal and contributors. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying,recording, or otherwise, without the prior written permission of the publishers. Published by Wilmington Publishing & Information Ltd, a Wilmington Group company. SOLICITORS JOURNAL Justice Gap series