Justice Committee
Oral evidence: Impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offences Act 2012, HC 311
Tuesday 8 July 2014
Ordered by the House of Commons to be published on Tuesday 8 July 2014
Written evidence from witnesses:
Judith March, Director, Personal Support Unit ;
Julie Bishop, Director, Law Centres Network; and
Gillian Guy, Chief Executive, Citizens Advice Bureaux
Panel Two
Nicholas Lavender QC, Chairman, Bar Council;
Andrew Caplen, Vice-President, Law Society; and
Jenny Beck, Co-Chair, Legal Aid Practitioners Group
Members present: Sir Alan Beith (Chair); Steve Brine; Mr Robert Buckland; Rehman Chishti; Jeremy Corbyn; John Cryer; Nick de Bois; Mr Elfyn Llwyd; Andy McDonald; and John McDonnell
Questions 1- 61
Examination of witnesses
Witnesses: Judith March, Director, Personal Support Unit, Julie Bishop, Director, Law Centres Network, and Gillian Guy, Chief Executive, Citizens Advice, gave evidence.
Q1 Chair: Welcome. We are starting a moment or two early. Thank you for being here so promptly. I very much welcome Judith March, Director of the Personal Support Unit, Julie Bishop, Director of the Law Centres Network, and Gillian Guy, Chief Executive of Citizens Advice. Today we are looking at the overall impact of the civil legal aid changes. Before doing so, I need to ask whether any interests have to be declared.
Mr Buckland: I used to be a criminal legal aid practitioner. I did family and civil legal aid many years ago, but I am not intending to return to that type of legal aid practice.
Andy McDonald: Similarly, I undertook legal aid work in a previous life and have no immediate intention of returning to it.
Rehman Chishti: I am a former criminal legal aid barrister. At the moment I am a door tenant at barristers’ chambers in London.
Chair: Thank you very much. I am going to ask Mr de Bois to begin.
Q2 Nick de Bois: Good morning all. Putting aside economic considerations—savings—the Government’s stated objectives in LASPO were to focus legal aid on what they described as the most serious cases and the most vulnerable litigants. From what I have read, it is fair to say that none of you agrees that they have achieved that aim. I throw it open to all of you to say why you take that view and do not agree.
Julie Bishop: I think there are a number of key points to make. First, the current system allows problems to escalate, so you are not getting in early as you were able to do previously. Secondly, you deal with only a portion of the matter. Complex problems are not addressed, so you are not necessarily dealing with the person’s whole problem. Thirdly, there are many vulnerable litigants left out of the system. I give the example of one of the most vulnerable: a five year-old child of immigrants who was put in unsuitable accommodation. She was moved between a relative of the mother and the mother’s boyfriend’s homes. She was surviving on vouchers from Kids Company, food banks for meals and so on. The only way she was able to access support was through a law centre that had a separate charitable funding pool. Once the family’s status was resolved she was able to get access to housing and so on.
In particular, we are seeing children and complex needs involving employment and housing. For instance, landlord disputes are now out of scope. We need to remember that even if it is a private landlord who has responsibility, and that is not a social landlord, disrepair is critical to a person’s wellbeing. It was brought to my attention that TB was resolved through the improvement of housing, so to regard disrepair as less serious in terms of the duty of the state and the wellbeing of society is something that indicates the extent to which the most vulnerable people, or key areas, are left out of state.
Q3 Nick de Bois: Could I just highlight this in your thoughts? Disrepair is the result of either bad landlords or bad council management and litigation is just a recourse to put that right. There must be some element that says we should be getting the core of the problem right in the first place.
Julie Bishop: Exactly, and that is the way in which early action is being removed from legal aid. For instance, one of the big areas where there is now a gap is funding for one-off pieces of specialist legal advice, which is just that. You come in; you may write a letter, or you ring up a person and resolve it on the spot. There is a gap in funding. The real issue is just solving problems in isolation. It may be a family with a housing problem where there is domestic abuse, but there is not appropriate evidence, so you cannot get to the heart of the problem. Where it is a housing matter and there is employment you can perhaps resolve the housing, but because you cannot treat the underlying employment problem the housing problem is only solved temporarily, and so on.
Q4 Nick de Bois: Would anyone else like to comment?
Gillian Guy: If I may make a few points from a slightly different angle, it is very difficult to measure whether there is success on that particular indicator because it is hard to tell what you are missing, as opposed to what you are picking up in the new system. Our evidence suggests that people are falling through the net, and we are particularly concerned about that. There are a number of reasons, some similar to those mentioned by Julie. The first is that people are being excluded from the system for a variety of reasons. One is that eligibility is far more technically phrased and couched, and sometimes it is very difficult to tell where the bar is set. Often, evidence as it is required now is very difficult to gather. For example, we have domestic violence cases that go back many years, and it is difficult to get over the bar of two years’ prior evidence.
We are worried that when people do qualify it is very hard to get them the support they require because there are far fewer providers. Since 2007-08, half of the legal aid providers have gone out of the market, and in the last year another quarter have gone. We surveyed our bureaux and found that 92% of them are saying that when they have people who are eligible it is very difficult to find someone to represent them. We have an example of someone who had a notice seeking possession and who could not find anybody through the Law Society “Find a Solicitor” service. She ended up with a civil legal advice helpline, and, finally, although she was almost out of time, was able to get some telephone advice to explain a very complex matter, which was not satisfactory.
We are also worried about our own loss of specialist support. Going from £22 million worth of investment in that specialist support under legal aid down to £3 million obviously means that our capacity to see people in a specialist way has gone down; and where mediation and other methods are put in place they are not always convenient or appropriate for parties, particularly where there is an imbalance of power.
The second aspect for us is whether “serious” and “most vulnerable” is the right measure, because of the point about early intervention. What we ought to be doing in this system as well is trying to prevent serious cases and vulnerability. We are particularly concerned that, as a whole swathe of legal aid assistance on welfare benefits and debts has been taken out, we and others cannot deal with people very early on and save those things from escalating. Prior to these reforms the bureaux helped 136,000 people in a year.
Q5 Nick de Bois: With legal assistance.
Gillian Guy: Yes. That has dropped to about 16,000. There are many people not getting our help. The £19 million we have lost in legal aid has come out of about 100 bureaux that no longer provide that kind of assistance. Our reduced capacity overall is about 5% of the people we see and 15% of the issues we deal with. Already 40% are not getting through on the phone when they need to, and 40% are not getting through to assessment. We are really worried about seeing that escalate. All of this is in an environment where there are lots of reforms happening, and there is an escalating demand for our help, particularly around welfare.
Q6 Chair: You are describing a system in which your CAB volunteers, who are experienced in the more general cases, are almost triaging—a system in which you might pick out an occasional really complex case where you really want to know either what the law is or whether it should be taken as a legal case that has some prospect of success. Why does that not work as an alternative to generally available legal advice for every case?
Gillian Guy: It is very difficult to look at one particular system alone without looking at its interplay with other systems. What we are talking about is a withdrawal of specialist legal support, both within bureaux and outside, and finding it very difficult, once people get over the hurdles, to get them the advice and support they need. There is a back-up to all of that, which is about generalist support and early intervention to stop people needing that more complicated advice further down the line—things like housing repairs and getting their welfare benefits sorted out so they are maximising the income they are entitled to. All of that falls into a system that is about having sustainable advice and a network ready to pick up that triaging and refer people on, or give them that early advice. That is why part of our other campaign around this is to make sure there is a national strategy for that advice, which is the safety net and helps take out that escalation, as well as wanting to see differences in the way serious cases are dealt with ultimately.
Q7 Nick de Bois: But not all cases—for example, sorting out welfare benefits—are coming to you at the point when they want litigation. Surely, there is a lot of early advice that goes into avoiding that and trying to sort it out. I see that pre-sorting of cases in my own constituency office.
Gillian Guy: That is absolutely right.
Q8 Nick de Bois: So measurement should not be entirely on litigation. You may be having more success elsewhere at the beginning by preventing issues. That is a question, not a statement.
Gillian Guy: What I am saying is that capacity is being taken out of both ends of that system, and people are falling through the net.
Q9 Nick de Bois: I do not want to hog all the time. Ms March.
Judith March: I support what my colleague said. As to the impact on our service, we have many more people because we are on court sites, and when we submitted our response to the inquiry we had 2,000 clients a month—in June; it is now 3,000. It has gone up just in the last couple of months. The kinds of people we are seeing are those who would not have been there before. We would define “vulnerable” very much in terms of low literacy. That seems to be the real problem we are trying to address. By the time they get to us it is too late to do very much, so there is quite a lot of fire fighting. Where we can, we push them back into the system and refer back to colleagues.
Q10 Nick de Bois: Perhaps I can ask this question of both Citizens Advice and the Personal Support Unit. Aside from returning to pre-LASPO levels of legal aid funding, what would you like to see the Government do to assist the clients you have been talking about?
Julie Bishop: I will answer that, but, just to clarify it, very little of the work we do is litigation; most of it is the avoidance of litigation.
Three particular areas that have been taken out of scope really need consideration. They are not expensive areas. Just prior to LASPO, consideration was given to exempting children and young people from the scope changes. There needs to be reconsideration of allowing children and young people access to legal aid regardless of the matter. There is a lot of evidence for that, and we can provide it. Housing, with underlying benefit or employment issues, really needs to be considered along with debt. A third thing is debt and mental health. There is a body of evidence about the impact of debt on mental health, and mental health leading to debt. Because of the mental health issues, they turn into bigger problems; rather than just needing to write a letter to a creditor, they turn into a series of complicated problems needing a solicitor’s help.
We are not saying that everything was great prior to LASPO, but there are two key things we want to say. The new system is not evidence-based; it is not based on needs. It was based on what you could keep in. We think that a lot of the work done previously on client clusters and things like that needs to be reconsidered, but our real recommendation, which I suggested at a previous meeting of the Justice Committee, is that there needs to be a two-tier system. With £1.5 billion or £1.6 billion available for legal aid, it is a scandal that it cannot be a more universal system. There has to be a way of doing it better. My suggestion is that, first, there is a general system for the general public—the people who are able to help themselves. It can be telephone, the internet or whatever you like. Put money into that.
Secondly, you need a targeted system for vulnerable clients with multiple and complex needs—a differently shaped system. We have an excellent working example of that at the moment. Coventry legal centre has a legal adviser embedded in the troubled families team. They go with the team to work with the families. We can give you many examples of how a cost‑effective system to deal with complex and vulnerable needs, which is separated from the legal aid system, could give better value for money, will not cost-shift and will have the sort of impact you are looking for. We wholly believe that £1.5 billion could be used in a more cost-effective way.
Gillian Guy: I have a little list. One of the first things we would like to see is independent research into what is actually happening now: for example, why social tribunal cases have gone down so significantly—by 70%—and what is going on with success rates there compared with what was happening before, and the reason for that. We know there could be a variety of reasons, but we worry that success rates are significantly higher when advisers are involved, and that is becoming less and less common.
We would also like to see some independent research into the exceptional case funding scheme where very low numbers—1.2% of applications—are getting through. I think that is about 16 cases. We are worried about those that are not getting through. We would like to see a real review of why those things are happening. Where medical evidence is required, we would like it to be free to the applicant or appellant, because that puts people out of the system at an early stage. Because of the increase in litigants in person, we have to come to some decision in the legal system as to whether that is the route we are taking, in which case the system itself—
Chair: We will go into that later in the questioning.
Gillian Guy: Fair enough. I will come back to that.
We would like greater clarity about the technicality of eligibility. When there are generalist advisers, trying to tell people whether or not they are eligible and how they can get the evidence is much more complicated now than it was previously. There is not sufficient advice and guidance to help people with it. We know people are saying, “It’s an employment issue. Sorry, you’re not eligible,” but we know there is discrimination under that, and the person is not getting the advice they need.
The final point in this section is about general advice and picking up some of the recommendations of the Low Commission, bringing together that advice and triage so that we do not let people slip through the net, and making sure there is a sustainable resource, a national strategy and a local strategy so that that advice and safety net is available. As Citizens Advice bureaux, we are not sitting on our laurels and saying we do not need to do anything here. We need to make sure we are available through all channels and we extend our supply as much as we can, but we cannot do that without resources and a proper strategic approach.
Chair: The first question was a rather broad one. We have used a third of the time available on it, so we have to be a little more concise as we move forward to some of the more specific issues.
Q11 John McDonnell: You have given very full answers, for which I am grateful. Julie and Gillian, both of you have reported centres closing down altogether. The majority have survived. How have they survived, and what lessons have you learned from that?
Gillian Guy: We are in slightly different situations because of our degree of dependency upon legal aid. The Citizens Advice bureaux network deals with a lot of generalist advice and has income from other sources. While we saw a drop from £22 million to £19 million, which was significant, and we saw 350 specialist advisers go out of our service, we are able to sustain the rest of our service through local government and other funding, and national contracts as well, but it is diminishing year on year and demand is growing. This is a problem that is coming to bite us, and we need to deal with it.
Julie Bishop: In our case, nine law centres have closed since LASPO.
John McDonnell: Nine?
Julie Bishop: Yes, and altogether 40% of their income from legal aid has reduced. Those that closed were the most dependent on legal aid income; it was 80% or more of their income. They were well-run centres but they simply did not have local authority or any other support.
However, the real question was how they have survived. We knew what was coming; we spent three years working with law centres, but the fact that they are still there hides the point that their services have to be limited and rationed. We are now targeting specific groups of clients, rather than having an open door service. There have been major savings by reducing staff and dropping the number of trainees. Local authority help has been critical. Some local authorities have privileged the areas that have gone out of scope, but as you know, local authority cuts of 25% have been implemented. 2015 is a big year for us. We are predicting a 40% cut in local authority funding. It means that the safety net of the law centres will be impacted once again.
We have a great relationship with law firms, and pro bono has been a major support to us. My organisation generates 20% of its funding through gifts in kind, which is the generosity of law firms. However, the law firms say that they cannot provide pro bono without organisations like law centres to assist them. They need the back-up. For a law centre to provide a pro bono clinic costs £10,000 a year, so it is not a cost-neutral solution.
Q12 John McDonnell: Gillian, in your evidence you said that more cases are being concluded before they become full casework, and you reflected that today. Is that the way for the future, in terms of limited resources?
Gillian Guy: I think it is dangerous as a global answer. We would like to deal with cases at the earliest possible stage. In terms of the social benefit that comes out of it, which is a multi-million pound benefit in terms of not having to invest later on in the system, it is an important thing to support. The warning sign we are putting out at the moment is that the safety net, which is also prevention and a way of saving money further down the line, is at risk, because, as Julie said, as our other funders start pulling back from the resources they put in, that begs the question of whether it is sustainable. There needs to be a sustainable resource for that. Other cases are complex; they will not go away as a result of early intervention, and 92% of our bureaux are finding it very difficult to find anyone to refer them on to, having had their own resource taken away from them.
Q13 John McDonnell: In a world of reduced legal aid funding, what is the future for the sector?
Gillian Guy: The future of the sector at the moment, without further intervention, looks as if it is in a downward spiral, because demand is going up and supply is going down. We are all finding it very difficult to cope with. There is a different scenario, which is about investing in early intervention and trying to make sure we do the research that analyses whether these are unintended consequences of LASPO, and trying to deal with them with the available money.
Judith March: Our experience is always at the court end. I think the only answer is collaboration. Lots of locally based partnerships are popping up all over the country. It could be law schools, CAB, duty solicitor schemes, or pro bono law centres. I think that collaboration is increasing quite fast. We believe that the PSU can provide some of the glue in the system, because they are available at court sites. The biggest solution is that we have noticed quite a lot of our clients do not really need specialist legal advice, so we need to see changes just to the procedures and forms to simplify them. I do not know whether you are going to come to that later, or if you want me to answer it now.
Q14 Mr Buckland: I was going to ask about that in the context of exceptional cases, because there is an issue about the forms. If you could deal with that now, it would be very helpful.
Judith March: We have drilled down into some of our data. We were looking at family cases and noticed that cases involving children seemed to be the issue. The C100 is a particular problem that is now taking hours of people’s time. It should have been an opportunity to simplify the system, but it is taking hours and there are not specialist people to do it. The form could be simplified. That is very simple. There is a lot of confusion in the system about eligibility, particularly over domestic violence; some solicitors say they will take it, but another one will not. There is a lot of concern about the black mark system, so they will take it on only if they are absolutely sure they will qualify. I can write to you, but we are getting a lot of anecdotal evidence about simple things that could be changed to improve the system.
Q15 John McDonnell: You mentioned the demand for your services. Do you have the capacity to meet that demand?
Judith March: We have grown very fast. We need support and we are working on it. When we set up a new unit we find it very easy to collaborate with local law schools. We have postgraduate law students—we do not take undergraduates—and we are able to offer them supervision, which they cannot always get. The problem is that we do not provide legal advice; we help up to that point and facilitate, but do not actually give, specialist legal advice. Our forte is some of the simplest forms, helping them go through the system. For us, the big barriers are bits of language like “writ,” “claim” and “affidavit.” If those kinds of things could change, or if there was better advice online, you could sort out so many problems.
Q16 Chair: You say you do not give legal advice, but presumably you explain to people what the court is trying to find out from them and, therefore, what they need to explain.
Judith March: Yes. In simple terms, the difference between ourselves and a lawyer is that we would not say, “This is what you’ve got to say,” but, “What are the most important things you are going to say? Do you want to practise on me?”—rather than saying they should say this or that. We can help with facts but we cannot give advice. We do not represent.
Q17 John McDonnell: Could I ask Julie Bishop to respond to the earlier question about the future for law centres?
Julie Bishop: We are in a transitional phase at the moment. Law centres are now around half of the not-for-profit legal aid providers. They will continue with legal aid, because they need to be able to represent, even though litigation is not the only thing we do. Law centres are transforming, as they have to, and are developing quite interesting new projects. One thing of particular interest to this Committee and others is the collaborative work we are doing with non-legal organisations on intellectual disability and so on. We are joining up the legal problem with the causes and underlying issues. We really see that as a way forward. However, we think that a committee like this needs to consider some of the Low Commission recommendations. In particular, the changes to legal aid were done without direct collaboration with those of us who are on the front line. Any new system or changes to the system need to be co‑designed with our experience. Remember, we have experience in delivering services cheaply; that’s what we do. We find new solutions and ways around.
Chair: I turn to Andy McDonald on a subject we started to touch on.
Q18 Andy McDonald: We have already touched on the issue of continuing eligibility for legal aid. There appears to be confusion among the public as to where that currently lies. How could the MOJ and the Legal Aid Agency ensure that the public are better informed about continuing legal aid eligibility?
Gillian Guy: To some extent it is about changing the key message. The key message out there at the moment is that legal aid is not available for people. That is the premise upon which they start and upon which a lot of advisers start. When we talk about black mark systems and not getting paid unless you are successful in certain systems, we begin to encroach upon access to justice and people’s right and freedom to get that justice. I think it is about getting a message out there that there are circumstances in which legal aid is indeed available. It is about making sure people go for early advice and, as I have said many times and will continue to repeat, making sure that the advice is available and sustainable. It is about making sure that the advisers themselves, and the public, are much clearer, in what is a technical minefield, as to what eligibility looks like; and, once they are eligible, we have to have somewhere for them to go to get assistance. The whole system needs to be looked at, but a clear message that legal aid is still there, what it is for and how people get help would really help.
Julie Bishop: Gillian has covered it. The real problem we find with legal aid is, apart from the clients, for the problem noticers, because we are often a referral network—the other community workers who have picked up the message that there is no legal aid. It is now a complex system. There needs to be some clarity in explaining not what you cannot do but what you can do. The message has been that you cannot do anything.
Secondly, there is a problem with the new website. Direct.gov had more concise, better and easier to use information than the new website. We can tell you about some research about young people accessing websites for information, where there was an unexpected finding because it was conducted during the change of websites from the previous to the new one. If you are interested in it, I can show you. They are just very simple things, and Gillian has covered the rest of it.
Judith March: There is a huge amount of confusion out there about eligibility. I think it would be helpful if, in addition to the website, there were simple leaflets that could go into GP surgeries, MP surgeries and community centres—those kinds of things—because people just do not know.
Q19 Andy McDonald: Can I ask about the telephone gateway? That single point of entry is being reviewed. Do you have any views on its success or otherwise?
Julie Bishop: Or failure. There is very little information in the public domain about the gateway. For our own planning purposes, we had to do an FOI on the number of discrimination matters that went through. Of 3,245 discrimination cases that went to the gateway, only five were referred for face-to-face advice. We had a particular case that came from one of the law centres where a very vulnerable client, who had communication issues, was unable to contact the gateway. They had tried and failed; they had a very complex matter. The law centre spoke on the client’s behalf, and it took them three hours to get through to the gateway. Three hours! We can send you a document about that. There were seven exchanges of letters. There was a mistake. The client was clearly eligible. The eligibility documents had been sent. The lawyer had rung to say, “Did you get the documents?” They said they had. They subsequently received two more letters saying they were not eligible, and on it went. It took several months. The client was eligible and had a complex matter that was eventually resolved. Had the law centre not had other money to assist, it would not have happened. We have had numerous cases of law centres coaching clients in how to get through to the gateway. All of this is an impact on funds they do not have, but because they are mission driven they do it. You need key words and help to get through.
Chair: Mr Buckland, do you want to follow up on eligibility?
Q20 Mr Buckland: I do, but I was asking, in parenthesis, about exceptional funding. Judith, I think you have already touched on complexity issues. By extension, I think the exceptional funding forms are also rather complex. In the last year for which figures are available, just under 1,500 applications were made, of which 57 were granted. Have any of the panel any experience of making applications, and what observations would you have about the exceptional funding criteria?
Julie Bishop: Only 16 of those 57 were non-inquest cases; in our area it is only 16. Our concern is that, throughout the debate about LASPO, exceptional funding was given as a safety net. Sixteen cases is not a safety net. Robert, I know that you have pushed that in particular. We are finding that it is not simply the complexity of the form. It takes several hours to get through. Even if you get the forms in, they are being knocked back on good regards; in fact, Islington law centre won a JR just recently. Quite serious concerns were voiced by the judge who allowed it. It is not a system of “exceptional” if you have to take it to JR to access it, because often the case is over anyhow. I think a lot of your witnesses will give you detailed examples of the problem with “exceptional,” but our real issue is that it was meant to be a safety net. Sixteen cases is not a safety net.
Judith March: By the time they get to us it is probably too late anyway. I want to go back to the gateway. We are now in 10 centres in eight cities. Over the last week, I asked all our staff to tell me about the gateway. It is never mentioned; nobody who comes to us ever mentions it. That is quite an interesting bit of evidence in itself.
One other simple suggestion put to me that would be useful for litigants in person was about evidence for domestic violence. Litigants in person do not get access to records of police call-outs but an advocate can. If a litigant in person is trying to prove something to do with domestic violence, drugs and alcohol, or anything like that, they do not get access. I do not know whether that is possible, but it seems to be a sensible solution.
Q21 Mr Buckland: I could see a problem there. For example, the perpetrator might want to get access to information that could then be manipulated as part of ongoing abuse. There are sensitivities around that.
Judith March: In practice, it means that if you are a litigant in person you can turn up at a hearing and you only see the evidence 10 minutes before, whereas the other side has had it for some time. I do not know whether there is a way round that, but it seems to be quite a problem.
Gillian Guy: We have not had a lot of experience of the exceptional case funding scheme. It is partly about whether and how readily it is available. We think the figures speak for themselves. Only 16 cases is a serious concern to us, and that is why we are calling for independent research into what allows cases through and what does not. Why are they not being put through in the first place? Is it too much of a hurdle?
To us, the gateway appears to be a bit of a misnomer—gateway to what? At Citizens Advice we recognise that if you are going to open up telephone advice you have to have it connected with face to face and online, and you have to be able to move between those things because circumstances change. Because it is not known, we see it more as a closed door.
Q22 John Cryer: I think two of you mentioned litigants in person. Can you tell the Committee what your organisations do to help them?
Judith March: We are on court sites and we are in 10 cities. We provide volunteers who look after people on a court site. That can involve going along to court and sitting next to them, and helping them fill in simple forms: the basic county court and family court stuff. It can be signposting to other agencies. There is a lot of that. Depending on availability in the local area, it could be helping them make appointments with CAB, law centres or sometimes other agencies—Shelter or Refuge. It is helping them back into the system. Increasingly, we do a lot of work where we sit next to a client and look up things online. We think it is about enabling people to represent themselves. We do not represent them; for instance, we would never speak in court. There are practical things we can do to assist those opportunities when they get specialist legal advice. Typically, if a person comes along in some kind of confusion, with all their papers in four carrier bags, we can tidy them up and put them in a neat bundle and we can index them. We can say, “Tell us what your story is in plain English,” so that when the client goes to the law centre the lawyer, who has only got half an hour, has the problem sorted out. That is the kind of thing we can do. It is very practical, simple kinds of help—problem solving.
Julie Bishop: Law centres have long helped litigants in person, because they have always had to ration what resources they have. The most common thing they do is to help clients prepare their court documents, take them through the process and let them know how it is going to run.
However, there are two key points about litigants in person where we are finding a problem. Number one is tribunal cost, particularly in relation to employment tribunals. A lot of people cannot access the tribunal any more. The fastest-growing area of poverty in this country is low-paid workers. We have case after case where people are not getting their holiday pay and any number of entitlements, or they are on zero-hours contracts and so on. Without going into the detail of why they are not helped by ACAS or anyone else, they come to us and cannot afford the tribunal fees and so cannot go anywhere with it.
Point number two is that those who can get to a tribunal, for instance with a welfare benefits issue, cannot afford the medical evidence, which Gillian raised. We have one law centre that succeeded in getting some charitable funds to pay for disbursements. The difference that has made is extraordinary. Paying £90 for a medical report meant that a severely disabled client received their entitlements after three months of trying on their own. It is not simply litigants in person; it is disbursements and charges—a package of problems.
Gillian Guy: We used to do a lot, because we had specialist case workers in the majority of our bureaux. They used to do very much the same things, going right through to bundling documents and helping people understand how to navigate their way through the system. In terms of social security tribunals and the like, we would be alongside those people. Having lost those specialist case workers, that has ceased. It is now reduced to self-help materials and a bit of advice along the way. That does not feel satisfactory, because people are getting confused and cannot navigate the system.
We have one bureau at the Royal Courts of Justice that is set up in a different way. It has traditionally done a lot of work with litigants in person, and it continues to provide procedural support and a quasi-legal service—cost drafting, bundling and the like—but the increase in demand we have had since April 2013 has made it very difficult to cope, and rationing has become quite severe. For example, in family cases by 11 o’clock on a Monday morning the whole week’s allocation of appointments has gone.
Q23 John Cryer: Julie, you mentioned industrial cases and people who had to go to tribunals but couldn’t, or people getting sorted out before that. Is there a rise in those sorts of cases? I think you all said you have seen a bigger demand and a diminishing supply. Does that apply to industrial cases as well?
Julie Bishop: It does. I can send you a few examples. We collected a number, because I wasn’t sure what you would be interested in. One of our partner organisations deals with Latin American women. They say that the number of clients coming in over the last year has increased dramatically. The sorts of issues they have are not being paid the minimum wage and not being paid holidays; they are not able to challenge it because they cannot get legal aid. There are growing problems about zero-hour contracts, being paid the minimum and getting entitlements. The issue of employment advice comes up. Just recently we had a round of meetings with law centre chairs, and it is a constant thing—the issue of people with employment problems, particularly low-paid workers, falling through the net.
Q24 John Cryer: Presumably, there are language problems because increasingly you are dealing with people who do not have any English.
Julie Bishop: In the case of the Latin American women’s centre certainly, but in many cases it is just that people do not have the skills to negotiate, or they are vulnerable for all sorts of reasons.
Q25 John Cryer: Judith, you said in your evidence that you were having to spend longer with each client. Why is that?
Judith March: Mostly they are now coming to us because of lack of specialist advice. The most important ones—I alluded to it before—are to do with family cases and matters to do with children. We need to spend longer because people are quite emotional about it and it is quite complex. In particular, it is the C100 form; the more you go into it, the more you find that is the one form causing the trouble. It takes about two and a half hours to complete, when you begin anything to do with children’s matters. It is mostly factual stuff; it is not too complicated, but it is filling in a lot of things. When you are doing it with somebody who is beginning to embark on an issue to do with children it takes a long time. If it is, say, divorce and it is going to mediation, there has been quite a lot of confusion about that. “How do you find a mediator?” “Do you have to have a mediator?” “I do not want to have a mediator.” We are having those kinds of discussions on court sites. That is where it is happening, and it was very marked in the statistics when I was collecting them; and they are telling me it has gone up again even in the last week or so.
Q26 John Cryer: How do your organisations engage with McKenzie friends?
Judith March: Sometimes we are included among McKenzie friends, but we are distinct from them, in that we do not act or speak on behalf of people. Our volunteers are by definition neutral and dispassionate, so we are slightly different. We see a lot of McKenzie friends around the system. There are all kinds, from the friend or the family member, who is just there as an emotional support, to the unpaid and the paid. They are growing all round the country. If there is a local organisation, we talk to everybody who is on the ground locally; that is what we would intend to do.
Q27 Jeremy Corbyn: Thank you for the evidence you have given us. Julie, you referred to employment tribunals. On behalf of all your affiliated organisations, are you able to collate what has actually happened about access to employment tribunals and provide us with a note on that?
Julie Bishop: Yes, I will. I am happy to do that. Do you want to ask us about cost shifting, or are we finished?
Chair: I think we have other sessions on that, but if you want to drop us a note about it, by all means do so. Thank you very much indeed. We are very grateful. You have given us very full, helpful and informative evidence, which we appreciate.
Examination of Witnesses
Witnesses: Nicholas Lavender QC, Chairman, General Council of the Bar, Andrew Caplen, Vice President, Law Society, and Jenny Beck, Co-Chair, Legal Aid Practitioners Group, gave evidence.
Chair: Good morning, and welcome to Mr Lavender, Chairman of the Bar Council, Mr Caplen, Vice President of the Law Society, and Ms Beck, Co-Chair of the Legal Aid Practitioners Group. You have been attentively listening to the earlier evidence. We are going to go over very similar ground to establish your views and experience and that of your members on the same issues.
Q28 Nick de Bois: I am conscious that in the first session the answers to my questions were rather all-embracing, so I am sure the Chair will correct you if we are going to deal with something later, but I would like to ask each of you to respond. Putting aside the economics—the savings—the Government’s stated objective in LASPO was to focus legal aid on the most serious cases and the most vulnerable litigants. From the evidence I have seen, you do not agree. I would like to ask you to explain, as succinctly as possible, why you do not agree.
Jenny Beck: If I could split it up into “vulnerable” and “important,” the first issue is the scope cuts. In family, the impact of more private law children cases being removed from scope means that many children will not now have access to their parents. I am not sure there is anything more vulnerable or important than that. If a child’s parent cannot afford to bring a private law application to court, they now cannot make that application unless they become a litigant in person. That is not possible for everybody. There are vulnerable children at risk here.
Secondly, aside from the scope cuts, there is the gateway. At the moment, the gateway for domestic violence cases has evidence barriers that, as you know, make it too restrictive for many people to pass: 43% of victims cannot get through the gateway. They are victims of domestic violence, but they just cannot get the necessary evidence to get in via the gateway. Just a couple of weeks ago I had a lady with a severed finger as a result of a domestic violence incident but she was unable to access the gateway for various reasons. In her case, the perpetrator had been in prison for over two years for an unrelated offence; he had come out and was seeking contact with his children, and the violence against her was too old for it to count in respect of gateway evidence. The barriers are there. That woman was clearly extremely vulnerable again, and of course there were extremely important issues of child contact with a very violent man.
Thirdly, the rules are very complicated; the entitlement rules are far from transparent. I imagine that later on we will talk about the exceptional funding form, which is not really the safety net it was intended to be. Many agencies and solicitors have been unclear about that. I know we will touch on this later.
Lastly, for the most vulnerable, even with passporting benefits, the rigorous means-testing regime in place for excluding people from the system means that it is extremely difficult to get through, with perpetual further requests for information being made at the coal face. A couple of weeks ago, somebody was asked to explain a pound that had appeared in their bank account. It had got in there because their mother had tried to stop them being overdrawn and suffering bank charges. The request came back, “Can you explain the mysterious pound that has appeared?” At the coal face it is extremely difficult for people to pass through the means barriers and the DV gateway. As a consequence, the most vulnerable people, who find it hardest to get through these barriers, and children suffer as a consequence.
Q29 Nick de Bois: The pound is a very memorable example. Mr Caplen.
Andrew Caplen: I endorse what Jenny said, and we also endorse what was said by the not-for-profit witnesses earlier. Everything they said rings true with us. We are very concerned about the incredible drop in legal help applications, for example. I do not think it was ever perceived that they would drop from 940,000-odd to about 130,000 in the course of four or five years. That is a tremendous drop, and it seems to indicate that there are people who are falling through the net quite dramatically. We will come to exceptional funding in a moment. I think the Government themselves thought there would be a particular number of exceptional funding cases. Hansard says about 1,500 or 6,000 a year. It depends on which version of Hansard you read. The numbers that have gone through are very small indeed, which indicates there are problems in people falling through the net.
Q30 Nick de Bois: I register the sheer scale of numbers on the seismograph, but the question is focused more on whether, if those numbers are the most serious and most vulnerable cases—I am not saying they are—the MOJ might say, “We’ve achieved our objective.” Out of those numbers, are we missing significantly the most vulnerable litigants and the most serious cases?
Andrew Caplen: I will take the example of domestic violence, which Jenny picked up. Because of the difficulties in providing evidence for domestic violence cases we very much think there is a gap, and there are still serious cases, but because of the difficulty of getting evidence before people can obtain legal aid people are falling through that gap.
Q31 Nick de Bois: Can you quantify that? It is probably very difficult because it is a negative.
Andrew Caplen: It is very difficult to quantify because it is a negative. From the experience of our member firms, we know that in domestic violence applications they are turning people away because of the difficulties in obtaining legal aid. Normally, they would have suggested people get legal aid because the violence is not close enough and because of the difficulties in obtaining evidence and things like that.
Q32 Nick de Bois: Thank you. Mr Lavender.
Nicholas Lavender: I have three short points. On the numbers, I stress that the Government have reduced the number of cases of legal help by much more than they intended. The figures are striking in themselves. The number of family cases is down from 205,000 in 2012-13 to 42,000 in 2013-14; social welfare cases are down from 281,000 to 52,000. The Government predicted a 65% drop based on 2009-10 figures; they have actually achieved a drop of over 80%. Even on their own numbers, they cut much further than they intended, and there is no doubt that they include cases that are serious and where people are vulnerable. One shining example is the case of Q v. Q where Sir James Munby gave judgment recently saying that the court just could not achieve justice in that case.
My second point is about exceptional case funding. Reference was made to the recent judicial review decision in a case called Gudanaviciene v. Director of Legal Aid Casework. We can certainly supply you with a copy, if you like. The judge, Mr Justice Collins, referring to the Government’s own guidance on the exceptional case funding test, said: “The guidance is defective, in that it sets too high a threshold.” That is one of the reasons why exceptional case funding is not doing what it was expected to do. another is that, even if the guidance was right, the test as set out in the Act is too high.
The third point is that it is important to consider not only the effect on the individuals who are not getting legal help or assistance, but the effect on the system as a whole. Again, we hear judges—Lady Justice Black commented on this recently—talking about the strain on the system as a whole. We know from the Government’s figures that the number of divorce cases in which neither party is represented has doubled. In those cases it is much harder for everyone else concerned. You cannot rely on parties having served papers on the right people and provided copies of the papers to the right people, let alone identifying the issues or arguing them. A huge amount of court time and resources is being taken up there, as a result of which there is not court time and resources for other users of the court. That is another effect of the changes.
Q33 Nick de Bois: Thank you. Perhaps you could explore with me the fact that the MOJ told the Committee: “Access to justice should not simply be equated to access to government funded legal advice.” Is there a danger that access to justice is being defined in this way in criticism of the impact of LASPO, and is it really the correct definition?
Nicholas Lavender: It is not the definition anybody is offering. That quote seems to me to be a little bit of a smokescreen. There are many people in this country who obtain access to justice without legal aid; they pay through their own means, they represent themselves or they make use of the many pro bono services available from members of my profession, solicitors and the other bodies represented here today. But there are also many people who, in order to achieve access to justice, need legal aid. Until recently the judgment was that the number of those in areas such as family and social welfare was in the hundreds of thousands per year, and suddenly, at a stroke, it is down, according to Government, to the tens of thousands. We do not agree that those hundreds of thousands who have suddenly been kept out of legal aid are people who are able to obtain access to justice through their own means or by representing themselves. On the contrary, the evidence we are seeing is that they are struggling to represent themselves, and that is why, as I already mentioned, the courts are being clogged up and burdened.
Andrew Caplen: This is quite an important point. The whole question of access to justice is wider than just legal aid provision from the Government. It is a topic that will be taken forward with the Law Society over the next 12 months. We think that access to justice, moving away from lawyers’ fees, is a very important topic that needs to be taken seriously.
From our side of the profession, we put out practice notes to help solicitors if they are going to do, say, part of a family matter rather than the whole, to try to make it a little more accessible for people to receive advice, but these sort of things and pro bono things can only scratch the surface. As Nick says, there is a big part of the iceberg down below, where people just cannot obtain advice unless there is some form of state funding.
Q34 Nick de Bois: I do not want to be too provocative. You talked about divorce. Would you say that people are missing out in terms of divorce? I assume you have children in mind; they would be the most vulnerable litigants in terms of need. That is something we would have to quantify. Should they have access to legal aid based purely on the fact that there are children involved in divorce? Some people would argue that it should not happen in a matrimonial matter.
Jenny Beck: You asked before which vulnerable people we were missing out. The statistic is that at least 50% of people who are domestic violence victims are not accessing the gateway. An important statistic to have in mind is that just in that area at least half the people who were intended to be in it simply are not.
It is not the fact that children exist that ought to gateway you through to legal aid; obviously, there are people who can afford to divorce. However, it is not necessarily about the divorce itself but the proceedings concerning access to the children and who they should see and stay with; where people simply cannot afford to divorce, I do not think it is right that children should be denied contact with a parent on the basis of their means.
Nick de Bois: I was not saying that. I was asking the question so that I could understand the context for divorce. It is the first time someone has raised that in the session, and I want to understand your thinking.
Q35 Chair: There is something wrong with a court system that cannot address these matters without the involvement of lawyers on a matter as limited as whether a child is getting sufficient contact with a parent.
Jenny Beck: Because we have an adversarial system it is quite difficult for people to take anything other than an adversarial view if they are forced to be litigants in person. If they are able to access front-loaded legal advice, even a small amount of advice can save enormous cost. The principles that apply to contact with children are very child-centric, but they are not immediately obvious to people who come to the courts feeling emotional. They are denied contact with their child; they feel angry and embittered, and they want to fight for everything. Litigants in person particularly feel they have to keep fighting, because their kids are involved. Often, if they knew what they would get at the end of the day, because they had had some front-loaded advice, they would not need to go through that battle; they could find a negotiated or mediated way through it. They are being denied that first advice because they cannot afford it. They are going down a much more expensive path in terms of time, emotional cost and emotional fallout.
Q36 Chair: We heard from the earlier witnesses about the very low level of successful use of the continuing eligibility scheme and the difficulty of accessing it. What could the Ministry of Justice do to make the availability of that scheme better known and understood?
Andrew Caplen: The exceptional funding scheme.
Chair: Yes.
Andrew Caplen: A comment has already been made about the complexity of the form, and that is for sure. We know that the complexity of the form is a problem from anecdotal evidence that we hear all around. We know that there are limited grants available. Even an organisation called the Public Law Project, which is testing this sort of area and to which we provide support, is finding it difficult. Solicitors are officers of the court. Maybe we can go back almost to a self-certification basis in particular areas to save some of this complexity. We have had that before, in franchising for example. It is possible that it could be picked up on audit, for example, if people were applying without the necessary evidence to do so; but going through a process where people have to sit down and put forward a case to make exceptional funding and then it is rejected seems the wrong way of doing what had been intended to be the safety net for the whole of the legal aid cuts.
Q37 Chair: What about all the people who are eligible for legal aid but do not seem to discover that they are eligible?
Andrew Caplen: As we heard from the not-for-profit sector, this is a difficulty. There is the perception out there that legal aid is not available. There is a necessity for that to be changed. Maybe another message that needs to be got out by Government is that legal aid is still available.
Q38 Chair: But don’t all the critics of what the Government have done get some of the blame for this, because the burden of the criticism seems to suggest that there is no legal aid available now?
Jenny Beck: That is a point I made. That has happened as a consequence of the campaigning and the attempt to save legal aid. People have been left with the feeling that there is nothing left. The scant information that is available and the confusing labyrinth of websites and guidance make it even more difficult. I am sure that many people who would be eligible for some help with discrimination are going in via the employment route and just being turned away. Many people do not understand the domestic violence gateway, and think they simply cannot do it. For advice agencies and solicitors, there is not enough information around generally. We have taken a lot of steps to try to address that, but it is still extremely confusing.
Q39 Chair: Could your members do more to make it clear to people that they may be eligible for legal aid?
Andrew Caplen: There is a limit to what can be done. Most solicitors who do legal aid would have kitemarks for criminal defence, family mediation or whatever, and they would make that very clear in the publicity they put out. Bearing in mind the cost consequences of taking out advertisements in newspapers, it is probably not something they can afford to do. I think most firms that do would be referring to their CAB; it is traditional for solicitors to refer to advice centres to say they still have the ability to do it. The problem is that, because the number of solicitors who offer legal advice services is diminishing, some people will phone up three or four firms of solicitors, find that legal aid is not being offered and assume that legal aid is not offered.
Q40 Chair: We will turn in a moment to the impact of that decline on the profession, but presumably many of those still operating in the legal aid area advertise in newspapers to make it clear they can advise people on whether or not they are eligible for legal aid.
Andrew Caplen: Solicitors probably do more local advertising. I imagine that most of them who still have legal aid would put that in the kitemarks, but it is a matter of getting that to the people who need legal aid advice, and sometimes that can be quite difficult.
Q41 Steve Brine: Returning to litigants in person, what are the challenges presented by that for practitioners representing the other party in a legal dispute? Does it present an ethical difficulty?
Jenny Beck: Yes, it does, because it is quite difficult to represent a party where the other side is unrepresented. It presents a number of practical difficulties. Proceedings tend to go on a lot longer. You are under certain duties to explain the procedure to a litigant in person. The litigant in person will often want to fight absolutely everything, and it is very difficult to control that. I have an example of a case that took in total five days and should not have taken any court time at all. The perpetrator of domestic violence had excluded a woman from the house and she needed to get back in. That would have been decided very quickly if he had gone to a solicitor. He was occupying a property which had four rooms and he was on his own. It took five days to get the case through, and get the residence order and get the property in her name. It should not have taken any time at all. There are real practical difficulties. From an ethical point of view, it is extremely difficult to be in that situation. The client in this particular case—another useful example—could be cross-examined by the litigant in person on her own in relation to the domestic violence, which is a very difficult situation to be in.
Q42 Steve Brine: Mr Caplen, does the represented brief feel guilty that he or she is David and Goliath?
Andrew Caplen: I would not say that. I hope that our members would always behave completely ethically and properly. We put out details in our practice notes about how we should deal with litigants in person.
Q43 Steve Brine: What are the headlines of what that says? Presumably, your members cannot lower their game because they are facing a litigant in person.
Andrew Caplen: They cannot lower their game, but they also do not take advantage, and that is what you would hope we would say. When I was a trainee solicitor many years ago, my principal said to me that a good lawyer knows when to settle. The big problem is that a litigant in person will not know when to settle.
Q44 Steve Brine: Mr Lavender, do you have any thoughts?
Nicholas Lavender: When LASPO came out we published a guide on representing yourself in court. We are now working with the judges and the Law Society on a guide on the very point you are talking about—appearing against a litigant in person—because occasionally there are ethical problems, but more often they are just practical. If you are appearing against a litigant in person you also have your own client who wants to win the case. You have a duty not to take advantage of a litigant in person and, more than that, to draw to the court’s attention, for example, relevant authorities which, if he had a barrister, his barrister would be mentioning. He does not and he does not know about them, so it is your duty to point them out. Your client may not be happy that you are, it seems, helping the other side, but that is the balance you have to strike. Because there is now so much of this about, we thought it was worth providing a bit more guidance on it.
Q45 Steve Brine: You referred to not taking advantage, but when other teams play the England football team they do not go easy just because we are hopeless. At the end of the day, Mr Caplen, your members are there to win, aren’t they?
Andrew Caplen: They are there to do the best for their client. They are officers of the court, and in our practice note we remind them of that. It is a difficult balance; you are right.
Q46 Steve Brine: What are your views on McKenzie friends in court? I had never heard of McKenzie, and I do not know who McKenzie is, but presumably they existed before the legal provisions changed, did they not?
Jenny Beck: McKenzie was the first McKenzie friend.
Q47 Steve Brine: He was a very good friend to have.
Jenny Beck: Possibly and possibly not, because it gives the illusion of equality of arms, which is not always necessarily the case. They are not legally qualified. It does not necessarily assist the process if there is the appearance that both sides are represented when that is not actually the case. Support for litigants in person is important, and there is a lot of good support going on, but it is really important to remember that that is not the same thing as legal advice. While there is assistance in accessing the court system, and possibly in preparing your bundle of paperwork and getting your facts in the right order, if you are arguing the wrong points of law that does not assist the judge or the speed of process.
Nicholas Lavender: McKenzie was a litigant in about 1970. In the McKenzie case, the courts established that litigants generally had the right to have a friend—that is why they are called McKenzie friends—who sits next to them, helps them and advises them, perhaps passing them notes on what questions to ask and that sort of thing. A McKenzie friend as such has no right to stand up and address the court; that is a separate matter. However, the judge has discretion to allow people to address the court, and quite often will if, let’s say, a litigant turns up with her husband and wants him to speak for her. That will normally be allowed. They may be other family members or friends.
The issue nowadays about McKenzie friends is much more about two particular categories. One is McKenzie friends with an agenda, particularly people who tend to represent one side in certain types of litigation, and who may in certain cases be more interested in pursuing their agenda than doing what is right for their “client.” The other is the professional McKenzie friend. People are now starting to make a living out of providing legal advice, legal assistance and, if the court permits, legal representation. People are doing that, although they are not regulated; you cannot complain to the Legal Ombudsman if something goes wrong, and they are not insured. There are all sorts of issues like that.
Q48 Steve Brine: This is the cult of the amateur in court taking on the responsibilities of the professional.
Andrew Caplen: That has to be the concern if people are not regulated. As solicitors, we have about six years’ training, and I think you have about five, Nick, don’t you, because you have a shorter pupillage? From a training point of view, they have no training, and, from a regulatory point of view, no regulator. Do they have professional indemnity insurance? That is what people can expect from legal professionals, and that is why in my view McKenzie friends have limited use.
Q49 Steve Brine: Is it possible, or even desirable, to simplify court proceedings to accommodate the majority of litigant in person cases without massively denigrating the court process?
Jenny Beck: You can simplify the mechanism for getting there. A point was made about the C100 and other forms. It is possible to simplify the process to get you into court. I do not think it is possible to simplify the process of litigation, but it is possible to speed it up by front-loaded advice, or even to avoid litigation in the first place.
Andrew Caplen: We have been trying to simplify the court process for a number of years, so I endorse what Jenny says. That’s right.
Q50 Chair: Has the litigant in person changed somewhat? Before these changes, many of them were people who had sacked their lawyers, came with suitcases full of materials and almost made a hobby of litigation. Now they are previously legally aided persons who really need help from the court, to make sure that they tell the court what the court needs to know to give a fair determination to the case, particularly in the tribunal area.
Nicholas Lavender: The fact is that litigants in person vary just as people vary, and there is a huge range of them. There are the extremely articulate, some of whom find themselves convicted of fraud—but they are very articulate. At the other end, there are those who are inarticulate, vulnerable, and unable to understand the proceedings. And there is everything in between. Not every case is as extreme as Q v. Q, which I mentioned, but there are plenty of cases where the sadness is that quite often you would not get to court. You would not be taking up the parties’ time or the court’s time if they had had a bit of sound advice at the beginning about the point they want to run. Nowadays, maybe they have done a bit of internet research—one sees a lot of that—and come up with the idea that there is a great case that is the answer to their problems. If only somebody had sat down with them beforehand and told them that actually it was not, it might have saved a lot of trouble.
Steve Brine: You hear this from GPs. People turn up in their surgeries and say, “I’ve been online and”—the immortal, dangerous words that GPs hate, and you see the same thing.
Chair: Every single day.
Q51 Jeremy Corbyn: Following the point about McKenzie friends and the semi-professional advisers who turn up, there seems to be a parallel with immigration advisers of the past. They would often give dreadful advice—uninformed, optimistic, or just wrong—and cause their clients a lot of problems. That ended up with some degree of regulation. Do you think there is a case for a degree of regulation? If we are going to have a whole army of amateur lawyers getting a chance to speak in court, what is the point of anybody training to be a lawyer?
Nicholas Lavender: There is an interesting debate about that. There is a report by the consumer panel of the Legal Services Board which looks at it. The regulatory position is that it is all governed by the Legal Services Act 2007. There are a number of court decisions saying that people who are trying to make a profession out of providing legal representation should not be given the opportunity to address the court; you should either be properly regulated through one of the professions or you should not be doing it. That is the general position. Unfortunately, in the last few years the courts have been more receptive to allowing people like that to appear.
Q52 Jeremy Corbyn: It is a decision for the judge whether or not to allow them to speak.
Nicholas Lavender: It is.
Q53 Jeremy Corbyn: But they are semi-professional litigants.
Nicholas Lavender: The ability to address the court and exercise a right of audience is governed by the Legal Services Act. My members and solicitors get those rights of audience only after they have done the appropriate training and qualifications, but there is an exceptional provision that in any case the court can allow anybody to speak. When I sat as a part-time judge, if a wife turned up and wanted her husband to speak for her of course you said yes. But the decisions of the courts hitherto have been that, if someone is purporting to address the court as something they get paid for doing, you should not allow them to do that unless they are a solicitor, barrister or otherwise have a right of audience. Unfortunately, in practice the courts are not applying that principle. Therefore, people are in practice able to address the court and get paid for it without having done training, without regulation and without insurance.
Andrew Caplen: If I may turn your question round slightly, in a sense it is more important than why should we go through legal training to be able to do this sort of thing. The legal training issue is why people should risk being represented by those who have not undergone training, are not regulated, are not insured and do not have a level of competence. It is a risk.
Jeremy Corbyn: If we do not regulate in a proper way, surely we are going to have a situation where those who are denied legal aid, and cannot afford legal representation, will end up with poor quality legal advice from people who are untrained and unqualified. They will pay something for it, but it will be less than a properly qualified person would provide. We are looking at quite a dangerous scenario.
Chair: That sounds like a comment—
Q54 Jeremy Corbyn: It is a question. Do you not agree?
Andrew Caplen: Yes.
Chair: You probably do.
Jenny Beck: And there are self-protected rights as well.
Q55 Rehman Chishti: Looking at the impact on the legal professions of these changes, assuming there are no more civil legal aid changes, what is the future for legal aid practitioners in the for-profit sector?
Jenny Beck: I will refrain from doing the full for-profits nightmare. It is very bleak. The numbers are dwindling daily. With the cuts to criminal legal aid as well, there are many practices that span both disciplines so they will be feeling the pinch. There will probably be a further exodus from being able to provide legal aid. The future is very bleak for people coming up—the trainees. The University of Law has already stopped its public services route in, because there is not enough interest and not enough money to be made at the end. The opportunities for people to train and qualify are very small, so the good community lawyers of tomorrow are being lost today.
Andrew Caplen: I am very sad to say this, because I have always been in firms that had legal aid civil contracts; we closed our family department last March because the figures just did not add up any more. You are being squeezed from both sides. You are having a cut in scope at the same time as you are having a cut in fees. We talk about the for-profit, but it is not about dividends to partners; it is a case of paying the bills, and making a living and not a loss on that particular sort of work. It was with a very heavy heart that we stopped doing legal aid family law. It was not just the case that we were not paying our way on it; we were actually losing money on it with the cuts in scope and the cuts in fees.
Nicholas Lavender: We touched on this in our memorandum. We will let you have our research report when it is available, but it confirms the position at the Bar as well, not simply as a result of the cuts in scope but also the other cuts in legal aid work, and of course other developments. LASPO also changed the landscape for people doing personal injury work. For junior members of the Bar doing small personal injury cases it is not a happy story. The combined effect is that large numbers of members of the Bar who specialise in this kind of work are doing less of it, are being paid less for it and more and more of them will leave.
Q56 Rehman Chishti: On the second part of the question, I think I know the answer and I certainly pretty well share it. What is the overall impact on the legal professions of legal aid practitioners ceasing to practise?
Jenny Beck: The loss of everybody who helps the poorest and most vulnerable members of our society, and not just helps them but puts them in a position where they are able to help themselves, thus saving the state a considerable amount of overall funding.
Andrew Caplen: There is a loss of expertise—there really is—and it is a loss of expertise that will be very difficult to replace. With the best will in the world, some firms who want to do pro bono work might not necessarily have expertise in that particular area of law.
Nicholas Lavender: The loss of expertise in the profession feeds through in due course to a loss of expertise on the bench, because you are not able to appoint people who have specialist experience. There is also an issue about diversity. Traditionally, legal aid practice, civil and criminal, has been an area where women and those from different ethnic backgrounds are better represented, and that is now a declining area.
Q57 John McDonnell: Can we come back to exceptional cases funding? The Government predicted that the changes would result in about 5,000 to 7,000 cases. As you said, 1,500 have come forward and only 57 have been granted, and we have heard that quite a significant number of those related to inquests. Why? Apart from the drop in overall numbers, why do you think so few are granted?
Nicholas Lavender: The test is too high. It is being administered in a way that is difficult, as you have heard. The recent judicial review decision found that the guidance published by the Government, which the Legal Aid Agency follows, is defective in that it sets too high a threshold. But even if the guidance were right, the test written into the statute, where you have to show that failure to grant legal aid would involve a breach of human rights, or risk breaching human rights, is putting it too high if it is going to function, as we all thought it would, as a safety net for catching deserving cases that otherwise would be kept out by the cuts in scope.
Q58 John McDonnell: Succinctly, how would you change it?
Nicholas Lavender: I confess that I have not come along with a formulation, but I will certainly let you have it.
Q59 John McDonnell: We would welcome that.
Andrew Caplen: It would help if the test, even when it is applied, is not applied so restrictively. There is almost a feeling that the LAA does not want to grant exceptional funding cases.
Q60 John McDonnell: That is the agency’s discretion being exercised, is it?
Andrew Caplen: There is discretion, yes.
Jenny Beck: In addition, the form itself is so cumbersome that it takes about three to four hours to complete the questions. I have an example of the form here, which I am more than happy to show you. The questions in section B in particular require an enormous and expert level of knowledge of the law and the facts of the individual’s case, which need to be ascertained. Because so few get through, many practitioners—because they are at risk for the entire four or five hours it takes to complete—are not even starting it because the chances of success are so small.
Q61 John McDonnell: What you have described in the past is a state of absolute confusion about entitlement generally. In applying the safety net, there is the difficulty of filling in the form itself and the hours it takes; the test is too high, but, even then, the use of discretion by the agency is such that it is still barring people.
Andrew Caplen: We think there is a problem there.
John McDonnell: It is not a problem—it is a nightmare.
Q62 Mr Buckland: I think we have dealt with exceptional cases. I was looking at some of the evidence we have just had from the Minister about the spend on legal aid. It is quite interesting reading. About £900 million is spent on civil legal aid. I see that in the last year there was an underspend of £41 million, which is perhaps a bit more than 5%. It is offset by overspends in criminal legal aid and costs from central funds, which more or less equate to it. The reasons he gives for the underspend are issues to do with the telephone gateway, as we discussed, and underspends in family mediations. There are two particular reasons. Other than that, it seems that, despite concerns about the public perception that there is no civil legal aid, the spend is quite high; it is more or less 95% of where the allocation is.
Andrew Caplen: One of the interesting things, as we are talking about the past year, is the element that relates to cases started before 31 March 2013. There was a hike in the number of cases which went to certification before, so I think we will have more accurate figures in a year’s time.
Jenny Beck: Can I also point out that the cost of representing the individual in the case that lasted five days, which I mentioned earlier, is offset against the cost of representing probably 500 people with a small amount of front-loaded advice? One clearly outweighs the other.
Chair: Thank you very much. We are very grateful to you for your evidence and your help this morning.
Oral evidence: Impact of the changes to civil legal aid under Part 1 of the Legal aid, sentencing and Punishment of Offenders Act 2012, HC 311 20