Written evidence from The Family Law Company
The Family Law Company wish to make the following submissions for the purpose of assisting the inquiry into the future of legal aid by the Commons Justice Select Committee.
Founded in 1991 we have grown to be the largest specialist family firm in the South West with offices in Exeter and Plymouth.
The team includes over 40 lawyers. We deal with over 2000 cases per year. 40% of our work is legally aided.
How LASPO has affected access to justice?
Views on the post implementation review and the criminal legal aid review
- The fundamental reform of Legal Aid in 2013, was very much a political response to the expansion of provision of legal aid by a coalition government in the context of a country in economic downturn and overstretched budgets.
- The objectives, in seeking to create a sustainable legal aid system has limited access to justice for many and forced legal aid practitioners to overhaul the way in which they work.
- The principle is sound but the application requires further consideration. The need for evidence that a person has been a victim of domestic abuse or child abuse, Gateway Evidence (GE) remains a peculiar concept in application. The post-implementation review in 2018, expanded the types of evidence that could be used for GE but there remains confusion and misunderstanding.
Inconsistency by the LAA
3.1. This issue could in part be contributed by the practical ‘pro-forma’ sample letters which are supposedly there to assist. However the LAA suggest any departure from the exact wording in the letters would deem the evidence unsuitable. This is not in the spirit of LASPO or aligned with the objectives of the legislation.
3.2. In most cases, the LAA insist the pro-forma should be followed without any variation of the wording. E.g. a letter from a registered school nurse omitted the word “examined” was rejected, despite the condition being anxiety and depression. There are other occasions where evidence is accepted by the LAA, which do not strictly follow the pro-forma.
3.3. An example was in the case of a vulnerable young woman with mental health issues. As respondent she sought GE from support services. Her GE could have complied with both Reg 14 and/or Reg 17 of LAPSO (as applicable at the time), the difference being the use of the words “provided” or “providing”. The LAA refused funding, including upon appeal. This meant a write off of £2,500. The LAA position was that the letter could not be relied upon as it did not exactly match either pro-forma letter. They acknowledged the LAPSO requirements were met but as the letter did not match they refused.
3.4. On other occasions the LAA have rejected GP letters based on the exact wording of the pro-forma letter not being used or in the early application of the guidance, that the precise nature of the illness or injury had not been specified, all of which were not required under LASPO.
Interpretation of LASPO
3.5. The LAA have issued guidance further to LASPO but the concern is whether the guidance goes further than the provisions set out in LASPO. There are restrictions set out in the guidance and by way of the pro-forma letters which mean that in some circumstances, people, who should be eligible, for legal aid are denied this opportunity.
3.6. This point has arisen in respect of provision of a GP letter as evidence that a person is a victim of abuse. Key issues being:
3.6.1. GP unwilling to prepare a letter to the exact wording of pro-forma;
3.6.2. Refusing to set out they have ‘examined’ the person if they are (a) not in person due to Covid or (b) if the condition is related to a non-physical presentation; and
3.6.3. Cost for preparing letter, which client cannot meet.
3.7. Another key issue appears to be when the GE used on the initial application is the category of evidence of an arrest for a domestic abuse offence. If the opponent is subsequently not charged or convicted, then this is no longer valid GE. Therefore despite there being sufficient concern for an arrest and bail conditions being imposed by the police, funding is withdrawn as the GE has fallen away and if there is no other available GE, it leaves the vulnerable client without funding or representation. This is a new development in the approach taken by the LAA over the last 12-18 months and one brought in without consultation or forewarning of the application of this new interpretation of LASPO by the LAA.
Proceedings where gateway is not required
- At the moment, evidence that a litigant is a victim of domestic abuse is not required for proceedings in respect of protective injunctions such as Non-Molestation Orders. However, there are other urgent and/or complicated proceedings which should be considered for this exemption.
5.1 A recent example: A mother, had her 18 month old child removed by the father. There was no child arrangements order so the mother had to seek the recourse of the Court to assist in returning the child to her care. There is an argument that the act of removing the child from her care was abusive. She was unable to access any GE to allow her to access legal aid. Financially, this lady was eligible. She was left in a situation of either having to pay privately with limited means or represent herself.
5.2 We submit that further consideration should be given to the GE being expanded to protect other vulnerable members of our society (for example, those with cognitive or mental health difficulties). At present, if they cannot meet the GE, they are left to represent themselves and conduct litigation in complicated matters which may not only adversely affect their health but also their future. For some, it is nearly impossible for them to understand the proceedings let alone conduct them to the best of their ability. This then has consequences for not only that person but also the judiciary (who take a greater role during hearings to ensure the case proceeds) and potentially the representatives for the other party, who take on a greater role in relation in the administration of proceedings (organising bundles, video links etc.). Whilst there is the potential for Exceptional Case Funding, the procedure in obtaining ECF is time consuming and potentially leaves firms covering costs which are not then recoverable if ECF is not granted.
5.3 In section 16.4 cases, where a guardian is appointed to represent the child in private law children cases where there are serious allegations of harm against either or both parents, there should be legal aid funding available to the parents. In a recent case there were very serious allegations and the father had to represent himself in the finding of fact hearing. He had learning difficulties and was in a situation of having to pose questions to the mother. Findings were made against him with the implication that he will have limited involvement with his child’s life. Means tested funding should be made available to such parents.
5.4 By excluding funding to respondents in cases where there are serious allegations affecting the welfare and care of a child, which could result in an overall difference to the outcome of a case, using the criteria set down in Practice Directions 12J, we are not only disadvantaging respondents from having guidance on how to conduct and present their case properly, we are affecting a child for the rest their lives, by allowing the inequality of training and expertise to influence the outcome. Not only are there these grave consequences but there could be argued to be a systematic undermining of confidence in the impartiality of the judicial systems. It could be argued that in protecting the perceived victim we go too far by not allowing the justice system to work effectively and fairly for all.
- The consideration of proceedings which should be exempt from the requirement for GE has been in train for some time. An urgent review is needed to ensure LASPO does not undermine the Legal Aid system and preventing access to Justice.
Litigants in person
- As a result of LASPO, there has been an increase in Litigants in person. This has led to more work for those who represent the other party. The LIP are often assessed as not having the means to contribute to disbursements like experts so legal aid certificates for other parties are bearing the whole cost.
- LIP are far less likely to settle cases without legal advice meaning resulting in more Court hearings. Proceedings last longer which is not in the interests of the child. Parents become more polarized so the parties are more likely to return the matter to Court later.
- LIP’s conduct when not represented is less manageable. The result of LIP inexperience with the process is that they share frustrations and aggression with all involved including court staff. This results in professionals being at risk of both emotional and physical harm.
- LASPO has undoubtedly limited access to justice. Our submission is the LAA should place more trust in practitioners when considering merits. There should be a more practical approach to GE letters which may differ slightly from the pro-formas. There should be further consideration to expanding legal aid being made available to certain proceedings as outlined above. This can then ensure that litigants can still access justice, where they are entitled, yet still achieve the overarching objectives of LASPO.
The Role of the LAA
- Even with the increased staff at the LAA this has not necessarily decreased the time frames for applications and other matters to be considered and has caused many issues through mistakes by those who work at the LAA. Our experience has been that new recruits lack training and experience and once again are inconsistent with applying the LAA’s own guidance and guidelines.
- The LAA are trying to be more available for communication e.g. Twitter, Q and A and a customer helpline. There is still improvement to be made and the communication strategy should be considered further. E.g. the Covid contingency arrangements were due to conclude on 30th September 2020. This deadline passed without any update from the LAA when it should have been prioritized and updated.
- There is concern over lack of reliability, especially in times of urgency. E.g. a legal aid certificate had FHH cover but we had not applied to upgrade this to level 4, as a CAFCASS report was required which was not received until just before the final hearing. There was a rush to apply to amend the scope. We spoke to the LAA to expedite and were assured that they would do so and respond however, no response was received. Despite chasing, level 4 funding was not confirmed until late afternoon, the day before the final hearing. There needs to be a practical way to deal with situations such as this.
Consistency in high cost case decision making
- High Costs cases are complex and require a lot of extra work and negotiations, with much work undertaken without the ability to charge any time. The process is lengthy with the high cost case unit taking over 30 days to respond to notifications about case plans. Most plans take months and sometimes years to agree. This results in delays until we can be paid for work already undertaken.
- During negotiations over high cost cases we have noted inconsistencies in LAA case worker decisions. For example, one case worker will refuse the number of hours an expert has taken on a report, whilst a different case worker will allow it for another party on the same case. On another matter, we had to appeal to the Independent Costs Assessor after the LAA refused translation fees to translate letters to a witness who spoke no English. The case worker rejected the costs on the basis that our client could have told the witnesses the information within our letters. One of those letters detailed the arrangements for the witness to give evidence and our appeal pointed out the potential costs order implications if we had not given them this information and simply relied on our client to do so. The ICA decided in our favour but this again reflects the inconsistency amongst case workers as we have seen other much more expensive translation costs go through without issue.
- We therefore submit that the key issues to be considered to improve the role of the LAA is better communication and consistency of decision making.
Recruitment and retention problems among legal aid professions
- There is an increasing problem in recruitment and retention of legal aid professionals. We are trying to recruit 4 legal aid lawyers. In the past 6 weeks we have had 4 applicants who are experienced family lawyers. Despite our offering a competitive salary, excellent working conditions and the opportunity to join a very forward thinking firm with great potential for their careers, upon considering and doing their own research, they have indicated they would join to do private work but do not want to do legal aid work, so we have not recruited.
- We have a large legal aid contract but due to a shortage of legal aid lawyers we are turning clients away. Those who come to us are the most vulnerable and in desperate need of help. Many report to us that they have tried numerous firms who undertake legal aid work to try and get assistance, but they are turned away as firms do not have the capacity to cope.
- We work hard to retain the staff we have, trying to keep their targets reasonable bearing in mind the extremely poor rates of pay legal aid gives us. Legal aid rates have been cut significantly over the past ten years – the cost of living has continued to rise and candidates expect (and deserve) reasonable salaries. Those who leave do so due to the increasing levels of red tape and extreme bureaucracy involved in Legal Aid work.
- We understand the importance of assessing financial eligibility and providing evidence However, this role has gone too far. We are forced to become forensic accountants when assessing income and capital - often questioning every payment in to an account and trying to delve deep into people’s finances beyond that of assessing their capital and income. The expectation of the LAA on practitioners is excessive.
- Due to the low rates of pay and despite our setting lower targets for legal aid lawyers, they still have to do many chargeable hours to meet those targets. Eventually due to the general emotional pressure of such work, the difficulties they face in getting legal aid in the first place and then the struggle to do the hours needed they seek a role elsewhere where they can just do privately paying work.
- Our view is that in the not too distant future there is going to be a massive gap in the provision of services, particularly in care and domestic abuse where the need is greatest.
The impact of the court reform programme and the increasing use of technology on legal aid services and clients.
- When the Court reform programme was launched in 2016, there was a phased plan to look at how they could “modernize and upgrade the justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants, and the vulnerable victims of crime”.
- By having a well-established programme of modernization and increased technology within the courts, it provided for the courts to maintain integrity during the heights of pandemic and although, the court reform programme is by no means complete, it gave the foundation to a modern court that has sustained throughout the pandemic.
- For some clients the increased use of technology has without a doubt been a convenience. Many would not return to the previous court process preferring being able to attend hearings from the comfort of their own homes. In contrast, some clients feel disenfranchised about the remote hearings, feeling less connected with their solicitor, the Judge and the proceedings in general.
- Remote hearings can also result in less chance of proceedings being settled. During hearings in person, Judges will often give the parties more time to reach a settlement/narrow the issues or perhaps give an indication which results in the parties speaking with their advisors and proceedings settling during the course of a hearing. In telephone or video hearings, the timings of hearings are limited and Judges cannot simply give the parties more time. The sheer number of hearings each day and time sensitive listings, mean that this is simply not possible.
- There is also some clients, who do not have access to the technology and are unable to use it without assistance. This has left a void for us as their solicitors to fill, including the provision of technology and rooms for them to be able to use while attending hearings.
- The use of technology is a good thing and something which should not be discouraged. However, there does need to be more thought and consideration given to ensuring that technology in the courts does not prevent access to justice and engagement with parties.
The impact of Covid-19 on legal aid services and clients
- Covid-19 has significantly increased the workload in firms who practice family law and this has inevitably seen a rise in court hearings and applications alike.
- The legal profession and clients have had to adapt quickly with many of the Courts closing and the vast majority of hearings then being held remotely via telephone or video conferencing.
- When the country went into lockdown, some of our hearings (particularly more complex finding of fact or final hearings) were initially postponed. When it became apparent the Covid restrictions were likely to continue for some time, those hearings had to be re-scheduled alongside all of the new and ongoing applications before the Court. Public law cases have quite rightly been prioritised with private law cases being delayed and/or hearings taken out of the Court listing but any delay adds to the stress and anxiety felt by clients during proceedings and is not in the best interests of the children.
Remote hearings and vulnerable clients
- The move to remote hearings has resulted in more efficient and faster hearings but some vulnerable clients struggle with not only using the IT required but also not having their solicitor beside them. Under normal circumstances, we are right beside them and not only give legal advice but also explain what is happening, answer questions as they arise and can reassure them. With remote hearings, they cannot easily ask us questions or raise issues during the hearing (unless they have an additional form of IT to communicate with us on in addition to the IT being used to dial in to the remote hearing) meaning they can feel disenfranchised. One client reported back to us that she would normally be able to ask questions during the hearing about anything she didn’t understand and she struggled not being able to do so.
- Remote hearings also make it difficult for solicitors to ‘read’ their clients and be able to tell if they are struggling with something during the course of the hearing.
- In cases involving vulnerable clients there needs to be consideration of a break in the hearings to ensure clients can speak with their solicitors about any issues which have arisen and to allow the solicitor to check in with the client.
- If the client does not have the necessary IT, it is often either us or the local authority who have to provide them with it (i.e. a laptop). These clients are often in a room on their own (due to the confidentiality of proceedings and social distancing measures) and we should not underestimate how that can feel. Some might have the benefit of an intermediary who can assist (again usually remotely) but many vulnerable people will not have that support in place.
- Most courts in the UK have been using video software to allow for video hearings to take place without incurring any disbursements. However, some courts require the use of telephone hearings. This incurs a disbursement which should be shared. With the now common situation of a LIP, it tasks the firms with an almost impossible job to recover half of the cost from them or bear the cost as a firm. It is hoped that the LAA will meet these costs. We are 7 months into the pandemic and the LAA have still not confirmed one way or the other. This is a concern and could have unfair financial consequences.
Obtaining financial information
- Some clients struggled to obtain financial eligibility evidence for consideration for public funding. During lockdown, there was extremely limited access to banks in person and online banking is not accessible for many clients (internet cafes / libraries were closed). Clients with learning difficulties or certain needs have also significantly struggled in obtaining evidence with much of their usual external support being unable to come in and help them due to social distancing guidelines and lockdown. This has resulted in delays and in some case, litigants have been unable to secure legal aid.
What the Challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.
- With the introduction of LASPO and the tightening of the availability of legal aid the balance of providing access to justice has tipped too far. There are a lot of challenges facing legal aid, not only brought about by the global pandemic but also by the fact that legal aid has become so restrictive that the question remains as to whether the system is still fit for service.
- In respect of eligibility, there needs to be a built in annual review of disposable income limits and allowances and it should be amended accordingly. This should take into account inflation and increased living costs. Without being in receipt of a passporting benefit, most people would be unlikely to qualify for legal aid financially. The current means eligibility penalises those who choose to work but receive a limited income.
38.1. E.G those who work can deduct the employment allowance of £45 per month. This allowance is insufficient. Parking alone in our city is at least £12 per day.
38.2. The permissible deductions should be reconsidered to include mandatory bills e.g. council tax.
- A review must consider the challenges of an outdated financial eligibility assessment and how this shall effect the provision of legal aid in the future.
- The rigid nature of legal aid means that is uninviting for some firms to take on a contract. The low level of reimbursement and high level of non-chargeable work and regulation mean that for many firms, it would not be profitable to undertake such work.
- It is a serious concern that the administrative burden placed on firms by the LAA, does not outweigh the benefit, if firms are to continue with pursuing legal aid contracts.
- We have set out our suggestions for reform below:
42.1. Review financial eligibility and this to be reconsidered every two years and updated accordingly;
42.2. Review consideration of GE:
- Should this be more flexible than the standard pro forma letters to ensure access to justice?
- Consideration of more proceedings being included where GE is not required
42.3. More confidence and trust needs to be placed with legal aid practitioners and firms.
42.4. Modernizing practices in terms of evidence and application of legal aid (including high cost cases) with better consistency and communication by the LAA.
42.5. Better support for vulnerable clients in remote hearings.
Legal Aid and the profession has faced many challenges over the years. There is an ongoing need to balance the cost to the public and provision of legal services, to those who most need it.
Covid-19 has brought to light the significant restriction to legal aid for the general public. The LAA need to review the way in which they work with the profession. This must be a collaborative exercise not one whereby the LAA are forever in conflict with the profession.
There needs to be regulation and review to ensure that legal aid is being applied correctly but also an acknowledgement of the struggles of practitioners and clients. It is hoped that a softening of approach would not only ease the burden on the LAA but ameliorate the relationship between the LAA and practitioners.
During these difficult times, we must consider all action to be proportionate and the role that legal aid plays in the application of justice in the UK.