Justice Committee – call for evidence

The future of Legal Aid

  1. Introduction

1.1 Norfolk Community Law Service is a charity working to identify unmet legal need in Norfolk and to work with partner agencies to provide free services to meet that need. We aim to provide access to justice and equality and particularly target our services at disadvantaged and vulnerable groups e.g. migrant workers, other BAME groups, people with long term illnesses, physical disabilities or mental health issues, people with learning difficulties, offenders and ex-offenders. 

1.2 Amongst other services, Norfolk Community Law Service (NCLS) carries out casework and represents appellants at Social Security Appeal Tribunals, and provides free advice plus the support of McKenzie Friends in the Family Court for litigants in person in private law cases (chiefly child arrangements and domestic abuse injunctions).  Both of these services were set up in 2012 in anticipation of the cuts to legal aid introduced by LASPO.  These services are funded by a range of short term grants from local authorities, the MoJ’s Litigant in Person Support Strategy, and charitable foundations.

1.3 Norfolk is a largely rural county, and outside of the city of Norwich large areas are known to suffer from ‘advice deserts’.  Court and Tribunal services are provided in Norwich, Kings Lynn and Great Yarmouth.  NCLS enjoys a very positive working relationship with our local Tribunal and Family Court, including with admin staff, the judiciary, clerks and panels.

1.4 As a local charity with no long term or statutory funding, composing a response to this consultation has cost implications for us; however we feel passionately that the committee should hear about the experience of our clients. 

 

  1. Welfare Rights

2.1 In 2019/2020 the NCLS Welfare Rights team assisted 208 clients with 230 welfare benefit cases.

2.2 Prior to the removal of Welfare Rights from the Legal Help scheme, Norfolk Citizens Advice had a team of 7 specialist Welfare Rights caseworkers. This entire team was disbanded as a result of LASPO.  There was no drop in demand or the needs of clients, just a complete loss of a county-wide specialist service, with the pressure then being on the advice sector to stretch already underfunded services to try and provide continued access to justice to this client group.  The sector still struggles to meet demand nationally.

2.3 The committee will no doubt be aware of the following report by the Equality and Human Rights Commission which details the impact of LASPO on routes to justice: https://www.equalityhumanrights.com/sites/default/files/the-impact-of-laspo-on-routes-to-justice-september-2018.pdf

2.4 The fact that 70-plus% of appeals are overturned at Tribunal clearly evidences the vital role that the right to an independent appeal hearing still plays and all the evidence as to the vulnerability in this client group evidences the need for free legal advice in this field.

2.5 The absence of funded representation seems increasingly unjust post-legal help, as for the last 2 or 3 years the Respondents (decision making bodies eg the DWP) are increasingly sending presenting officers to social security appeals, and for an appellant with no representative that is both an inequality of arms issue, and in practical terms very stressful to find themselves at a hearing with no support and facing a presenting officer.

 

  1. Domestic Abuse

3.1 In 2019-20 NCLS advised 260 clients on domestic abuse matters.

3.2 In early 2019 we jointly authored the following report with the Office of the Police and Crime Commissioner for Norfolk regarding legal aid for victims of domestic abuse: https://www.norfolksafeguardingadultsboard.info/assets/DOMESTIC-ABUSE/LEGAL-AID-NFK/LA-for-Victims-NFK-JAN2019FINAL.pdf  To summarise:

Although this research took place almost two years ago, the situation remains the same today, and we know from our clients that eligible parties are frequently unable to access legally aided representation due to lack of capacity among legal firms in Norfolk.

 

  1. The court reform programme and the increasing use of technology

4.1 NCLS has previously contributed to the MoJ’s consultation: Transforming our justice system: assisted digital strategy - Digitalising the social security and child support tribunal (2016).  The report detailed the number of clients unable to access online services.  Current figures for clients seeking welfare benefits advice show that in 2020, 21% have no access to the internet, and 46% lack confidence online.  These are significant groups whose needs must be addressed.

4.2 NCLS took part in research for the Good Things Foundation, offering vulnerable clients digital support for online welfare benefits appeals services.  The report can be found here:   https://www.goodthingsfoundation.org/sites/default/files/research-publications/digital_support_service_implementation_review_evaluation_report_-_september_2020.pdf  The project acknowledges that “Digital Support users can face multiple barriers to accessing HMCTS services online, and this means that they are likely to require a wider package of support than just Digital Support (including emotional, procedural — and sometimes legal — support). Although additional support is not within the remit of the funded face-to-face DS service, where needed, it cannot be separated from Digital Support. The additional support provided by centres is often crucial to the success of a face-to-face DS appointment, and in some instances not having this support would be a barrier to accessing HMCTS services online.”  However since there is no scope for funding legal advice and representation, this project is just a “sticking plaster” on one narrow element of the process (lodging appeals online).  There are undoubtedly benefits to be reaped from digital efficiency, but they must not be allowed to be to the detriment of the most vulnerable and most limited when it comes to access to justice.

 

4.3 NCLS has sought feedback from clients who have taken part in remote hearings during the Covid-19 pandemic, and these have been fed into the House of Lords Constitution Committee – Constitutional implications of COVID-19.  Whilst clients are generally relieved to have some access to justice during the pandemic, the accelerated roll-out of phone and particularly video hearings has not been straightforward.  Amongst our clients, 54% report having problems with remote hearings, and 8% state that they didn’t understand what was going on during the hearing.  Digital exclusion plays a part, and infrastructure in our rural county (lack of reliable broadband in certain areas) is also a disadvantage.  Some clients find the remote formats even harder to engage with than face to face, (which they also find stressful); some can’t engage via that route at all due to lack of technology, poor signal, poverty and functional and health limitations.  Hence we would not wish to see face to face hearings eliminated in the name of reform.  Face to face hearings must remain a cornerstone for access to justice.

 

  1. Exceptional Case Funding

5.1 Together with local partners, NCLS is currently investigating how to assist clients who may be eligible for Exceptional Case Funding.  The administrative burden of making such applications is heavy and we are not aware of any local law firms who have attempted to gain ECF for clients.  Whilst we believe that many of our clients (perhaps even a majority) would qualify, by definition they are not able to handle the application process without support, and advice agencies do not have the resources to assist them.

 

  1. Impact of Covid-19 on legal aid clients

6.1 See paragraph 4.3 above under ‘increasing use of technology’ for our comments on the use of remote technology during the pandemic.

6.2 Women, people with disabilities and from BAME communities are disproportionately and negatively impacted by Covid 19, both in terms of health and socially; these client groups also make up the majority of those no longer able to access legal aid for their Welfare Rights or Domestic Abuse applications since LASPO.  A comprehensive Equalities Impact Assessment must be undertaken to inform future policy and practice and necessary legal changes.

6.3 In common with advice agencies nationwide, since March 2020 NCLS has experienced severe pressure and demand for all our services, which will only increase as incomes are squeezed and unemployment rises due to the effects of the pandemic. Justice is vital for our democracy and access to it cannot and should not be determined purely by the ability to pay. Charities such as NCLS do their best to meet need but are no substitute for a properly funded system of legal aid.

 

  1. Ensuring 360 degree views

7.1 Finally, it will be interesting to note whether the Committee receives any responses from private sector solicitors.  We would be delighted but surprised if the sector makes a submission, since there is little visible incentive for them to do so.  If they do not volunteer any input, we would suggest that their views be actively sought, since they are pivotal to the provision and success of the legal aid programme.

October 2020