Written evidence from Ms Diane Astin

 

This submission is a personal one. I know that many organisations I work with will submit detailed evidence for your consideration. So, I wanted instead to offer some personal reflections.

 

I have been a legal aid lawyer for more than 30 years, though I have also taught in universities and undertaken freelance training during that time.  Social welfare law is what I have specialised in, specifically housing law, public law and more recently community care/asylum support and discrimination law – usually arising from housing issues. 

 

I have worked in private practice, for charities and in a law centre but always the work has been more or less the same:  acting for homeless and destitute clients, defending possession proceedings, getting people’s repairs carried out, challenging unlawful eviction and harassment, sometimes challenging the policies of local housing authorities, sometimes challenging government policies.  I am proud to have had a career in legal aid:  to have a challenging, stimulating job that makes a real difference to people’s lives is a privilege.  I don’t believe I have ever been in a work-place where anyone was making lots of money.   But in the early years of my career the salaries in law centres and legal aid private practice, while modest, were comparable to the salaries in local authorities and other public sector employees.  That is no longer the case and, especially in London, the cost of accommodation is such that it is hard to imagine how any young legal aid lawyer can survive without financial help from family or partners.   The fact that civil legal aid prescribed rates were set 26 years ago and have never been increased (rather reduced by 10% in 2011) is a significant factor. 

 

An illustration of the impact of LASPO – a client

 

Immediately prior to LASPO coming into effect I was working for the charity, the Public Law Project and I read all of the consultation papers and drafted many responses. I was very familiar with the detail of the changes that LASPO made to the scope of legal aid.  However, I was still shocked at the actual impact on real clients.  After LASPO came into force I worked for a few years as the director of student law clinic in a University.  The clinic offered housing advice in partnership with an excellent law centre and I would see clients for one-hour appointments which students would observe.   All of the clients were ineligible for legal aid, mostly because their problems fell out of scope under LASPO.  One appointment brought home to me the reality of LASPO.

 

The client was a woman suffering domestic abuse that fell short of actual violence. She had fled the matrimonial home which was a joint council tenancy and was staying with her two teenage children in the living room of her parents’ home. The children were at crucial stages of their education, with the eldest about to sit A-levels. The immediate problem was that on informing the local authority that she had fled the family home, the local authority had stopped her housing benefit claim. This was wrong as she was entitled to housing benefit under the regulations. Her housing officer had then written to her about the rent arrears that had accrued because of the housing benefit being terminated. She wanted advice about this and about her future housing. Her husband was disabled and she did not want him to be made homeless but needed a home for herself and the two children. My legal advice covered the following: her right to housing benefit (the regulations are complex but make provision for benefit to be paid when a person is not living in the home because of domestic abuse); the rent arrears and the risk of a claim for possession; her right to apply as homeless to the local authority; her right to apply for an allocation of housing from the local authority (which would be prejudiced by the rent arrears); her right to apply for the transfer of the existing tenancy into her sole name under the Family Law Act 1996.

 

Prior to LASPO, I could have advised and assisted her under the legal aid scheme about all of these issues. If employed in private practice or a law centre I could have ‘taken on her case and made representations to the local authority, about both the housing benefit and the rent arrears. I could have assisted her to make a homeless application or made an application for a tenancy transfer on her behalf. In fact, my aim would have been to seek to broker some kind of agreement under which the local authority might arrange for her to become the sole tenant of the family home so that she could live there with the children with her husband being accommodated elsewhere because of his disability. This may or may not have succeeded but legal aid would have covered advice and (non-court) advocacy to seek a solution.  If no agreed solution could be reached, then an application could have been made to a court under the Family Law Act for a transfer of the tenancy.

 

Under LASPO, none of this was possible under legal aid. The type of assistance offered by a student law clinics/pro bono service is normally restricted to a letter of advice or what is known as “next steps advice under which a person is simply advised of what steps they themselves can take next. That is what I did in this case: I sent a long letter setting out in writing the client’s legal rights and options and stressed that she was entitled to housing benefit while she resolved her long-term housing situation. My advice was that she should telephone her housing officer and ask for a housing benefit form to be sent to her so that she could apply so that even if a negative decision was made she could appeal. 

 

In fact, I was asked to see her a second time (although the service was meant to be restricted to a single appointment only) and she told me that she had telephoned the housing officer and asked for the housing benefit form but the housing officer had refused to do this telling her that there was no point because she was not entitled to housing benefit as she was not living in the home for which she was applying for benefit. This was entirely incorrect. During the second appointment I spent the whole hour attempting to telephone, alternately, her housing officer and the housing benefit department. Neither were answering their telephones and when the appointment ended, I could only advise the client to try again and to insist on being sent a housing benefit form.

 

I give this as an example because it is just the kind of case where early legal advice and assistance (“Legal Help”) used to cover holistic advice and advocacy on behalf of a client with a housing problem, which usually, as in this case, has multiple strands. All of these strands have been removed from the scope of legal aid under LASPO.  Only at the point when the person is facing the loss of her home does legal aid kick in.  This is completely nonsensical: early advice and assistance in housing cases avoids crises and prevents matters having to go to court. It saves time and money and stress. Often, it is too late when a client is facing the loss of their home to rectify the situation.

 

I do not know what happened to this client.  But I think her case illustrates two things: (1) early intervention (including advice, assistance, advocacy and, if necessary, legal representation) offers the best chance of avoiding crisis, in this case the crisis of a family becoming homeless; (2) pro bono services, including student law centres generally offer very limited assistance.  In my experience most clients facing housing problems need much more than information about the law to resolve their issues.  The cuts to local housing authorities means that trying to obtain services or even information can be difficult, and often impossible.  The threat of legal action is frequently needed to enforce even the most basic rights (e.g. the right to make an application for housing benefit).

 

Remuneration and the impact on types of work taken on

 

The fact that the hourly rates have never been increased but only reduced in the last 26 years speaks for itself.  But the operation of fixed fees for Legal Help has also made the work unsustainable. 

 

A couple of years ago I assisted a client with the homelessness review under the Legal Help scheme.  The case was quite complicated and because it concerned a local connection referral I had to make representations to two different authorities. The review was successful and when I came to submit the bill I realised that I had recorded just over 8 hours assisting the client. This meant that the case fell just short of the time spent that would justify ‘escaping’ the fixed fee of £157.  So, for that work my firm received £157; an

hourly rate of less than £19 an hour. That is clearly not sustainable.  No doubt others will be able to provide more data on the impact of fixed fees.  But I want to set out my response to realising what the rate of remuneration was.  I decided that I simply would not undertake homelessness reviews at all; I will not take on such cases.  I am certain that many others have decided the same.  So, when clients phone multiple providers and are told that none have capacity this is true in the sense that they are busy with other cases, but the bottom line is that providers cannot afford to undertake such cases on a regular basis.  This creates a clear problem for access to justice:  certain types of problems will not generally be taken on and the clients will often be unable to obtain help for homelessness reviews.  This will not be recorded and the Legal Aid Agency (LAA) can say, truthfully, that such cases are still in scope. 

 

The culture of the Legal Aid Agency

 

Over recent years I, along with many legal aid providers, have been concerned about the culture operating within the LAA.  I initiated a survey of legal aid providers to obtain the views of providers and to try to identify the main issues.  This was taken up by LAPG who have the data and will be submitting evidence.  My personal experience was of:  poor quality initial decisions with the law and the legal aid regulations and guidance being wrongly applied, forcing me to appeal many refusals, almost always successfully; delays in making decisions; a failure to recognise or treat applications as urgent forcing me to undertake work at the risk of not being paid, or not undertaking work to the detriment of the client’s case; assessments of claims being carried out in an overly ‘nit-picking’ way so that claims are regularly reduced on the basis that an amount of time spent with a client or the volume of telephone calls is unreasonable.  The culture within the LAA seems to be driven by the imperative of cutting costs at the expense of correct decisions or working in partnership with providers. 

 

I cannot stress enough the demoralising effect this has on providers.  Our clients are often vulnerable, difficult, angry, upset, depressed, with limited English or limited education.  We spent a huge amount of time managing difficult people in difficult situations.  To be routinely told that I have spent too long with a client or too long considering documents has the effect of making me feel that I am being accused of trying to defraud the Agency, rather than working extremely hard for low rates of pay to defend the rights of vulnerable people.

 

I could tolerate this, stressful though it is, as I am nearing the end of my career.  But what I find extremely upsetting is to hear young lawyers who have worked so hard to obtain a training contract in social welfare law saying, before they even qualify, that they are unlikely to stay in legal aid because the bureaucracy, the attitude of the LAA and the low rates of remuneration are causing them too much stress.

 

I really fear that it may be too late to save civil legal aid.  Unless there is a significant and long term commitment to civil legal aid, focusing on early intervention, sustainable rates and partnership with providers we will lose a whole generation of committed lawyers with the result that people facing serious hardship and injustice will not get the help they need.

 

Diane Astin

Solicitor

2 November 2020