Legal aid - reform or termination?

Issue 220 (February 2011)
Sarah Clarke outlines the Government's proposals for reform of legal aid in England and Wales and the likely impact on advice provision.
Introduction
You might think that at a time when the UK’s social security system faces arguably the biggest upheaval since the introduction of the Welfare State, the Government would recognise that the need for advice on welfare benefits has never been greater. You would be wrong to think this. As well as planning to unify working age benefits into a single Universal Credit by 2018, the Government plans to scrap legal aid for welfare benefits.

In its consultation paper; Proposals for the Reform of Legal Aid,1 the Ministry of Justice proposes to save £22 million by removing welfare benefits matters from the scope of legal aid funding. This is part of a plan to cut a quarter of the legal aid budget, with social welfare law the main target. Social security is the largest subject area being removed from the scope of legal aid after family, with 113,000 cases (08/09) that will no longer be funded.

It is proposed that these changes will be accompanied by cuts to eligibility levels for legal aid that had already fallen well behind the welfare benefits and tax credits systems. Claimants with capital over £1,000 may be asked to pay a contribution of £100. Most capital disregards would be abolished, save where the property is the subject of the dispute capped at £100,000. Income based legal aid contributions would be raised to 30%.

Not only does the Government plan to end legal aid for first tier advice on welfare benefits, it plans to take legal aid for social security matters in the higher courts, i.e. the Court of Appeal, the Supreme Court and the ECJ, out of scope as well. This is despite the fact that the cost of funding these cases is so low as to be valued at nil by the MoJ. In the future, social security claimants who find themselves faced with an incorrect Upper Tribunal decision, or who win their case at the Upper Tribunal but find themselves on the receiving end of an appeal by the DWP, HMRC or a local authority, could be facing the courts and the costs risks attached on their own or not at all. It also means that the big social security test cases which reached the higher courts by way of the appeals process, such as Zalewska on the lawfulness of the Workers’ Registration Scheme, Hinchy on the interpretation of the overpayment recovery test, Pedro, on the meaning of “family member in EU law”,and Mallinson, the seminal case on the interpretation of the law on disability living allowance, will not be funded in future.

In view of the complexity of the relevant law and procedure, the importance of what is at stake for the applicant and others, and the fact that many social security claimants are vulnerable and may be disabled or may not have English as a first language, and therefore are particularly disadvantaged in presenting their cases, it seems possible that, particularly in cases before the higher courts, a lack of legal aid could breach the rights of claimants under Article 6 of the European Convention on Human Rights.2

Cuts to funding

The discretionary public funding scheme which currently funds tribunal cases under s 6(8) Access to Justice Act 1999, and funds other cases out of scope of legal aid, will be replaced by a much more restricted fund, the terms of which are unlikely to cover social security cases in future, so claimants will not be able to access this funding either. Welfare benefit claimants, some of the most vulnerable people in the country, will be deprived of any effective access to justice about what most concerns them; their means of subsistence.

The Government plans to take the legal aid scheme back to basics, it justifies these cuts by saying it is pruning the scheme back to meet its original intentions. Public law is rightly recognised as a priority for funding because, as the Government says:

“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means to which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”3

Few would disagree with that. But the Government fails to recognise social security law also involves disputes between the citizen and the state. Taking this and other areas of social welfare law out of scope rolls back the hard won advances made in gaining rights for claimants to challenge public authorities through test case and other litigation by CPAG, Shelter, law centres and solicitors since the 1970s.

The results will be arbitrary, social security cases brought by way of judicial review which may involve precisely the same issue as cases brought by appeal, will still attract legal aid, purely because of the administrative route by which they have been brought.

The reforms will also leave claimants without assistance in the face of a revolution in the benefit system. The introduction of tax credits, pension credit and more recently Employment and Support Allowance all resulted in legal and administrative chaos, as well as complex of transitional provisions. When the Universal Credit hits, it looks as if there will be few if any advice agencies around to help claimants to navigate the law. The Social Security Commissioners and now the Upper Tribunal have long been used as a means of refining the interpretation of the law on benefits, but how many claimants will be able to bring cases before them without advice and assistance?

Filling in the gaps?

The Government further justifies its proposals by claiming that voluntary agencies, such as Disability Alliance, FRU, Age UK and CPAG will be able to fill in the gaps; we have made it plain we cannot. They also suggest claimants can ask the DWP or HMRC for advice, ignoring the fact that this is not independent. They suggest alternative funding is available for social security advice; this is hopelessly unrealistic; local authorities are the biggest alternative source of funding and since their own funding is being cut, they in turn are cutting funding for welfare rights services. Advice agencies all over the country are closing or under threat of closure.

It looks as if there will be a single gateway advice line, similar to CLS direct, which will, it seems, offer telephone advice on all areas of law. The proposals on how this line will operate in practice are not clear. It appears that it will offer telephone advice including on areas of social welfare law which will be out of scope of legal aid, such as welfare benefits. Apparently claimants will telephone the advice line, which will means test them, and they may be offered a paid service if they are not financially eligible (credit card details over the phone, presumably). They will then be given a reference number, and if theirs is a legal problem which remains within scope, will be referred to a solicitor or an adviser who will then have to means test them again. That is assuming any legal aid solicitors or advice agencies survive the reduction in their incomes that these cuts will entail. If the claimant’s legal problem is out of scope, the advice will presumably be limited to what can be given over the telephone. Such basic advice may be better then nothing, but benefit problems and appeal tribunals involve a great deal of paperwork, and telephone advice is hopelessly inadequate to deal with this.

CPAG believes that timely advice on benefit entitlement is good value for money and should be a high priority for funding, it can help save children and families from falling into poverty and debt, with all the social consequences these entail, all of which carry a high cost for society as a whole.4 Citizens Advice estimates that £8.80 is saved for every £1 spent on advice on legal aid.5 CPAG views advice on welfare rights and other areas of social welfare law as central to the government's anti-poverty strategies, as well as to enabling people to uphold their rights as citizens. A report commissioned by the National Association of Welfare Rights Advisers concluded that:

“Welfare rights advice services continue to play a key role in improving take-up and delivering significant extra resources to low-income households. The findings of the numerous studies discussed in the report are clear that the extra resources raised, even when these are relatively small, can have a sustained positive impact on individual’s experience of hardship and social exclusion. The studies point to extra resources leading to increased spending on; fuel, educational and recreational goods and services and transport – all critical to reducing household likelihood of falling into poverty and social exclusion.”6

The Government accepts in its Equalities Impact Assessment that the proposals are likely to impact disproportionately on female, BAME and ill and disabled clients.7 These are also households where children are most at risk of poverty. In our view it is clear that the proposed cuts will hit the poorest and most vulnerable households. They will inevitably increase child poverty, and put at risk the governments’ ability to meet the targets in the Child Poverty Act.

Make your views known

If you share CPAG’s concerns then make your views known and make sure your clients make their views known as well. Ask your clients to visit their local MP’s surgery, and make sure your MP is aware of the avalanche of enquiries they will be getting from their constituents once their local advice services have closed down. Respond to the MoJ’s consultation paper, support the Justice for All campaign co-ordinated by Citizens’ Advice,8 support the Law Society’s campaign to defend legal aid, go on the demonstration the TUC is organising against the cuts on 26th March, and do all you can to fight this attack on the rights of the most vulnerable members of our society.


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