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How austerity is killing legal aid and restricting access to justice

We often see law as the means of pursing justice in cases of criminal action, the violence of an assault or the calculated theft of property. But it also concerns what we consider daily issues, our right to welfare while unemployed, to have a safe roof over our head and the right to live in this country. The methods with which these rights are affirmed and secured are no less important although they are significantly less glamorous than criminal law.

The Legal Aid and Advice Act of 1949 is one of the lesser known reforms that collectively form the welfare state. By 1950 it provided 80% of the population a means-tested entitlement to legal support. Ever since, this figure has followed a downward trajectory considerably steepened by legislation brought in under the Conservative-Liberal Democrat Coalition. The Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LASPO) was passed under heated opposition from social justice and legal sector organisations such as the Law Society, who predicted it would restrict access to justice and reinforce the power of those with the money to pay for legal representation.

Austerity bites

As with austerity, LASPO is a policy which whips up an acute storm of misery and confusion. Government cuts have left public services struggling within shrinking budgets while also trying to alleviate the added suffering caused by the introduction of flawed reforms like Universal Credit. There are austerity driven crises in social care, mental health, housing and homelessness, and people affected by these crises may at some point end up in civil court.

LASPO, another emaciated legislative child of austerity, was concerned primarily with reducing the scope of cases Civil legal aid could cover, largely leaving criminal law alone. The bill had the effect of making a majority of all civil cases out of scope, these included:

  • Family cases without proof of domestic violence, forced marriage or child abduction
  • Almost all Welfare benefit cases
  • Housing matters unless they constituted ‘an immediate risk to the home’

By making the majority of these issues ‘out of scope’ the legislation has had a gouging effect on the number of cases carried forward. A Freedom of Information request by The Meteor revealed the scale of the reduction in legal aid in Manchester. The table below reveals the dramatic drops in housing (62%), welfare (99%) and family (85%) cases supported, that have occurred in just five years:

legal aid

Two thirds of cases in family court now have at least one side representing themselves. Meanwhile Family Mediation, instead of increasing, as hoped to replace the need for legal representation, has fallen off a cliff. From 30,665 in 2013 to just 11,927 by 2017, a decline of 61%. This gambit to offload people onto cheaper services without proper legal advice backfired. Leaving increasing numbers without justice and families left suffering the severe consequences of injustice.

The plunge in caseload has also had marked effects for the law profession. From a Pre-LASPO level, the number of legal aid Providers by 2017 has halved from 4,173 in 2013 to 2,092 in 2017.

Alongside reduction in cases, legal aid work just doesn’t pay now due to changes. Most cases are paid at a flat rate with no consideration for hours worked, length or complexity. Cases can last years, the pay only comes on completion and to top it, rates haven’t increased since 1995, instead they went down by 10% in 2010. One Manchester Lawyer reported getting just £255 for a long and complex case that took over seven months to conclude. This has led to the formation of ‘legal aid deserts’ with practices withdrawing from providing legal aid services since they can no longer afford to do the work.

In addition to lowering rates, the Government cut all funding support for Law Centres, independent not-for-profit legal practices offering free advice and representation to local clients. In 2012 Manchester had four law centres: North, South, Central and Wythenshawe. All closed due to the cuts. South Manchester Law Centre, had been open for over 40 years, but went into liquidation in September 2014.

Reviews and revivals

Lawyers and activists regrouped and set about establishing a community Law Centre both as a place to provide legal advice but also to campaign against the cuts. Having succeeded in gaining funding and galvanising over a hundred volunteer advisors, solicitors, fund-raisers and office volunteers Greater Manchester Law Centre (GMLC) was established in late 2016, bravely standing against the worsening tide of statistics. But they still have many challenges to face:

“We can only work to our capacity and the truth is that as a result of LASPO, cuts to legal aid and the loss of funding for advice services, there just aren’t enough people providing face to face, specialised legal advice and representation to meet the ever increasing need…

“Eviction from private rented sector accommodation is the leading cause of homelessness in Greater Manchester and in most cases these evictions could have been avoided with the benefit of early advice … If the government really wanted to reduce homelessness, they would reverse the LASPO cuts to ensure people can get the advice they need to save their homes before its too late.”

Says Kathy Cosgrove, a solicitor with a background working in hostels and homeless advice agencies in London, she now heads the housing and homelessness advice service at Greater Manchester Law Centre.

A Post-Implementation Review of LASPO by the Ministry of Justice is overdue. Announced last year consultation was meant to be published in April 2018, but five months later it is yet to conclude. The government is unlikely to grant funding for reforms to LASPO, most in the legal profession believe the review is looking for a cost neutral or even cheaper option.

Spectres of NHS 111-esque service send shivers down spines at the GMLC. Imagine cycling for hours through answer machines trying to understand the intricacies of your legal situation. How long could you stay on the line when you have no food, your power has been cut off, or you’re just about to be evicted?

The government intends to judge the success of LASPO by its original objectives which concerned decreasing “unnecessary and adversarial litigation at the public expense” and “to make significant savings to the cost”. In judging the unfolding crisis in these terms the government ti tries to avoid avoid open criticism.

Legal aid has been defunded by more than £900 million since 2012, but the government frames this as saved costs and increased efficiency rather than a loss off access to justice. Crucially, within the text of the Post-Implementation Review there is no part concerned with ‘ensuring access to justice’.

Inspite of these cuts justice is being fought for and won in certain cases. Greater Manchester Law Centre having only recorded figures it since September 2016, managed to reclaim £903,090 of unpaid welfare for its community alone. GMLC runs almost entirely on volunteer staff, covering as best it can all ten boroughs of Greater Manchester.

The ’non-decent’ rented sector

Due to LASPO structured support for tenants has virtually disappeared. Problems with housing benefit or universal credit lead to rent arrears, a breakdown in landlord-tenant relations and eventually eviction.

The law requires social landlords, such as the council, to provide a ‘decent home’ in a reasonable state of repair, that meets a statutory minimum standard. However around a third of homes in the Private Rented Sector (PRS) are ‘non-decent’. More than 1 in 5 private renters move into properties with existing mould growth while over three quarters of households raising children have had problems with infestations, broken heating, damp and mould or insecure widows and doors. Meanwhile more than half a million social homes don’t meet the national Decent Homes Standard with at least 240,000 containing potentially fatal hazards such as dangerous boilers, leaking roofs and exposed wiring.

The prevalence of this issue in Greater Manchester was laid bare earlier this year. ‘Precarious Lives’ a report by Salford University and the City Council raised the lid on the lived experience of many in private tenancies. In a city famous for its rain, issues of damp and mould were found to be commonplace often escalating into major threats to tenant health. One person interviewed said “It played havoc with my health, because I was coughing and – you can feel your chest, and it just didn’t feel right”. One couple described water leaking into their kitchen and likened it to “walking on sponge”.

It used to be that housing solicitors could bring cases against landlords who failed to comply with their duties to repair. This resulted in getting the work done and compensation for the tenant for the damage to belongings and any personal injury that they or their children had suffered. Cases rarely went to court because the threat of proceedings would usually result in both repair works and an offer of compensation.

Now Legal aid is often only available if there is evidence of a serious risk of harm to health and safety. Too often this can only be proved when a serious risk has become a measurable injury. If there isn’t evidence available, or the tenant can’t get or afford a letter from their GP then they are often refused advice.

Even if Legal Aid can be obtained this only continues until the repairs are done, it doesn’t allow a solicitor to negotiate or push a claim for compensation in the court. They can only do half a case. The landlord knows this and they are less likely to admit fault or settle.

“This is what you get. People have nowhere to turn because they can’t get legal aid”

Says Charlotte Hughes an activist and journalist who writes for the Morning Star and has appeared on Sky News. Her blog ‘The poor side of life’ is a searing account of the grinding cruelty of Universal Credit and the hostile environment of the current welfare system.

Charlotte and a group of activists work outside the Ashton-under-Lyne Job centre every Thursday helping claimants and providing essential advice. On the ground the effects of LASPO are visceral and growing.

‘We had a letting agency knocking on doors telling people they had to apply for universal credit or they would be evicted. … Thats the situation, people don’t know their rights and they’re getting exploited … 90 per cent, 98 per cent even of the cases we see would be solved if we had legal aid we wouldn’t just be advising, we’d be taking them to court.”

The introduction of Universal Credit has been linked to increasing rent arrears, benefit sanctions and homelessness, but under the current restrictions to legal aid most welfare recipients are unable to challenge the DWP over wrong decisions, after the initial internal complaints procedure has been exhausted. Disabled people were recently reported as losing legal aid in 99% of benefits disputes.This is a major issue with LASPO. It reduces cases which would have been simple to solve and vital for a person’s security, into hopeless situations where they are forced to suffer without a avenue to recourse.

The issues with Housing Benefit are indicative of the change. It used to be the case that when a tenant was faced with eviction because of rent arrears then a solicitor could provide advice and assist in resolving the benefit problem. In most cases it would result in a back payment to the landlord removing or reducing the amount owed, ensuring that rent was being paid by an affordable weekly payment.

Now tenant’s have to wait until the landlord has served a Notice Seeking Possession. By this time the underlying benefits problem is harder to resolve and the chances of removing the arrears is much less. Again, even when the tenant can get eviction advice, the solicitor isn’t able to assist with the benefit problem that is the root cause of the eviction.

An inequality of arms

The key legal concept is also debased by LASPO. ‘Equality of arms’ maintains that each side should have a fair balance of legal representation to enable a fair trial to ensue. The removal of both legal advice and representation has reduced the direct costs of our judicial system, but increases the likelihood of miscarriages of justice, and the immense costs these may bear on the individuals and families affected. In her extensive work with GMLC Cosgrove has seen the effects first hand, many times:

“A lack of legal representation means that winnable cases are lost or more often not brought at all. Its enormously difficult for people to represent themselves in court. The law, even for small cases such as trying to get a tenancy deposit back from a landlord, is incredibly complicated.

“The procedure is very difficult to understand and standing up in court to make legal submissions or to cross examine your opponent or witnesses is so daunting that most people will choose to give up their case, or else won’t have the skill or confidence to do their case justice.

“Some Judges will try to help, but they can’t take sides and the inequality of arms, when the one side is represented and the other is not, is unsurmountable. Its simply not a fair fight and unjust decisions inevitably result. I’ve often seen unrepresented litigants leaving the court in tears.”

In 2014 it was estimated that the increase of ‘litigants in person’ in family courts cost the Ministry of Justice £3.4 million as more cases were deemed ‘without merit’.

‘Magna Carta Today?’ A report published by Unite found that for every £1 spent on legal advice and aid, the state saves around £6 on other forms of spending. Which suggests comprehensive legal advice and fully supported legal aid is cost-effective and cheaper than the current status quo. Meanwhile the The Law Society calculated that advice for housing benefit could be restored for around £2 million a year.

That is the paradox of this legislation. Whatever perceived savings are attributed to these cuts are outweighed by a greater human and social cost. It has cut away at the last recourse people have against an increasingly hostile system and we all live more precarious lives because of it. The LASPO Act undermines the human right to a fair trial in the UK and entrenches the power and privilege of those who can afford the cost of legal representation. If you believe that we all have and equal right to justice then surely LASPO should be repealed.

 

Nicholas Prescott

Feature image: Greater Manchester Law Centre

 

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