Legal aid news: March 2019

Welcome to our update of the latest legal aid and access to justice news from March 2019.

Sir Henry Brooke essay prize: On 16 March, at the second “Young Lawyers Making Change” conference, which we hosted with the Legal Education Foundation and Public Law Project,  we launched the first Sir Henry Brooke Essay Prize.

Following his death in January 2018, the Sir Henry Brooke Essay Prize seeks to honour the legacy of Sir Henry Brooke, a former Court of Appeal judge who became a tireless campaigner on issues including access to justice during his retirement.

The essay title is: ‘ “Technology has the capacity to enhance, empower and automate, but it also has the potential to exclude vulnerable members of society” – Sir Henry Brooke, September 2017. Discuss, with examples, how technology can be used to advance access to justice in the UK.’ There is a £100 cash prize for the winner, kindly donated by 39 Essex Chambers. All entries must be submitted by 5pm on 1 May 2019 to Further information, including the eligibility criteria, is available here. Good luck!

Advice deserts: On 27 March 2019 the Guardian reported that many towns in England and Wales have no access to free legal advice. The writer, Jon Robins of The Justice Gap, gives the example of Ebbw Vale, a small town around an hour from Cardiff, where there are no legal aid lawyers, no Citizens Advice Bureaus and no law centres.

Daniel Newman, a law lecturer at Cardiff University working on its LASPO project, recently gave evidence to the Commission on Justice in Wales on advice deserts. He told the Commission “the south Wales valleys, rural and remote, are a legal aid advice desert. Few places in the UK are as overlooked as Ebbw Vale. LASPO has been a disaster for those who would otherwise been helped, but what’s less understood is that it’s seriously damaged what remained of the advice sector by removing an income stream.”

The Ministry of Justice told the Guardian, “Every person should have access to legal advice when they need it – that’s why the Legal Aid Agency keeps availability under constant review and takes urgent action whenever it has concerns … Legal aid services are not set by local authority area so even where a local authority has no providers its residents will be covered by other providers nearby. There are now more law firm branches offering legal aid services than under the previous contracts.”

LASPO review: On 7 February, nearly 6 years after its introduction, the government published its long awaited post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).  The full review can be read here and the government’s ‘Action Plan’ can be found here.

By way of a brief reminder, in the Action Plan announced alongside the review, the government pledged to:

  • Invest £5 million in innovative forms of legal support;
  • Support litigants in person with an extra £3 million over 2 years;
  • Review the legal aid means test (by summer 2020);
  • Bring forward proposals to expand legal aid to include separated migrant children in immigration cases (by spring 2019);
  • Bring forward proposals to expand legal aid to cover special guardianship orders in private family law (by autumn 2019);
  • Work with the Law Society to explore an ‘alternative model’ for family legal aid;
  • Consider introducing an emergency procedure for urgent matters to access the exceptional case funding (ECF) scheme (by the end of 2019);
  • Remove the mandatory requirements from the telephone gateway for debt, discrimination and special educational needs, and reinstate access to immediate face-to-face advice (by spring 2020).

In an article for the March edition of LAG’s Legal Action magazine YLAL’s chairing team – Oliver Carter, Katherine Barnes and Siobhan Taylor-Ward – said of the review:  “we now know that, at least in some respects, the view that ‘something must be done’ did infiltrate the walls of 102 Petty France … If the MoJ has now accepted that LASPO has damaged access to justice and failed even to achieve its own objectives, all of us need to continue to make the case for change, pushing for positive reform from the early advice pilot and the further reviews being undertaken by the government.”

Rights of women research report on Exceptional Case Funding: On 7 February, Rights of Women published their report, “Accessible or beyond reach? Navigating the exceptional case funding scheme without a lawyer.” The report analyses the accessibility of exceptional case funding (ECF) for women survivors of domestic and sexual violence and abuse.

LASPO dramatically reduced access to civil legal aid for individuals by removing many areas of law from the scope of legal aid funding. The ECF scheme was put in place for individual cases that fall outside the scope of legal aid, but require funding on human rights or EU rights grounds. It is therefore a critical safety net that is supposed to ensure access to justice.

During the period the information was gathered, April 2017 – September 2018, Rights of Women supported women who were experiencing or at risk of domestic or sexual violence  or abuse to make ECF applications in the areas of family and immigration law. At that time, the LAA’s statistics showed that there was a 53% success rate for immigration application made under the ECF scheme and a 31% success rate for family applications.

The full report is available here. In summary, it found that:

  • The ECF application process disadvantages people with vulnerabilities who are navigating the process alone. Women survivors of domestic or sexual violence and abuse often have complex multiple vulnerabilities;
  • There is a lack of awareness of areas that are “in scope” for legal aid and of the availability of ECF;
  • Immigration cases engaging human rights and EU rights are inherently complex and are too complicated for an individual to present without the assistance of a lawyer;
  • The women they supported to make ECF applications would have had improved chances of access to justice if legal aid for early advice and assistance were available to them;
  • There are chronic delays in decision making, the urgent case procedure that is not fit for purpose and there is ineffective communication between the applicant and the LAA once the application is submitted;
  • Individual applicants granted ECF receive a letter from the LAA that advises them to now seek a provider with a legal aid contract. Unhelpfully, the standard letter makes no suggestion how this could be achieved.

The report comes after Sir James Munby, retired head of the family division, sitting as High Court judge in the case of M v P, berated the government over legal aid restrictions which left a divorced couple labelled as bigamists through no fault of their own.

The facts of the case were that the parties had assumed their divorce was finalised by decree absolute in 2014 and each went on to marry again. But the process had been subject to fundamental errors by district judges who gran
ted the decrees despite an administrative mistake on the petition which stated the couple had lived apart for two years. In fact they had actually only been married for 22 months, and the court was now required to decide whether the decree absolute was void or voidable.

In ruling that the decrees were voidable, Munby explained that P had been refused exceptional funding by the Legal Aid Agency on the basis she had an available net monthly income of £625.87 and her aggregate income exceeded the limit by £37. He said that the idea these figures should justify her not receiving state aid was ‘unnourished by sense’ He added, “What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created to the goodwill, the charity, of the legal profession.”

The full story, reported in the Law Society Gazette, can be read here.