And what does it mean? Pretty much exactly what the initial proposals set out. Oh and the LSC is to be abolished. The MoJ will take legal aid funding decisions in house, with no prospect of possible conflicts of interest at all. Honest.
Welfare benefits and debt to be out of scope (save for debt threatening homelessness), education out of scope save for SEN children, clinical negligence out of scope. Family did see an amendment on the definition of domestic violence but otherwise remains much the same in scope as the proposals, but I’ll leave the detail on that to the Family specialists. Ditto Immigration, much of which falls out of scope.
For housing, there is some small relief. Unlawful eviction is to be within scope (but not claims for trespass to goods, land or person, so ruling out the alternative heads of claim for aggravated unlawful eviction).
Homelessness appears to be fully within scope from the stage of being ‘threatened with homelessness’. However, there is no legal aid for trespassers facing possession and although not in the bill, the criminalisation of trespass was announced by Cameron.
Added back into scope are defending orders for sale against the client’s home (but not charging orders) or bankruptcy proceedings where the bankrupt’s estate includes a home.
Where benefit issues lead to arrears and a threat of possession or homelessness, representation will be available for the possession or homelessness matter, but not for any benefit tribunal proceedings even if those are directly concerned with the arrears problem. This is because benefit tribunals are a complete walk in the park that any person facing possession proceedings can negotiate with their eyes closed.
Possession proceedings generally against non-trespassers remain in scope. Judicial review remains within scope (apart from public interest/third party claims – which is what happens when you embarrass the Ministry of Defence).
Disrepair remains in scope for those facing a risk of “serious harm to the health and safety of an individual”. Interestingly, the harm may be temporary and health includes physical and mental health. Futher (at para 75 of the consultation response), it is acknowledged that some investigation of a case may be required to establish risk:
legal aid will be granted where there is a credible allegation that there is a serious risk to the safety or health of the individual or their family. This will mean that legal aid will be available for the early stages of such cases to enable the merits of the claim to be investigated. Where a disrepair is found not to pose a serious risk, further funding will not be available.
However, many disrepair claims will be out of scope. For those looking to Conditional Fee Agreements to bridge that funding gap, recoverability of success fees and after the event insurance premiums from the losing defendant is to be ended. Success fees are to be set out as a percentage of damages received and subject to a maximum of 25%. But nothing in the one way costs shifting is proposed (yet) for disrepair claims, unlike Judicial Review. So prospective claimants face either their solicitor taking a cut of their damages if they win or the risk of costs liability to the defendant landlord should they lose.
Damages-only disrepair claims are likely to become a thing of the past shortly in any event in view of the dramatic increase in the small claims limit to £15,000 or £25,000 proposed in the County court reform consultation, on which more another time.
It is worth noting that any legal aid funded claims will face a 25% deduction from damages for the legal aid fund, despite all legal aid costs being repaid to the fund in these circumstances. This appears to encompass disrepair, unlawful eviction or any other funded claim attracting damages.
A new addition to scope are claims ‘relating to a contravention of the Equality Act 2010’ in relation to housing.
Out of scope are claims for nuisance, negligence and breach of statutory duty and all other matters not mentioned as being in scope above (TOLATA claims, harassment claims, breach of quiet enjoyment etc. etc.)
The housing related clauses on scope are at Schedule 1 s.27 onwards but must be read with the exclusions in Schedules 2 & 3.
The consultation response also makes for interesting reading, not least because it reveals the immediate plans for the telephone gateway, proposed as the sole point of access to legal advice in legal aid matters. Before we get there, we should note that the MoJ acknowledges that it had a very large volume of responses and that ‘the large majority’ of the responses opposed some or all of the proposals. Their response – a prolonged raspberry.
For example, Legal Action Group have done a breakdown of what will be lost in matter starts and funding by Borough and County, which can be found on the Guardian here. It makes for grim reading (my Borough takes a 62% percent hit, others are worse). However, the Impact Assessment [pdf] attached to the consultation response states, at 31:
there might be a loss of business for some legal services providers which are contracted with the LSC to provide legally aided services. [Really? What an unexpected surprise! NL]
there might be an increase in business for other service providers, including perhaps alternative resolution service providers or services which support self-resolution, which are funded by people who previously received legal aid.
And if this air of hopeful, nay positively wilful self-delusion was not enough, it adds at 33:
The overall impact on providers would also depend upon individual providers’ reliance on income from legally aided clients and how they adjust to changing patterns of demand. For example, if providers are able to cut costs and identify other efficiencies, or if providers are able to move into other business areas, the impact on them would be lessened. As identified above, we lack clear evidence on how current providers are likely to respond to the cuts in legal aid.
Well, I think one can have an educated guess at some of the likely responses. Providers folding up their tents, substantial numbers of redundancies, etc. etc.
Anyway, on to the telephone gateway and a further example of the casual imbecility that pervades the bill and the consultation response.
The MoJ intend to press on with the telephone gateway as the sole means of accessing legal aided advice or representation, but initially trialling it by way of the CLA phone line becoming the sole means of access to advice and assistance for the following:
- debt (insofar as it remains in scope);
- Special Educational Needs cases;
- discrimination cases (claims relating to a contravention of the Equality Act 2010);
- community care.
Let us pause there for a moment. If you recall, the only debt matters that remain within scope are where someone is facing the loss of their home. In fact, where there are imminent or actual proceedings. Where, one might think, there was a crying need for urgent advice and, well, representation in the case. But no – off to the phone line to work their way through two layers of ‘phone advice’ these people must go, with no guarantee that they will ever actually be referred to local representation and assuming their debt is adjudged to be suitably threatening to their home.
And it remains the plan to extend this nonsense to all civil areas remaining in scope, after this ‘trial’.
(Don’t even get me started on the quality of CLA phone advice. A colleague has just had a case referred by the CLA where possession proceedings had started. Turned out the CLA had been ‘assisting’ the client with massive disrepair – she couldn’t even live in the property, hence the rent arrears – by pursuing the Council’s complaints process, not just for weeks but for months without effect. The CLA hadn’t even advised the client that there was such a thing as a disrepair claim, let alone tried to refer on. Words, for once, failed me. Not just really bad advice but it actively made the client’s position worse. I blame lack of training and qualified supervision, obviously. A situation that can only improve with large scale expansion on tightened funding.)
But it is clear for whom the bill tolls most loudly. As the impact assessment notes, 600,000 people will lose advice, assistance and representation, (there will apparently be a 10,000 increase in mediation clients, which makes it all better). That is 600,000 of the most vulnerable, marginalised, desperate individuals, without the financial resources or often the personal skills to deal with the problems facing them by themselves.
The impact assessment, at 26, says:
As a result of this reduction in resource transfers, clients who no longer receive legal aid may choose address their disputes in different ways. They may seek alternative resolution services, may represent themselves in court, may seek to resolve issues by themselves without reference to the courts, may pay for services which support self-resolution, or may decide not to tackle the issue at all.
There is evidence that all these different approaches are sometimes undertaken currently by people facing disputes. Although the evidence is inconclusive, there is a risk that outcomes may be worse for some people who no longer receive legal aid as a result of these proposals.
And that is pretty much it on the extent of the impact on clients, apart from noting that there is very limited evidence on the relative improvement in the position of legally aided people over those without representation or litigants in person.
The impact of this bill and the associated proposals on civil legal aid providers will be varied. Some will be OK, others – and probably the majority – will not be OK at all.
But we should be absolutely clear that this bill is a knowing, deliberate removal of assistance and representation from some of the least well off – both financially and socially – in the country and those least able to fight back politically. As any provider can attest, it is massively – if indirectly – discriminatory against women, ethnic minorities, the disabled and those on low income or subsistence benefits. (Tellingly, the Equality Impact Assessment [pdf] takes the approach of setting out the ‘justification of potential adverse impacts’, presumably laying the ground of defence to any challenge).
It is also, of course, going to cost every taxpayer considerably more than it is going to save them in the short term in the costs of unresolved problems. But those won’t come out of the MoJ budget, so let the damage fall where it may.
So, does the bill go through in its current form?