04.06.2013 – Luqmani Thompson and partners solicitors has for the past 15 years advised claimants and public authorities in public law matters. Many of our clients have in the past been eligible for legal aid.
Although the Ministry of Justice introduced significant change limiting the scope of legal aid in April, further restriction is now planned. This includes a residence test, barring legal aid to those who cannot prove lawful residence or lawful residence for at least 12 months, and further restrictions on access to the courts.
What endures in social welfare provision is what works, rather than what political parties prefer. Legal aid has worked for the past 60 years because it is necessary and it works. It is necessary because daily life is regulated. Few can get up in the morning, go to work, and lay their head on the pillow at night, without crossing paths during the day with regulated areas: things that have to be done right, undone or defended, in the workplace, buying a fridge, using a cashpoint, keeping the roof over one’s head, or crossing the road. The present proposals are unworkable, promote inefficiency and undermine the rule of law.
The premise of civil legal aid has already this year been put into reverse. It was the case that, while legal aid for legal problems was generally available, certain areas were excluded. Means testing and merits testing were ever an adjustable mechanism to limit its availability to people on very low income and with a good case, to limit spending. Now, regardless of means and merits, there is no legal aid, other than a few areas, some isolated pockets, where it remains available. The residual areas left in scope are already pared down to protected areas under international law, such as child protection, so it is difficult to see the justification for putting yet more barriers to essential protection, by cutting off legal aid or access to the courts. Victoria Climbie, an illegal entrant, would not have qualified for legal aid under the new regime.
What the changes mean for individuals is that fewer will be able to take or defend case effectively because they will not have professional help. What this means for the administrative and judicial system is that many more people with problems but no professional expertise will be left to their own devices, either having to tolerate poor decision-making, or trying to engage attention and remedy, causing delay and inefficiency as they wander unguided through the labyrinth. For the big society it means that many more people will be left on the edges, fostering rather than dismantling their own alternative solutions by foul means, off the radar of fair means. Put outside the mainstream, the impact will not surface until the damage is done. It represents a loss of control.
The costs saved in engaging a legal aid lawyer, working for a fixed fee of around £200, to nip a problem in the bud, will be dispersed and regenerated, multiplied across the system. What will be saved in the legal aid budget, will be lost, possibly exponentially, in costs shifting to social services, the police, accident and emergency units and the courts.
Recent examples from our work include:
- A mother of three, living in the UK since childhood, detained by the Home Office for two months for the purposes of deportation, when there was never any power in law to deport her. She did not know how to prove the legality of her status because she did not know herself what her status was; in detention, she had no means to prove it. Meanwhile, the children were home alone, stopped going to school, the landlord was trying to evict them from their home of 19 years because the rent was not paid, and a broken front door was left unrepaired leaving the home and children insecure. She did not know whether or not she was a deportable person. The Home Office did know because they have the evidence and we wrote and told them, but they still left it to us to go to court to release her. Had we not intervened, under the legal aid scheme, she would presumably have been removed (unlawfully) leaving her children, two still of school age, to fend for themselves. Children without parents engage a cost to society in a number of ways. Because the Home Office acted against the law, they paid our costs, and we repaid the legal aid fund.
- A young man with severe mental health problems was also detained for removal on the basis of flawed understanding. We wrote three letters of explanation, which the Home Office acknowledged but declined to address, saying “action will now continue unless confirmation is received that a claim for judicial review has been made”. That is, the public officials dealing with the matter required court action before they would take a look at our arguments. The court accepted our arguments and granted our order, for the same reasons that the officials had chosen to ignore. We cannot go to court without writing to a public body to explain why we think a decision should be reconsidered and without giving them time to reconsider and respond, but it repeatedly happens that public servants will do nothing until we go to court.
- Clients who do contact a public body directly are repeatedly told to “get your solicitor to write” on the assumption that as individuals they do not count, need not be heeded without a solicitor, and everyone can have a solicitor. When we recently pointed out to a public body employee – who had telephoned to give us a list of requirements to meet which the individual could not manage by himself – that most people soon would not have a solicitor, she just said “good”, because people sticking up for themselves were in her view “playing the system”. The official did not grasp the points that, unless people stick up for themselves, the computer is left to say no, and that the disappearance of solicitors who can be relied on to understand and facilitate procedures will get in the way of her job efficiency, too.
The disappearance of legal aid is indicative of a lack of grasp in the government of how much we rely on professional insight to mitigate deficiencies on all sides, daily to hold public and private authorities to account, to support the consensus that all individuals can have a say and should not be left to their own unpredictable devices at the margins, to underpin the rule of law