Response of the Equality and Human Rights
Commission to the Consultation:
Consultation details
Title:
Source of consultation:
Date:
Changes to civil legal aid
National Audit Office
21st July 2014
For more information please contact
Name of EHRC contact providing response and their office address:
Nony Ardill, Senior Lawyer
Equality and Human Rights Commission
Fleetbank House
2-6 Salisbury Square
London EC4Y 8JX
Telephone number:
Direct line: 020 7832 7857
Mobile number:
Email address:
[email protected]
About the Equality and Human Rights Commission
1.
The Equality and Human Rights Commission (‘the Commission’) is
a statutory body, established under the Equality Act 2006. Its
statutory duties include promoting equality of opportunity, working
towards the elimination of unlawful discrimination, and promoting
awareness, understanding and protection of human rights.
2.
The Equality and Human Rights Commission is a statutory body
established under the Equality Act 2006. It is an independent body
responsible for promoting and enforcing the laws that protect
fairness, dignity and respect. It contributes to making and keeping
Britain a fair society in which everyone, regardless of background,
has an equal opportunity to fulfil their potential. The Commission
enforces equality legislation on age, disability, gender
reassignment, marriage and civil partnership, pregnancy and
maternity, race, religion or belief, sex, sexual orientation. It
encourages compliance with the Human Rights Act 1998 and is
accredited by the UN as an ‘A status’ National Human Rights
Institution.
3.
More information about our work is available from:
www.equalityhumanrights.com
Our response to the NAO consultation
4.
The Commission welcomes the opportunity to respond to the
National Audit Office (NAO) consultation on the implementation of
recent changes to civil legal aid, including those made under the
Legal Aid, Sentencing and Punishment of Offenders Act (the
LASPO Act) reforms. We agree that it is timely to consider the
costs implications of the reforms, including whether the changes
represent long term value for money. It is also important to
consider the outcomes for individuals.
5.
In the Commission’s analysis, some of the LASPO Act reforms to
civil legal aid are already having, and will continue to have, an
adverse impact on individuals’ ability to obtain redress for
breaches of their rights under the European Convention on Human
Rights (the Convention). They may also compromise access to
redress for victims of unlawful discrimination and harassment.
More generally, many of the reforms risk undermining rights under
Article 6 of the Convention (the right to a fair trial) in relation to civil
rights and obligations. Cases involving Article 6 rights may be
linked to human rights protected by other Articles of the
Convention, such when there is a challenge to a decision to take a
child into care.1 More frequently, civil rights and obligations relate
to the enforcement of common law or statutory rights against a
public authority or a private party – for example, the right to
recover unpaid wages from an employer.
6.
The Commission will be raising these concerns in its forthcoming
Universal Periodic Review (UPR) submission to the UN. The UPR
is the process by which the UN Human Rights Council reviews the
human rights records of all UN Member States. Our submission to
the UN will be part of the process of monitoring the UK’s progress
in implementing recommendations made by the most recent UPR,
which was completed in 2012.
7.
The Commission will also be raising – or has already raised –
similar concerns about the impact of the LASPO Act reforms as
part of its shadow reports to UN treaty monitoring bodies in relation
to the following international treaties:
 International Covenant on Civil and Political Rights
 Convention on the Elimination of all forms of Discrimination
against Women
 Optional Protocol to the Convention on the Rights of the Child,
on the sale of children, child prostitution and child pornography
 Convention on the Rights of Persons with Disabilities
8.
1
The Commission is not in a position to provide primary evidence of
the economic costs of the LASPO Act reforms, although we are
aware of emerging evidence which we have summarised below.
We wish to draw the NAO’s attention to two earlier research
McMichael v United Kingdom, 20 February 1995 (20 EHRR 205)
reports that analyse the economic and social consequences of
unresolved civil justice problems.
 The 2009 survey of Civil and Social Justice Survey in England
and Wales, based on interviews with over 10,000 people, found
at least one adverse consequence (i.e. social, economic, health
problems) followed from 50 per cent of civil law problems.
Stress related illnesses were reported to have resulted from
over a quarter of problems. Physical ill health, loss of
confidence and loss of income were also commonly reported.
80 per cent and 53 per cent, respectively, of those who suffered
physical and stress-related ill health visited a GP, hospital or
health worker as a direct result. Problems concerning mental
health, domestic violence, personal injury, homelessness,
clinical negligence and employment led to adverse
consequences on more than 70% of occasions.2
 A research report produced for the Law Society by Dr Graham
Cookson, published in 2011, examined the potential impact on
the public purse of the proposed reductions in the scope of civil
legal aid. It drew on data from the Civil and Social Justice
Survey (above), combined with data from the Legal Services
Commission on the outcome of publicly funded cases. The
report suggested it was unlikely that that Government would
realise the estimated savings of £270 million from the planned
reductions in scope. It found that knock-on costs arising from
the reforms could be in the region of £139 million per annum.
These costs might arise for a number of reasons: for example,
increased burdens on the courts, the cost of alternative advice
services and the potential costs to the state of someone giving
up on a legal problem.
9.
We now turn to some of the specific issues raised by the NAO in
its consultation letter.
The impact of the changes on civil court proceedings
10.
2
There is emerging evidence that reducing the scope of civil legal
aid has increased costs for the civil justice system. The Judicial
Pleasence, P; Balmer, N; Patel, A; Denvir, C, 2010. Report of the 2006-9 English and Welsh Civil and Social
Justice Survey. Legal Services Research Centre, Legal Services Commission, 2010.
Executive Board has noted an ‘unprecedented increase’ in the
incidence of litigants in person since the LASPO Act came into
force – most prominently in litigation relating to private law family
matters.3 In summary, these are the concerns of the judiciary:
 Having one or more unrepresented parties has an adverse
effect on the courts’ administration and efficiency. The apparent
savings to the legal aid budget often lead to increased costs
within the court system as cases are likely to take longer.
 Cases that might previously have been settled at an early
stage, or not brought at all, are often now fully contested and
require more judicial involvement – causing consequential
delays within the justice system.
 Litigants in person with little or no knowledge of their legal
rights, and those who have learning difficulties, mental health
issues or dysfunctional lifestyles, are particularly demanding on
judicial time and on the time of court staff.
11.
The Family Justice Council has drawn similar conclusions about
the effect of unrepresented parties in the family court.4 The Council
has noted that the need to obtain evidence orally from an
unrepresented party, rather than relying on written statements, can
lead to longer hearings. Without legal aid to pay for expert reports
(for example, on substance abuse or disputed paternity), the court
sometimes has to make decisions in the absence of best evidence.
12.
In the Commission’s response to the Ministry of Justice Green
Paper on reform of legal aid in England and Wales (November
2010),5 we suggested that, without legal aid to support access to
the courts, there could be a risk that less confident and less
articulate clients would lose access to their children – engaging
their rights under Article 8 of the Convention. We pointed out that
the state has a positive obligation to promote and protect the right
3
Written evidence of the Judicial Executive Board to the Justice Committee inquiry into the impact of changes
to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justicecommittee/inquiries//parliament-2010/laspo/?type=Written#pnlPublicationFilter
4
Written evidence of the Family Justice Council to the Justice Committee inquiry into the impact of changes to
civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
5
Equality and Human Rights Commission. November 2010. Response to the Consultation on reform of legal
aid in England and Wales http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/consultationresponses/response-to-consultation-on-reform-of-legal-aid
to family life under Article 86 and, under Article 6, to provide
effective access to the court process in relation to private law
disputes.7
The impact of the changes on the third sector
13.
As noted in the report of the Low Commission,8 increased pressure
on local authority budgets has led to funding cuts for many advice
agencies - on top of the impact of losing legal aid contracts
because of the LASPO Act reforms.9 Similarly, national advice
services have been affected by government budget cuts and by
the changes to legal aid.
 In 2012/13, around half the Citizens Advice Bureaux had legal
aid contracts, enabling them to provide specialist advice in
around 136,000 cases per year. Changes introduced by the
LASPO Act in April 2013 have reduced this capacity to around
16,000 cases per year.10
 Since April 2013, nine law centres have closed.11 The closures
have resulted from loss of legal aid funding combined with loss
of funding from local authorities. Remaining law centres have
seen a sharp increase in demand for services.12
 The LASPO Act changes have led to a 50 per cent cut in
funding to the legal services provided by Shelter. In March
2013, the charity was forced to close nine of its local advice
services.13
6
Marckx v Belgium (1979)
Golder v UK (1975)
8
The Low Commission, January 2014. Tackling the advice deficit – a strategy for advice and legal support on
social welfare law in England and Wales.
9
The Cabinet Office review of the not for profit advice sector (2012) stated that in 2010/2011, total funding for
advice by English local authorities was around £220 million. The Low Commission has estimated that this
could be reduced to £160 million by 2015/16 (para 1.15)
10
Written evidence of Citizens Advice to the Justice Committee inquiry into the impact of changes to civil legal
aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
11
It should be noted, however, that one law centre has since re-opened and new centre has been established.
12
Written evidence of the Law Centres Network to the Justice Committee inquiry into the impact of changes to
civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
13
Written evidence of Shelter to the Justice Committee inquiry into the impact of changes to civil legal aid
under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
7
14.
The reduced capacity of third sector advice agencies has had an
adverse impact on the number of clients to whom the sector can
give first stage advice. Citizens Advice has identified as a matter
of particular concern the reduction in early intervention for housing
cases, leading to escalating problems and increased legal aid
costs if the client subsequently faces eviction.14 In addition, as
identified by the Low Commission, the exit of advisers from the
third sector represents a loss of valuable expertise and a waste of
the investment in their legal knowledge and skills.
15.
The Low Commission report expressed concern about the
difficulties that third sector advice agencies could face in
continuing to support the government with the implementation of
any new legislation by reporting on any unintended or systematic
problems; it was suggested that this could pose a risk to the
effectiveness of policies.15 We note that the Low Commission has
called on the next government to set and publish a five-year
National Strategy for Advice and Legal Support in England and
Wales, backed by a fund to support national and local advice.16
16.
In addition to the funding cuts sustained by third sector providers,
the sector has experienced pressures from increased demand
caused by the reduction in legal aid contracts held by solicitors’
firms following changes in the scope of legal aid. In 2013/14 the
number of firms with civil legal aid contracts was a third less than
the previous year. In relation to housing law, there were 228
solicitors’ firms with contracts and 11 holding contracts in welfare
benefits, compared to 509 and 345 respectively for these two
areas of law in 2012/13.17
17.
There is a risk that reductions in the number of providers in the
third sector and private sector will exacerbate the problem of
‘advice deserts’ in parts of England and Wales. The shortfall in
advice services in Wales was identified as a particular concern by
14
Written evidence of Citizens Advice to the Justice Committee inquiry into the impact of changes to civil legal
aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
15
Low Commission report, para 1.29
16
Low Commission recommendations 7 and 48.
17
Ministry of Justice, June 2014. Legal aid statistics in England and Wales; Legal Aid Agency, 2013-2014.
available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/325921/legal-aidstatistics-2013-14.pdf
Lord Thomas of Gresford in a House of Lords debate earlier this
year.18
The extent to which those still eligible for civil legal aid are
accessing the help available
General comments
18.
The Commission’s analysis suggests that the reduction in uptake
of legal advice and representation services cannot be explained
only by the LASPO Act reductions to the scope of civil legal aid. In
2013/14, the number of civil legal aid certificates granted (for
representation in court) dropped to less than 108,000 compared to
nearly 150,500 in 2012/13. In 2013/14, around 172,500 Legal
Help cases were started, compared to 592,400 the previous year.
Community care cases – for which legal aid is still available – went
down to less than 3,300 from around 5,400 in 2012/13. Debt
cases – which remain partly in scope – dropped from nearly
81,800 to less than 2,500. We note below the shortfall in uptake
for the Community Legal Advice (CLA) telephone gateway service,
in comparison with official estimates.
19.
The low take up of legally aided services may be explained by a
mistaken public perception that legal aid is no longer available, by
the increasing complexity of legal aid entitlements and/or by limited
advertising of services such as CLA. Combined with confusion
about legal aid entitlements, clients may find themselves referred
to providers that have no capacity to take on their case – or which
have closed their doors altogether. This may lead to the
documented problem of ‘referral fatigue’, leading to clients giving
up on their cases.19
20.
The reduced number of legal aid providers, noted above, may also
have an impact on client referrals for matters that are still covered
by legal aid – such as family mediation. One of the objectives of
the LASPO Act was that, in private law family cases, couples
18
House of Lords Debate, 25 February 2014, column 898
See for example page 57 of Report of the 2006-9 English and Welsh Civil and Social Justice Survey (footnote
2 above).
19
should be encouraged to resolve their disputes through mediation.
However, the introduction of the reforms has seen a marked
decrease in the number of mediations started. For example, in the
last quarter of 2013/14, the number of mediation starts was 1,739
compared to 3,282 in the last quarter of 2012/13.20 National Family
Mediation (NFM) has reported that many local NFM services have
closed or are at risk of closure because of a significant drop in
legal aid income.21 The Family Justice Council suggests that this
development is a direct result of restricting access to legal aid for
family law, leading to the loss of the referral route from solicitors to
mediation services.22
Victims of domestic violence
21.
Victims of domestic violence are entitled to apply for legal aid for
family law cases if they can provide prescribed evidence of having
experienced domestic violence within the past 24 months. There is
a widespread view among organisations specialising in support for
domestic violence victims that that these criteria are too restrictive,
leading to many victims being excluded from legal aid for family
law matters. Fees charged to victims for police and medical reports
have been cited as a significant deterrent to obtaining evidence of
domestic violence.23
22.
A small-scale survey by Rights of Women and Women’s Aid has
highlighted concerns about the practical barriers faced by women
affected by violence. Of the women responding to the survey who
had experienced domestic violence, 43 per cent did not have
available the prescribed evidence. Over a fifth had to wait over two
weeks to obtain the evidence they needed. Many respondents
reported that the barriers to getting legal aid had led to them taking
no action in relation to their family law case, or incurring debt to
pay a solicitor privately. The report recommends extending the
criteria to allow evidence from a domestic violence support
20
Ministry of Justice, June 2014. Legal aid statistics in England and Wales; Legal Aid Agency, 2013-2014.
Written evidence of National Family Mediation to the Justice Committee inquiry into the impact of changes to
civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
22
Written evidence of the Family Justice Council to the Justice Committee inquiry into the impact of changes to
civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
23
Ibid.
21
organisation or a counsellor, or evidence of police call outs in
response to domestic violence incidents(s).24
23.
The LASPO Act reforms may have a negative impact on domestic
violence victims seeking court protection from violence. Although
legal aid for this work remains in scope, the Family Justice Council
notes with some concern the recent Government statistics
indicating that, in the first quarter following the introduction of the
reforms, the number of legal aid grants for protective injunctions
fell by 30 per cent.25 This would appear to risk increasing the
costs of domestic violence to the state. One estimate suggests this
is over £3 billion per year (including costs to the criminal justice
system, the NHS, social services and housing services).26
Discrimination cases
24.
Discrimination law remains within the scope of legal aid. However,
following the implementation of the LASPO Act reforms, most
discrimination clients are required to use the Community Legal
Advice (CLA) telephone gateway service (operated by the Legal
Aid Agency) as the first point of access for advice. Cases that
pass the initial screening stage may be referred to one of three
contracted specialist providers who can provide up to two hours’
remote advice. Clients can only obtain face-to-face advice if the
specialist provider considers that they cannot be advised over the
phone or by email.
25.
The Commission’s Human Rights Review (2012) commented on
the potential barriers presented by a mandatory telephone advice
gateway, particularly for disabled clients including those with
poorer mental health, or cognitive or learning impairments.
Although the government had pledged to put in place adaptations
and other adjustments for disabled callers, in the Commission’s
24
Rights of Women, Women’s Aid Federation of England and Welsh Women’s Aid:, March 2014. Evidencing
domestic violence: a year on.
25
Written evidence of the Family Justice Council to the Justice Committee inquiry into the impact of changes to
civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
26
Estimates from Women’s Aid Federation of England
http://www.womensaid.org.uk/domestic_violence_topic.asp?section=0001000100220041
analysis it was unlikely that all adjustment needs would be met in
practice.27
26.
The possibility that many clients are facing barriers to seeking
telephone advice on discrimination problems is suggested by the
low uptake of the CLA telephone advice service for this area of
law. Compared to government predictions, Legal Aid Agency
figures (provided to the Legal Action Group) show a 77 per cent
shortfall in the uptake of telephone advice on discrimination law for
the first quarter of 2013/14.28
27.
The level of Employment Tribunal discrimination claims compared
cases in County Court cases relating to discrimination in services
indicates that most discrimination happens in the workplace. In
responding to the Ministry of Justice Green Paper on the reform of
legal aid in England and Wales (November 2010),29 the
Commission suggested that removing employment law from the
scope of legal aid could impede access to justice for victims of
discrimination. While clients experiencing discrimination will be
aware that they are suffering ‘problems at work’, they will not
necessarily appreciate that these problems amount to a breach of
the Equality Act 2010. We drew attention to research findings
indicating that around 62 per cent of people faced with a
discrimination problem did not know their rights, and that a similar
proportion were not familiar with the procedures involved in
seeking redress.30
28.
These potential barriers to obtaining advice for discrimination
problems should be viewed alongside the impact of new fees for
Employment Tribunal (ET) claims. Since July 2013, total ET fees
of £950 are payable for a discrimination claim to be heard.31
Notwithstanding the fee remission scheme for claimants of limited
means,32 concerns have been raised about the effect of
27
Equality and Human Rights Commission, 2012. Human Rights Review, page 255
Legal Action Group, September 2013. Civil Legal Aid – the Secret Legal Service (2).
29
Equality and Human Rights Commission, November 2010. Response to the Consultation on reform of legal
aid in England and Wales.
30
Balmer et al, March 2010. Knowledge, capability and the experience of rights problems. Legal Services
Research Centre
31
The Employment Tribunal and Employment Appeal Tribunal Fees Order 2013
http://www.legislation.gov.uk/ukdsi/2013/9780111538654/contents
32
Courts and Tribunals Fee Remission Order 2013 (SI 2013 2302)
28
introducing ET fees on access to justice, and about the potentially
disproportionate impact on women, people from ethnic minority
groups and disabled people. Early evidence indicates a
substantial drop in ET applications; a comparison of claims issued
in September 2012 (before the fees were introduced) with those
issued in September 2013 shows a drop of 56 per cent. Sex
discrimination claims were 86 per cent lower in September 2013
than in September 2012, and unfair dismissal claims dropped by
81 per cent.33
Housing cases
29.
Housing cases can still be funded by civil legal aid if they involve
serious disrepair that poses a risk of serious harm to health or
safety or where the individual is at risk of eviction or repossession
of their home. Emerging evidence suggests that these limitations
in scope ignore the value of early interventions by solicitors and
advice agencies in preventing a housing problem from escalating
into a crisis. This not only causes immense distress for the
individuals concerned but also creates costs to the public purse –
for example, the cost to local authorities in having to fulfil their
statutory duties towards homeless persons or to the NHS in
dealing with the health consequences of poor living conditions.
30.
The Housing Law Practitioners Association (HLPA) and Shelter34
have pointed out that tenants in rent arrears caused by housing
benefit problems can no longer get early advice, because of the
exclusion of welfare benefits from legal aid. Tenants have to wait
for their landlord to threaten possession proceedings before they
qualify for Legal Help – and even then, funding is only available to
deal with the possession proceedings rather than the underlying
welfare benefits problem. This prolongs court proceedings and
creates greater costs to the legal aid budget in the longer term.
31.
In our response to the Ministry of Justice Green Paper (2010), the
Commission suggested that many excluded housing cases could
33
Employment Tribunal receipt statistics, Management Information July to September 2013
Written evidence of (1) HLPA and (2) Shelter to the Justice Committee inquiry into the impact of changes to
civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
34
engage to the right to respect for one’s home under Article 8 of the
Convention. We note that the Low Commission has recommended
that housing cases involving disrepair and the right to quiet
enjoyment and advice on housing benefit should be restored to the
legal aid scheme.35
Exceptional cases funding
32.
The LASPO Act introduced an exceptional funding scheme to
mitigate the impact of cuts to the scope of civil legal aid.36 In
theory, the scheme grants legal aid where a failure to fund the
case would breach (or risks breaching) the individual's rights under
the Convention or their EU rights. The scheme has a complex
application process, requiring completion of two lengthy forms, a
task for which most clients need legal advice.37 38 There is no
special procedure for urgent cases and the advisor is not paid for
preparing applications that are rejected; the work is carried out ‘at
risk’. Since the inception of the scheme, there have been very few
applications, and a poor success rate.39 The Joint Committee on
Human Rights has concluded that the scheme is not functioning
properly.40
33.
A recent, successful legal challenge to the operation of the
exceptional funding scheme was brought by six claimants with
immigration cases that all engaged rights under Article 8 of the
Convention.41 Other than through exceptional funding, these
cases would not be funded by legal aid. The court held that the
Lord Chancellor’s guidance on the operation of the exceptional
funding scheme was too restrictive and did not reflect the
35
Low Commission report, recommendation 1.
Section 10 LASPO Act 2012
37
http://www.justice.gov.uk/downloads/forms/legal-aid/civil-forms/ecf1.pdf
38
The Public Law Project, which assists with exceptional funding applications, has concluded that the process is
onerous and complex, and ill-suited to applications made in person: response to Transforming Legal Aid
proposals, Judicial Review journal, Volume 18, No 3, July 2013, page 80
39
Government estimates of 5,000 and 7,000 applications for exceptional funding in the first year have not been
borne out. In 2013/14, 1,520 applications were made for exceptional funding; 69 of these were granted, of which
53 were inquest cases: Ministry of Justice. Legal aid statistics in England and Wales; Legal Aid Agency, 20132014
40
Joint Committee on Human Rights, The Implications on access to justice of the UK Government’s proposals
to reform legal aid, Seventh Report of Session 2013 - 2014, para 140
41
Gudanaviciene & Ors v (1) Director of Legal Aid Casework (2) Lord Chancellor [2014] EWHC 1840
(Admin)
36
procedural requirements arising from Article 8, which should have
been taken into account.
34.
In the judgment on this particular case, the court noted that an
application for exceptional funding can only result in payment for
an adviser if the funding is granted and, since that has only
occurred in one per cent of applications, solicitors are not prepared
to take on such cases; this ‘may well not be cost effective’.42 In
another recent case, the High Court has noted concerns about the
cost of satellite litigation in which claimants contend their
entitlement to legal aid, and which may prove more expensive to
the state in the long run.43
35.
The Low Commission commented that the complexities involved in
applying for exceptional funding make this work resource-intensive
for professionals and prohibitively difficult for individuals unless
they have support. Given the financial risk involved, solicitors are
routinely refusing to undertake exceptional funding applications.
The Low Commission recommended that solicitors and advisers
be remunerated for exceptional funding applications and that the
application process be simplified.44
The quality of support still available under civil legal aid
36.
42
As noted above, a telephone advice gateway has been introduced
for discrimination law and is also a mandatory first point of access
for cases involving debt and special educational needs. Figures for
first three months of operation (April to June 2013) of the service
show a significantly lower level of uptake in all three areas of law
than government predictions had suggested.45 The Ministry of
Justice has acknowledged that this method of delivery may cause
access problems for clients with urgent or complex problems, or
with literacy issues, language barriers, or an inability to pick up on
non-verbal cues.46 It has also recognised that people with mental
Ibid, para 53
R(Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin)
44
Low Commission report, recommendations 4 and 5
45
Legal Action Group, September 2013. Civil Legal Aid – the Secret Legal Service (2).
46
Impact Assessment on the provision of telephone advice (para 36):
http://webarchive.nationalarchives.gov.uk/20111121205348/http://www.justice.gov.uk/downloads/consultations
/ia-telephone-advice.pdf
43
health or cognitive difficulties could find it harder to manage their
case or deal with any emotional distress arising from it.47
37.
Problems in using telephone advice services experienced by
people with mental health problems have been identified by the
national charity Mind, which operates its own telephone advice
line. A survey of Mind’s telephone service found that 46 per cent of
inquiries were made on behalf of the client, rather than by the
client themselves, mainly because of communication difficulties
linked with the person’s mental health condition. Mind suggests
that people with mental health problems may face additional
barriers in using the CLA telephone advice service, including the
need to provide financial information before obtaining advice and
perceptions of a lack of empathy by advisers.48
38.
In its forthcoming submission to the UN Human Rights Committee
as part of the UPR monitoring process, the Commission expects to
recommend that the government should urgently commission a
comprehensive and independent review of the operation of the
telephone advice gateway.
39.
The introduction of fixed fees for Legal Help work pre-dated the
LASPO Act reforms but is part of the context in which the reforms
should be evaluated. In its Human Rights Review (2012), the
Commission raised concerns about the impact of fixed fees on the
quality of advice and assistance. We noted that respondents to a
Ministry of Justice study49 had pointed out that fixed fees create
perverse incentives for organisations to ‘cherry pick’ shorter, more
straightforward cases and to delegate casework to junior and less
experienced advisers. These findings have implications for access
to civil law justice for people with complex or unusual cases.50
The 10 per cent cut in fees for all civil legal aid work, imposed in
2011, has forced legal aid practitioners to operate on tighter
margins than previously.
The outcomes secured by those no longer eligible for civil legal aid
47
Ibid.
Written evidence of Mind to the Justice Committee inquiry into the impact of changes to civil legal aid under
the Legal Aid, Sentencing and Punishment of Offenders Act 2012
49
Ministry of Justice, June 2009. Study of legal advice at local level
50
Equality and Human Rights Commission, 2012. Human Rights Review, page 252.
48
40.
To date, there is little evidence of the outcomes secured by those
no longer eligible for civil legal aid. The Commission recommends
that the government commissions, at the earliest opportunity, a
comprehensive and independent evaluation of the impact of the
LASPO Act exclusions, including the potential impact on long term
value for money and any evidence of costs-shifting to other areas
of public expenditure. The evaluation should also have regard to
the impact of the reforms on access to justice for human rights
breaches and on potential cases under the Equality Act 2010.
41.
In 2012, the Commission published a report of its formal
assessment of the extent to which decisions in the 2010 Spending
Review were taken in accordance with the public sector equality
duties in place at that time.51 The assessment found gaps in data
and information, hindering impact analysis. We made
recommendations for ways of improving scrutiny of the impact on
people with different protected characteristics in future Spending
Reviews, including through greater transparency, clear HM
Treasury guidance on data requirements, and development of a
common model of analysis. Building on this formal assessment,
we have recommended that mechanisms be put in place for
monitoring and assessing the cumulative impact of the legal aid
reforms on people who share characteristics protected by the
Equality Act 2010.52
42.
In the Commission’s analysis, an important focus of the NAO
evaluation of the legal aid reforms – and of any future government
evaluation – should be categories of cases not in scope where the
absence of legal advice or representation is likely to have a
discriminatory impact (direct or indirect) on people sharing a
protected characteristic. Examples might include:
 Cases where the client is excluded from civil legal aid by the
new residence test, with particular reference to vulnerable
51
Equality and Human Rights Commission, May 2012. Making fair financial decisions – an assessment of HM
Treasury’s 2010 Spending Review conducted under Section 31 of the 2006 Equality Act.
52
Equality and Human Rights Commission, June 2013. Response to the Ministry of Justice consultation:
Transforming Legal Aid - delivering a more credible and efficient system
groups such as victims of trafficking and undocumented
children.53
 Cases of refugee family reunion, identified by the British Red
Cross as involving a complex application process with
challenging evidential requirements.54
 Family law cases, particularly those involving contact with
children, where one party is unrepresented or is using an
unregulated McKenzie friend on a fee-paying basis.
 Cases involving potential welfare benefits appeals, where
Ministry of Justice statistics indicate a substantial drop in
tribunal applications since April 2013.55
53
In R(Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin), the court ruled that the
residence test is ‘ultra vires’ the LASPO Act as well as being in breach of Article 14 read with Article 6 ECHR,
and thus discriminatory. The decision is subject to appeal.
54
Written evidence of the British Red Cross to the Justice Committee inquiry into the impact of changes to civil
legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
55
Ministry of Justice Tribunal Statistics, March 2014