Strain of legal aid cuts shows in family, housing and immigration courts | Law

Claimants have been deprived of entitlement to legal advice and representation across vast areas of civil law under restrictions imposed by the 2012 Legal Aid, Sentencing and Punishment of Offenders Act.

Before Laspo came into force, civil legal aid was provided to applicants in 785,000 cases in 2010-11; by 2017-18, that figure had fallen to 140,000.

The Personal Support Unit that helps those without representation says its work has increased fivefold over the same period. Last year, it supported litigants in person on 65,000 occasions.

‘It’s not justice’

The effect has been most dramatic in the family courts where warring ex-partners increasingly face each other without lawyers to moderate disputes. Cases involving litigants-in-person are invariably more difficult to resolve. Last year, both parties were represented in only 20% of such hearings; in 35% neither side was.

Arguing that legal aid should be preserved for the most deserving cases, the Ministry of Justice retained legal aid for victims of domestic violence. The narrow criteria adopted to prove that status, however, led to resentment over having to pay for doctors’ letters. After losing several high court battles, the MoJ relaxed time limits and extended eligibility.

A further consequence of legal aid cuts in divorce and separation proceedings was a steep decline in the number of couples entering mediation. Without lawyers being involved, no one was around to signpost claimants to less confrontational resolutions.

The strain is showing. Penny Scott, a solicitor at Cartridges Law in Exeter and chair of the Law Society’s family law committee, said: “There are many outbreaks of bad behaviour in the family court. That’s why it’s good to have third parties there. For individual parents, it’s unendurable stress. It’s an arcane system and now there’s no one there to explain it to them.

“I know one judge who had a long time off with a breakdown because of the stress in court. A lot of more senior practitioners are retiring early because they don’t think it’s a system they can speak out for. It’s not justice.

Without legal aid, she said, assessments of whether or not there has been domestic abuse by one partner in a separation case carry “a big chance of a miscarriage of justice”. It is a system, Scott warned, open to manipulation.

The financial thresholds for eligibility have been cut so low, she added, that some applicants on benefits have to make financial contributions if they want legal aid.

‘Few people are turning up’

In housing, Laspo restricted legal aid funding to cases where claimants were at risk of losing their homes. At the same time funding for welfare cases was sharply reduced so the number of benefit cases receiving legal aid plummeted from 83,000 in 2013 to 440 in 2017.

For cases of family law, 36 local authorities have no legal aid provisi

For many families the ability to keep up with rent payments is governed by benefit receipts. Without access to early legal advice to challenge benefit cuts or raise housing issues, help is only available once eviction is threatened. “The lists are now longer for people facing eviction,” said Sue James, supervising solicitor at Hammersmith Law Centre in London, “but few people are turning up.

For housing matters, swathes of England have little or no legal aid provision

“I had a client who only had one lightbulb and moved it from room to room. Her benefits were not being sorted out and she was being evicted. She didn’t tell me that until the day we went to court. She said it was very hot removing the bulb and putting it into the bedroom at night. ”As legal aid for welfare and housing cases disappeared, lawyers specialising in those areas drifted away into other areas of law leaving what are termed advice deserts where few experts are left to consult.

For cases involving welfare benefits, 299 local authorities have no legal aid provision

‘Mistakes are being made’

Most immigration, as opposed to asylum, cases were also deemed to be no longer entitled to legal aid following Laspo. Consequently, until recently even children had to appear unrepresented in cases in which they faced deportation.The justice minister, Lucy Frazer, announced in July that legal aid would be restored for unaccompanied and separated children.

Many problems remain. Annette Elder, a partner at the east London law firm Elder Rahimi who is a member of the Law Society’s immigration law committee, said: “It’s very very hard doing legal aid work. The hourly rate for immigration [that is left in scope] is £49, which is lower than when I started doing this work 27 years ago.

“We have to incur overdrafts to obtain [asylum] reports for clients. Eventually many [immigration lawyers] decide it’s not sustainable. The stress is not sustainable. They leave and you lose expertise.

“You end up with clients being represented by junior case workers. The statistics show a decline in quality. People are cutting corners and you can’t criticise them for it. Mistakes are being made because people don’t have the experience.

“The level of mental health issues in the client group is so high. It’s pretty rare for the system to run smoothly. It’s not unusual for cases to take three years. I have a handful of asylum claims that have taken five to six years. If it goes wrong the consequences can be fatal.”

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