Access to justice and challenging the legal aid cuts: where are we?

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Despite the legal aid system being introduced to provide equal access to the courts, over recent years, it has been, and is being, systematically eroded so as to make civil rights unenforceable, and generally only available to the rich. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) was introduced. It was a wholesale attack on legal aid and access to justice. LASPO removed legal aid funding for many areas of law including most housing, immigration, family, prison and welfare benefits cases.

There have been, and continue to be, a number of challenges to these attacks on access to justice, including:

The residence test

The government sought to introduce a discriminatory residence test which would have meant that anyone who could not prove “lawful residence” in the UK for a year or more would be prevented from getting legal aid. This would have applied to all areas of law including, for example, someone whose family member had been shot by the police or a disabled child who had been denied life saving treatment.

In 2016, the Supreme Court found that such a test was unlawful and that the government had acted outside its powers by introducing it and had no legal authority to do so.

Prisoners’ rights

The Howard League for Penal Reform and the Prisoners’ Advice Service are currently challenging the government’s cuts to legal aid funding for prisoners. These included removing funding for the majority of areas of prison law such as mothers who want to challenge the failure to provide a place on a mother and baby unit and prisoners unlawfully placed in segregation.

At a time when prison conditions are worsening, deaths in custody are increasing and the number of people with mental health problems and learning disabilities in prison is at an all time high, this fundamental slashing of legal aid funding, is incredibly concerning.

The case is due to be heard by the Court of Appeal in January 2017.

Victims of domestic violence

LASPO removed legal aid for the majority of family law cases, unless a person could “prove” that they were a victim of domestic violence. This placed onerous requirements on survivors, who often had to ‘prove’ abuse had happened within the previous 24 months, even if there was an ongoing risk, and meant that obtaining legal aid was particularly difficult for survivors of non-physical abuse.

The rules were successfully challenged by the charity Rights of Women. In response, the government has introduced interim rules which allow survivors to provide evidence from the previous 5 years, rather than 24 months, and which provide more protection for survivors of financial abuse. However, the government is currently consulting on the permanent rules and it is essential that these ensure that going forward, survivors of domestic abuse will receive legal aid.

Claims against the state for assault, false imprisonment and other abuses

Sunita Sisangia had been arrested and detained by the police but was refused legal aid to bring claims for false imprisonment and assault. Unfortunately, the Legal Aid Agency successfully argued that legal aid funding should only be available for such claims if it can be shown that the public body deliberately acted unlawfully or was dishonest. The impact of this is likely to be that many cases in which the state has acted unlawfully will not be pursued and that in all but the most serious cases, the state will not be held to account.

Ms Sisangia is seeking permission to appeal the decision of the Court of Appeal and if granted, the case will be considered by the Supreme Court.

Criminal legal aid

The government was proposing to introduce ‘two tier contracts’ in criminal legal aid, the impact of which would have been that around 60% of law firms providing advice in Magistrates Courts and at police stations would have been prevented from doing so. The impact was likely to lead to advice desserts when people were facing criminal charges.

Following a challenge by numerous law firms, the government backed down and is no longer introducing the two tier contracts. However, they have just consulted on a new contracts for criminal legal aid and we need to ensure that any new arrangements ensure proper access to representation.

Exceptional funding

When drastically cutting legal aid funding, the government introduced a type of funding called ‘exceptional funding’. This was supposed to be the ‘catch all’ funding that would mean that legal aid could be provided, when not otherwise available, if the failure to provide legal aid would be cause a breach of a person’s human rights or EU rights. However, the reality was that the forms to apply for such funding were incredibly complicated and inaccessible and the threshold for the grant of funding was so high that the vast majority of applications were being refused.

The scheme was heavily criticised by the High Court but was subsequently found to be lawful by the Court of Appeal. The result is likely to be that many individuals in proceedings concerning their fundamental rights, such as immigration and family cases, will continue to be refused funding.

Permission to appeal is being sought and if successful, the case will be considered by the Supreme Court.

By Charlotte Haworth Hird Legal Aid Lawyer. Charlotte was awarded the Legal Aid Lawyer of the Year award in the category of inquests and actions against the state in 2014.

To keep in touch with legal aid campaigning check out the Justice Alliance and Young Legal Aid Lawyers

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