Monday, 14 February 2011

Our response to Proposals for the Reform of Legal Aid in England and Wales

Emailed to The Ministry of Justice before the deadline for submissions today at 12 noon

ACT NOW (Autism campaigners Together) is an organisation with over 8,000 supporters in the UK. It exists to promote the well-being of individuals with autism and oppose actions which might damage their well-being.

This communication is from ACT NOW and refers to the areas of the consultation paper of direct relevance to our supporters.

1.    Please find below
  1. Our response to the consultation
  2. The paragraphs in the consultation document of most relevance to those with autism.
You will note that our response is not in the form of comments on individual questions. We believe our concerns include issues which are not conducive to being ‘fitted’ into the framework set by the Department.
  1. People with autism have great difficulty in communicating and socialising and in particular can have difficulty in understanding the context of the written and spoken word.  For these reasons they form a vulnerable group.
  2. Free advice should be available to people with autism to prepare for tribunal hearings
  3. Entitlement to legal aid should be available to enable individuals with autism to be represented at tribunal hearings and any appeal to the Upper Tribunal.
  4. Legal aid should continue to be available at any hearing relating to the education of children with autism.
  5. The proposed call-centre system will be of no value to autistic people.
  6. The proposal that other sources of information/advice will be available is a nonsense given the cuts being made by Charities and Citizens Advice Bureau's.

    LEGAL AID CONSULTATION PAPER CP12/10 full version online here

    ACT NOW considers the paragraphs below to be the ones of greatest significance to individuals with autism.  Our response above is in the light of these paragraphs.
    2.6 Views are invited on the questions set out below. When expressing views on those questions, respondents are advised to have the overall fiscal context firmly in mind.
    2.7 Although reducing spend is one of the main drivers for reform, the Government also believes that there is an overwhelming case for reform of the legal aid system. Since the modern scheme was established in 1949 its scope has been widened far beyond what was originally intended. By 1999 legal aid was available for very wide range of issues, including some which should not require any legal expertise to resolve.

    2.8 We believe that this has encouraged people to bring their problems before the courts too readily, even sometimes when the courts are not well placed to provide the best solutions. This has led to the availability of taxpayer funding for unnecessary litigation. There is a compelling case for going back to first principles in reforming legal aid.

    2.11 To help establish the right balance, we have been guided in particular by the following considerations:

    the desire to stop the encroachment of unnecessary litigation into society by encouraging people to take greater personal responsibility for their problems, and to take advantage of alternative sources of help, advice or routes to resolution;

    the need to improve and reduce the costs of the whole criminal justice system through the removal of perverse incentives; and

    the extent to which the market can provide other ways of accessing funding and

    the need to fulfil our domestic and international legal obligations (including those under the European Convention on Human Rights).
    4.3 The Government is committed to controlling public expenditure to reduce the deficit. But we also believe in light of the way the scheme has expanded since its establishment, that it is right in principle to reduce its scope. We have concluded that it is no longer affordable to provide legal aid for the extensive range of issues for which it is currently available. Nor does the Government believe that it is always appropriate to do so: in many matters, we would expect individuals to work to resolve their own problems, rather than resorting to litigation at a significant cost to the taxpayer.

    4.4 Refocusing the scope of the legal aid scheme on those who need it most required us to make very difficult choices about where funding continues to be justified

    4.10 The Access to Justice Act 1999 also sets out the cases for which public funding is available for Representation at Court. These include any case before the county court, the High Court, the Court of Appeal, the Supreme Court and for family matters before the magistrates’ court. Legal aid is not generally available for Legal Representation for the coroners’ courts, where the inquisitorial nature of inquests33 means that it is not required in most circumstances (see proposals for legal assistance for inquests set out in paragraphs 4.119 to 4.122). Nor is it generally available for tribunal proceedings which are relatively informal, simple and designed to be accessed by participants without the need for Legal Representation.
    4.22 There are several aspects we have considered in deciding whether litigants are likely to be able to present their own case. We have taken into account the form of proceedings and the forum in which they are resolved, for instance, whether they are inquisitorial or adversarial and whether they are intended to be sufficiently user-friendly that the individual could navigate their way through the process without having to rely on a legal representative.

    4.23 We have considered whether, in each type of case, the litigants bringing proceedings are likely to be predominantly from a particularly physically or emotionally vulnerable group, for example, as a result of their age, disability or the traumatising circumstances in which they are bringing proceedings. For example, litigants seeking publicly funded legal assistance in relation to community care issues, such as obtaining or challenging an assessment by a local authority for care in the home are much more likely to be elderly, frail or disabled and may therefore be more likely to need legal aid to help them find a resolution to their problem.

    4.24 We have also looked at whether the nature of the case itself is likely to be particularly complex. We recognise that the law can seem complex, but we have considered whether the type of case, by its very nature, may be routinely of such exceptional complexity that it is unlikely that a litigant would be able represent themselves effectively. This may be, for example, because of the complexity of the subject matter, the particular complexity of the law in the area, or the complexity of the evidence.
    4.26 The Government is of the view that very significant sums are currently spent on providing legal advice for issues where individuals are in fact looking for practical advice rather than the specific professional expertise offered by a lawyer. We have explored whether there are alternative forms of advice or assistance available to help individuals to resolve their issues, instead of seeking expensive legal advice, which may not be needed. For example, several voluntary sector organisations offer advice on welfare benefits, housing and other benefits. Where there are alternative forms of advice and assistance in a particular area of law and there is no reason to believe that these will cease to be available, we consider that it is proper to take them into account in deciding how high a priority should be accorded to the provision of publicly funded legal advice and representation in that area of law.

    4.37 This section sets out the areas of law where the Government proposes to continue to fund some or all levels of service. For civil cases, these level of services are Legal Help and, where applicable, Help at Court and Legal Representation. In family cases, legal services comprise Legal Help, Family Help, Legal Representation and Family Mediation.

    4.59 Legal aid is currently available to fund advice (through Legal Help) for individuals who are unable to look after themselves because of age, illness or disability. This may include legal advice to obtain or challenge an assessment for adequate services, challenging care home closures or contesting involuntary removal from a home by a local authority. We consider that the issues at stake in these cases are very important because they can substantially affect the individual’s ability to live an independent and fulfilled life. We have also taken into account the fact that, typically, these are likely to be very vulnerable people who may not be able to present their own case without legal assistance. As these will usually be cases against the state, we do not consider that these are issues that this class of individuals can resolve themselves. Nor do we consider that the alternative forms of advice or assistance available are sufficient to justify the withdrawal of legal aid, or that there are viable alternative sources of funding.

    4.60 The Government believes that because of the potential vulnerability of the clients, and because this area of law is focused on safeguarding the rights of the elderly and infirm to be cared for adequately and with dignity, there continues to be a role for the state in supporting legal assistance for eligible people in these cases. We propose that legal aid remain available for Legal Help in this category and for challenges to public authorities by means of judicial review (see paragraphs 4.95 to 4.99 below) to help enforce the rights of these individuals

    4.95 Public law principally covers the challenging of public authorities in the High Court by way of judicial review, equivalent proceedings of habeas corpus,58 proceedings in the Upper Tribunal where it is exercising its ’judicial review’ jurisdiction, and judicial review applications transferred to the Upper Tribunal from the High Court. It also covers other challenges of a public law nature, for example, statutory appeals, for instance, in homelessness cases. Legal aid for judicial review challenges is available for all issues other than most business cases.

    4.96 Before an applicant can obtain a judicial review of a public authority decision, they must apply to the High Court for ‘permission’. The permission stage is an important part of the process as it helps to establish whether the applicant has an arguable case, and helps to focus both the Court’s time and legal aid resources on meritorious cases.

    4.97 In our view, proceedings where the litigant seeks to hold the state to account by judicial review are important, because they are the means by which citizens can seek to ensure that state power is exercised responsibly. In addition, the issues at stake themselves in public law challenges can be of very high importance where they are used to address serious concerns about the decisions of public authorities. For example, a decision by a public authority to detain someone without sufficient reason would be a very important issue as the case concerns the litigant’s liberty. Similarly, a challenge to a decision to refuse a litigant a life-saving medical treatment on an irrational basis would be of great importance as their life is at risk.

    4.98 In general, we do not consider that the class of individuals bringing these proceedings is likely to be particularly vulnerable, although they may be where the judicial review concerns mental health or community care. However, where alternative forms of dispute resolution, such as complaints procedures or referral to an ombudsman, have not succeeded we do not consider that there are further appropriate alternative forms of advice or assistance to justify the withdrawal of legal aid.

    4.99 We therefore consider that legal aid for most public law challenges is justified on the basis that they enable individual citizens to check the exercise of executive power by appeal to the judiciary, often on issues of the highest importance, and we propose that it be retained. However, we do not consider that business cases are important enough for legal aid to be justified for public law challenges concerning business matters, and we propose that, as at present, legal aid should continue not to be available for public law in business cases.
    4.136 We are not, however, proposing to extend routine legal aid funding to discrimination cases which are currently out of scope. For example, this means that legal aid for representation in discrimination proceedings before the Employment Tribunal or the Special Educational Needs and Disability Tribunal would continue to be unavailable under the new regime (although Legal Help for these claims would remain within scope).

    4.137 In the present financial circumstances, it is necessary to allocate funding in a fair and balanced way. In spite of the importance of the discrimination proceedings that may be brought in a tribunal, we consider that there are sufficient alternative sources of advice and assistance to justify the withdrawal of legal aid, and that the procedures before the tribunal are generally more accessible and user-friendly than other proceedings within the discrimination category. Although we consider that Legal Help is justified for discrimination cases, given the importance of the issues, in our view it is not necessary to fund Legal Representation at the tribunal as well, since it provides an easily accessible route to justice. We therefore propose that it be excluded from scope.

    4.153 We consider that legal aid for advocacy before most tribunals is not justified given the ease of accessing a tribunal, and the user-friendly nature of the procedure. We consider that the importance of the issue will vary from tribunal to tribunal, but on balance we do not consider this to be an outweighing factor, and therefore propose that funding for Legal Representation before most tribunals should continue to be generally excluded from the scheme, whatever the issue.
    4.180 The legal aid scheme currently funds Legal Help (initial advice and assistance) on a range of educational matters, such as school admissions and exclusions, out of school provision, bullying, school and nursery reorganisation proposals, and student disputes with universities and further education institutions. It also includes advice on appealing to the First-tier (Special Educational Needs and Disability – SEND) Tribunal and the Special Educational Needs Tribunals for Wales. Legal aid also funds advocacy on appeals from the First-tier (SEND) Tribunal, to the Upper Tribunal, and higher courts. Legal aid is also available for advice and advocacy to bring civil law actions for issues such as damages for negligence, and actions for breach of contract in provision of education services.

    4.181 We recognise that many of the education issues for which legal assistance is currently provided are of importance to the parents and children involved, since they may affect a child’s educational attainment and future life choices. Cases typically involve deciding the detail of a Special Educational Needs (SEN) statement, which determines the level of additional support that a child receives at school, contesting exclusion from school, or failure to gain admission to a preferred school.

    4.182 However, while we have taken into consideration the importance of the issues to the litigants involved, in our view, they cannot be accorded the same level of importance as the immediate threat to life or safety, liberty or the roof over their heads faced by litigants in other types of cases. In addition, some of the cases may arise from personal choices, such as the conduct of children at school, and to the extent that this is true the provision of legal aid is less likely to be justified. In addition, educational damages claims concerning, for example, negligence, and actions for breach of contract in provision of education services, are primarily about monetary compensation and, as such, are of a lower objective importance for funding than cases concerning fundamental issues such as safety and homelessness.
    4.183 We have also considered the class of individuals who are likely to bring cases in this area of law, the nature of the proceedings themselves, and the alternative sources of assistance and funding available to them. We do not consider that the class of individuals bringing these cases (usually the parents on the child’s behalf) is in general likely to be particularly vulnerable, or that those parents involved will necessarily be unable to present their own case, whether before the Tribunal or courts.

    4.184 A large proportion of the Legal Help given on education issues is legal advice for the parents of children with Special Educational Needs (SEN), including advice for those appealing to the First-tier (SEND) Tribunal. We consider that legal advice for those applying to the First-tier (SEND) Tribunal is less likely to be justified because the Tribunal is designed to be accessible to individuals without legal assistance, and they can generally present their case without specialist legal knowledge or representation. Individuals should only need to present the facts to the Tribunal; it is for the judge to interpret them in the light of the law. The Tribunal provides written guidance to appellants, and a free DVD (The Right to be Heard) which explains what to expect when attending the Tribunal. Although the cases concern the child’s needs, it will be the parents who are seeking to appeal, rather than the child itself. However, we do recognise that disabled children are more likely to live with one or more parents with a disability (as defined under the Disability Discrimination Acts 1995 and 2005) than non-disabled children.76

    4.185 We also note that there are alternative sources of basic help for education issues. For exclusion, these include parent partnerships (which are statutorily established in each Local Authority Area). The Advisory Centre for Education provides advice on a range of education issues, including admissions, exclusions, special educational needs, attendance and bullying. The charity IPSEA – Independent Parental Special Educational Advice – has trained volunteers who provide free advice to families whose children have SEN. The presence of these alternatives is not determinative, and we recognise that all sectors are reviewing how best to use resources, but the presence of such alternatives makes the provision of legal aid in these cases less likely to be justified. Where clients do have a strong case for damages, we envisage that they will be able to obtain alternative funding, for example, a CFA.

    4.186 Because of the need to design an affordable legal aid scheme which prioritises spending on issues of the highest importance, we have taken the view that education issues are relatively less important than cases concerning more fundamental issues such as an individual’s immediate physical safety or liberty and that funding can no longer be justified. In addition, for those cases before the Tribunal, individuals (or, in the case of children, their parents) should be able to present their case themselves without legal assistance, and we note the availability of other forms of advice and help, and the likelihood of alternative sources of funding for meritorious damages claims.

    4.187 We therefore propose to exclude all education cases from the scope of legal aid. As with other areas of law, we recognise the importance of being able to challenge public authorities’ decisions on such matters via judicial review, and this will remain in scope.
    4.216 Legal aid currently funds legal advice in relation to decisions about benefits such as Disability Living or Attendance Allowance, Incapacity Benefit, Income Support and Housing Benefit. This includes advice (but not advocacy) for appeals to the First-tier (Social Security) Tribunal. These appeals concern, for example, cases where a benefit has been refused, or cases dealing with overpayments. Legal aid is not currently available for onward appeals to the Upper Tribunal. The vast majority of legal aid funding in this area of law is spent on Legal Help, rather than Legal Representation.

    4.217 We consider that these issues are of lower objective importance (because they are essentially about financial entitlement), than, for example, fundamental issues concerning safety or liberty. While we recognise that the class of individuals bringing these cases is more likely to report being ill or disabled in comparison with the civil legal aid client base as a whole, we have also taken into account the fact that the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance. For appeals to the First-tier Tribunal with respect to welfare benefits, the appellant is required only to provide reasons for disagreeing with the decision in plain language. In many cases, decisions are overturned simply because the tribunal is able to elicit additional information which was not available to the Department for Work and Pensions.

    4.218 We note that help and advice are available from a number of other sources, including Job Centre Plus and the Benefits Enquiry Line. In some cases, voluntary sector organisations may provide some help and advice, for example, AgeUK on Disability Living Allowance, Attendance Allowance and other benefits. The Child Poverty Action Group and Disability Alliance may assist in some cases. Pro bono groups such as the Free Representation Unit may also be able to assist in representation at tribunals. Some matters may be suitable for resolution by the Parliamentary Ombudsman. The presence of these alternatives is not determinative, but makes the provision of legal aid in these cases less likely to be justified.

    4.219 We therefore consider that legal aid is not justified in these cases because the issues are not generally of sufficiently high importance to warrant funding, and the user-accessible nature of the tribunal will mean that appellants are able to represent themselves. In addition, they may also have access to help and advice from other sources in order to help them resolve their issues without recourse to publicly funded legal assistance. Having taken all these factors into account, we propose to exclude all welfare benefits issues from the scope of civil legal aid.

    4.224 As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or where there has been suspension of benefits by authorities pending investigation.

    4.272 We propose that, in future, we will provide a simple, straightforward telephone service, based on the current Community Legal Advice (CLA) helpline (first established nationally in 2004). This advice service will be able to refer clients to the source of advice most appropriate to them, and will act as a reliable one-stop shop for clients looking for legal advice. The CLA helpline will be established as the single gateway to civil legal aid services. All clients will be able to access the first tier of the service (the Operator Service) while the second tier will offer specialist advice to eligible clients in all categories of law within the scope of civil legal aid. In the vast majority of cases this will mean that clients will make their initial contact to access civil legal aid services through the Operator Service, rather than through a face to face provider. However the services will be designed to minimise the risk that clients with emergency cases experience delay in accessing the help they need.

    4.273 Clients calling the helpline will, as at present, initially speak to an operator

    4.273 Clients calling the helpline will, as at present, initially speak to an operator who will diagnose their problems, and determine their eligibility for legal aid services. The operator will discuss with clients the range of options available to them and route them to the service most suited to their circumstances, including legal aid specialists, a paid for service, or alternative sources of help.

    4.274 In cases where the diagnosis at the Operator Service stage is that more detailed advice is the most suitable route, clients will be able to access specialist services if their case is within the scope of legal aid and they meet the relevant financial eligibility criteria. In the majority of these cases, CLA operators will transfer the call to the CLA specialist telephone advice service. This service will be available in all categories of law within the proposed scope of civil legal aid.

    4.275 Clients will be assessed to identify whether they have particular needs (for example, specific language requirements) and the CLA helpline service will seek to accommodate them. Face to face advice provision will be available where cases are too complex to be dealt with appropriately by telephone or where the client’s specific needs would not be met (for example, due to mental impairment). This will be assessed on a case-by-case basis and, where appropriate, clients will be referred to face to face advice services.

    4.276 The number of cases that are likely to be dealt with by face to face specialist advice services will vary between categories of law depending on the nature of the case in that category and the needs of the client groups who most typically experience these problems.

    Non-legally aided advice
    i) Paid-for service

    4.277 We also propose to expand the CLA service to include the option for paid-for advice services for clients who are ineligible for legal aid.

    4.278 Under this proposal, in addition to providing advice services to legally aided clients, CLA operators would be able to refer clients who are ineligible for legal aid to a paid-for service. The Operator Service would discuss with the client the options available to them, explain the charges associated with the paid for service, and make the relevant referral.

    4.279 The LSC would set out in the relevant tender the requirements in respect of quality standards, maximum rates to be charged, assurances about standards of service for both eligible and non-eligible clients, and so on. This proposal would enable CLA operators to route non-eligible clients to quality assured paid services seamlessly.

    4.280 This approach will ensure that those who are not eligible for legal aid will still be helped to find a source of advice. It could also lead to legal aid fund savings, as it is expected that CLA specialist telephone advice providers could offer a referral fee.

    (ii) Other sources of help

    4.281 As all clients will receive an initial diagnosis of their problems, it will be easier for the Operator Service to identify cases where other forms of help, such as Alternative Dispute Resolution services, are the most appropriate route to resolving the problem.

    4.282 In addition, the CLA has already developed successful strategic partnerships with a range of other national advice helplines. We propose to develop these relationships to provide a better, more coherent service for the end-user, with the CLA providing not just a gateway to legal aid advice services, but also enabling access to the wider advice services market, including the voluntary sector. In many cases, this will enable clients to access free assistance from specialist services suited to their needs seamlessly.

    4.283 This will be of particular importance for clients who are financially ineligible or who have problems that will be out of scope of the proposed civil legal scheme. Other organisations could benefit from the infrastructure of the CLA Operator Service, gaining referrals from clients who have already been triaged.

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