by Sally Churchward.
“It’s not fair” – it’s one of the first things children learn, the concept of justice, the right to it and a huge sense of wrongdoing if everything is not equitable.
Equality before the law is one of the cornerstones of our society: the firm belief that everyone should be equally protected by the legal system, trust in some ultimate enforcer of ‘fairness’.
People have a sense that the law should and does provide a safety net – that if a partner is abusive, if we’re not paid wages we’re owed, if a landlord seizes our possessions and evicts us, if a neighbour starts parking on our driveway, if our child isn’t receiving a suitable education, there will, ultimately, be some recourse for us, that things will be sorted out, and made fair.
But evidence shows that this is simply not the case.
Those eligible for legal aid as well as the kinds of cases covered have shrunk, along with the number of legal aid providers, leaving, says a Law Centres Report published last year, a growing ‘squeezed middle’ – those who can neither access legal aid nor afford to pay for a lawyer.
The assumption that justice is there for all is increasingly becoming a fantasy, that lets us rest easy but which can line up anyone without seriously deep pockets for a major shock and few options should they ever need to test the system for themselves, as we collectively sleepwalk into an ever growing justice gap.
The Law Society recently published research pointing to huge legal aid deserts, leaving millions of people without access to a lawyer, while the chief executive of a charity that supports victims of domestic violence says that thousands of victims are being forced to stay with their abusers because they cannot afford representation in court. Luis Labaton, of Domestic Violence Assist (DV Assist), https://www.dvassist.org.uk/ said that “almost daily” victims are being left with no protection because they cannot afford legal fees and do not feel confident to represent themselves. The organisation, which specialises in arranging civil protection orders for domestic abuse victims, has seen a 50 per cent rise in demand in the past year.
There were huge changes to legal aid 24 years ago and then again eight years ago. Many people think that such issues will have no impact on them, and therefore pay little or no attention to the changes and make no effort to resist them – until it’s too late.
In September, the Law Society published a comprehensive review of Legal Aid, raising the alarm and launching a campaign about what they describe as ‘legal aid deserts’, with millions of people across the country without access to a lawyer. Meanwhile, in summer 2020, the Law Centres Network published a report finding that millions of people are not eligible for legal aid but could not afford to pay for a lawyer.
Changes in the law have meant that fewer matters are covered by legal aid, far fewer people are eligible for it, and of those who are, few can access it, due to significant funding cuts.
A timeline of erosion
In 1949, the Legal Aid and Advice Act was passed, introducing free legal aid for those who could not afford a solicitor, with 80 percent of people qualifying ( For following data, see https://www.lawsociety.org.uk/topics/research/civil-sustainability-review).
Then, in 1994, legal aid fees were increased in line with inflation for the last time. The pound is now worth just 49 percent of what it was worth at the time of the freeze.
Contracts were introduced for legal aid in 2000, then, in 2007-9, fixed or ‘standard’ fees were introduced. These were calculated on an average hourly rate spend from a mixed caseload, meaning in more complex cases, providers could lose out, while with simpler cases, they could be left with a surplus.
In 2010, legal aid reform proposals saw spending cuts planned, in response to the banking crisis and coalition government’s austerity agenda. The aim was to reduce legal aid spending by £350 million, but by 2016-17, the legal aid budget was £950 million lower in real terms than in 2010.
In 2011, 10 percent cuts were introduced to all civil aid legal fees.
The axe fell even more heavily on access to justice in 2013, when the Legal Aid, Sentencing and Punishment of Offenders Act brought in huge legal aid cuts. Many areas of law were removed from the scope of legal aid. Areas losing out included: housing, family, immigration, employment and welfare benefit payments.
By 2020, only a quarter of the population were eligible for legal aid, and new matters started had dropped by a massive 85 percent since 2000. Meanwhile, cuts to legal aid saw an increasing number of people representing themselves in family courts, with the number of cases where neither party had legal representation almost trebling from 2013 to 2020.
A gathering storm
“Whole types of problems which used to get assistance are now no longer eligible for legal aid, especially issues around social welfare law – lots of issues involving housing, immigration and employment can no longer be helped,” said Nimrod Ben Cnaan, head of policy and profile at the Law Centres Network, a national charity which works within local communities to defend the legal rights of local people.
“It’s been a gathering storm over the past few years. We’ve seen a lot of legal aid providers and charities who were providing advice have either closed or ceased those services as there’s not the funding there for them,” he added.
“With the decimation of the advice sector, referral ties atrophy. People need to go round the houses more and they get fatigued and give up without really getting the help they need and it’s to their detriment – for example if someone is shortchanged by the DWP, then they stay short of that money.”
He continued: “People don’t realise, in order to access legal aid, there’s a means test – income, assets, etc, to arrive at a calculation of your disposable income and it may be offered for free or with a statutory charge.
“The statutory charge appeared eight years ago, and people often can’t afford it. It’s absolutely heartbreaking for people to go through the process and not be able to pay that charge.
“The next bracket of people, who are not eligible for legal aid but who can’t afford to pay for legal help out of pocket is a very wide section of the population – in some categories, 94% of the population fall within this justice gap.”
Sue, an advisor at a Southampton-based charity, echoes Nimrod’s assessment.
“If someone is being harassed by their landlord we can tell them that their landlord can’t just kick them out – it would be an illegal eviction – but that doesn’t stop it from happening. I had someone the other day who woke up to see their landlord standing over them with a weapon. There’s no recourse for them,” she said.
“If people are evicted they have to try to get legal aid at one of the solicitors still taking it. I get the impression that people haven’t been able to get help and these are often the most vulnerable people.
“Any kind of family law will cost money unless someone is a victim of domestic violence, and not always then. Just because people are in work, it doesn’t mean they can afford a solicitor – I know I couldn’t.”
Sue has worked in her role for seven years, and is finding it increasingly difficult, knowing that the advice the gives may, ultimately, not provide people with what they need.
“I do find it frustrating,” she said. “I give the advice and people go off and are probably quite happy at that point because they’ve been told what they should do, but that doesn’t mean it’s going to be effective.
“There needs to be much more of an incentive for solicitors to take on legal aid cases – it needs to be fair pay,” she added. “We also need to have more specialists who can help people before it gets to that stage.”
Laura’s story
Laura (not her real name), from Southampton, has experienced the impact of legal aid cuts firsthand.
“My ex husband was abusive to me in everyway except hitting – financial, sexual coercive control. It took a while, not until the birth of our second child, for me to realise that nothing was going to change,” she said.
“I then got in touch with my nearest Women’s Aid group. They were amazing and gave me some really good advice. I was trying to get out of the home but he was being difficult. I moved into my children’s bedroom with them. This went on for several weeks. Then, I went out for the day and came back to find that he had left our youngest child in the same dirty nappy for about eight hours, and he had blisters over his skin.
“I called the police for that. Until then, I wasn’t aware of how many laws he was breaking. They went through a questionnaire and asked questions like ‘did he stalk me’, and the answer was ‘yes’. They arrested him, although they didn’t charge him, but it got him out of the house.”
Laura was shocked to find that she wasn’t eligible for legal aid.
“You do get legal aid for domestic abuse but they don’t tell you that there’s none available once they are out of the house, for other issues.
“Obviously, there are so few criminal convictions in cases like this, so if you want civil protection against an abusive ex, you have to take out court orders. I took out an occupation order, a non-molestation order and a child arrangement order. There was no legal aid for these, so I had to represent myself,” she said.
“He’d walked out with the money. I’m disabled and was working part time. I didn’t have cash for food, we were using food banks, so I certainly didn’t have the money to pay for a solicitor.
She went on: “He had the children on alternate weekends. One day, they came home and said he’d been hitting them. It was horrible. I called the NSPCC for advice and they said to contact Social Services and the police. The social worker and I asked him to put it in writing that he wouldn’t hit them, but he wouldn’t and for about six months, the children didn’t see their dad. During this point he tried to snatch them from school.”
Once again, Laura found herself having to go to court without representation. “I had to go to all the court hearings and speak for myself – there was no legal advocacy. Family and friends helped me financially and I paid a solicitor £600 for advice, but I couldn’t afford to pay for her to come to court.
“Obviously, it’s been very traumatic. You want legal support and you can’t have it. Who has that money?
“Maybe you shouldn’t be able to get free legal help for just anything, but the social services and police were involved here, so you would think it would qualify. But if it’s not criminal, there’s so little help,” she said.
“He’s allowed contact with the children now and so far it’s been smooth. I’ve always said that they have a right to see their dad.”
Laura says that she found having to represent herself in court very off-putting and knows other people who have not been to court because they couldn’t get legal representation.
“I have a friend who has no legal agreement with her ex over their children because she’s terrified of going to court. I think she would go to court if she had a solicitor.
“The lack of legal support put me off dealing with it and that was to everyone’s detriment – the uncertainty and stress.
Young children need routine,” she added. “I have a duty to protect my children. It all had a massive impact on the children. With better support and legal aid, it could have been much better for them.”
Legal aid desert
Stories like Laura’s are echoed across the country. The Law Society’s research has found that across England and Wales, 88 percent of people don’t have access to a local education legal aid provider, 79 percent don’t have access to a local welfare legal aid provider, 67 percent don’t have access to a local community care legal aid provider, 63 percent don’t have access to a local immigration and asylum legal aid provider, and 39 percent don’t have access to a local legal aid provider for housing advice.
In practical terms this means, according to The Law Society, that for someone living in Southampton, the nearest provider of legal aid for education maters would be in Crawley, Bristol or Brighton, while for welfare issues, the nearest providers are in Sutton, Croydon or Bristol.
The Law Society is campaigning for action to be taken about the ‘legal aid desert’. It first called for an independent review into the sustainability of the legal aid system in 2017, and has reiterated that call with this new report.
Society president I. Stephanie Boyce said: “Behind each statistic is a child not getting the education they need, a family facing eviction, fighting for welfare benefits to stay afloat in these turbulent times or a person denied a say in how they are cared for.”
Nimrod, from the Law Centres Network, added that the issues caused by the lack of legal aid are being compounded by the impact of austerity measures on funding to local councils.
“Austerity and the cuts that has meant to local authority funding have caused an issue, particularly because legal and general advice services are not things they are bound to provide,” he said.
“It is their duty to do other things, and often when they do the things they’re obliged to do there isn’t the money left for the things they ought to do, like fund advice.”
He added that the coronavirus pandemic has exacerbated existing problems.
“This has been deteriorating overtime and the pandemic has had an impact because the need has grown for the help and it’s no longer available.
“There’s a much greater demand for our services across the board. The need has been changing as well. Over the pandemic we’ve seen an increase in funeral poverty. There are more people dying and families don’t have the money to pay for it. There are also needs, legal and otherwise, which arise round the death of a family member. For instance, if people are in social housing and the person who dies is the one whose name was down on the property, the other person living there needs to succeed them in the need to be housed, or be evicted. Another thing we have seen in the pandemic is a rise in domestic abuse incidents and the need for support. There’s also long covid, that’s an unfolding scenario.”
Nimrod explained that while organisations like the Law Centres continue to take on legal aid cases, the freeze to legal aid payments 24 years ago have had a deep impact on the number of lawyers willing and able to take on legal aid cases.
“Legal aid lawyers are still being paid at the same level as they were 24 years ago. There hasn’t been a pay rise in 24 years!” he said. “With the level of fees, it’s definitely a loss-making activity and anyone doing legal aid has to earn money by doing work through other sources.
“Law Centres do it. Legal aid pays for the kind of work we would want to do in our centres and we have to find sources of funding to pay for much of the work. But many legal aid providers are dropping out of the service. It’s not something they can sustain – it’s essentially unpaid work.”
He added that the government is far more generous in paying for its own legal advice.
“Something that’s particularly galling is that legal aid is a service that the government pays for, and the government’s own lawyers are a service the government pays for, but there is no parity in regard to what it is willing to pay for itself what it is willing to pay for the public,” he said. “The rates for the government’s own lawyers are much, much higher.”
Law Centres offer some hope to those who cannot otherwise access legal support, but there are only 42 across the country, which serve specific geographical areas. Southampton does not have a centre, but Nimrod is keen to emphasise that if a group of individuals wanted to come together locally, the Law Centres Network would work with them to set up a centre in the city.
“There is a need to form more Law Centres and we’re constantly looking to create more,” he said. “If there is the will to set up a Southampton Law Centre and provide for the local community then we would invite people to get in touch and we can talk them through the process.
“The Law Centres are law practices which employ solicitors but they are funded by a charity. Each has a board of trustees drawn from the local community. It always relies on local initiative.”
With a growing lack of access to legal support, it is clear that organisations such as The Law Society and the Law Centres Network are deeply concerned about individuals’ ability to access justice.
“It spooks people, they don’t want to think about it,” said Nimrod. “We need to make sure at a basic level that everyone can access justice. It’s eating away at the democratic foundations of the country if we don’t provide it, if we have a two tier justice system, with those who can and cannot afford it.
“How much are we willing to put up with as a nation?” he added.
“It’s time as a country to consider whether this is a fit state of affairs or demand better to improve access to justice.
“Without it, the basic concepts of law, fairness and equality before the law lose their meaning.”
For More information about the Law Society’s campaign, visit: https://www.lawsociety.org.uk/campaigns/legal-aid-deserts/
For more information about the Law Centres Networks’ campaign, visit: https://makelawforall.org.uk/
For more information about the Law Centres Network, visit: https://www.lawcentres.org.uk/
- main photo by Sora Shimazaki.
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