In advance of the publication of the report of Lord Bach’s Access to Justice Commission (of which I am now the Vice-Chair), I am republishing in two volumes the Stories of Injustice which I first published in July 2016.
These should be compulsory reading for those who wish to understand the setting in which the Commission’s report has been compiled.
The many stories of alleged miscarriages of justice in sexual abuse cases will appear in a separate consolidated volume.
Stories of Injustice (Volume 1)
By Sir Henry Brooke[1]
July 2016
In this paper (and its sequel(s)) I will be setting out some of the real-life stories Lord Bach’s Access to Justice Commission (“the Bach Commission”) has been told by people and organisations on the front line. They show why public opinion polls have always valued access to good legal advice – and from there to a court (if necessary) – as one of the most precious rights a state can bestow on its citizens.
The Government has now embarked on its promised review of the operation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and these stories will, I hope, be of value in illuminating the injustices that are now being suffered in so many ways by people who have been affected by LASPO and the other cuts to justice services in recent years.
Underlying these stories is not a call for more money for “fat cat lawyers”. The legal aid lawyers who used to operate our front-line services in law centres and advice agencies were never attracted by the lure of large salaries and annual bonuses. They did their work for low pay out of a sense of vocation, and their return to the front line is badly needed.
Contents
The story of a Pakistani mother and her child
The story of a mother and her children
A street homeless woman is able to go home
Delay after delay after delay…
The loss of a taxi-driver’s licence
Alfred is a retired Romani Gypsy and occupier of a pitch on a site owned and run by local authority Barsetshire. As a result of amendments to the Mobile Homes Act 1983 local authorities were obliged to provide written statements which contain all the terms implied by that Act and any additional express terms of the agreement. Eventually Barsetshire handed out written statements. These statements changed certain of the statutory implied terms. It is unlawful to change the implied terms. One of the implied terms that was changed in the agreement was with regard to succession.
The term that Barsetshire placed in the agreement stated that a family member could only succeed to the tenancy if they had lived with the resident for one year (there is no such time limit in the implied term contained in the Mobile Homes Act 1983). Because Alfred could not obtain any advice and assistance under the Legal Aid scheme, he did not challenge the unlawful written statement that was imposed on him and the other residents.
Two years later Alfred fell very ill. With the permission of the local authority, Alfred’s son Charlie gave up his pitch on another local authority’s site and moved onto Alfred’s pitch to look after him. Unfortunately, six months after Charlie had moved onto the pitch, Alfred died. Charlie asked the local authority to allow him to succeed to the pitch agreement but they refused. They based their refusal on the unlawful term in the written statement since Charlie had not lived on the pitch for one year.
Charlie could not get any advice on this because it was outside the scope of legal aid (Charlie had been looking after his father full time and was on benefits).
He was forced to resort to roadside encampments from which, since then, he has been continually evicted after short periods of time.
Is this justice?
This second story of injustice is typical of the many instances when the Legal Aid Agency refused exceptional case funding in a case which cried out for the help of a lawyer.
MM is severely disabled. He suffers from cerebral palsy and is dyslexic. He cannot speak and relies upon a basic electronic voicebox to communicate. He required Exceptional Case Funding to allow him to be represented in private law family proceedings that would determine the level of contact he would have with his children.
MM approached the Public Law Project’s exceptional case funding project for help after an initial application for such funding had been unsuccessful. He had been unable to navigate the application process himself in order to apply again without legal assistance.
The Public Law Project obtained a pro bono advice from counsel as to the merits, and the complexity, of MM’s family case, which confirmed that the case was both meritorious and complex. A second application for Exceptional Case Funding was submitted for MM, with the assistance of the Public Law Project. This application was refused on the basis that, in the Legal Aid Agency’s view, MM’s family case did not meet the merits test or the Exceptional Case Funding test (the decision was made before the high test used for such funding was disapproved by the High Court in the case of Gudanaviciene and Ors).
An application for review was submitted to the Legal Aid Agency, again with the assistance of the Public Law Project, but the Agency maintained their refusal to grant Exceptional Case Funding on the basis that the merits criteria were not satisfied. Shortly after this, the judge in MM’s family proceedings made an order recording his opinion that MM should be granted legal aid.
Notwithstanding these judicial observations, it was necessary for the Public Law Project, on behalf of MM, to issue judicial review proceedings against the Legal Aid Agency before they finally agreed to grant Exceptional Case Funding. This grant was made over a year after MM made his first application.
As a result, he was unable to seek appropriate contact with his children for over 12 months.
Is this justice?
And how much did the Legal Aid Agency’s procrastinations cost the taxpayer?
In refusing to accept that his case was meritorious, the Legal Aid Agency had argued that it was unclear how he could be granted contact without any support being provided by the Local Authority, but that the family court was not the appropriate forum for determining such issues. Instead they said that he should challenge any refusal to support him through judicial review.
MM followed their advice and accordingly requested such support from the Local Authority and issued judicial review proceedings when it was refused. However, the judicial review claim was certified as being ‘totally without merit,’ on the basis that the correct forum to determine the support issues was within the proceedings in the family court.
This third story of injustice is typical of the many accounts which the Bach Commission has received about the hardships that have been created because legal aid is no longer available for advice about entitlement to housing benefit.
The housing charity Shelter told us:
“We regularly see cases via our court duty desks where households are facing possession because their housing benefit problem wasn’t resolved early on, and so their rent arrears grew until their landlord lost patience and sought to evict them.
If free legal advice and advocacy were available at a much earlier stage, it would be easier to negotiate a mutually acceptable outcome and many of the knock-on costs to the court system, local councils and, most importantly, families themselves, could be avoided.”
An advice agency has told us this story of a potential injustice which they averted at the very last minute. It casts a vivid light on this very common problem. [A fictitious name has been given to the agency’s client].
Darren came to see us two days before he was due to be evicted from his council tenancy. He was a bus driver. He had had an accident at work following which he had lost his full time job. When he recovered he was only able to find part time employment which did not produce enough income to pay his rent. He did not know that he was entitled to housing benefit and was unable to access any advice that would have told him that.
Eventually, in despair, Darren went to his MP who referred him to us. We helped him apply for housing benefit and persuaded the court to adjourn the hearing. We then obtained a back-dated housing benefit payment which together with an arrears payment plan for the balance persuaded the landlord to withdraw the eviction, thus saving for Darren the very valuable asset of a council tenancy.
If we had not been able to help him there is no one else to whom we could have referred him. The local Citizens Advice Bureau could have dealt with the housing benefit issue but not the eviction proceedings. A housing solicitor could have dealt with the eviction in theory but not in practice because it could only be resolved by dealing with the housing benefit issue which is not covered by legal aid.
This very experienced advice agency comments:
“The number of tenants who are being evicted from tenancies in London has risen steadily since the introduction of LASPO, which coincided with various aspects of welfare reform which have reduced the state subsidy for housing costs. If these tenants could receive advice at an earlier stage, then the trauma and wasted cost of court proceedings could often be avoided.”
This coincides with the evidence we received from the Housing Law Practitioners’ Association:
“HLPA members are particularly concerned with the removal of assistance for welfare benefit issues. The removal of legal aid for housing benefit means that clients have to wait for their landlord to threaten possession proceedings before they qualify for legal help. Even then, no assistance can be provided to resolve the housing benefit issues to resolve the consequential rent arrears problem and so the case will proceed to court.
At that point, legal aid can be provided to defend the possession proceedings, but still not to assist with the benefits issue. This inevitably leads to greater costs to the legal aid budget, the cost of court proceedings that could have been avoided and, in some instances, evictions which might have been averted had it been possible to resolve the benefits issue.
Prior to LASPO, assistance with welfare benefits could be provided to clients at a very low cost fixed fee. This preventative advice enabled welfare benefits issues to be dealt with swiftly, avoiding the need to put a vulnerable tenant through the stress of legal proceedings, and avoiding unnecessary costs for the landlord (both legal costs and lost rental income) and unnecessary use of court time.”
Is this justice?
This is the fourth instalment in the series of stories of injustice created by the cuts to legal aid and to institutions concerned with the administration of justice. The three earlier stories have illustrated:
- The injustice created because although legal aid is available in ordinary possession proceedings, it is not available when the applicant lives in a mobile home and is threatened with eviction from his pitch;
- The injustice caused because the staff of the Legal Aid Agency had been instructed to adopt a very restrictive approach to the grant of exceptional case funding even when the applicant’s circumstances cried out for it;
- The injustice caused because legal aid is available for possession proceedings but is not available for advice about housing benefit entitlements, even when possession proceedings have been issued because housing benefit is being wrongfully withheld;
- The injustice that may have been caused because the level of legal aid remuneration is no longer adequate to attract experienced criminal lawyers to undertake a case that called for skilled preparation and advocacy.
In this fourth story I illustrate an injustice that was repeatedly mentioned in the evidence which the Bach Commission has received. It stems from the fact that the criteria governing the availability of legal aid in family law proceedings have been very restrictively drawn. In February 2016 the Court of Appeal declared elements of the Legal Aid Agency’s approach to be illegal, and after taking immediate action to extend to five years the period in respect of which evidence of domestic violence would be deemed admissible the Government has also been consulting on ways which might mitigate some of the very obvious hardships of the previous regime. However, they were clearly warned about the likely consequences before the new scheme was set up three years ago, and much avoidable suffering will have followed as a result.
The story of a Pakistani mother and her child
Mrs. C had suffered a history of abusive behaviour from her husband. She reported the abuse to Social Services at the time. When she was pregnant in 2011, he abandoned her in Pakistan but she was able to return to the UK.
In 2013, Mrs. C and her child were again stranded abroad in Pakistan by her husband but she managed to instruct a solicitor in the UK from abroad.
In 2014, wardship proceedings were commenced in the High Court to compel the return of both Ms C and her child. Legal aid was available to her, and she was represented by an experienced firm of family law solicitors. During the wardship proceedings the judge made a finding that the father was essentially concealing the passports of both mother and child.
In late 2014, a year after being abandoned, Ms C and her child were returned to the UK and the wardship proceedings were discharged and the case transferred from the High Court to the family court. The father then applied for a child arrangements order that the child live with him. Ms C could only obtain legal aid to be represented in respect of this application if she could demonstrate that she was a victim of domestic violence.
An application for legal aid was made to the Legal Aid Agency (LAA) explaining the abusive circumstances and enclosing the High Court order which stated that the father had abandoned Ms C and her child in Pakistan. Legal aid was refused because the LAA did not believe that abandonment fell within the definition of domestic violence, so that Ms C could not meet the domestic violence ‘gateway criteria’ for legal aid in relation to the application brought by the father. Ms C’s report to social services in 2011 could not be submitted as evidence because the legal aid regulations provided that evidence had to be dated within the last two years of her application.
As a consequence of the refusal of legal aid Ms C was initially forced to represent herself, but she had difficulties explaining her position. Neither the judge nor the CAFCASS officer appreciated the significance of her abandonment in the context of domestic violence. Indeed, the CAFCASS officer believed that Ms C had abducted her child to Pakistan rather than the opposite – that she had been stranded there with her child.
Eventually, the firm of solicitors she had previously instructed represented her on a pro bono basis at the next hearing and explained the situation to the judge. The judge specified in an order that the High Court judge’s finding amounted to a finding of controlling and coercive behaviour and that this constituted domestic violence. The order also requested the LAA to grant legal aid to Ms C.
Ms C’s solicitor then had to apply for legal aid again to the LAA, setting out at length the definition of domestic violence that is accepted across government departments, and she had to make considerable representations explaining how and why the abandonment experienced by Ms C and her child constituted domestic violence. Eventually, the LAA agreed to grant Ms C legal aid.
Ms C’s solicitor is of the strong view that without her firm’s resources and her specialist expertise in domestic violence and international family law another solicitor would not have been able to identify the issue of abandonment as a form of domestic violence or to argue the point persuasively with the LAA.
The Bach Commission has received evidence along these lines:
The Centre for Law & Social Justice at Leeds University told us:
“Although victims of domestic violence remain within scope, the narrowness of the evidence requirements for legal aid funding in these cases means that many victims of financial, sexual and emotional abuse as well as less overt physical abuse, who are often unable to obtain the required evidence, are now faced with the prospect of self-representation if they need to access the family court. This is by no means a small proportion of victims – Rights of Women (ROW) have estimated that even despite amendments to regulations in 2014, that 40% of its users were denied access to legal advice and representation[2] and this is likely to be a significant underestimation, as it does not take into account victims who did not make use of their services or make a legal aid application. This means that many domestic abuse victims, along with many individuals also contending with very serious problems such as disputes over children, must self-represent if they are to get their cases to court.”
The Family Law Department at Simpson Millar LLP told us:
“The two-year cut-off date was applied strictly without a common sense use of discretion. For example, we acted for a mother (M) where the father had been convicted and imprisoned for serious criminal offences in 2010, which included assaulting M. M was a witness for the prosecution and such were the concerns for her safety at the hands of F, she was advised by the police and social care to relocate out of the area which she did. She also changed her and the child’s name. In 2011 (pre-LASPO) we had represented M, with the benefit of legal aid, in Children Act proceedings regarding her young child as the father was seeking contact. Clearly M was in fear of her own life and that of her child who had been exposed to domestic violence. At the end of the family proceedings an order was made for indirect contact between F and the child annually. In March 2013 F was released from prison and applied for Legal Aid to pursue an application for direct contact-prior to the changes. The application for contact was listed after April 2013 and therefore M was not entitled to legal aid as the application was made post LASPO and there had been no recent domestic abuse incidents as F had been in prison. An application for Exceptional Case Funding (ECF) was made and refused.”
The Public and Commercial Services Union told us:
“In the family courts since the cuts Legal Aid was only available until very recently if there had been evidence of domestic abuse or child abuse in the last two years. That can take some proving. The Ministry of Justice has set a very high and bureaucratic threshold, requiring written proof, such as a letter from your GP (that might cost £75), or proof from a court (cost £60). As one of our members who is a legal adviser in a family court has put it:
‘To break free and survive domestic violence you need support, not bureaucratic obstacles.’
We can only guess at how many potential litigants in person simply feel unable to try and access justice alone.”
Resolution told us:
“Even those who Parliament intended to help can be refused legal aid. Some prescribed evidence documents don’t persuade the Legal Aid Agency (LAA) even if they objectively give the answer. For example, one of our members recently supported a client who presented to their GP. The GP’s letter stated that
‘[X] disclosed to me that her current husband has been violent towards her. Hit her on a number of occasions. She tells me that he’s also forced her to have sex with him against her wishes… She is naturally very low in mood and I have referred her to primary care psychology for further advice and counselling.’
In response to the letter from the GP, the LAA denied legal aid, stating “it is considered the evidence of actual or potential domestic violence provided does not justify the grant of public funding” and expected a second letter from the GP which used template wording.”
Rights of Women told us:
“Our research shows that even with the 24-month time limit removed, 14% of domestic violence victims/survivors will not have the required documentation to evidence domestic violence. The regulations do not identify as victims of abuse those women who are seeking to leave long term coercive and controlling relationships where the abuse has not been reported to the police or where it has been reported but the police have considered they do not have enough evidence to pursue the allegations.”
Southall Black Sisters told us:
“Despite recent changes to the ‘gateway criteria’ in domestic violence cases, a significant number of Black and Minority Ethnic women in particular are unable to evidence domestic violence in family cases because:
Often, they do not recognise that the abuse and oppression they are suffering can be defined as domestic violence and so do not report their experiences to any outside body;
Many are imprisoned in their own homes and/or are ignorant of their rights and/or do not know how to navigate the legal and welfare system and are therefore unable to seek help and support;
They fear isolation and destitution and so stay in abusive relationships;
They fear violent reprisals or deportations in circumstances where their immigration status is insecure or they are afraid of a family/community backlash and so do not report to any professionals or statutory agencies;
The closed and strictly prescribed list of ‘evidence’ required by the LAA to prove domestic violence means that even where women do have some evidence, unless it is in the prescribed form, it is rejected;
Inconsistencies between government agencies as to what forms of evidence of domestic violence will be accepted;
Difficulties in providing evidence that relates to incidents of domestic violence suffered abroad;
The failure of the LAA to recognise certain forms of domestic violence such as transnational marriage abandonment and financial and emotional abuse which are in any event difficult to evidence.”
Is this justice?
For my fifth story of injustice I have drawn on a case supplied to the Bach Commission by the Greater Manchester Immigration Aid Unit (GMIAU). Our politicians talk about “fat cat legal aid lawyers,” or of lawyers earning £200 per hour, without realising that a lot of the legal help they are denying to people in need was previously available at very low fixed fees.
This case is a good example. Here is a family with a father in a coma, a mother the sole carer of her two British children, and two children who were born here and know no other country. Yet legal aid funds cannot pay a fee of £234 to help her to regularise her status as the children’s carer because this matter is “out of scope”.
The story of a mother and her children
GMIAU say:
“We were asked by a social worker to advise a mother who is the sole carer of her two British children since her husband went into a coma three years ago. The legal aid fixed-fee for this case would have been £234.
Social services refuse to pay for legal advice to make the application (at the legal aid rate) even though they know that it is in the best interests of the children, and far cheaper in the longer-term for the children, to be looked after by the mother.
The mother is also unlikely to be removed even though she will constantly live with the fear of it and has no means to support herself.”
There is nothing unusual about this case. Advice agencies up and down the country are seeing them all the time, yet there is nothing they can do to help unless they have access to charitable funds or other alternative sources of funding.
GMIAU say:
“The problems we have are the urgent and compelling cases that we see each day for which there is no longer public funding. We have had to try to find ways to secure the money from other sources or turn people away. This is not something we want to do and is very difficult and highly distressing for everyone involved. The imposition of unaffordable court fees has created further despair and unnecessary increased costs to other public services.
We now spend more time trying to apply for fee waivers for families who clearly haven’t got the means to pay the exorbitant fees that are being charged. If families can’t make the application to extend their existing leave to remain in the UK they lose their entitlement to work, to remain in the UK, and to access benefits and public funds. Cuts and reductions in the tribunal system mean that people are waiting even longer for their appeals to be heard which again means that the costs, such as those related to asylum support, or supporting children in need, are increasing. The Immigration Act 2014 with its policy of ‘deport first, appeal later’ has caused further hardship and reduced access to justice. The Immigration Bill 2015-16, which will extend this policy even when there are human rights claims, will further undermine the fundamental principles of access to justice.”
The Law Centres Network say:
“The removal of legal aid from most non-asylum immigration cases, coupled with ineffective regulation, have seen a veritable free-for-all of rogue immigration advisers providing shoddy services or part-services or defrauding people, putting their very status in the UK at risk (despite the best efforts of the regulator, the Immigration Services Commissioner).
Law Centres are seeing more such victims who come to us for help: in one case, an EU national had gone through four immigration advisers over three years, simply trying to settle his permanent residence, only finally succeeding in doing so when he came to one of our London Law Centres.”
And the Brighton Housing Trust told us:
“The biggest impact of LASPO on those seeking immigration/asylum advice is the loss of advice for some very vulnerable clients that do not meet the new criteria. These clients will have to fund their advice themselves which is not possible for many. This means that they have to represent themselves which is difficult in an extremely complex area of law that is constantly changing or they stay in the country without regularising their status. This in turns slows down the judicial process.
For those that do not address their immigration status some will be assisted by Local Authorities where they have children or are very vulnerable, for instance those with mental health issues which is a cost to the Local Authority. There is the human cost where no advice is available: the very vulnerable can be open to exploitation or remain separated from other family members even where some will be British citizens.”
What a catalogue of human misery…
Is this justice?
For my sixth story of injustice I am drawing on a theme which cropped up regularly in the evidence the Bach Commission received.
I refer to the injustices caused because the availability of legal aid for matters still in scope is still not readily understood, particularly by vulnerable people, such as children or the mentally ill.
In any event legal aid is not in scope for debt or difficulties over mortgage payments: only for possession proceedings (and even then not for advice on how to manage the debts that have caused the arrears).
A street homeless woman is able to go home
Ms Y had developed a mental illness. She became street homeless because she had not kept up her mortgage payments. She was brought to Harrow Law Centre by a community worker.
When the Local Authority refused the law centre’s request to house her they began judicial review proceedings. This led to her being placed in temporary accommodation.
They then made an application to the Court for the possession order to be overturned on the basis Ms Y was unrepresented in those proceedings and did not have the mental capacity to participate meaningfully in them.
The Court agreed and overturned the order. Ms Y was able to return to her home.
The Legal Aid Practitioners Group told the Bach Commission:
“There is a general public misconception that there is no legal aid scheme at all! It begs the question: how many people don’t even try to seek advice because they think there is no one to turn to?
It is difficult for people to work out if their problem is covered by the legal aid scheme.
Clients bounce around from agency to agency trying to get help and, given the many barriers, often just give up without getting advice. It can be extremely difficult for people to find someone who can take on their case for many reasons.
Even if a case is covered by the legal aid scheme it can be difficult for people to produce evidence of their financial position so that work can be started on the case.”
The Money Advice Trust told us:
“LASPO brought the removal of a wide range of debt related issues (including insolvency, loans, credit card debts, overdrafts, utility bills, court fines and hire purchase debts) from the scope of the legal aid scheme.
There seems to be a lack of knowledge of the residual availability of legal aid in debt cases which has been highlighted with the Ministry of Justice by the Justice Committee’s report.[3]”
Resolution said:
“Our members are aware of a lack of awareness about what help is available among non-legal professionals coming into contact with vulnerable women, including the police. A Resolution member recently became aware that one of their respected local organisations simply believed that legal aid was no more – in fact at least 15 vulnerable people they support currently need and are eligible for legal aid.
Lack of public awareness, combined with no awareness campaign, means almost a resignation that there is no legal aid.”
The Brighton Housing Trust said:
“Access to Justice is about all advice provision and ideally it would be better to provide effective, good quality housing, debt and benefit advice at an early stage in order to save people having to use the court and tribunal processes.
In our organisation’s experience with the Legal Aid Agency housing advice contract we cannot advise now until a notice has been served and at that point there are less chances that you can stop homelessness, especially within the private rented sector. We need to move the advice to be prevention of homelessness.
This would then save not just the court time and money, but the time and money of the landlord – both private and social – as well as the time and money of Local Housing Authorities where a homelessness application has to be made, and most importantly the time, money and stress that people incur through these processes.
This still requires specialist advisers and we should be under no illusion that volunteers are able to fill this advice gap.”
When a mentally ill woman is thrown onto the streets because she lacks awareness that legal aid might be available – and in any event it is only available to resolve one part of her problems – there is something seriously wrong.
Is this justice?
For the story I am drawing on a case study published last year by The Children’s Society in Cut Off from Justice: The impact of excluding migrant children from legal aid illustrates the points that were made to the Bach Commission by other witnesses who were concerned with the devastating impact the LASPO cuts have made to the lives of vulnerable children who do not know their rights and who now have no readily available source of legal advice to which they can turn.
Florence arrived in the UK as a very young child with her mother who left her in the care of a ‘friend’, living as an undocumented child for many years.
The woman she had been left with was disabled and Florence was responsible for her physical care and the housework. She was neglected, often went without food and at times was locked out of the house with nowhere else to go. An ‘uncle’ would regularly visit the house. He was a known criminal with a volatile personality and Florence would often witness physical arguments between the man and woman leaving her very ill as a result.
Florence sometimes went to school and her teachers, upon noticing her underweight and careworn appearance, made a referral to social services. Social services sat on the referral for a number of years, only occasionally visiting Florence and not doing anything about her undocumented status. The woman that Florence lived with was also undocumented and arranged with friends who did have status to pretend they were Florence’s carers.
Florence had to go to their house whenever social services visited and was forced to call them ‘mum’ and ‘dad’. When Florence was 16, she was made homeless, but with the support of a voluntary organisation, she was taken into care. During this time, Florence had assumed that her stay in the UK was not a problem. She did not know that she was undocumented.
Without access to legal aid she has been unable to regularise her status because she cannot afford to pay for legal help. So far the local authority has been unwilling to pay. If Florence cannot resolve her immigration issues before her 18th birthday she may be detained by immigration authorities. She could be made destitute or be forced to return to her country of origin which is a foreign place to her and somewhere where she has no support network or family to whom she can turn.
Commentary
The Children’s Society told the Bach Commission:
“While many lone children with immigration claims will already have a right to remain already and will need legal advice or representation to help them with indefinite leave and citizenship applications, other children – namely those who are undocumented – will need legal advice to regularise their status. There are an estimated 120,000 undocumented migrant children living in the UK, the majority of whom – 65,000 – were born here[4].
Our own research published in April 2016 estimates that there are approximately 144,000 undocumented children living in England and Wales, with most of these children being located in London and the West Midlands. Many of those who were not born here will have grown up here and spent their formative years in this country. However, their uncertain status means that they have not yet established a legal right to remain in the country, even though they may have legitimate reasons for needing to remain and their long term future may be in the UK.
As the Government has an agenda to create a ‘hostile environment’ for irregular or undocumented migrants by limiting access to services such as private rented accommodation, bank accounts and public funds on the basis of status, the immediate welfare needs as well as the life chances of undocumented children increasingly depend on their ability to regularise their status quickly. Without status, they are increasingly left at risk of destitution, exploitation and social exclusion.”
The Garden Court Chambers Immigration Team told us:
“Some parts of the public discourse support the notion that migrants should not have the benefits of our legal system – and this is no doubt why the many barriers to justice and the discriminatory treatments are being extended and enhanced. The architects of such restrictive models appear to have given no consideration to the unintended consequences –
the lost family life of British citizens – and the long term consequences for the children in stranded families;
the many lawful foreign residents who will via procedural errors or the denial of appeal and status rights become unlawful residents and thus criminally culpable carrying out their normal lives.
The laws and rules not only prescribe the criteria for entry and stay but they also set strict procedural requirements, requiring applicants to submit the correct application form, complete all the necessary components in the form, and provide prescribed evidence via prescribed documentation.
If applicants fail to comply with these procedural requirements, the application can be returned as invalid and the applicant in many cases will lose their legal status and with this their former rights to take employment, rent accommodation, drive their cars or have access to medical services. These are draconian provisions affecting not simply those long term overstayers or illegal entrants who have never held such rights, but lawful foreign residents who lose such rights via the vagaries of the application and appeal process.”
How can an undocumented child who was born here or lived here since she was a very young child establish her right to stay here without access to legal advice?
The Government has taken the provision of legal help on such issues out of the scope of the legal aid scheme.
Is this justice?
The Eighth Story
For my eighth story in this series I am drawing on a case study furnished to the Bach Commission by the Zacchaeus (Z2K) Trust (The Trust).
Delay after delay after delay…
A client applied in 2013 to be assessed for the new disability benefit, Personal Independence Payment (PIP).
It took the Department of Work and Pensions over a year to assess her so that the Trust intervened in a case that had been brought by two other claimants for judicial review of the Department’s assessment process. This was found to be unlawful but no compensation was awarded to the claimants because the High Court possessed no power to do so.[5]
In ruling that delays of 14 months and ten months were not merely unacceptable (as was conceded) but also unlawful the judge said:
“Both claimants’ cases called for expeditious consideration. They each suffered from significant disabilities (as set out above). They were each properly to be regarded as amongst the most vulnerable in society.
The first claimant was classified as a person requiring additional support early on in the process of her claim. Yet the system then in operation required her to travel some distance to a face to face assessment on two separate occasions when she had explained her difficulty in travelling. It took more than one year after she initially contacted DWP for sufficient details to be obtained over the telephone to enable her claim to be considered and determined.
For the second claimant similar considerations, although less extreme, applied from the moment of claim until the determination some ten months later.”
In that case the Trust had produced evidence of delays in processing PIP claims and the impact that this had had on individual claimants. It produced six case studies, in which the shortest time for determination was seven months and one claimant was still waiting for determination after 12 months. The court was told that it is the impact of the delay in processing the applications which has been devastating for some of the most vulnerable people in society. For all new claims those who are waiting have been without access to a needs based benefit for an extended period of time and, on some occasions, without any benefit at all. That impact is not resolved by backdating the award because the claimants had undergone mental, physical and financial hardship which cannot be adequately remedied by a financial payment.
One of the case studies shown to the court by the Trust involved LS, a single mother with three adult children (aged 18, 20 and 29 years), who was unable to work due to disability. She made her application for PIP in October 2013. No award was made until 31st October 2014. During the time of processing the PIP application, LS was subjected to the benefit cap and fell into rent arrears of between £7,000-8,000. She was repeatedly threatened with homelessness which caused her depression and anxiety. Her physical health suffered.
Her landlord refused to repair the property whilst she was in arrears and she was forced to use her employment & support allowance (ESA) to fix her kitchen ceiling which had fallen in due to damp. She went without food and electricity and borrowed regularly from friends to pay her utility bills making informal repayment agreements which she has found stressful. She remains in an anxious state and has developed paranoia at being threatened with homelessness again. She has become increasingly dependent on her children.
The Trust asked the Department for compensation and when they refused it lodged a complaint in January 2015. It then took over a year to exhaust the Department’s 2-stage complaints process.
In February 2016, as the rules require, the Trust applied for the refusal of the complaint to be reviewed, because this is a gatekeeping stage that now has to be gone through before an application to the Ombudsman. In June 2016 the Trust was told that it will be another nine months before that review will be completed.
That means the complaints process will have taken well over two years before the Trust can even apply to the Ombudsman to investigate the maladministration.
“This shows that the process is not intended to drive improvement.”
Commentary
The Zacchaeus Trust also told the Bach Commission:
“Our clients experience difficulty in understanding their rights which is why they cannot enforce them. We recently saw a client who had received a letter from the housing benefit department purporting to explain her entitlement which was 83 pages long. Even our trained advisers struggled to understand what was being said. We also regularly see clients who have received notification from the Department for Work & Pensions (DWP) or their local authority that their benefits have been withdrawn or suspended without any explanation. They find it too difficult to negotiate past the gatekeeping that these departments protect themselves with so they cannot redress the problem as they don’t know what it is.
Our clients also do not have computers and suffer from language or literacy or mental health or other disability difficulties. We struggle to find interpreters who can help those with language difficulties as we cannot afford to pay fees.
Those who wish to challenge health assessments made by DWP cannot obtain medical reports without paying a fee which they cannot afford.
The State should work with the advice sector on improved processes. At present most departments’ response to complaints about denial of rights is to point to a complaints procedure instead of thinking about getting it right first time.
And then it takes two years to navigate the complaints procedure before one can even apply to the Ombudsman.
Is this justice?
The Ninth Story
My ninth story of injustice relates to a problem that was frequently mentioned in the evidence furnished to the Bach Commission. It relates to the conduct of a small minority of the duty solicitors approved by the Legal Aid Agency for police station duty.
The loss of a taxi-driver’s licence
Bert had worked for 17 years as an honest, decent minicab-driver. He was then accused of taxi touting. The duty solicitor at the police station advised him to accept a caution for taxi touting so that he could get out of the police station quickly and avoid a criminal conviction.
As a consequence of the caution Bert automatically lost his cab licence because Transport for London (TFL) operates a zero tolerance policy, and one cannot go behind the caution.
He instructed counsel on his TFL licence appeal, who tried his best with the magistrates (on the basis that he had had a strong defence to the taxi touting charge) but it was hopeless. He was stuck with the consequences of the caution, on which he had received inadequate advice.
As a result of that one piece of inadequate advice, Bert lost his livelihood and a job he loved.
The experienced barrister who told us this story also said:
“I have dealt with clients given disastrous advice at police stations who then come and see me privately when it is often too late – the worst examples being the number of clients who have been told by a police rep (who has passed a few simple exams and is then able to advise vulnerable individuals in police stations which is terrifying) to accept cautions as it will then just ‘be over and done with’ without thinking of the other consequences of a criminal conviction and when in the circumstances it is patently not right to accept the caution.
Access to justice means access to a motivated, qualified professional and competent lawyer: not some unqualified non-solicitor rep cadging around £80 a hit (after the firm has taken their fee) for police station work.
I should say that I don’t blame the rep or the firm at all but the increasing lack of quality control and the terrible fees that mean this sort of incompetence / ‘get ‘em in; get ‘em out’ attitude becoming more frequent. It stems from a systemic lack of funding in the system.”
Readers of my blogs will recall that the existence of this problem also featured in the oral evidence given to us by the London Criminal Courts’ Solicitors’ Association:
“Criminal contracting came in just over 20 years ago. PACE introduced a solicitors’ advice scheme in police stations. Solicitors needed an incentive to go to the police station when they got a call from a custody sergeant. Nobody wanted to do it. It was not glamorous work.
Solicitors were then incentivised to do the work by relatively generous hourly rates, higher rates for evenings and weekends, and different rates for different types of offence. There was an enhanced rate for murder cases, for which a solicitor would be paid properly. This meant that quality representation was provided for those who were most at risk and in need of proper representation. People were being paid properly, and were enabled to take time for the task and ensure proper disclosure.
Things improved still further after the Cardiff Three case. Accreditation was introduced to prevent a re-occurrence of the problems in that case. Quality representation was always to be key.
The duty solicitor scheme was seen by some as a means to an end. Newly qualified young solicitors wanted to achieve duty solicitor status for their self-respect, if nothing else. They had autonomy over their cases and could decide how they were run, and they were not at the beck and call of supervisors.
Another problem arose from the deregulation of higher education and the opening up of colleges of law. Firms recruited graduates without training contracts. The firms were encouraged to maximise their income, and these graduates constituted police station fodder. They were given a certain amount of training in what to do.
From 2008 onwards there was an attempt to control the cost of police station payments by introducing a fixed fee scheme. This was not welcomed by the profession. Corner-cutting took place to minimise the time spent in the police station, so as to balance off the hours of dead time. The fixed fee constituted a reward for getting in and out of the police station quickly. When the police messed you about and forced you to wait several hours, you might be too far from your office to go back to it, and this constituted dead time. You might have to wait all night for an appropriate adult.
This swings and roundabouts system didn’t do justice any favours. In making savings in one place, they were running up costs elsewhere, as a National Audit Office report made clear. Mistakes were being made elsewhere as a result of cuts in justice.”
How can this be justice when the consequences of inadequate advice may be so devastating?
[1] Sir Henry Brooke had over 40 years’ experience as barrister, QC and senior judge before he retired as Vice-President of the Court of Appeal (Civil Division) in 2006. Since then, among other activities, he has been Chairman of the Civil Mediation Council and the Patron of the Public Law Project. He is Vice-Chair of Lord Bach’s Access to Justice Commission. He has had over 50 years’ experience of the operation of the legal aid system, and led for the Bar Council in its response to the Cabinet Office’s Scrutiny of Legal Aid in 1986.
[2] Rights of Women, Evidencing Domestic Violence Nearly 3 years on (Rights of Women, 2015
[3] Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (House of Commons Justice Committee, 2015).
[4] Sigona, N. and Hughes, V. (2012) ‘No way out, no way in. Irregular migrant children and families in the UK’ COMPAS Oxford University.
Henry Brooke 