This is the tenth in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.
I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.
1.EXTRACT FROM THE REPORT
Administrative burdens for the public
The burden of failing administrative systems do not only lie with the providers of legal aid. Clients, too, face significant challenges in navigating the bureaucratic hurdles to obtaining legal advice. In particular, the commission has heard extensive criticism of the current functioning of the mandatory civil legal aid gateway telephone service.
In order to obtain face-to-face advice on legal matters relating to special education needs, mortgage indebtedness, and discrimination, clients are prevented from going directly to a legal aid provider of their choice. Instead, they must first pass through the civil legal aid gateway telephone service, which is not staffed by legal experts. In addition to the removal of choice, there are doubts as to whether clients, especially disabled clients and children, are able to receive the specialist advice they need through this service.
The Deaf and Disabled People’s Organisation, for example, in its evidence to the commission, wrote that the gateway service
“raises significant hurdles for disabled people in accessing advice.”
This echoes the experience of Nicola Mackintosh QC (Hon), one of the members of the commission and a legal aid practitioner for over 25 years specialising in mental capacity. She told us that:
“[a telephone advice system] does not work for this particular client group where face to face advice is needed.”[1]
Similarly, Coram Children’s Centre, a charity that protects and promotes the work of children, including providing legal advice and representation, told us:
“There is a high risk of callers being diverted away from specialist legal advice because they are unable to fully explain the scope and nature of their problem.”
JustRights wrote in its evidence that
“awareness of the service is so low amongst both children and young people and the professionals who work with them as to render it invisible.”
The Housing Law Practitioners’ Association in its written evidence to the commission summarise the situation well:
“Vulnerable clients may struggle to articulate their issue meaning that the exact kind of client who is likely to require face-to-face advice, will be unable to obtain it.”[2]
Similarly, the Islington Law Centre wrote:
“We have spent many hours (funded under our local authority grant) attempting to ensure that someone with a discrimination case was able to get assistance, and she had to return to us frequently as the nature of her disability meant that she found it incredibly difficult to give informed instructions remotely. This has diverted money away from front line provision, has created duplication, and has been a major barrier to many people, without evidence that other equally high needs are being effectively met.”[3]
The result of this is a service that is inhibiting rather than enabling people in need to access legal aid. The Public Law Project has undertaken detailed work on the gateway and their findings suggest that the volume of advice being given out is 75 per cent less than expected, based on the figures of the Legal Aid Agency’s forerunner, the Legal Services Commission.[4] Additionally, in its evidence to the commission it wrote that:
“Service users experienced difficulty in navigating and proceeding beyond the operator service; that there was a very low level of awareness of the service amongst potential service users; and that significant numbers of matters results in ‘outcome not known or client ceased to give further instruction’, indicating that individuals were struggling to engage with it.” [5]
The commission recommends that the mandatory requirement for mortgage debt, special educational needs and discrimination law to be accessed via the civil legal aid gateway telephone service should be removed, and face-to-face help should be available for those who need it. Additionally, the service should be better resourced with legally trained staff.
2. APPENDIX FIVE TO THE REPORT
Chapter 6: The Legal Aid Gateway Telephone Service
Debt, discrimination and education law cases
The LASPO scheme introduced the Civil Legal Aid Gateway as the only way to obtain publicly funded advice and assistance for debt, discrimination and special educational needs matters. An individual seeking legal aid for such cases now must first telephone the Operator Service (manned by operatives who are not legally trained) who will determine whether the individual is financially eligible; whether their case is in scope; whether their case is within one of the Gateway categories; and whether their case meets the merits criteria for legal aid. If the Operator Service assesses the matter as meeting those requirements, they will refer the individual to a Specialist Telephone Advice Provider who can provide up to two hours’ remote advice. Claimants can only obtain face-to- face advice if the specialist provider considers that they cannot be advised over the telephone or by email.
The take-up of this service has diminished year by year, as the following tables demonstrate:
| Telephone Operator Service
Legal Help (Value £’000s) |
2013-14 | 2014-15 | 2015-16 | 2016-17 |
| 2,769 | 1,638 | 1,228 | 1,089 |
| Legal Aid Providers | 2013-14 | 2014-15 | 2015-16 | 2016-17 |
| Debt | 100 | 92 | 56 | 40 |
| Discrimination | 0 | 1 | 1 | 2 |
| Education | 29 | 23 | 14 | 13 |
| Legal Help Volume | 2013-14 | 2014-15 | 2015-16 | 2016-17 |
| Debt | 17,569 | 1,789 | 626 | 500 |
| Discrimination | 1,582 | 1,770 | 1,579 | 1,414 |
| Education | 1,116 | 764 | 979 | 1,037 |
| Legal Help Value (£’000s) | 2013-14 | 2014-15 | 2015-16 | 2016-17 |
| Debt | 4,040 | 427 | 126 | 75 |
| Discrimination | 302 | 542 | 546 | 352 |
| Education | 1,057 | 1,001 | 1,097 | 1,457 |
| Civil Representation Volume | 2013-14 | 2014-15 | 2015-16 | 2016-17 |
| Debt | 157 | 123 | 68 | 44 |
| Discrimination | 0 | 1 | 2 | 6 |
| Education | 95 | 67 | 40 | 28 |
| Civil Representation Value (£’000s) | 2013-14 | 2014-15 | 2015-16 | 2016-17 |
| Debt | 578 | 581 | 361 | 229 |
| Discrimination | 0 | 35 | 1 | 10 |
| Education | 461 | 340 | 143 | 155 |
The use of the telephone gateway in discrimination cases
The Coram Children’s Law Centre (CCLC) holds a specialist help education law contract with the LAA. CCLC told the Commission that there was very limited scope for face-to-face advice, even where this might appear necessary to the client and/or the provider:
The system is overly complex. The operator service helps callers determine if their query is in scope for legal advice. The operator does not … employ lawyers and we are concerned that there is a high risk of callers being diverted away from specialist legal advice because they are unable to fully explain the scope and nature of their problem.
The Deaf and Disabled People’s Organisation (DDPO) said that the arrangements under LASPO meant that disabled people had to use a telephone gateway to access advice on discrimination cases. This was operated by three providers (none of whom, as far as DDPO was aware, had any specialist expertise in bringing disability discrimination claims in relation to goods and services (for example access to shops, transport and so on)). It is only these providers that can then obtain a full legal aid certificate to enable a disabled person to bring a challenge in the courts.
It said that the gateway raises significant hurdles for disabled people in accessing advice in itself. In addition, the lack of expertise in the three providers and the very small number of legal aid certificates granted in recent years for any discrimination cases (fewer than five in any one year as they understand it) would suggest that it is now virtually impossible for disabled person to secure legal aid – or the necessary expert advice – to bring a private law disability discrimination challenge in the county court for a breach of the Equality Act 2010.:
None of the providers’ websites refer to their expertise in disability discrimination specifically, and the only discrimination work they appear to specialise in relates to employment or education cases. Disability discrimination arising from the provision of goods, services and transport is a particularly complex area and requires specialist representation; this is simply not available to disabled people under the current arrangements.
The Law Centres Network also observed that the number of new legal aid discrimination cases has declined sharply, due in part to telephone’s limitations as a delivery channel and the complexity of this developing area of law.
The Housing Law Practitioners’ Association (HLPA) said that if potential clients wanted to obtain advice on a mortgage arrears possession[6] or on discrimination, they must first contact a telephone advice service, and it is only if the advice service decides that it is necessary for the client to obtain face to face advice, they can authorize this. HLPA members are concerned that particularly vulnerable clients may struggle to articulate their issue, with the result that the kind of client who is likely to require face to face advice will be unable to obtain it.
This evidence was echoed by the Islington Law Centre who said that they once many hours (funded under their local authority grant) in trying to ensure that someone with a discrimination case was able to get assistance. She had to return to them frequently because the nature of her disability meant that she found it incredibly difficult to give informed instructions remotely. They say that this problem has diverted money away from front line provision, has created duplication, and has been a major barrier to many people, without any evidence that other equally high needs are being effectively met.
The use of the gateway in debt cases
JustRights, for its part, was strongly opposed to the telephone gateway. Not only did it introduce unnecessary steps and bureaucracy when children and young people were trying to access advice, but there was plentiful evidence that they are less likely than other age groups to access advice services via the telephone.[7] More fundamentally, they said, awareness of the service is so low amongst both children and young people and the professionals who work with them as to render it invisible.
The Children’s Society told the Commission that its work on the impact of problem debt showed that the strain of living in debt can be simply too much to bear.[8] It can not only mean that children miss out on the things their peers take for granted, but it can also cause problems in every area of a child’s life – arguments at home, isolation and being bullied at school, to name just a few.
It referred to the report of the House of Commons Justice Committee which had found that the Government’s failure to provide adequate public information on the Civil Legal Advice telephone gateway was one of the primary reasons why it was underused.[9] The Committee recommended that ‘the Ministry of Justice undertake an immediate campaign of public information on accessing the gateway for debt advice, as well as for the other areas of law it covers.[10] In its response[11] the Government said:
We continue to work with key partners to increase awareness of the gateway and promote the enhanced digital service;
As part of the Government’s commitment to ensure full accessibility, especially for vulnerable clients, the following standard adaptations and adjustments are available, delivered by fully trained Civil Legal Aid delivery partners:
A free telephone interpreter service for over 170 languages;
Minicom, text relay and British Sign Language delivered via webcam for deaf and defined users, allowing an authorised personal or professional representative to contact the service and communicate on behalf of the user;
A cheaper local 0345 telephone number for the service, together with calling the user back where the cost of the call may be an issue; and
Access to a free post system and provision of correspondence in accessible and alternative formats and method.
The Public Law Project’s Report
In March 2015, the Public Law Project (PLP) published a report of their research into the operation of the Gateway.[12] Their findings indicated a risk that, contrary to the stated policy intentions, the Gateway hindered access to justice for those who had to use it. They found that
There were significantly lower volumes of advice being given than had been anticipated, and an ongoing reduction in the volumes of advice being given;[13]
Service users had experienced difficulties in navigating and proceeding beyond the Operator Service;[14]
There was a very low level of awareness of the service amongst potential service users; and
Significant numbers of matters resulted in ‘outcome not known or client ceased to give instruction’,[15] indicating that individuals were struggling to engage with it.
The Public Law Project found that
“the number of debt matters started under the Gateway has been about 90% less than the Ministry of Justice should have expected on the basis of its initial calculations on the impact of the Gateway”
and
“[S]imilarly, the numbers of special educational needs and discrimination matters started have been at least 45% and 60% less, respectively, than figures provided in the Legal Services Commission tenders for Gateway services.”
Their findings also indicated that in some areas the Parliamentary and policy intentions in introducing the Gateway might in fact be being undermined, and that the system might not be achieving value for money (and could be more expensive than face-to-face advice) across its services.[16]
Whilst technology could and should play a role in the future of legal aid, they said that it was no substitute for face-to-face advice. Their research into the Gateway pointed to the risks posed by ‘one size fits all’ entry routes, particularly when they are manned with gate-keepers who are not legally trained. It had to be remembered that many of those who require legal aid are vulnerable individuals who may struggle to engage with technology and, vitally, will not always have a clear idea of why they need advice or be able to provide a coherent account of their experiences. A legal aid scheme must be designed to be accessible by such people if it was to be genuinely accessible to all.
In this context PLP reported that the Equality and Human Rights Commission had commented on the potential barriers presented by the gateway, particularly for disabled clients, including those with poorer mental health, or cognitive or learning impairments.
The mental health charity Mind referred to low levels of awareness of the gateway and issues with accessibility, and issues with accessibility were also raised by the National Deaf Children’s Society and Sheffield Citizens’ Advice Law Centre. Other witnesses were also very critical of the telephone gateway as a means for disabled people to obtain advice.
Nicola Mackintosh QC (Hon), a solicitor with vast experience of clients with every kind of disability, told the Commission:[17]
In the disability sphere – particularly in relation to mental incapacity – every single client whom I represent (and I am usually representing that person via the official solicitor as their litigation friend) has a different level of need, a different level of ability to communicate, and different methods of communication. For example, some of my clients are able to communicate verbally. All of them need face to face contact, and all of them need non-verbal communication skills and the potential for developing that kind of communication relationship. Some clients need interpreters, some clients need Makaton interpreters or British Sign Language interpreters and other disability interpreters.
What is absolutely crucial in mental capacity law is that the odd nuances in a person’s presentation are picked up by the legal advisors. This is why, whilst a telephone advice system will work very well as one of the tools for different areas of law or initial advice, it does not work for this particular client group where face to face advice is needed, because it’s also us assessing the client.
[1] See the evidence of Nicola Mackintosh QC (Hon) in appendix 4 at p. 36.
[2] See the evidence of the Housing Law Practitioners’ Association in appendix 2 at p. 15.
[3] See the evidence of the Islington Law Centre in appendix 2 at pp. 15-16.
[4] Public Law Project. (2015) Keys to the gateway: an independent review of the mandatory civil legal advice gateway, p. 45. Accessed September 2017: http://www.publiclawproject.org.uk/data/resources/199/Keys-to-the-Gateway-An-Independent-Review-of-the-Mandatory-CLA-Gateway.pdf
[5] See the evidence of the Public Law Project in appendix 2 at p. 16.
[6] Under LASPO this was re-categorised as a debt matter rather than housing.
[7] Youth Justice. J. Kenrick (2009) Young People’s Access to Advice – the evidence.
[8] The Children’s Society. (2014) The Debt Trap: Exposing the impact of problem debt on children. Accessed September 2017:
https://www.childrenssociety.org.uk/sites/default/files/debt_trap_report_may_2014.pdf
[9] Judith March, Director of the Personal Support Unit, a charity which has ten centres across the country supporting litigants in person at court, told the Committee: “Over the last week, I asked all our staff to tell me about the gateway. It is never mentioned; nobody who comes to us ever mentions it. That is quite an interesting bit of evidence in itself.”
[10] House of Commons Justice Committee. (2015) Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Accessed September 2017: https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/311.pdf
[11] The Government’s Response to Justice Committee’s Eighth Report of Session 2014-15, July 2015 Accessed September 2017.
[12] Public Law Project. (2015) Keys to the Gateway: An Independent Review of the Mandatory Civil Legal Advice Gateway. Accessed September 2017. http://www.publiclawproject.org.uk/data/resources/199/Keys-to-the-Gateway-An-Independent-Review-of-the-Mandatory-CLA-Gateway.pdf
[13] See fn 12 above; Chapter 6.
[14] See fn 12 above; see e.g. pg. 41.
[15] See fn 12 above; pg.4 and Chapter 7.
[16] See fn 12 above; pg. 4 and Chapter 8.
[17] She is herself a member of the commission.
Henry Brooke 