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The Westminster Commission Inquiry into the Sustainability of Legal Aid_ 3rd Session: Civil Legal Aid - Shared screen with speaker view
Chris Minnoch
Good morning all. This is the 3rd oral evidence session of the APPG on Legal Aid’s Westminster Commission on the Sustainability of Legal Aid. The next three sessions that make up the remainder of the Inquiry are:• The Publicly Funded Bar – 28 Jan 2021 https://www.eventbrite.co.uk/e/the-westminster-commission-on-legal-aid-the-publicly-funded-bar-tickets-128605653973• Access to Justice - 25 Feb 2021 https://www.eventbrite.co.uk/e/the-westminster-commission-on-legal-aid-access-to-justice-session-tickets-128607284851• Experiences of Junior Lawyers: Diversity, Inclusivity & Routes into the Profession - 25 Mar 2021 https://www.eventbrite.co.uk/e/the-westminster-commission-on-legal-aid-experiences-of-junior-lawyers-tickets-128607617847Look out also for our legal aid workforce survey in early 2021. Further details will be announced by Ro Teather, Head of Parliamentary Affairs at LAPG, during today’s session.
Chris Minnoch
Hello everyone, when you add comments and thoughts to the chat, can you please use the 'To: All panelists and attendees' option from the drop down so that everyone can see. Thanks!
Ramola Naidoo
In 1982, Sir Prof William Wade QC wrote in the Preface of his seminal work: “Lord Diplock recently described the progress of administrative law as ‘the greatest achievement of the English courts in my judicial lifetime.”
Ramola Naidoo
Wade, HWR, Administrative Law, p.5 (5th edn): “The primary purpose fo administrative law, therefore, is to keep the powers of the government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok. ‘Abuse’, it should be made clear, carries no necessary innuendo of malice or bad faith. Government departments may misunderstand their legal position as easily as may other people, and the law which they have to administer is frequently complex and uncertain. Abuse is therefore inevitable, and it is all the more necessary that the law should provide means to check it.”
Michael Lewkowicz
Michael Lewkowicz - Director of Communications at charity Families Need FathersWe are deeply concerned about a number of issues relating to legal aid.Post LASPO mediation in family disputes has collapsed. Meanwhile, mediation is available via HMCTS in relation to private financial disputes up to £10k, but bizarrely in our view, it is means tested for disputes in relation to children that affect their welfare. Do the panel agree with us that priorities here are wrong and need to be reviewed?
Michael Lewkowicz
Approximately 50% of abusive relationships involve reciprocal abuse, however, only one side is given legal aid. In many cases findings of abuse need to be made first based on evidence. That does not happen currently.
Michael Lewkowicz
From charity Families Need Fathers -The use of alleged domestic abuse as a basis for access to legal aid for private family disputes has resulted in a huge increase in allegations. Legal aid is now granted in such cases in over £12.5k of cases a year - it was approx 3k cases in 2013/14.Clearly there are those who need protection, however, this growth, in our experience, means that the vast majority of complainants who qualify on the basis of income also qualify on the basis of alleged domestic abuse. It creates an inequality of arms and leaves innocent people highly vulnerable and unsupported - indeed many are the true victims in these situations. Such legal aid is only granted to the complainant and not the alleged perpetrator. Surely, this cannot be right and both sides should be funded. Also, when such legal aid is offered, it currently continues even when a court has determined that the allegation was unfounded.
Jo Wilding
Karen and Bob, we have a survey open at the moment on the impact of all of this on MPs and constituents seeking immigration advice. It’s specific to immigration advice in London, and we would really like more responses from London MPs - https://www.smartsurvey.co.uk/s/4M0W7J/ The research is informing the funding strategy of the Justice Together Initiative, which is a collaboration of major funders aiming to increase the availability of immigration legal advice, both in London and throughout the UK. Please complete it if you can and encourage London colleagues to do the same.
Stephen Davies
I agree with KT MP - We need an independent pay review board. I know these are not legal aid cases, but it’s clear the hourly rate guidelines are not fit for purpose.Ohpen Operations UK Ltd [2019]The guideline rates are significantly lower than the current hourly rates in many London City solicitors, as used by both parties in this case. Further, updated guidelines would be very welcome. – Mrs Justice O’FarrellCohen [2020]Likewise, the Table of Counsel's Fees bears no relationship to the fees which the courts see being charged form counsel appearing in the Business & Property Courts. In my judgment, pending the outcome of the present review, the Guideline Hourly Rates should be the subject of, at least, an increase that takes due account of inflation – HHJ Hodge QC
thank you Sadia Nakinmera for sharing this .
Chris Minnoch
As Nicola says, a real dearth of community care providers across England and Wales now - just 86 firms/orgs with 133 offices as at October 2020. in 2010 8,569 comm care legal help cases were opened. In 2019 that had dropped to 2,032. That is a huge reduction demonstrating massive unmet need.
Emma Trevett
I agree. As a young community care solicitor it is really concerning that the new SQE (super exam) reforms have removed all traditional 'legal aid' subjects from the syllabus (aside from crime).
Lily Lewis
Similar at the Bar re incentives/opportunities to practice in publicly funded areas. Nothing really on main syllabus of BPTC in legal aid subjects (other than crime) and only a few courses (mainly in London) offering optional modules touching on those areas
Chris Minnoch
Total number of civil providers in 2010: 3263. Total as of October 2020: 1983... Education providers: 8. Discrimination providers: 16. Welfare benefits: 41. Mediation: 97. Claims against public authorities: 73. Mental health: 145. Public law: 99. Immigration & asylum: 184. The system simply doesn't support a sustainable provider base.
Michael Lewkowicz
On the broad issue of means testing for legal aid, a member of ours sent the following questions: Why has the gross income test of £2,657 and disposable income test of £733 remain fixed since 2009 and not risen with RPI?Why is the saving limit set at £8,000 yet other state benefits like housing benefit the limit is set at £16,000?Why housing equity limit set at £100,000 and risen with house price inflation?We appreciate that this panel do not have all the answers and many of you would probably be sympathetic to the points raised.
Stephen Davies
James - you ask about how many millions we need injected into the system. Perhaps that isn’t the question. Why not just increase the rates and make them sustainable?
Chris Minnoch
On the means test, it is a huge issue which locks so many of those in need of advice out of the system, and they clearly cannot afford to pay privately for legal assistance. The MOJ means test review is looking at all of the issues raised by Michael and we should see a public consultation on that next spring. We are lobbying hard for the very reasons Michael identified.
Michael Lewkowicz
Should we not have an Early Intervention Pathway that focuses on parental education and out-of-court resolution of family disputes before commencement of court proceedings? See the outline of our proposal towards the end of this presentation: https://fnf.org.uk/component/phocadownload/file/281-fnf-presentation-a-strategy-for-separated-families
Jo Wilding
Further to Chris M’s point about the small number of community care providers, that’s a fall from 152 offices given contracts in September 2018 - but 53 of those didn’t open any legal aid matter starts at all in the first year of those contracts. Some may have done certificated work, but that still suggests some of those who got contracts ended up finding it not viable to do the work.
Michael Lewkowicz
Chris - thank you for your response. Good to see that there is a specific plan to consider the issue of access to justice.
Jo Wilding
Also several procurement areas with very few providers - only 3 in Merseyside in Sept 2018 and 4 for the South East outside London. The North East also had four, and there were only 5 in the whole of Wales.
Chris Minnoch
Couldn't agree more Jo Wilding. And this issue of 'dormant contracts', which does indicate that providers cannot make the work viable, is also a very great concern in other areas like housing.
Jo Wilding
Exactly Chris, and in immigration too, and to some extent in family. Meanwhile in debt and welfare benefits, almost all contracts for face to face advice are effectively dormant, which raises concerns about deskilling, practitioner viability and wasted transaction costs in getting people to bid for and manage contracts that they will likely never be allowed to do any work on.
Mark Shepherd
In immigration and asylum there is a total of one qualified legal aid caseworker for the whole of the southwest of England, We advertised last year and had no qualified candiates.
Chris Minnoch
For more on Inquest's outstanding work on legal aid, see here: https://www.inquest.org.uk/now-or-never-legal-aid-for-inquests