07 July 2017
The Law Society has released an analysis of the impact of legal aid cuts four years after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was passed in May 2012.
Access Denied? LASPO Four Years On argues that legal aid is no longer available for those who need it; those eligible for it find it hard to access it; wide gaps in the provision of legal aid have not been addressed; and the cuts to legal aid have “a wider and detrimental impact on the state and society”.
Below, we look at how the report relates specifically to workers’ rights and their enforcement.
Legal aid is no longer available for those who need it
The report points to two areas where the restrictions to legal aid have locked out people who need it: the introduction of a much more specific list of legal areas eligible for aid; and changes to the way means testing is carried out.
In LASPO Part 1, the list of eligible legal aid areas was cut so much that it excluded most of employment law, while the maximum gross income cap for eligibility has not been updated to take inflation into account since 2013.
“In legal areas that are now no longer in scope, people now have a stark choice: to pay for their own legal advice, represent themselves, or be excluded from the justice system altogether,” the Law Society said.
The means test has also changed so that it takes into account equity in a home; and so that only people with less than £8,000 in capital are eligible – half the threshold for receiving benefits, which is £16,000.
The report points out that this means a person could be living on welfare but unable to receive legal aid, and even a homeowner in negative equity can be ineligible.
Even those who are eligible for legal aid may be prevented from accessing it if they live in one of the areas the Law Society has labelled a ‘legal desert’ – “an area where advice is not available through legal aid or where there is only one provider locally”.
The report referenced official statistics from the National Audit Office, which revealed 14 local authorities in 2013- 14 in which no legal aid funded work was begun, and a further 39 that started fewer than 49 cases per 100,000 people.
If there is only one provider locally, it may be prohibitively expensive for low-income clients to travel to them, and they may not have capacity to provide aid to everyone who needs it. What’s more, if the one provider should cease their service, people in the local area may be left without the opportunity to seek legal aid at all – an eventuality made all the more likely by the fact that the fees paid to providers have been dramatically cut. Not only have they not been updated to take into account inflation since 1998-99 – a 34% shortfall in real terms – but the Ministry of Justice further slashed payments by 10% without properly assessing the impact of doing so.
The government does provide a Mandatory Telephone Gateway, which must be accessed initially by those seeking legal aid for discrimination cases. An adviser assesses the case for financial eligibility and conducts an initial assessment, after which the client can be referred to a specialist provider if deemed appropriate.
However, the Law Society describes the telephone service as “underused” and warned that the number of callers to the Gateway has declined since LASPO was enacted, with the Public Law Project reporting a 58% fall in discrimination calls. What’s more, only 0.2% of discrimination clients are referred to for face-to-face advice.
Among the reasons for the low volume of callers, according to the Law Society, are low awareness of the service, and exclusion of people for whom the Gateway is not appropriate, such as people who have poor English language skills or some physical or psychological health problems.
Human right to access to justice not being met
Exceptional Case Funding (ECF) should be made available to people who are not eligible for legal aid but who would be barred from access to justice without some form of financial support, but the Law Society warn that “there is strong evidence that the ECF scheme is not fulfilling this requirement”.
Applications for ECF are much lower than predicted and only half of those who apply are granted legal aid, much lower than in previous years. The Law Society pointed out that ECF applications are difficult and time consuming and are very unlikely to be successful if someone without legal knowledge submits one alone, yet because solicitors’ time filling out the application is only funded if successful, it can be difficult for claimants to access assistance.