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SOLICITORS JOURNAL

Unequal before the law?The future of legal aid

Edited by Jon Robins

Justice Gap series

The Justice Gap refers to the increasing section of the public too poor to afforda lawyer and not poor enough to qualify for legal aid. At the heart of any

notion of a decent society is not only that we have rights and protections underthe law but that we can enforce those rights and rely upon those protections ifneeded.

To that end, the Attlee government introduced our system of legal aid in 1949as a fundamental building block of the welfare state. The architects of that welfarestate decreed that legal aid shouldn’t be restricted to those people ‘normallyclassed as poor’ but should also include those of ‘small or moderate means’.

Something has gone wrong. That scheme is in danger of being reduced to aminority sink service. Eligibility for legal aid dropped from 80 per cent of thepopulation in Attlee’s day to less than one in three of us.

This publication is part of a series co produced by Jures and Solicitors Journalabout closing the justice gap.

Michael Mansfield QC


R.R.P: £9.99ISBN : 978-1-85783-172-62011 © Solicitors Journal and contributors. All rights reserved.No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying,recording, or otherwise, without the prior written permission of the publishers.

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thought-provoking commentary on the law in a way that informs and influences debate within theprofession and beyond. Jures brings law and research together.

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Unequal before the law? The future of legal aid 1www.solicitorsjournal.com

contents

1. Foreword 3

2. Introduction 5

3. Executive summary 6

4. The commission 7

5. Legal aid: 1949 – 2011 9

6. The case for legal aid: individual testimonies 15

7. The case for legal aid: the rule of law 47

8. The case against legal aid: the arguments for changing the current system 51

9. Findings of the panel 55

Appendix 1: overview of the 2010 green paper 65

Appendix 2: who would get legal aid if the proposals in the green paper are implemented? 67

Appendix 3: letter from Jonathan Djanogly 70

Appendix 4: acknowledgments 72

! Group editor Jean-Yves Gilg

! Series editor Jon Robins

! Editorial assistantJoanna Kelly

! Design editorAndrew Wood

! Group sales managerChris Handley

! PublisherPaula McQuillan

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Contents

Photos of the panel debate on legal aid by Young Legal AidLawyers and Haldane Society used by kind permission of

Ripon Ray. Contact: [email protected]

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Linda Lee



foreword

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d1. Foreword

What would happen if threedisinterested people looked intothe question of why we have legal

aid and what would be the effect of reducingfunding?

The Commission of Inquiry comprising Dr Evan Harris, Diana Holland and theReverend Professor Nicholas Sagovsky haveno vested interest in the issue. They havetaken a dispassionate look at the facts andreported on their findings. They haveconsidered the value of legal aid both to theindividuals receiving assistance and to societyas a whole.

The testimony the commission heard fromindividual clients was very powerful.

But powerful and moving as individualcases are, of even greater importance is thecommission’s recognition of how failure todeal with individual cases could impact onsociety as a whole. Legal aid is a vital part ofensuring that everyone is equal under the law.Government and others including some whoare rich and powerful such as landlords,spouses, employers, and pharmaceuticalcompanies, ignore or are ignorant of theprotections that should be offered toindividuals. Without legal aid these wrongscould not be corrected. If parliament’s law

cannot be enforced, the rule of law ismeaningless. The commission also foundthat legal aid prevents unnecessary publicexpenditure by tackling problems early thussaving greater expense for other governmentagencies.

The Law Society has expressed graveconcern about the impact of the proposedlegal aid cuts on the types of cases examinedby the commission which is why we launchedthe Sound Off For Justice campaign(http://soundoffforjustice.org).

Although some may accuse the society oflooking out for solicitors, the commission hasno interest whatsoever in protecting lawyersand their incomes. They have expressedmany of the same concerns that we have,sometimes in even stronger language. Themore that people look at this subjectdispassionately and objectively, the greaterthe understanding of what these cuts wouldmean, for the clients affected, for the publicpurse, and for society as a whole.

We commend this report as a valuableaddition to the debate.

Linda LeePresident of the Law Society of England and Wales

Protecting individuals for the benefit of society as a whole


4 Unequal before the law? The future of legal aid www.solicitorsjournal.com

introduction


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introduction

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2. Introduction

‘A ccess to justice’ is not just aboutaccess to the courts or litigation. Itis a much broader concept. It

encompasses a recognition that everyone isentitled to the protection of the law and thatrights are meaningless unless they can beenforced. It is about protecting ordinary andvulnerable people and solving theirproblems. Yet the law is complex such thatmost ordinary people with small or evenmoderate means cannot access the lawwithout help.

Earlier this year MPs were given a series of powerful, sometimes uncomfortable,reminders as to the important role of legal aidin protecting access to justice in our society.The event took place in the House ofCommons on 2 February 2011. It wasorganised by the Haldane Society of SocialistLawyers and the Young Legal Aid Lawyers.The Commission of Inquiry into Legal Aidwas a unique event. The exclusive focus wasabout examining what kind of safety net oursystem of publicly funded law provides forordinary people, sometimes poor andvulnerable, who rely upon it.

A series of ordinary people who have used legal aid gave testimony before adistinguished panel of non-lawyers in a crowded committee room 10. The former

Liberal Democrat MP Evan Harris, the canonof Westminster Abbey, the Reverend NicholasSagovsky and Diana Holland, assistantgeneral secretary of the trade union Unite,weighed up evidence they heard at thesession as well as written submissions fromthe recipients of legal aid and experts.

Unequal before the law publishes the findingsof the three panellists, non-partisan andindependent-minded experts who all have along track record of promoting social justicein their communities. By their own account,they are relative strangers to the specifics oflegal aid. For this reason, their balancedconsideration of all the evidence both ‘for’and ‘against’ reducing legal aid and their keyfindings serve as a critical warning as to theimportance of legal aid at a time when it isunder threat.

This is the third publication, edited by JonRobins, produced by Jures (www.jures.co.uk)and published by Solicitors Journal in theJustice Gap series which aims to shine light ondifferent aspects of access to justice. The‘Justice Gap’ refers to the increasing section of the public too poor to afford a lawyer and notpoor enough to qualify for publicly fundedlegal help.




executive summary

3. Executive summary

The Commission ofInquiry was convenedto investigate the role

and importance of legal aidto our society, consideringboth the cases for and againstreducing legal aid.

The commission comprisedthree eminent non-lawyers:Dr Evan Harris, Diana Hol-land and Canon NicholasSagovsky. For more informa-tion about the commission,see Chapter 4.

The commission first con-sidered the workings of thecurrent legal aid system, itshistory and development and its cost. This information is set out in Chapter 5.

The commission considered both oraland written evidence on the importance of legal aid from individuals who havebenefited from publicly funded legalwork. This testimony is set out inChapter 6. The commission alsoconsidered a number of reports anddocuments as to the importance of legalaid in upholding the rule of law. Thisevidence is summarised in Chapter 7.The sum total of this evidence comprisedthe case for legal aid.

The commission also considered thearguments for reducing legal aidcontained in the government’s 2010green paper on legal aid together withreports from Policy Exchange, the AdamSmith Institute and the Society of

Conservative Lawyers. This evidence isset out in Chapter 8. It comprises thecase against legal aid.

Having considered the evidence thecommission makes the followingfindings, which are set out in more detailat Chapter 9:

1. legal aid is vital to protecting the rights of vulnerable people;

2. legal aid is vital to upholding the rule of law;

3. legal aid is essential to holding thestate to account;

4. cutting legal aid is a false economy;5. a holistic approach is needed in

providing legal aid;6. cuts to legal aid will drive out

committed lawyers;7. cutting legal aid is not a fair or

effective way to reduce unnecessarylitigation.

Panel members: Michael Mansfield QC, Reverend Professor Nicholas Sagovsky, Diana Holland

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the commission

4. The commission

The Commission of Inquiry into LegalAid was organised jointly by theHaldane Society of Socialist Lawyers

and Young Legal Aid Lawyers (YLAL). We were asked by the two organisations to report on the legal aid scheme overall andthe extent to which it is important to ‘accessto justice’.

The commission was prompted by thepublication of a Ministry of Justice greenpaper, Proposals for the Reform of Legal Aid inEngland and Wales, issued in November 2010.The paper proposed sweeping cuts to legalaid (summarised at Appendix 1). However,the commission’s remit was broader than thescope of the green paper itself.

The commission consisted of threeindependent members: Dr Evan Harris,Diana Holland (assistant general secretary ofUnite) and Canon Nicholas Sagovsky. Thepanel, for whom legal aid was a relativelynovel area, carried out its work unpaid andcame to task with open minds, determined tohear both sides of the arguments for andagainst reducing legal aid.

Dr Evan Harris: formerly the LiberalDemocrat MP for Oxford West andAbingdon between 1997 and 2010, andspokesman on human rights and equalityfrom 2003-2010. He served on the JointCommittee for Human Rights between 2005and 2010. He is a leading advocate offreedom of expression, a trustee of article 19and co-founded the Libel Reform Campaignin 2009. He was an officer of the All-PartyGroup on Refugees and is a member of theBMA Medical Ethics Committee. He is

currently the director of the Centre forEvidence-based Policy and is a vice-chair of the Liberal Democrat Federal PolicyCommittee. He writes a blog for The Guardianon science and civil liberties.

Diana Holland: assistant generalsecretary (equalities and organising) of Unitethe Union. She leads on the women, race andequalities agenda. She has many years’experience negotiating on equal pay, familypolicy, union equality representation andharassment with a range of employers. She isa long-standing campaigner on poverty,violence against women, migrant domesticworkers and the under-representation ofwomen, black, Asian and ethnic minority,disabled, young and LBGT workers. She is aformer president of the Confederation ofShipbuilding and Engineering Unions. She isa member of the TUC Women’s Committee,Equality Act Senior Stakeholder Group, thechair of Global TUC Women’s Committeeand of International Transport FederationWomen Transport Workers. She is nationalLabour party treasurer and has givenevidence to select committees. She waspreviously a member of the Equality andHuman Rights Commission Equal PayGroup, the Equal Opportunities Flexible andPart-time Working Inquiry and the Minister’sDisability Advisory Committee.

The Reverend Professor NicholasSagovsky: until recently sub-dean atWestminster Abbey. He has contributed todebate on key social justice issues such asbenefit levels, debt, the community charge,

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the financial crisis and asylum. Aftergraduating from Oxford he worked at theMayflower Centre, Canning Town, and as a teacher at Scott Lidgett ComprehensiveSchool in Bermondsey. Then, afterordination, he was a curate in Newcastle-upon-Tyne before moving to Cambridge forgraduate studies. He was appointed viceprincipal at Edinburgh Theological College,and later dean of Clare College, Cambridge.More recently, he was William Leechprofessor in applied christian theology atNewcastle University and then professor oftheology and public life at Liverpool HopeUniversity. Nicholas was a commissioner onthe Independent Asylum Commission,which comprehensively reviewed the UKasylum system. His most recent book isentitled Christian Tradition and the Practice of Justice.

The panel was assisted by MichaelMansfield QC, who acted as counsel to the inquiry.

With the assistance of law centres andsolicitors’ firms (see Appendix 4), Haldaneand YLAL obtained testimony for thecommission to consider from a large numberof individuals who had benefited from legalaid. Most of the testimony was provided inwriting and is reproduced here at Chapterfour.

The central feature of the commission’sinquiry was an event in parliament on 2 February 2011 where the commissionreceived oral evidence. The event was open to the public and was well-attended.The commission heard evidence from Mrs Whitehouse, EP, Steven, Subera and ZoeKealey. Two participants, Stella and SH, had recorded videoed testimony. Thecommission also heard from Kathy Meade,housing and community care solicitor at

Tower Hamlets Law Centre, and from theChild Poverty Action Group, Bail forImmigration Detainees, the PCS Union,Liberty, the Howard League for PenalReform and the Young Legal Aid Lawyers.

The commission made a point ofcontacting organisations which hadexpressed or, in their view might express,support for the principle of cuts to the legalaid system: the Adam Smith Institute, thePolicy Exchange, the Taxpayers’ Alliance andthe Society of Conservative Lawyers. Theywere invited to attend a further oral evidencesession or to make submissions in writing.The Adam Smith Institute and the Taxpayers’Alliance did not respond.

The Society of Conservative Lawyers toldus that they had no ‘party line’ on theavailability of legal aid and gave us a copy ofits pamphlet Access to Justice which containsessays by individuals on the funding oflitigation. The Policy Exchange agreed torespond in writing to questions.

In producing this report the commissionhas considered all of the evidence andtestimony set out above as well as variousresponses to the green paper and othercontemporary and historical documents onthe legal aid system.


the commission

Dr Evan Harris

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Legal aid, often described as the fourthpillar of the welfare state, needs to beunderstood in context, including its

origins, its development over the years, itscost and recent proposals for change.

Some history The modern system of legal aid was createdby the Legal Advice and Assistance Act 1949 1. The Act was part of sweeping socialreforms introduced by Attlee’s post-warLabour government.

Before the Act legal aid consisted of limitedassistance for impoverished defendants incriminal cases as required by the PoorPrisoners’ Defence Acts of 1903 and 1930. Inaddition, the Criminal Appeal Act ensuredlegal aid was available for appeals against aconviction for murder; death by hangingbeing the mandatory penalty for thoseunsuccessful in their appeals. The system wasfar from comprehensive – in 1938 of the 19,079people sent to prison by the police courts only327 had been granted legal aid.

Legal advice for poorer litigants in civilcases, on the other hand, relied heavily on thegood will of lawyers prepared to work forfree. In the period between the first andsecond world wars, it became increasinglyclear that this was not sufficient. Socialupheaval and changes to the law meantdemand for divorce was increasing.

It was against this backdrop that the 1949Act was drafted. The Act represented the firstcoherent attempt to provide a comprehensivesystem of state-funded legal aid. The idea wasto allow for litigants of modest means to be assigned a lawyer to advise them and, if

necessary, to represent them in court. The Actwas a direct result of the recommendations ofthe Rushcliffe committee, who reported toparliament in May 1945. Lord Rushcliffeenvisioned a scheme where barristers andsolicitors in private practice would be paid by the state to provide legal advice. His reportmade a number of very simple yet highlyprincipled recommendations which went on tounderpin the new scheme. These includedthat:! Legal aid should be available in all courts

and in such manner as will enablepersons in need to have access to the professional help they require.

! Legal aid should not be limited to thosewho are “normally classed as poor” butshould include “those of small ormoderate means”.

! Those who cannot afford to pay anythingfor legal aid should receive this free ofcost.

! There should be a scale of contributionsfor those who can pay something towardcosts.

! Cases should be subject to a merits test as well as a means test.

! The cost of the scheme should be borneby the state, but the scheme should notbe administered either as a departmentof state or by local authorities.

! The legal profession should beresponsible for the administration of the scheme.

! Barristers and solicitors should receiveadequate remuneration for their services.

Although often described as the fourth pillarof the welfare state, legal aid has traditionally


legal aid: 1949 − 2011

5. Legal aid: 1949 – 2011

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been provided by private law firms.Initially legal aid was predominantly used

in criminal and divorce cases. But in thedecades that followed the inception of thescheme, cultural, social and legal changesmeant legal aid began to be used for otherareas. There was an increased emphasis onareas of law such as housing, welfare rights,immigration law and employment. Suchchanges went hand in hand with theestablishment of the first law centres in the1970s; a movement that sprang from a beliefthat ”the legal aid scheme had failed toaddress the legal needs of the poor anddisadvantaged”.2

Until 1988 the legal aid scheme wasadministered by the Law Society. Questionsarose about conflicts of interest as the bodyadministering legal aid funds was also thebody representing the lawyers who were paidout of the fund. To remedy this, theadministration of the scheme was transferredto the newly created Legal Aid Board.

By the mid-1990s fears arose that thescheme was not being directed at the rightcases. A large proportion of the non-familylegal aid was spent on personal injury casesand there was less emphasis on social welfare.Simultaneously, the cost of legal aid wasoutstripping inflation. It was in order toremedy such problems that the Access to Justice Act 1999 was introduced, fundam-entally changing the legal aid scheme.

Legal aid todayThe Access to Justice Act 1999 created theLegal Services Commission, the body whichis today charged with the administration ofthe legal aid scheme replacing the old LegalAid Board.3 The scheme is split in two withthe Criminal Defence Service administeringcriminal legal aid and the Community Legal

Service running civil legal aid. All legal aid isnow subject to both a means test and a meritstest to ensure that public money is notgranted to those who can afford to pay or forcases that are either bound to fail orinconsequential.

Criminal legal aid Broadly speaking, criminal legal aid pays for advice and assistance from a solicitor for anyone being questioned by the police in connection with a suspected criminaloffence, advice and assistance in connectionwith any criminal matter (for example,preparing a case for court) and represent-ation in court by a barrister or solicitor.

Currently, advice in the police station is freeto any person being questioned in connectionwith a criminal offence irrespective of theirmeans. Outside these circumstances anyonewanting to apply for criminal legal aid issubject to a means test, except recipients ofJob Seekers Allowance or EmploymentSupport Allowance. Different means testingis used depending on whether a person is inthe magistrates’ or Crown Court. However,the threshold is set relatively low with anyoneearning just over annual minimum wagebeing subject to a means test .

Criminal legal aid is also subject to an‘interests of justice’ test. This test considers,for example, whether a person facesimprisonment or whether they face losingtheir livelihood. In the Crown Court, wherethe defendant may often face a more severepenalty than in the magistrates’ court, the interests of justice is automatically met. Means testing in the magistrates’ court combined with the interests of justicetest results in around one third of alldefendants being granted legal aid (greenpaper 3.39).


legal aid: 1949 − 2011


Civil legal aidCivil legal aid is available to pay for adviceand assistance on a wide range of issues currently including family disputes (forexample, divorce and child contact proceed-ings), debt, education, immigration, employ-ment, housing, mental health, communitycare, welfare benefits and asylum. Civil legalaid sometimes extends to representation incourt by a barrister or solicitor, though thisdepends on the specific area of law involved.Civil legal aid can take the form of initialadvice and assistance (‘legal help’) and fullpublic funding to cover representation incourt proceedings.

Before full public funding can be granted toan individual, there is a rigorous merits testthat must be met so as to ensure that what aredeemed to be unworthy legal cases are notfunded by legal aid. There is some variation inthe merits test depending on the specific areaof law and whether or not it is representationor just advice which is needed. However, inmost instances the following broad principlesapply: ! Legal aid will only be provided where

there is ‘sufficient benefit’ to the client tojustify work being carried out.

! Legal aid will only be provided if it isreasonable for the matter to be publiclyfunded having regard to any otherpotential sources of funding such as a conditional fee agreement, insurance orother persons or bodies who can reason-ably be expected to bring or fund thecase.

! Legal aid may be refused if there arecomplaint systems, ombudsman schemesor forms of alternative dispute resolutionwhich should be tried before litigation ispursued.

! Legal aid for full representation will

be refused if the prospects of success are unclear or poor.

! If the claim is primarily a claim fordamages, legal aid for full representationwill be refused unless the prospects ofsuccess are more than 50 per cent.

! If the claim is not primarily a claim for damages, legal aid for full represen-tation will be refused unless “areasonable private paying client wouldbe prepared to litigate”.

Civil legal aid is not available for businessesand does not fund personal injury cases,boundary disputes, company or trust law.Civil legal aid is also not available to fundrepresentation before most tribunals (themental health and immigration tribunalsbeing the main exceptions). However, fortribunals, such as those coveringemployment and welfare benefits, legal aidcan provide initial advice to the client, but thefunding stops at the court door. Someindividuals are able to obtain pro bonorepresentation at these tribunals. Despite thelack of funding for a lawyer to represent aclient at a tribunal hearing, many people areable to benefit from advice and assistance toprepare their cases.

Civil legal aid can, in certain circumstancessuch as divorce cases, take the form of a loan.In divorce cases the loan is often secured onthe home. The ‘statutory charge’ applieswhere an individual has recovered orpreserved money as a result of havingreceived legal aid to be represented at court.The statutory charge means that the LegalServices Commission is entitled to receive anycosts that it has paid out in legal aid from themoney recovered.

Civil legal aid has increasingly become the preserve of the poorest in society.


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According to Ministry of Justice figures, 80 per cent of those receiving legal help and around 90 per cent of those receivinglegal representation were in the poorest 20 per cent. When the civil legal aid schemewas set up in 1950 it provided 80 per cent ofthe population with a means-testedentitlement to legal aid. By 2009 this hadfallen to 36 per cent of the population.4

How much does the governmentspend on legal aid?In 2008-09, according to the Ministry ofJustice, the total spend on legal aid was£2.1bn.5 Of this £1.182bn was spent oncriminal legal aid and £0.917bn on civil legalaid. This breaks down as 1.6m and 1.3mindividual acts of assistance for criminal andcivil issues respectively. Most criminal legalaid advice is given in police stations andmagistrates’ courts, but more money is spenton assistance at the Crown Court.

Since 2003-04 criminal legal aid spend has decreased by 12 per cent in real terms,and civil legal aid expenditure has decreasedby 15 per cent. Despite this the number ofcases has actually risen during this period.The National Audit Office (NAO) credit therise in the need for civil legal aid as being adirect response to the economic climate.

The state of the market The legal aid budget is a politically chargedissue. Government announcements concern-ing cuts are often accompanied by the releaseof information about how much the highestearning legal aid lawyers are paid. In 2008-09five barristers were listed as earning in excessof £700,000 per annum for criminal defencework. While the variation and the complexityof the fee structures across legally aided workmakes it difficult to generalise, The Guardian

reported that the actual median salary of alegal aid solicitor in 2009 was a rather moremodest £25,000 per annum.6

Meanwhile, the viability of private practicelegal aid firms is at risk. In a survey conductedby the NAO, one in six firms said they werenot making any profit from criminal legal aidcases. A significant minority (14 per cent) ofthose surveyed were on the verge of walkingaway from criminal legal aid work, statingthat it was “very unlikely” that they wouldstill be conducting criminal legal aid in fiveyears.7 The primary reasons for this were thelack of profitability and the likely introductionof best value tendering – a process wherefirms will need to bid competitively with eachother for legal aid contracts.

New entrants to legal aid are finding itincreasingly hard to obtain training contractsand to sustain a career in legal aid work.8

International comparisonsBritain’s legal aid system is often comparedfavourably to that of other countries. Thegovernment describes it as “one of the mostcomprehensive, and generous in the world”(green paper 3.41). The NAO notes that £22per capita is spent on criminal legal aid, morethan any other comparable developed nationexcept Northern Ireland.9 However, the NAOpoints out that these differences are partlyattributable to the greater defence costsinherent in Britain’s adversarial legal system,in contrast to other jurisdictions where judgesplay a greater investigative role. Over theperiod of time which the NAO analysed, overone million more prosecutions were boughtin England and Wales than in any othercountry under comparison.

Proposals for changes to legal aidSince 2005, there have been more than 30


legal aid: 1949 − 2011


government consultations on the future oflegal aid, culminating in Proposals for theReform of Legal Aid in England and Wales – thegovernment’s 2010 green paper on legal aid.This consultation was published by thegovernment in November 2010 with the aimof achieving in the region of £350m of savingsfrom the legal aid budget. The paperproposed the most radical changes to legalaid in modern times.

A summary of the key proposals are set outat Appendix 1. If implemented, civil legal aid

will no longer be available for many legalissues including education, debt, welfarebenefits, private family law (except wheredomestic violence is present), housing (exceptwhere there is a direct risk of homelessness),immigration and employment.

The financial eligibility criteria will betightened so that fewer people are eligible forlegal aid. The paper also proposed furtherreductions in lawyers’ fees and that criminallegal aid “become subject to competitivetendering”.


legal aid: 1949 − 2011

Notes for Chapter 5

1. See generally: A Elson ‘The Rushcliffe Report’ (1946) The

University of Chicago Law Review Vol. 13(2) 131-144;

Steve Hynes and Jon Robins, The Justice Gap (2009,

LAG); Report of the Committee on Legal Aid and Legal

Advice in England and Wales (Cmd. 6641); T Bingham,

The Rule of Law (2010, Penguin) pages 86-89l; Lord Jus-

tice Jackson, Review of Civil Litigation Costs:

Preliminary Report Volume One, May 2009; the Access to

Justice Bill: Legal Aid Research Paper 99/03

2. Law Centres Federation, History and Funding of

Law Centres

3. See generally: Legal Services Commission, 2010, Legal

aid in the courts – a guide; Legal Services Commission,

Funding Code Criteria; Legal Aid Reforms: Scope

Changes Impact Assessment

4. Lord Justice Jackson, Review of Civil Litigation Costs: Final

Report, December 2009, pages 68-69

5. See green paper (chapter 3) and NAO, The Procurement

of criminal legal aid in England and Wales by the Legal

Services Commission, November 2009

6. The Guardian, 17 November 2009

7. Solicitor summary for criminal legal aid

8. Young Legal Aid Lawyers, Legal aid lawyers: the lost

generation in the ‘national crusade’ on social mobility,

February 2010

9. NAO, page 14, paragraph1.8

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Michael MansfieldQC, Reverend Professor Sagovsky,Diana Holland



the case for legal aid: individual testimonies

Jeremy Corbyn MP

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This chapter sets out the testimony received by the panel. The accounts presented hereare from recipients of legal aid, practitioners and the charity sector. This testimonyaimed to present the personal impact of legally aided work on individuals, families and

communities. It constitutes the positive case for legal aid.Names have been changed or abbreviated so that the individual cannot be identified except

where the person has specifically agreed that their full name be used.



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6. The case for legal aid: individual testimonies

Abbi received help in relation to her studentdebts. Help from a legal aid solicitorallowed her to gain a debt relief order, freezing her debts and relieving the stresscaused by her financial situation

Iam 25 years old and I live in Hanborough inOxfordshire with my partner. I have been

living there for about a year. Before that I was astudent at Leeds University for four years.While I was at university I found it very diffi-cult to make ends meet. My student loans onlyjust covered my rent and nothing more. I hadsome part-time work – bar jobs and things –but I was still finding it difficult to cover essen-tial living costs. My parents do not have muchmoney and were not able to give me any extrafinancial support. As a result I ran up signifi-cant debts on credit cards and overdrafts tofund my course and the costs of living.

After I left university I moved in with mypartner in Hanborough. With the way thingsare at the moment I could not find a jobstraight away. I was receiving Job SeekersAllowance but it was extremely hard to makeends meet. I really wanted to start working.

I was running up more debt on credit cards. Iwas taking credit cards from banks offeringzero per cent balance transfers which I woulduse to pay off other credit cards. By movingthe debt around I was trying to keep the inter-est low, but I wasn’t able to pay anything off.

I managed to get a job in July 2010 throughthe Future Jobs Fund – a council-run pro-gramme working through the Job Centre to getpeople back into work from benefits. The jobwas in design and development at an e-learn-ing company, which was great. It was exactlythe kind of job I was looking for. However, itwas part time and only paid £140 per week.

Unfortunately I was earning so little moneyand my partner was out of work so I stillwasn’t clearing my debts. By that time I owedabout £12,000 in credit cards and the interestwas building up. It is so hard when you are thismuch in debt. It feels like any money you areearning is just being thrown into a bottomlesspit to make the minimum payments and get-ting the extra charge every now and againwhen a payment is missed. I went online to tryand search for options and heard about a debtrelief order. I thought this might be able to helpso I went to the Citizens’ Advice Bureau to askabout it. They referred me to a solicitors’ firm.

My solicitor explained what a debt relief

Debt


order does. It is a bit like a less severe form ofbankruptcy. It freezes all your debts for a yearand if your financial situation does not signifi-cantly improve then all your debts are wipedclear. It imposes a lot of restrictions on a per-son but I realised this was a way that I couldfinally clear my debts and have the hugefinancial weight lifted off my shoulders.

My solicitor explained to me that I wouldhave to leave my debts for about six monthsbefore I applied for an order. Because I had beenmoving the debt around a lot and paying offsome credit cards with others, the court mightnot accept that I was unable to pay off the debts.

My solicitor wrote to all my creditors andarranged to freeze my debts and for me toonly make token payments. This reallyhelped me. The credit card companies hadbeen putting pressure on me to repay all of mydebts. After they received my solicitor’s let-ters they stopped the telephone calls andwarning letters. This was a great relief.

In November 2010 I went back to my solicitor and filled out the forms to apply for the order. My solicitor sent it off andwithin a few days I heard that my applicationwas accepted.

Getting this order was so important for me.Being free of the debt is such a massive relief; Ican start afresh. I managed to get a full-timeposition at my job and I am now earning £210per week. I still do not have much money toplay with but at least I am not just throwingmoney away.

I could not have done it without legal aid.There was no way I could afford to pay forlegal help. I needed a solicitor or an adviser towrite to the debt companies for me. Withouttheir letters I don’t think they would haveagreed to freeze my debts. It was incrediblyuseful to sit down with somebody, go throughall of my papers and plan for the future.

Without legal aid, people in my situationcould end up turning to crooked moneylenders and getting involved in bad situationsmaking their lives even harder.

Ahmed, an asylum seeker from Iranand a survivor of torture, receivedhelp with his asylum claim

While in Iran, I was imprisoned and tortured in February 2000 for three

months and again in August and September2002. I’m a long-term counselling client of theMedical Foundation for the Care of Victims ofTorture North West.

I had help from a solicitor based in London.I managed to go to meetings but I failed toattend lots of appointments because of mydeteriorating mental health. I was afraid tospeak to people and rarely had money tomake a call so I could only ring my lawyeroccasionally about the progress of my asylumcase. My asylum application was refused andI lost my subsequent appeal.

In March 2007 I was made homeless and mymental health got worse. My solicitor offeredto make a new claim for asylum but I was toldI would have to pay for this. By then I was verylow, living in difficult conditions and clearlydidn’t have money to pay for a lawyer.

At this time the Medical Foundationreferred me for an initial appointment withGreater Manchester Immigration Aid Unit inMay 2007. I was regularly sleeping on thestreets at night and had no money whatso-ever. My only regular contact was the weeklycounselling session. I also frequently droppedinto the Medical Foundation offices betweensessions for emotional support, to wash and



Immigration and asylum




to be indoors. I found the company of others so difficult.

The GMIAU agreed to meet me at the Med-ical Foundation and with my familiar coun-selling interpreter. We talked about a newasylum claim but I had little faith in being ableto explain myself. But the new solicitor hadmore experience and skills in working withclients with vulnerable mental health andmeeting in a safe setting allowed me toexplain what I’d been through to make a fresh claim. I arranged appointments so that I would see my counsellor immediatelyafter the solicitor.

The new claim was made in December 2007 and I applied and was accommodatedwhile the claim went through. I was grantedindefinite leave to remain in December 2009.I’m still severely traumatised and I hope that I can now address this more fully without fearof return to Iran. It is clear I would not havebeen able to access legal representation without legal aid, but, most importantly,without the care and expertise shown byGMIAU in working with the most vulnerable survivors of torture.

Simi Azmi received legal aid to helpwith her debt and housing problemsafter her ex-husband ran up tens ofthousands of pounds of debt

In 2009 I was forced to seek legal assistancebecause of debts that I owed from various

loans that my husband had taken out. My hus-band and I had married in 2003. It was difficultat first as our families did not approve of themarriage because I am originally from Pak-istan but my husband’s family is from India.

We bought a house together in Chingford in2004 after obtaining a mortgage from Halifax.About two years later, my husband remort-gaged the house with Northern Rock and weredeemed the mortgage from Halifax. He toldme this was because the new mortgage was ata better rate and he wanted extra money todecorate the house. I did not really under-stand at the time but I signed all the relevantdocuments because my husband told me too.

Then in October 2006 my husband took outa further loan from Barclays, secured againstour house. Again I did not really understandthe procedure but my husband made me signthe documents relating to the loan. I also hadto speak to someone from Barclays over thephone to say that I agreed to the loan.Although I had said that I agreed, in reality Idid not know what was going on. Whenever Ihad questioned my husband about this loanor the previous mortgage he became angryand shouted at me. He would threaten toleave me if I didn’t agree to sign the docu-ments and would even threaten me physi-cally. I felt I had no choice but to agree. Myhusband always took care of that side ofthings. He also lied to me about how muchmoney we were borrowing. He told me theloan from Barclays was for £20,000 but I foundout later on it was actually for £60,000.

In July 2008, when our second child was justa few months old, I found out that my hus-band was in a relationship with anotherwoman. In fact he had married this otherwoman in a religious ceremony. When I foundthis out my husband left me and our children.It was only after this that my husband told methe true extent of the loans he had taken outafter I questioned him about them. As well asthe Barclays loan he had taken out anotherloan of £30,000 and had huge credit card bills.

Around the end of 2008 I started getting

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Debt and housing


letters from Barclays saying that I was inarrears. I was not working at the time. I hadtwo young children and my husband hadalways been the financial provider. I wasscared and I did not know what to do. I got aletter from the bank’s solicitors in early 2009that threatened to repossess my house. At thisstage I realised that I had to do something ormy children and I would become homeless.

I went to a consumer credit agency foradvice and they put me in touch with mysolicitors. They were amazingly helpful. Theyarranged for me to have legal aid funding formy case, which was vital as I had absolutelyno resources at that time. I was unable to evenapproach my family for assistance as we stillhad not repaired our relationships afterfalling out over my marriage. My solicitorwent over my finances with me and I realisedhow bad the situation was. There were twoloans secured on our house that I jointlyowned, and there were even some credit cardbills that were in my sole name although ithad been my husband who had used them.

My solicitor told me that I could file forbankruptcy which would clear my debts. I knew this was a big decision but there wasnot any other way out that I could see. I justwanted to be able to start afresh and forgetabout what my husband had done to me. My solicitor helped me go through theprocess of filing for bankruptcy. There was a huge amount of work and forms to fill out,but my solicitor was fantastic. There is no way I would have been able to do it withoutthem. I would not have even known how to

go about applying for bankruptcy and I definitely would not have been able to get together enough evidence to have a successful application.

My application was allowed and I wasdeclared bankrupt in May 2009. That helped

to get rid of the majority of my debts. How-ever, it was not enough to prevent me fromlosing my home, as Northern Rock managedto get a possession order against me.

After the order was made I was terrified.The thought of being homeless with my chil-dren was making me so stressed that I wasbecoming ill. However, my solicitors helpedme apply to my local council for accommoda-tion. They gave me temporary accommoda-tion and even recently granted my applicationfor permanent accommodation.

If I hadn’t been granted legal aid I do notknow what I would have done; I was totallylost. I had no money and no one to turn to toget help from. I would not have been able torepresent myself and I would not have beenable to get myself declared bankrupt. I wouldhave probably had a lot of my possessionsrepossessed and when my house was takenaway I would have been left homeless with my children.

Since I was successfully declared bankruptmy life has been so much better. After my hus-band moved out I was receiving letters from somany creditors threatening action against meand saying bailiffs would be sent round to takemy possessions. I was so stressed and scaredthat there were times when I could not evensleep. Now things are so much better; I have aroof over my head and I am able to start again.

I really did not have any options other thanlegal aid. It can be so difficult for people in asimilar situation to mine without resources or any friends or family to approach for help.



“We would be lost withoutlegal aid and the lawyers whocarry out this work. They got

me my life back”




We would be lost without legal aid and thelawyers who carry out this work. They gotme my life back.

AB received legal aid to obtain advicein his community care, immigration,asylum support and housing casesfrom the same firm of solicitors overtwo to three years

Iarrived in the UK a few years ago after flee-ing persecution in my home country. I

claimed asylum and was granted a limitedamount of leave to remain in the UK. Beforemy leave ran out I applied for further leave toremain. However, there was a mix up at theHome Office and they claimed they had notreceived my application.

When I had been awarded leave to remainin the UK I had been granted permission towork. I was also allowed to claim benefits tohelp me pay for food and rent. I began to lookfor work and recover from my terrible experi-ences in my home country.

After my leave ran out my benefits stopped.This meant that I could not afford to pay myrent and around three years ago I was evictedfrom my home for rent arrears. After my evic-tion I had to sleep on the streets. During thistime I was attacked on quite a few occasions. Ialso became ill very quickly and eventually Iended up in hospital around a year later. I wasdiagnosed with a long-term illness and I wasalso suffering from severe depression becauseof my situation.

After a few weeks the hospital wanted todischarge me. They referred me to social serv-ices. Social services refused to help me.

Around this time I began to receive helpfrom a charity and they referred me to solici-tors for help with my housing situation. Mysolicitors wrote to social services threateningcourt action unless they conducted an assess-ment and housed me until the assessmentcould be completed. In the end social servicesdecided that I was so ill that they would houseme and provide me with financial support.

In time my health gradually improved and Iwas able to move out of social services accom-modation into housing provided by the HomeOffice. However, the Home Office wanted meto move away from London. Although myhealth had improved a little, I was still in needof the support I had from the local medical andcharitable services. My solicitors made repre-sentations to the Home Office to say why it wasimportant for me to stay living in London andthese were accepted.

I also received help from the immigrationdepartment at my solicitors’ firm. I renewedmy application for leave to remain and lastyear I was granted indefinite leave to remain.My Home Office housing came to an end and I made an application as homeless to the localauthority. I did this because I had nowhereelse to go.

At first the local authority refused to acceptan application from me. They also refused toprovide me with emergency housing, eventhough I had already been evicted and I hadprovided evidence of my medical conditions.I asked my solicitors for help. Again theywrote an urgent letter asking the local author-ity to provide me with housing and accept anapplication (as I understand they are under alegal duty to do). They threatened to take mycase to court if the local authority did not dothis. Luckily very quickly the local authorityagreed to accept an application and to placeme in emergency housing. A few months later

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Community care, housing,immigration


the local authority accepted that they had aduty to make sure there was housing avail-able for me to live in.

It was really important for me to get legaladvice when I was in hospital. They wanted todischarge me, but I had nowhere to go. It wasmy solicitors who managed to persuade thelocal authority to look after me because of myillness. If I had not been housed then I feel myhealth would have got a lot worse.

I would not have been able to pay for mysolicitors on a private basis as I had no income.The charity I was involved with had tried tohelp me get housing from social services, but,as they could not start court proceedings, Ithink social services were just able to ignorethem.

I think the legal aid system is great. All ofmy housing, immigration and other legalissues have been resolved and this couldn’thave happened without legal aid. I believe it isvery important to have this support.

Caroline received legal aid after shewas evicted from her flat and becamehomeless. This helped her to prove tothe council her need for accommoda-tion because of her severe mentalhealth problems

Legal aid helped me when I was evictedfrom my home after my private landlord

increased the rent and I could no longer affordto pay it.

I had lived in my home for around 20 years.I had not worked since 2004 on account of myquite severe mental health issues. I sufferfrom agoraphobia, paranoia and severe anxi-ety which causes me to have panic attacks. I

also suffer from depression. I received hous-ing benefit to help me pay my rent.

In 2009 my landlord contacted me to saythat the market value of the flat was muchhigher than what I was paying and theywanted to increase my rent by £500 permonth. Housing benefit would not cover thisincrease and I could not afford the extra, so Iwas facing eviction.

After my landlord started court action toevict me I approached my solicitor. Unfortu-nately my solicitor advised me that I did nothave a good chance of avoiding eviction. I wasvery worried about this because I did not haveany money or savings to fund a deposit for anew home. I was worried that I would behomeless. However, my solicitor told me thatbecause of my medical problems the localauthority may have a duty to re-house meonce the court made a possession order.

In the end the court did allow my landlord’sclaim for possession and I was evicted. Afterthis my solicitor helped me apply to the councilfor emergency accommodation. I was placed ina hostel with shared facilities. My anxiety andparanoia were making it extremely difficult forme to live there with lots of different people.My solicitor wrote to the council and managedto persuade them to provide me with self-contained accommodation until they made a final decision on my homeless application. I was very grateful for this.

A few weeks after I made my applicationthe council made a decision that they did nothave a duty to house me because my mentalhealth problems were not severe enough. Mysolicitor helped me ask for a review of thecouncil’s decision. She suggested that I wouldneed good medical evidence to help with mycase, but this was difficult.

When I was examined by my GP he diag-nosed only ‘mild depression’. There is



Housing




nothing mild about it – at that time I had hadtwo complete breakdowns since 2004 and hadoverdosed three times. I had had only briefappointments with my GP and one with apsychiatric nurse, which is why I think theydid not fully understand my problems.

The breakthrough came when my solicitorarranged for me to see a private psychiatristwho assessed me for more than one and a halfhours. The psychiatrist confirmed that I wassuffering from a number of serious mentalhealth conditions and that my health wouldbe at risk if I were made street homeless.

With the help of this extra evidence and thefantastic work of my solicitor the councilaccepted my case and overturned their origi-nal decision. This was around the end of October 2010.

Legal aid was really important in my case.There is no way that I could have explainedmy situation to the council in the way that mysolicitor did. The pressure of trying to sort itout myself would have severely hit my mentalhealth. Also I could not have paid privatelyfor the psychiatric report. Without this report,I don’t think I would have won my case. Iflegal aid is cut, people like me will not get thehelp they need in future.

This case felt like life and death for me. I wasso worried about losing the emergency hous-ing and becoming street homeless. Since win-ning the case, my life is so much better. I feeloptimistic and am looking forward to viewingpotential properties. It is now just a matter of

time before I can get my own home, so I amfeeling positive and can start looking forwardto life again.

Rosamund During had advice andrepresentation in her housing case,enabling her to defend eviction pro-ceedings following the break-up ofher marriage

Ineeded legal help after my landlord startedcourt action to evict me for rent arrears. I

was in the process of splitting up with my hus-band. He was due to move out of our familyhome and had stopped paying the rent, whichI had no idea about. As a result, our landlordstarted possession proceedings against us.

I was still living there with our four chil-dren, so I was really worried about what I wasgoing to do. I was on a low income and couldnot afford to pay off all of the arrears. Iapproached the Citizens Advice Bureau, butwas told my case was too complicated forthem to help me. However, they provided mewith a list of solicitors’ firms that do housingwork and I subsequently approached one ofthe firms which agreed to take on my case.

My solicitors applied for legal aid so thatthey could help me defend the eviction action.They explained my problems to my landlordand the court. Eventually the court agreed notto evict me as long as I continued to pay anamount towards my arrears each week.

My rent payments are now manageable.I’m in the process of having the tenancy trans-ferred into my sole name and I feel that I havenow got through a very difficult time.

I was delighted with the help I received frommy solicitors using legal aid. I do not feel that I

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“This case felt like life anddeath for me. I was so worriedabout losing the emergency

housing and becoming streethomeless”

Housing


could have represented myself in the posses-sion proceedings. I really needed their help.

Vicky Guedalla is a retired solicitorand former partner in DeightonGuedalla. She recently retired after 25 years as a legal aid lawyer. Shegives details of several young clientswho required her advice and assistance for immigration claims in difficult and sometimes tragic circumstances

Iam horrified by the government’s proposalto end public funding in all but asylum and

detained cases. If the regime now proposedhad been in place during the past quarter of acentury clients such as these would have beendenied access to legal advice and assistance.

‘Claude’The little boy I will call Claude arrived unac-companied from Congo on a passport whichindicated its bearer to be seven years old andcontained an indefinite leave to remainstamp. Immigration officers were doubtful,and interviewed the man, a Congolesenational with indefinite leave to remain, whomet him at the airport. The man claimed thatthe child was his son returning from a tripback to Congo, but he demonstrated no inter-est in the child’s welfare, and the interactionbetween them showed no familiarity. Immi-gration declined to entrust the child to him,but instead granted temporary admissioninto the care of social services pending furtherenquiries. He was placed with a foster family.

DNA testing undertaken by social servicesshowed that the man at the airport was indeed

not the father, following which immigrationrefused leave to enter and indicated that theywere investigating the practicalities of remov-ing him. Social services brought the child tome for advice and to conduct his appeal.

Claude was at this stage still struggling to fol-low the instructions he had been given by thosewho sent him here – to the effect that he hadlived here before and had come to rejoin hisfather even though this was manifestly not so.The first crack in his facade came with hisdelightfully typical childish outrage at beingtold that his passport made him just seven yearsold: “That’s not right! I’m eight already! I had mybirthday before I came!” And as trust betweenus built it became possible for him to reveal hisreal name and what he actually remembered ofhis life before being sent to the UK.

It appeared that he was an orphan who hadbeen living for some time in the house ofsomeone he believed to be his grandmotherbut with a number of other children whoserelationship to himself, if any, was unknownto him, some of whom had left for differentdestinations abroad. The suspicion of a childtrafficking operation arose.

At first instance appeal, conducted onhuman rights grounds, the judge made anegregious error of law and found that as therewere no specific removal directions yet inplace there was no valid appeal before him.The case had to go to the Upper Tribunal tocorrect this, and was remitted back for freshhearing. The end of the story was that, sincethere was no one to whom he could safely bereturned in Congo, Claude was granted dis-cretionary leave to remain and continues tolive with his foster family, with whom he hadquickly formed strong bonds. Under the gov-ernment’s proposals it seems that, becauseClaude was not an asylum seeker, he and hiscarers would have had no access to publicly



Immigration




funded legal assistance and would at besthave been left in limbo with no secure statusfor an indefinite period, or at worst returnedto who know what hazards in Congo.

‘Paul’The child I will call Paul was also eight yearsold when he was brought to see me by his socialworker. He was from Jamaica, where he hadbeen abandoned in infancy by his mother,whose whereabouts were unknown butunderstood to be somewhere in the USA. Paulhad been cared for thereafter by his paternalgrandmother, but when he was six she died in afire which he was blamed for causing. Rejectedby his family in Jamaica, his father brought himto the UK, left him to the care of a purported‘uncle’ and ‘aunt’, and left the country. Paulwas brought to the attention of social servicesby his school who suspected ill-treatment andwere concerned by his highly disturbed behav-iour. He was taken into care and placed in aspecialist therapeutic home. A full care orderwas subsequently obtained.

Paul was then brought to see me for adviceon regularising his immigration status. I pre-pared his application. Eventually he wasgranted indefinite leave to remain. I was thenable to assist in the preparation of his applica-tion for registration as a minor for British citi-zenship, giving appropriate advice on theapproach to the question of parental consentin such circumstances. Where will those car-ing for children like Paul be able to turn to forimmigration legal aid help in the future if thepresent proposals go through?

‘Jamal’The client I will call Jamal is from Somalia. Hewas a little boy when fighting overwhelmedMogadishu in 1991 and his family scattered.He was later granted a visa to come to the UK to

join a relative who had been granted excep-tional leave to remain here. Jamal learnt Eng-lish, went to school here, got part-time workwhile continuing to study and became a Britishcitizen. Meanwhile, the Red Cross traced hismother to a settlement in Ethiopia, where shewas living with his older married brother andhis family, supported by his brother’s work as abus driver. But then news came that his brotherhad been killed in a road accident, and hiswidow died in childbirth shortly afterwards.This left the elderly mother in sole charge oftwo toddlers and a baby.

Jamal immediately assumed full financialresponsibility, struggling to send money fromhis meagre wages. As soon as he was able tofind full-time employment so that he couldmeet the requirements of the immigrationrules, he travelled to Ethiopia to take hismother and the children to the Britishembassy in Addis Ababa to apply for visas tocome to the UK as his dependents. The appli-cations were refused on the grounds thatthere was no evidence of the relationships.

Jamal turned to me for advice and I was ableto prepare and conduct the appeals. DNA evi-dence (which Jamal would not have known

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“Legal aid is needed to ensurethat meritorious cases arefought to an appropriate

conclusion, through the highercourts if necessary, if the

system is to have any integrity.Asylum is not the only human

right, and the rule of lawshould be protected from

budget cuts”


how to obtain by himself, even if he couldhave afforded it) proved the relationships tothe satisfaction of the judge, but the appealwas lost at first instance because of an erro-neous interpretation by the judge of therequirement for adequate accommodation. Sothe appeal had to go to the higher tribunalwhich ordered a complete re-hearing, result-ing in the appeals being allowed.

The old lady and her grandchildren arenow here living with Jamal, who continues tosupport them. Where will future ‘Jamals’ beable to turn for legal advice and representa-tion in time of dire need?

Not good enoughThese are just three examples of many thatspring to mind of non-asylum cases whereaccess to publicly funded legal assistance wascrucial in matters of profound importance toclients. Children like Claude and Paul have not‘chosen’ to live in the UK, any more than Jamalhad done – and neither the adult Jamal nor hisgrandmother had chosen to shoulder familyresponsibilities in such tragic circumstances.

It is not good enough for the government toprotect access to legal assistance in asylumand detention cases, and to pretend that otheraspects of immigration law do not impact pro-foundly on the lives of many who are not in aposition to pay privately for lawyers and whohave not chosen the situation in which theyfind themselves. It is such an unrealistic dis-tinction in so many cases that it would be bet-ter not to attempt it at all.

Neither is it good enough to pretend that thetribunal can itself stand surrogate for independ-ent representation in cases where appellants areunrepresented. It might do its best but is notitself infallible as to matters of law (whichunrepresented appellants cannot be expected toargue for themselves) even when a case has

been properly presented, as two of my examplesabove show. Legal aid is needed to ensure thatmeritorious cases are fought to an appropriateconclusion, through the higher courts if neces-sary, if the system is to have any integrity. Asy-lum is not the only human right, and the rule oflaw should be protected from budget cuts.

SH received legal aid to secure thehome she had shared with her abusive partner

I needed legal help after my partner becameabusive and I found myself and my childrenwithout a home.

We had bought our home together before ourchildren were born. Over time our relationshipbegan to break down. My partner started todrink more and he would be abusive towardsme. Although he was not physically violent, hewould threaten me physically and was emo-tionally abusive. He was aggressive and con-trolling and would shout at me over nothing,telling me I was worthless. Sometimes hewould take my bank cards and keys and leavethe house for long periods, leaving me strandedin the house and unable to go anywhere.

I became afraid for myself and my children.I decided that I had to get out of the relation-ship. Eventually I moved out of the home tak-ing our two children with me. This was anextremely difficult time for me. My youngestchild was only one-and-a-half years old and Ihad not yet returned to work. My partner hadprovided for us financially and so I had noresources of my own that I could access. I washaving to stay with a friend, but it was not atall suitable because the children and I were allhaving to share the same bed.



Family




Although I was joint owner of our homeand I was taking care of our children, my part-ner refused to move out. Because of hisaggressive and unreasonable behaviour, Ifound it impossible to talk to him or negotiatewith him in any way about the use of ourhome or dividing up our assets. Whenever Idid try to discuss these issues with him hewould be domineering and aggressive. Irealised that I needed assistance, which waswhen I approached a firm of solicitors.

My solicitor was absolutely fantastic. Shetold me that I could apply for a court order toget back into my home. I was worried as I hadvery little money to pay for legal help. I had noaccess to money because everything had beencontrolled by my partner. However, my solici-tor told me that I could get help through legalaid and she sorted it all out.

At first my solicitor wrote to my partner totry to resolve the case before going to court.However, he refused to respond to any of mysolicitor’s letters or other correspondence.Therefore we had to go to court.

It was really important to me to have helpfrom my solicitor and also my barrister. Theyexplained what would happen during the courtproceedings and what I would have to do. I hadnever been to court before and I had no ideawhat the procedure was. I was really worried.

At the preliminary hearing my partner rep-resented himself. He was emotional in courtand tried to control the hearing. I was veryupset by his behaviour. At the second hearinghe turned up at court but left before the hear-ing started. During the hearing my barristercross-examined me. If my partner had had todo this, or if I had been forced to cross-exam-ine him, I think the hearing would havedescended into some kind of slanging matchbecause the situation was so emotional andhighly charged.

After the court hearing, the judge grantedan order saying that I could move back intomy home with my children and my partnerhad to move out.

Without legal aid I would not have beenable to get the help I needed. I would haveeither been forced back into an abusive rela-tionship or had to move to a refuge with mytwo children.

I know that the government talks aboutpeople being too ready to use the courts as afirst answer to their relationship breakdownproblems, but in my case I had no choice. Mypartner was being totally unreasonable andthere was no way to negotiate with him with-out bringing him to court. I needed a greaterpower than myself to deal with him and forhim to listen to. It is people in situations likemine that the legal system is there to protect.

Mrs Hughes received legal aid for advice and representation in a disability discrimination claim

Isuffer from multiple sclerosis and a lungcondition. Due to my ill health I am

dependent on my wheelchair to move aroundoutside and sometimes indoors. My husband

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“Without legal aid I would nothave been able to get the help I needed. I would have either

been forced back into an abusive relationship or

had to move to a refuge with my two children”

Discrimination


cares for me full time.We have many people in our community

who have mobility problems including theelderly and other disabled people. Mostshops in our town have made adjustments,some by simply having bells outside theirfront doors so that people with mobility problems can let them know when they need help to gain access. Larger storeshave level floor access.

Around three years ago one of the largerstores closed down and the owner applied forplanning permission to subdivide to createtwo new units. As my husband is chair of thelocal access group, he was given the planningapplication to look at. The applicationtogether with an ‘access statement’ said thatlevel access would be maintained.

Sometime in summer 2008 before the shopswere finished, I was concerned to see that oneof the shops now had an eight inch step out-side which people had to use to gain access. In November when the shop opened for busi-ness I asked to speak to the manager of theshop about the issue. She could not say whatthe company would do about it. I sent thecompany emails and letters asking them toremove the step or put in a ramp. The com-pany did not answer me.

I was certain that the shop was breaching theDisability Discrimination Act, but I did notknow what to do about it. Over the next fewmonths I contacted the council, my MP, thebuilding inspectors and the minister for dis-abled people. This made no difference. Some ofthem did not even answer my requests forhelp, which was extremely difficult as underthe DDA it is only the disabled person who cantake a case forward. That meant nobody elsecould have helped me complain.

I visited my local Citizens Advice Bureau.

They telephoned a national charity to ask foradvice on what I could do. The charity told me that if I continued with a claim under theDisability Discrimination Act and I lost thenthe company could take my home away. I was very worried about this and it almostmade me gave up.

Eventually one of my local council contactsgave me the name of a solicitor in Londonwho had acted for other disabled people in thepast. I contacted the solicitor and he told mestraight away that I could apply for legal aidto help me take on the company.

After listening to my story and doing someinitial investigation my solicitor wrote to thecompany, warning them that I would go tocourt unless they took action to address thediscrimination that I was suffering. The com-pany still refused to remove the step or put ina ramp. In the end, we had to issue a claim.

As part of the claim, my solicitors obtaineda report from an independent disabilityaccess expert. He found that not only was thestep a problem, but also within the shop itselfthey had not taken reasonable steps to adjustthe shop for disabled people to use.

My claim moved closer to a hearing andprobably because of this pressure the com-pany eventually admitted that they wereliable under the Disability DiscriminationAct. They agreed to install an internal ramp at



“I do not think the companywould have listened to me or

changed its behaviour withoutmy solicitor’s persistence. They

had tried to ignore me, butthey could not ignore him”


the shop, which has now been done. They alsoagreed to pay my solicitor’s legal costs, whichmeans that the legal aid money will be repaid.

I understand that the government is pro-posing changing the rules about who will beable to get legal aid funding in the future. Peo-ple who own their own home, like my hus-band and I, may not be eligible for help. I amconcerned about this. I could not haveafforded to pay privately for a solicitor, as weare on a very low income (receiving pensionguarantee credit and disability benefits).

Without legal aid I would not have been ableto force the company to comply with the Dis-ability Discrimination Act. I had already doneas much as I could without going to court. With-out my solicitor’s help I would not have knownhow to go about taking the company to court. Ido not think the company would have listenedto me or changed its behaviour without mysolicitor’s persistence. They had tried to ignoreme, but they could not ignore him.

I really appreciated my solicitor’s helpthroughout this case. He was great andexplained everything to me every step of theway. It was wonderful to feel that someonewas on my side against a big company. If legalaid is withdrawn to others in a similar situa-tion, I believe that discrimination will possi-bly increase, as large bodies realise that thevulnerable in society do not have the means tocontest their actions.

Kamaljeet received legal aid fundingfor her immigration claim

Iam originally from India. In 2001 I marriedmy husband, a Dutch national of Indian

descent. He had been living and working in the

UK for two years before our marriage. After ourwedding I moved to the UK to start our marriedlife together. I was granted a residency permitthat allowed me to stay initially for two years.This was renewed in 2003 and I was grantedresidency for another five years. Very quickly Isettled in and the UK became my home.

During our marriage my husband was abu-sive, domineering and controlling. Sometimeshe was physically violent with me. I was veryunhappy. I had not thought that my husbandwould treat me this way after our marriage.However, I felt I had no choice but to remain inthe marriage and do what my husband told me.

After our first daughter was born my hus-band suggested we travel to India to visit hisfamily and show them our new daughter.After we had been there for a month or so, myhusband returned to the UK. He suggestedthat I stay an extra month for a holiday which Ithought sounded fine, and so we agreed that Iwould fly back to the UK the next month.

While I was in India I found out that I waspregnant again. My husband told me that itwould be better if I stayed out in India a littlelonger so that our families could care for mewhile I was pregnant. I was not sure about thisbecause really I wanted to return to my homein the UK. However, I was expected to be sub-missive to my husband and so I felt I had nochoice other than to go along with his wishes.

Over the next few weeks and months eachtime I suggested coming home to the UK myhusband would make an excuse as to why it wasbetter for me to stay in India a short while longer.Even after I had our second daughter my hus-band did not allow me to travel to the UK. Hemade excuses each time I asked to return home.

A short time later my husband stopped call-ing and he refused to accept my calls. Therewas no way of my getting in touch with him. Itbecame clear to me that my husband had



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abandoned me in India.After I tried to get my passport from my

husband’s family I found out that the HomeOffice had revoked my residency permit afew months ago. When my husband hadreturned to the UK the first time he had writ-ten to the Home Office and told them that wehad been divorced. They had then revokedmy residence permit.

This period was incredibly distressing forme. It was terrible living back in India. I feltlike a complete outcast, isolated andridiculed. My husband was well known andrespected where I was living. I found out thathe had told lies about me and said that it wasmy fault we had split up. I also found out thathe had been in a relationship with anotherwoman back in the UK since early on in ourmarriage. The other woman was also origi-nally from my husband’s family’s home townwhich added further to my embarrassmentand shame. I was desperate to return to theUK along with my children. I felt it wasimportant to return to my home where I hadbuilt my life.

After a lot of time and effort on applicationsI eventually managed to obtain a temporaryvisa for me and my children to return to theUK. I stayed with relatives in Reading andpaid an immigration lawyer to help me applyfor leave to remain. The solicitor did not men-tion that I could have received legal aid.Instead I struggled to afford their fees.

The case was taking a long time. Finally mysolicitors told me that the Home Office hadrefused my application. I wanted to appeal thedecision but I couldn’t afford to pay my solici-tors any more. I wrote to the Home Officemyself to appeal the decision but they sent methe wrong forms to fill out. By the time theyrealised they had made this mistake the timeperiod for appealing the decision had expired.

The Home Office then notified me that theyintended to remove me from the country. Iwas distraught. I did not have any money leftas I had spent all of my savings on legal fees.My parents had even had to sell some of theirpossessions in India to send me money. Thethought of being forced to return to India dis-tressed me greatly. I could not return as anabandoned wife with two young children – Iwould be treated as an outcast again.

In desperation I spoke to a family friend inthe UK who was an immigration barrister. Herecommended a different firm of solicitors forme to approach, which I did.

My solicitors were fantastic. They were thefirst people who told me that I could qualifyfor legal aid. It was through their work that Idiscovered that the Home Office had madeseveral mistakes with my applications. At myhearing, the Home Office representativeadmitted that several mistakes had beenmade and that I should have been granted res-idency. After this hearing I was granted leaveto remain in the UK.

I have now been able to rebuild my life. InIndia I was isolated and absolutely miserable.My husband had lied to me and abandoned



“In India I was isolated and absolutely miserable. Myhusband had lied to me andabandoned me, but I was the

one who was being blamed forit and had to live with that

shame. Now that I am back inthe UK I am so much happier. I would not have succeeded

without legal aid”


me, but I was the one who was being blamedfor it and had to live with that shame. Now thatI am back in the UK I am so much happier. Iwould not have succeeded without legal aid. Ispent everything I had trying to get back to theUK and then fighting to stay there. It was onlywhen I got legal aid that my case was resolved.

Zoe Kealey’s brother died in Wormwood Scrubs. It took the familysome time to obtain legal aid for themto be represented at the inquest

Iam the older sister of Darwin StanleyKealey, who died on 12 September 2008 in

HMP Wormwood Scrubs. Darwin was a lovedand cherished member of our family.

When Darwin died my family had no ideaof what lay ahead. Few details were passed tous except that Darwin had hanged himself atWormwood Scrubs. The weeks following hisdeath were spent in shock and makingarrangements for his funeral.

We had no understanding of the financiallegal costs of obtaining legal representation tofind out what happened to my brother. AsDarwin died in a government institution wesimply assumed that the government wouldfund this. However, to our astonishment wefound that our family’s limited financialmeans were to be extensively scrutinised. Mymother, who is a part-time cook sufferingfrom a serious disability and with very lim-ited savings, was asked to contribute to thecosts of legal representation. The savings thatshe had had been left to her by my late fatherand was his attempt to provide for her in herold age. She could not believe that she wasgoing to have to choose between losing her

tiny amount of financial security and havingno legal representation.

My solicitor, Kat, argued with the LegalServices Commission that my mother was notable to contribute to the funding of theinquest. The anxiety about funding the casesimply added to the stress and upset.

Legal aid was eventually granted so that wehad representation at the inquest. I cannotimagine how other families cope without thesupport that we had. Without legal aid and asolicitor to go through the case step-by-stepmy family would never have gained anyunderstanding of the law and the legalresponsibilities these agencies had towardsmy brother. Kat liaised continuously with myfamily and fought our corner in a way that wewould never have been able to do.

Together, we worked through what hap-pened to Darwin and what went wrong:

On 10 September 2008 Darwin was arrestedfor common assault and taken to KensingtonPolice Station. While in police custody herepeatedly self-harmed. He was placed in aCCTV-monitored cell, the footage of whichshows my brother systematically removingevery item of clothing and tying it around hisneck in an attempt to strangle himself. All hisclothing was eventually removed and he wasleft in the cell completely naked. The footagealso shows my brother repeatedly banging hishead against the wall and running across thecell with his head down until he hit the wall,apparently knocking himself out and collaps-ing naked on the floor. When police officersvisited him in the cell Darwin told them thathe had nothing to live for and that he “mightas well end it”.

Darwin’s vulnerability was obvious. Whilein police custody he was seen by three sepa-rate medics, who all noted varying levels ofrisk of self-harm or suicide. Although an entry



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was made on the custody record of Darwin’sattempts to self-harm, this was not communi-cated to staff employed by the private escortcompany, Serco Limited, which took him toWest London Magistrates’ Court the follow-ing morning.

Any prisoner who is transferred into deten-tion is accompanied by a document called thePrison Escort Record (PER) to record any riskof self-harm. The custody sergeant responsi-ble for Darwin failed to detail Darwin’s manyattempts to self-harm, and failed to completethe form correctly in accordance with theStandard Operating Procedures operated bythe Metropolitan Police. This fact was recog-nised in an independent investigation carriedout by the Independent Police ComplaintsCommission. As a result of the police’s fail-ures to document Darwin’s risk of suicide orself-harm, Serco staff had limited detailsabout his vulnerability.

But Darwin’s PER form did contain a tickedbox informing Serco staff that Darwin was atrisk of suicide/self-harm. The Serco policyrelating to suicide and self-harm clearly statesthat Serco must open a suicide/self-harmwarning form when there has been anyattempt to self-harm in custody in the pastmonth. This did not happen.

Darwin pleaded guilty to common assaultat West London Magistrates’ Court and wassentenced to 112 days in prison. He was trans-ported by Serco staff to HMP WormwoodScrubs where he arrived at approximately6pm on 11 September 2008.

On arrival at the prison, staff had availableto them the PER, which briefly noted his riskof suicide and self-harm, as well as medicalreports from the medics at Kensington PoliceStation which detailed some of his attempts atsuicide/self-harm. None of these documentswere considered for the purposes of assessing

Darwin’s risk of suicide or self-harm while onentry to prison. Prison staff stated this wasbecause they would always rely on Serco staffto have produced a suicide/self-harm warn-ing form to identify any prisoner at risk. Thisdid not happen.

Darwin was then examined by a nurse(employed by Hammersmith and Fulham Pri-mary Care Trust) who failed to examine hismedical records or the PER.

On the morning of 12 September 2008 Dar-win was found hanging in his cell.

Darwin was 28 at the time of his death. Thejury at Darwin’s inquest, which concluded inMarch 2010, identified no less than nine fail-ings on the part of the police, Serco, the prisonand the PCT. The jury found that Darwin diedof an act of self-harm “in part because the riskof taking his own life or harming himself wasnot recognised and appropriate cautions werenot taken to prevent him from doing so”.

My brother’s death was a tragic incidentwhich could have been prevented if any oneof the people responsible for his care hadtaken the time to consider the evidence avail-able to them in accordance with their variousprocedures and policies. If this had happenedDarwin would have been placed under obser-vation which could have prevented his death.

As a result of the jury’s findings, the deputycoroner for West London, Elizabeth Pygott,wrote to the Lord Chancellor, Sir PaulStephenson (then commissioner of Police forthe Metropolis), the chair of NHS Hammer-smith and Fulham PCT, the secretary of statefor health and the chairman of Serco Group Plcto make a report in accordance with rule 43 ofthe Coroner’s Rules 1984. This rule providesthat, where evidence at an inquest gives rise toconcerns that circumstances create a risk thatother deaths will occur, action should be takento prevent or reduce the risk of future deaths.




In her letter, Pygott stated: ‘‘It is the lack ofcommon understanding about how the PERshould be used which gave rise to serious con-cerns in this case and has potential disastrousconsequences for other detainees.”

All this information would never havecome to light without the support and assis-tance I received from my legal team. Kat Craigof Christian Khan Solicitors and MarinaSergides of Garden Court Chambers workedtirelessly to obtain and scrutinise all the docu-mentation and ensure that evidence washeard to explain the circumstances surround-ing my brother’s death, and to ensure thatsuch deaths may be prevented in the future.

When we arrived on the first day of theinquest it was incredibly daunting. Therewere eight interested parties in total, all ofwhom were legally represented. I do notknow how we would have been able to copewithout our barrister. She fully understoodhow intolerably upsetting it was to relive thefinal hours before my brother’s death.

As a family we needed to hear what hap-pened to Darwin to be able to grieve and copewith our loss. We also wanted to ensure thatany failures and missed opportunities wereproperly identified. I could never have coped

with the emotional heartache while at thesame time trying to pursue legal argumentsabout the scope of inquest. How could anyfamily be able to listen to how their loved onedied at the same time as considering the evi-dence being given by witnesses and thinkingup questions?

Without the help of our legal team wewould never have known what happened toDarwin. Darwin’s death was a tragedy andhas left a hole in our family that will never befilled. Yet I consider that we were the luckyones to receive legal aid and to have a legalteam representing us. My family has foundsome solace in the knowledge that the statehas been notified of the failings identified bythe jury, and we hope that no other family willhave to suffer in the way that we have.

L is the mother of a 16-year-old boywith Asperger’s syndrome. She hasbattled with her local authority for a number of years to secure for herson the help that he needs with hiseducation

Iwould be very concerned if the funding oflegal assistance with educational tribunals

was withdrawn.While most parents have the ability to

understand the procedures, some do not andthis impacts upon their child’s ability to accessan appropriate education. The procedurescan be confusing and complex. This is stress-ful enough, but if you consider that you arealso emotionally involved then this makes adifficult situation even worse. It is often phys-ically and mentally tiring just being the parentof a child who is going through the tribunal



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“When we arrived on the first day of the inquest it wasincredibly daunting. There

were eight interested partiesin total, all of whom werelegally represented. I do

not know how we would havebeen able to cope without

our barrister”

Education


process. The added stress of having to coordi-nate alternative education for your child isunderestimated.

I have to care for my eldest son and hisyounger sibling and hold down a part-timejob. The fight – and I do not use that wordlightly – has been incredibly time consumingand physically and mentally draining.

Children and young people with specialeducation needs (SEN) have a big enoughchallenge just getting through the day. Theyand their families have to adjust their lives tocope with life-long conditions that impact onevery aspect of family life. It can be incrediblydifficult to access appropriate educationalprovision for some of these children. Budgetconstraints are understandable, but everychild has legal and moral rights to a fair andappropriate education. Too often they areplaced in mainstream schools with a lack ofqualified SEN teaching staff or the appropri-ate provision is out of the area and that canmean residential placement.

In my experience, my son has been neglectedby the local authority with regard to his educa-tion. He has spent considerable periods with-out formal education and is now receiving alimited education which does not meet all hisneeds. I have attended many, many meetingswhere I often feel there is a hidden agenda andthe local authority is covering itself. I had to usethe legal right to obtain an assessment of myson to obtain a formal diagnosis when it wasblindingly obvious there were concerns. Hehas suffered not only in not having an appro-priate education, he is a bright and capableyoung man, but his social skills have beenimpeded and he is now very reclusive.

Ultimately his case is likely to end up incourt, not through choice but because he hasbeen so let down. He deserves better and Iwould not want another family to go through

what we have. Frustratingly, so many profes-sionals involved have told me ‘off the record’he has been neglected but none are preparedto put pen to paper to support us for fear ofrocking the boat with the local authority.

I do not excuse my son’s behaviour whichled to him being removed from mainstreamteaching. My argument is that he was failedwithout the right environment and support toenable him to be educated appropriately.

To obtain a fair and reasonable outcome, Ifeel that a third party who is not emotionallyinvolved and who is working in the neutralbest interests of the child, at a time of consid-erable stress, is a provision that should not bewithdrawn.

Leena received help with her debtproblems. Her solicitors helped hercollect the evidence needed for a successful bankruptcy application

Ineeded help from legal aid when my debtproblems became too much for me to

deal with.My debt problems had started around 1999

after I lent my brother around £25,000. Ourparents’ landlord (a local authority) had toldthem that they were going to sell the property.Both of them were elderly and unwell and wedid not want them to move. So, my brothersuggested he could buy their home, whichwould mean they could stay there.

I lent the money to my brother, for which Ihad to borrow a lot of money myself, and hepromised he would pay it back. Despite hispromise he never repaid me. I did not haveanything in writing from him and my parentspassed away shortly afterwards, so there was



Debt advice


nothing I could do to prove that he owed methe money.

My debt issues became worse when I lostmy job. I had been on a low income anywayand struggling to afford debt repayments, butwhen I became unemployed they becameimpossible to manage.

I had tried dealing with my debt problemson my own. Before losing my job I managed to agree a freeze on some of my debts and wasmaking token payments on others. However,that meant the interest on the debts was soaring. I was receiving threatening letters from creditors saying that they would sendround bailiffs. I had thought about bank-ruptcy but I would not have known how to go about making an application and I wasafraid of the embarrassment.

By the end of 2009 I decided I had to dosomething. The letters from creditors werecoming all the time and any money that camein was disappearing straight away. Iapproached my solicitors in October. Theywere incredibly helpful and sorted every-thing out for me. They went through myfinances with me and told me I could applyfor bankruptcy. I thought this would be mybest option because I just wanted to be able tostart again. I had so much debt that I could notsee any other way out and it was ruining mylife. I have two young children and I was find-ing it increasingly difficult even providing theessentials for them.

My solicitor helped me put the evidencetogether and make the application. There wasa huge amount of paperwork and there is noway I could have done it all by myself. After Imade the application, it was accepted and Iwas declared bankrupt.

Things are so much better now. I have beenable to get back on my feet and I am trying tobetter myself. I am currently volunteering to

help get back to work. Last year I took a teach-ing assistance course and I am currently tak-ing an access to social work course. I hope tobe working again soon.

Legal aid was so important for me. I hadabsolutely no financial resources and withoutit I would not have been able to get assistance.I know that I would not have been able to dothe bankruptcy application myself; it was justtoo complicated and there was so much to do.If I had not got the fantastic assistance Ireceived through legal aid I probably wouldhave lost a lot of my property to the bailiffs.

Alternative sources of advice are just notenough. Whenever I went to the Citizens’Advice Bureau it was very difficult to get anappointment because they were so busy. If Idid get an appointment I would end up seeinga different person each time who would notbe familiar with my case. I think it would beterrible if legal aid was cut for debt issues –people in my position would have no chanceof having their problems resolved.

DM received legal aid for help withhis homelessness case

In 2006 I applied for help with my housing tomy local authority. They agreed to fund the

deposit for a private-rented home. After Ifound one that I could afford (along withsome help from housing benefit) my familyand I moved in.

I began to get into trouble with my rentwhen my housing benefit was reduced. Ifound out later that after a year in my home arent assessment officer had decided that therent was too high for the type of flat and thearea I was living in. Therefore the council



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reduced my benefit by £50 every week. Ifound it difficult to make up the shortfall onmy limited income from part-time work, andso my rent arrears increased.

I tried to speak to the council about my hous-ing benefit claim and to ask why it had beenreduced. Nobody could clearly explain why ithad been suddenly reduced after one year.

In the end the rent arrears were so high thatmy landlord started a possession claimagainst me. At that time I did not realise that I could get legal help to defend the land-lord’s claim. As it was a private tenancy, Ithought that he was able to evict me wheneverhe wanted. The court made a possession orderagainst me without a hearing.

When my family and I were evicted weapplied as homeless to the local authority. Wewere placed in emergency hostel accommoda-tion. This housing was not very good but wewere grateful to have a roof over our heads.

The council investigated our case and even-tually made a decision that they could notcontinue to house us because they said I hadmade us homeless by not paying the rent. Ididn’t think this was right – I had been payingthe rent, it was just that it was too high for meto manage. The council’s decision letter saidthat I had 21 days from the date of the letter toask for a review. They also said that we wouldhave to leave the emergency hostel within ashort space of time.

I handed in a letter to the council’s offices toask them to review their decision. However,the council refused to do this, saying that I hadmissed the deadline to request the review andthey could not accept my request after this.

As the council had refused to review mycase, our emergency housing was terminatedand we were evicted. My partner and childrenwent to stay with a friend for one night. Istayed with one of our other friends as neither

had enough space for all of the family. Ourfriends could only put us up for one or twonights at most.

The next day my partner went with the chil-dren to a local law centre. She explained herpersonal circumstances and what had hap-pened. The law centre said that they could nothelp her as they were very busy. However, thelaw centre solicitor put our case on an emailgroup of local lawyers and advisers to ask ifanyone in the area could help her. My solicitorsaw the law centre’s email and agreed to help.

The following day we went to my solicitor’soffice. She immediately wrote an urgent letterto the council asking the housing departmentto accept the review and provide more emer-gency housing while they carried out theirreview. My solicitor also asked social servicesto help because my young children were atrisk of being homeless. The letter warned thecouncil of court action unless they agreed tohouse our family. Luckily, shortly after receiv-ing my solicitor’s letter the council agreed to provide us with emergency housing that same day.

After this my solicitor investigated what hadhappened with my last tenancy. She got a copyof my housing benefit file and found the rentassessment decisions. From this she could seethat it was not my fault that the rent hadbecome unaffordable. She wrote detailed rep-resentations to the council about this and other



“If my partner had not gone tothe law centre that day thenour family could have beenforced to live in separate

homes with different friendswhile looking for a new home”


issues in my case. In the end they agreed tooverturn their original decision. They acceptedthat they have an ongoing duty to make surethat my family has somewhere to live.

I am very grateful to my solicitor and legal aidfor helping my family with this case. If my part-ner had not gone to the law centre that day thenour family could have been forced to live in sep-arate homes with different friends while look-ing for a new home. Also, it would have beendifficult for me to find a new home because ofmy low income and previous history. We couldhave been living apart for a long time.

Without my solicitor’s help I could not haveknown or explained to the council the reasonwhy my housing benefit had reduced and myrent became unaffordable. I could not have paidfor legal advice, as my part-time work does notbring in much money and I have my partner andyoung children to look after. I am thankful forthe work that my solicitor did for me.

EM received help escaping an abusive partner

In 2007 I approached a housing solicitor forhelp. I had been trying to escape an abusive

and physically violent ex-partner. Eventhough we were not together he would stillcome and go from my home whenever hewanted. It felt like he had complete controlover me and because we had a child together itwas difficult for me to avoid him.

When he was at my home he would startarguing with me and sometimes becomephysically violent. When I rang the police hewould disappear before they arrived. Theywere never able to catch him and arrest him.Instead they advised me to apply for a transfer

from my landlord (a local authority) and moveto a new home, where he would not be able tofind me.

I asked the council to transfer me. I showedthem pictures of my bruises and injuries. Igave them police records and crime referencenumbers. My case went to the emergency re-housing panel but they turned me down.Apparently I did not have sufficient evidenceto show that my life was seriously at risk.

After the council turned me down I did not know what to do. My mum suggested that I get some legal advice from a housingsolicitor. That is when I contacted a firm to ask them to help me.

My solicitors wrote a letter and referred meto another council’s homeless person’s unit. Iwas placed in a safe house immediately. I fledmy previous home with my son. We left all ourbelongings and clothes. We just escaped and Iwas in the emergency hostel accommodationfor around eight months. The new councilaccepted that they had a duty towards me andmy son as a homeless family fleeing violencein my old home. I was placed on a waiting listfor a new home and eventually I was granted atemporary home with a housing association. Ihave just recently been offered a more secure,permanent home for my son to grow up in.

I am very happy now everything is over. Myson and I can live in peace knowing that my ex-partner does not know where we are and I amthankful for being able to get legal aid to helpme with my case. If legal aid had not beenavailable to help me then I do not know what Iwould have done. I could not have done thison my own.

Mr and Mrs Mansell were helped



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Welfare benefits


by free legal advice to retain theirpension credit

Iam writing this letter to express my concernabout the proposed legal aid cuts. I found

myself in difficulty recently following a deci-sion by the DWP to refuse to pay me any pen-sion credit. They also told me that I had beenoverpaid by more than £11,000. This left mewith barely any income for my wife and I, andwe struggled to survive on what we had.

With professional welfare benefits advicewe were able to prepare for a tribunal hearingagainst the decision to refuse pension credit.We were successful in this. We were also ableto quickly change the decision that we had topay money back to the Pensions Service.

The rules involved in the Pension Service’sdecision were complex and not easily under-standable. We also found that the PensionService itself confused the issue further inadvance of the hearing which would havemade it nearly impossible for us to deal withthe case on our own.

I would not be able to afford to pay for legaladvice and would support legal aid continu-ing to support people like myself.

Jean Martin had help to stop herbeing evicted

Ineeded legal help when my landlord triedto increase my rent to a level I could not

afford. I live in a rented house in Enfieldwhere I’ve lived most of my life. My parentswere the original tenants of the house andthey already lived there when I was born in1943. I lived in the house from my birth upuntil 1975. At that stage I moved out briefly to

live with my partner. Our son was born in1976 when I was still living away from thehouse. Shortly before my mother passed awayin January 1978, my partner, our son and Imoved into her home. At that stage my part-ner and I took over the tenancy. I’ve lived hereever since. My partner passed away in 2001and my son moved out not long after, so sincethen I have lived here alone.

In February 2010 I received a letter from mylandlord informing me they were going toincrease my rent to £250 per week. My rent atthe time was only £125 and I was receivinghousing benefit to pay for it. I contacted thecouncil but they told me housing benefitcould only cover £165 per week. The changeswould take effect from April 2010 so I did nothave much notice. I knew that I would not beable to afford to pay the extra rent, so I wasvery worried.

I initially approached Enfield CouncilHousing Advice for assistance. They helpedme challenge my landlord’s decision as hewas legally required to give me six months’notice of a change in rent.

This meant I was able to put back the date ofeffect of the new rent until November 2010.However, I was still extremely worried as Idid not know how I was going to pay the extrarent. The only income I receive is from hous-ing benefit and my pension which is verysmall and only just covers my outgoings asthey are.

Housing Advice then referred me to a solic-itors’ firm. They were absolutely great. Theyadvised me that because I had been living inthe house for I was a protected tenant underthe Rent Act. This meant that the landlordcould not lawfully raise my rent to the level hewanted. They managed to sort out the wholething for me by helping me apply to court toestablish that I was a protected tenant.



Housing


My solicitor rang me in early December2010 to say that the court had accepted that Iwas a protected tenant. He informed me thatthis meant that if my landlord wanted toincrease my rent in the future it would have tobe an allowable increase and it would verylikely be covered by my housing benefit. Asyet my landlord has not tried to change myrent again. I was so happy when I heard this.

All the worry and stress had been like a leadweight around my neck. It had made me illand I was even taking anti-depressants whichI had never had before.

There is no way I would have been able tostay in my house without legal assistance. Mysolicitor told me that being a protected tenantunder the Rent Act is very rare. I definitelywould not have been able to discover it bymyself. If it had not been for my solicitor I amsure my landlord would have raised my rentand I would have had to leave my home.

That is why legal aid is so important forpeople like me. I have been lucky, I got help,but there are so many people out there whostill need it.

The following is a letter fromSouleikha Mouhamed who receivedhelp from Hackney Community Law Centre for both asylum andhousing problems

My mother and I came to the UK inDecember 2002, as we fled the civil

war in Somalia. My father was murdered in the civil war, and to this day we do notknow whether my brothers or sisters are dead or alive.

We were living with a Somali friend, whoafter few weeks asked us to leave her house,so we became homeless. The solicitor whowas representing us at that the time did notgive us the right support and advice, and as a result our asylum claim was refused and the case was closed.

A friend told us about Hackney Commu-nity Law Centre and how the housing solicitor was extremely helpful and support-ive. We had nowhere to sleep the night wewent to the law centre. The housing lawyercontacted various departments of the counciland got a court order over the telephone. Wewere placed in a bed and breakfast at oneo’clock in the morning.

At the time, we also had immigration problems. The immigration solicitor at thelaw centre was not only helpful, she wasunderstanding, caring and compassionate.Thanks to her, our immigration case wasreopened. We went to court to appeal the decision by the Home Office and we were successful. We were then granted refugee status.

Since then the law centre has helped us to berehoused by the council, and is helping withour request for a transfer (my mother is dis-abled and we live up a flight of stairs). Theyhave also represented my mother once at thelower tribunal for my mother’s Disability Living Allowance appeal and we are waiting



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“For us, the law centre hasbeen a lifeline, and I am sure ithas been and continues to be

the same for many others. I willalways be grateful for the help

I received”

Asylum law, housing andwelfare benefits




for another hearing.We have moved on with our lives now,

and I am about to complete my universitydegree. One day I may work in the NHS. I washorrified to learn about drastic proposed legalaid cuts, which would mean that in the futurethe law centre would not be able to help people like us with benefit and money advice,immigration and housing problems. I wouldask the government to rethink.

The law centre has been so helpful to me and my mother. It’s a place dedicated tohelping people like us. For us, the law centrehas been a lifeline, and I am sure it has beenand continues to be the same for many others.I will always be grateful for the help I receivedand thank both our solicitors from the bottomof our hearts.

EP received help in the wake of thebreak up of an abusive relationshipin relation to divorce and care proceedings

Imarried my husband in 2002. Soon after-wards we began to have problems. My hus-

band previously had a high-profile job as abanker in London, although when we met hehad left his job and was living off capital. Hehad lived a party lifestyle and at the time wegot married he had an addiction to cocaine. Atthe time I was naive and didn’t realise howsevere the problem was. We attempted to dealwith this by moving away from London, butthis didn’t work.

Over the next few years my husband’s behav-iour became worse. He was older than me, verydomineering and controlling. He was alsophysically abusive. My health began to suffer

because of his behaviour and our situation. Ibecame withdrawn. I began to spend almost allof my time in the house just with our daughter. I did not have support from my family at thetime. I began to drink heavily and ended updeveloping a serious alcohol addiction.

Our marriage deteriorated further. Wewould both be violent towards each other,particularly when I had been drinking a lot. I did try to leave my husband a number oftimes during this time but he would alwaysthreaten me. He told me that he would makesure he got custody of our daughter and that I would never see her again.

On one occasion my husband and I had a serious fight. The police were called to thehouse. Our daughter was only three at thetime and, because my husband and I had been violent with each other, social servicesbecame involved.

Over the next year things were awful. ChildProtection was working with me and my hus-band, but because of his drug addiction andmy alcohol addiction we were getting worse. I was so miserable that I was just giving up onlife. I did not have the energy or the will to tryand sort myself out. As part of our work withsocial services my husband and I had agreednot to be around our daughter at the sametime. When social services found out that wehad broken that agreement they began courtproceedings to take my daughter into care.

This was when I first approached mysolicitors. I was worried about how I was

going to pay for her because I was not work-ing and we had huge financial difficulties.However, my solicitor told me I could qualifyfor legal aid funding.

My solicitor was amazing. She was incredi-bly supportive, far beyond her professionalduties. At that time I was so unhappy, I was analcoholic and in an abusive marriage. I was

Childcare and family


unable to function properly as a mother. Mysolicitor helped me every step of the way. During custody proceedings the judgestrongly recommended that I seek a residen-tial treatment programme for my alcoholaddiction, which I did. While I was in the resi-dential programme the court made a specialguardianship order in favour of my father.

Around this time I realised that if I was evergoing to properly repair my life I needed toget out of my marriage, so, with the help andsupport of my solicitor, I started divorce pro-ceedings. At that stage I was pregnant withour second daughter. Because Child Protec-tion had been involved with us for so long,our second daughter was placed on the childprotection register when she was born.

After I completed the residential pro-gramme although I had stopped drinking Istill had difficulties. I was still very emotion-ally weak. I suffered from anxiety which wasmade worse by the continuing difficultieswith my husband and the stress of the divorceproceedings, and I often had panic attacks.After a short time in temporary housing Imoved in with my father who was still caringfor my oldest daughter.

The divorce proceedings took a hugeamount of time. There were many issues to be

resolved, such as contact arrangements for thechildren, and my husband was beingextremely uncooperative. He was determinedto obstruct any progress and managed to dragout the proceedings for a long time. My solici-tor was a great support throughout. There isno way I could have done it myself. I was stillso fragile at the time and my husband wouldsay nasty, abusive and untrue things about meduring the hearings. The idea of goingthrough that without the legal assistance I hadis inconceivable.

It took a long time, but in the end thingsimproved. I have stayed off alcohol, my sec-ond daughter is now off the child protectionregister and in February 2010 the order givingmy father special guardianship of my firstdaughter was revoked. My husband also gottreatment for his addiction and was able togive up drugs. He got a new job and livesabroad now. Our divorce was finalised inOctober 2010 but we have been able to buildan amicable parental relationship for the sakeof our children.

Now I am a functioning parent and I’mstarting to rebuild my life. It is still difficultthinking about all that has happened but I amso much better than I was. I am indebted to mysolicitor. She was unbelievably supportive. Itwas more than just a professional relation-ship. She helped me see that I was never goingto improve my life unless I got out of my abu-sive marriage. When I was at my worst Ineeded someone whose professional duty itwas to be honest with me.

Without legal aid I do not know where Iwould be now. I had no resources of my ownwhen I left my husband. Neither of my par-ents was financially stable enough to lend memoney and my husband had left us in such adire financial situation at the time that I couldnot borrow money. Without the assistance I



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“Over the next year thingswere awful. Child Protectionwas working with me and myhusband, but because of his

drug addiction and my alcoholaddiction we were getting

worse. I was so miserable that I was just giving up on life”


got through legal aid I probably would havelost both my children and may still have beenan alcoholic and in a violent relationship.

Steven had help in family contact pro-ceedings and advice on his debt issues

Ineeded legal advice to petition for a divorceagainst my wife. Most importantly, I

wished to put in place arrangements to see mytwo children. In addition, I had major debtsincurred during the marriage that were solelyin my name.

In relation to my debt situation, my solicitorrecommended a debt relief order whichmeant that, although this affected my creditrating, I did not have to pay my debts unless Ihad sufficient disposal income. This has pro-vided great relief to me and means I have suf-ficient money to see my two children.

My solicitors have provided me with excel-lent advice and support. Without them itwould be hard to think of the possibility of adecent life. I am now going through a divorceand have formal arrangements in place to see

my children. Because of the work undertakenby my solicitors, I can now move on with mylife and work on building a better future formyself and my children.

I knew from research on the internet that Iwas entitled to legal aid. I am alarmed to thinkthat people in my position will find it increas-ingly hard to have access to legal aid funding.

In certain circumstances I believe going tocourt is the only satisfactory option available.I am about to partake in mediation, which isnot ideal for someone in my circumstances –the distance between myself and my ex makesthis option impractical. I find no comfort inthe fact that both parties are entitled to changetheir minds. However, the benefit of obtain-ing a court judgment is that it provides cer-tainty and both parties know what is expectedof them and the consequences. This is particu-larly important when negotiating rights to seemy children.

Subera received legal aid after herlocal authority refused to house her and her 12-year-old sister

Ireceived help from my local law centrewhen I was applying to the council for

accommodation.I am from Bangladesh originally and I

moved to the UK with my father and twoyounger brothers in 1999 when I was aroundnine years old. In 2005 my father became sickand was taken into hospital. He passed awayshortly afterwards. I was only 15 at the timeand I was left trying to look after my two broth-ers, aged 14 and ten, by myself. After a shortwhile my school found out about the situationand informed social services. All three of us



“I am now going through a divorce and have formal

arrangements in place to seemy children. Because of

the work undertaken by mysolicitors, I can now move

on with my life and work onbuilding a better future formyself and my children”

Family and debt advice

Community care and housing


were then taken into foster care. I was housedin a placement separate from my brothers,which I found difficult and upsetting.

Shortly after turning 18, I moved to Londonand began to live in a supported housingscheme for young people. I had been acceptedto study psychology at a London university.

I had been living in the supported housingfor about three months when I got a phonecall from my mother in Bangladesh. She told me that she was suffering from cancer.At the time my little sister was just 12 yearsold and still living with our mother inBangladesh.

My mother told me that she had become sosick that she could not care for my sister any-more. There were no other family memberswho could take my sister in and already somefamily members were talking of marrying mysister off. My mother was extremely worried.She asked me if I would care for my sister andI said I would. A few days later my mothersent my sister over to London with one of herfriends. This was in June last year. The friendthen went back to Bangladesh, leaving me tolook after my sister.

I had not been able to make any plans for my sister’s arrival as this had all happenedso suddenly. Unfortunately my sister was notallowed to stay with me at the supportedhousing scheme as it only housed people over16 years old. At first I tried to hide the fact thatmy sister was living with me just until I couldfind somewhere else to live, as I knew theywould ask me to leave and we would behomeless. I could not arrange anywhere elsefor us to live because I had very little moneyand few resources. In the end I had to tell thepeople at the housing scheme about my situa-tion. They told me that if I wanted to live withmy sister I would have to leave. There was noway I could abandon my sister, so I was given

one week to leave my home.I approached my local law centre for help.

They had given me housing advice when Ifirst arrived in London and I thought they hadbeen really great so I went back to them.

The law centre advised me that I couldapply to the council for emergency accommo-dation. I went to the council but they refusedto provide emergency housing. They told methat it was my fault that I was homeless as Iwas voluntarily looking after my sister.

My adviser helped me obtain a statementfrom social services that confirmed I was mysister’s sole guardian. They also helped meput together evidence that my mother wassick and unable to care for my sister. I had evi-dence to show that I could not secure my ownhousing. Even with this evidence to supportme and the support of social services, thehousing department still refused to house meand my sister. They told me that if my sisterreally did not have anyone else to care for herthen I should put her into foster care and stayin the supported housing by myself.

I was shocked and devastated when thecouncil told me that. I was simply trying to dowhat was best for my sister and it felt like Iwas being punished for that. I had promisedmy mother I would take care of her and therewas no way I could put her into foster care. Ihad been in foster care myself and knew thedifficulties that go with it. I did not want toput her through that.

At the end of the week I had to move out ofmy home. Social services had agreed to pro-vide housing for me and my sister for a shorttime while my application for housing wasbeing processed. I knew that the social serv-ices housing was just a temporary solutionand I was so worried because I did not knowwhat was going to happen to us. Every time Ispoke to the housing department I got the



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same response, no matter how desperate Isaid my situation was or how much evidence I provided.

When I told the law centre this they imme-diately wrote to the housing department. Mycase worker told me that the housing depart-ment was definitely wrong to refuse myapplication. In the letter she demanded areview of the decision and threatened courtaction unless my sister and I were providedwith emergency housing. The council didreview the decision and confirmed that theyhave a duty to make sure that my sister and Ihave somewhere to live. Within the next cou-ple of days we were provided with temporaryaccommodation in a two-bedroom flat.

We are still living in temporary housing butI am currently bidding for permanent accom-modation for us. Already our situation is somuch better. We have some stability and I amable to concentrate on my studies at universityand taking care of my sister. I have managed tofind a school for her and she is doing well.

I would not be in this situation if it was notfor the help I received from the law centre.They were so supportive of me throughout,not just with the legal side of things but alsopersonally. Every time I approached the hous-ing department myself I was refused with thesame excuses. It was only when my case-worker intervened and wrote to them directlythat any progress was made. Without their

assistance I would either be homeless or Iwould have had to put my sister into fostercare. This kind of help is so important for peo-ple like me who have so few resources andwho are just trying to make a life for them-selves and their families.

Mrs Whitehouse received help whenher landlord tried to sell the house inwhich she had been living for almost50 years

Ineeded help from a solicitor when I receiveda letter from my landlord’s solicitor saying

that she wanted to come and speak to us aboutour flat. The solicitor came round shortly afterthis and told my husband and I that my land-lord wished to sell our flat. The solicitor told usthat there was nothing we could do to preventthis and that it would be unwise to try and fightit in court as we would definitely lose.

The prospect of being moved from ourhome was terrifying. We had lived in our flatsince 1962. We were elderly (my husbandwas 79 at the time of our trial and I am now78) and we had hoped to stay living in our home until we were no longer wellenough to do so.

Our landlord showed us another flat thatwe would be moved to if we agreed to leaveand I did not like it at all. There were few win-dows so it was much darker than our flat.Also, although it was still within our localarea, it was a very different community.

Our flat is on a lovely street and I aminvolved in my community. I am president ofHousing for Young Employed Men of LimitedMeans (HYELM), an organisation that pro-vides affordable housing and facilities for key



“We are still living in temporary housing but

I am currently bidding for permanent accommodationfor us. Already our situation

is so much better”

Housing


workers and young people (of both gendersnow) of limited means in London. I also act astrustee for the InterChange Trust, an organi-sation based in Hampstead that providesactivity programmes for youngsters, somewith difficult backgrounds, often involvingmental health or physical disability issues orcriminal backgrounds. I also founded theNetherhall Neighbourhood Association in1983 and remain on its board.

My neighbours are even more important tome now that my husband has passed away.They often help me with chores such as givingme lifts to do my shopping and they recentlyturned up unexpectedly to clear my frontsteps during the snow and ice. More than that,my flat has been my home for nearly 50 yearsand moving to this other flat would have beenlike moving to another world.

I felt it was important to get some legaladvice about what was happening to us. Weapproached a tenants’ advisory group inCamden who provided a list of solicitors thatwould deal with housing issues like ours.

The solicitor we found was fantastic. She told us that we qualified for legal aidfunding and arranged it all for us. We thoughtwe had a good case but unfortunately at thefirst court hearing we lost. However, our bar-rister told us that she could not believe that wehad lost the case. She said that in her opinionthe judge had been clearly wrong and that weshould appeal.

My husband and I were initially wary of theidea. The whole situation had been incrediblystressful and had affected our health. We werenot sure if we could stand the stress of drag-ging it out further. Also, I felt awful about tak-ing further money from the public purse tofund our case, even though my solicitor hadexplained to us that it was our right and thatthis is what it was there for.

In the end we trusted our barrister’s opin-ion and agreed to appeal. It was lucky that wedid, because when the case went to the Courtof Appeal we won with a unanimous verdict.All three judges said that our landlord’s casewas extremely weak and they were quite critical of the first judge who had sided with our landlord.

Unfortunately my husband was not alive tosee that decision, as he had died from a heartattack while the appeal was still ongoing. I amsure it was not the sole cause, but I also haveno doubt that the stress of this whole situationwas part of what caused my husband’s death.

I am completely indebted to legal aid. Atthe time of the case my husband and I werelong retired and had survived on benefits for along time. My husband used to work as a free-lance filmmaker, producing, directing andfilming. It did not pay much though as he wasoften out of work and he had not made anyprovision for our old age such as a pension. Ifwe had not received legal aid we would havehad no way of funding this case. We wouldhave had to move out to the flat that our land-lord was offering, leaving our home of 50years and all our friends, without knowing



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“The prospect of beingmoved from our home was

terrifying. We had lived in ourflat since 1962. We were

elderly – my husband was 79 at the time of our trial and I am now 78 – and we hadhoped to stay living in our

home until we were no longerwell enough to do so”


that our landlord had no right to do this.I did not want to have to take public fund-

ing for this case, but there was not any alterna-tive. Luckily, because we won the case mylandlord was required to pay all our legalcosts so all of the money we had received wentback to the government. When my solicitortold me that I was almost as happy about it as Iwas about winning the case. My husband andI were vulnerable people, and vulnerable peo-ple need to have the support of legal aid.

(The Court of Appeal decision can be foundon Bailii: Whitehouse v Lee [2009] EWCA Civ375.)

Yvonne received legal aid to helpapply for guardianship of her grandson, after he suffered fromabuse from his father

Iwanted advice on what I could do when mygrandson was taken by social services fol-

lowing accusations that his father (my son)had been physically abusing him.

The police removed my grandson after ananonymous phone call to them concerningchild abuse. My son, who was later arrested,phoned me when his child was taken away. I contacted the police and found out that mygrandson had been taken by social services soI went to their offices.

I was allowed to take my grandson alongwith a social worker to visit a child protectionofficer and a doctor. At first he wouldn’t saywhat had happened but he later described theviolence to the doctor. After we had seen thedoctor I took my grandson home to live withme and my two youngest children.

Over the next few weeks I didn’t hear

much from social services. I thought I was notgetting much information or support. It feltlike they had just forgotten about me andmy grandson.

My grandson was taking a long time to settle in. When he first moved he was upsetand showed the emotional strain. He wasworried that he had betrayed his dad and wassuffering from nightmares and bed-wetting. Sometimes he felt resentful towardshis dad and he would be cold and rigidaround other family members. He didn’t like to be embraced and I think his dad sometimes told him that the rest of us didn’tlove him.

I began to think that I wanted a more formalarrangement in place for looking after mygrandson. I was concerned that my son wouldbe able to come and take him away wheneverhe wanted. When I decided that I neededadvice I went to the Citizens’ Advice Bureaux.There was no indication that the CAB couldassist me and they gave me a list of local solicitors’ firms to visit.

I picked the firm that was closest to myhome. I’m not sure what I would have done ifit had been further away. I didn’t have anyhelp looking after my grandson and had totake him to school and collect him. It would



“My grandson was taking a long time to settle in. Whenhe first moved he was upsetand showed the emotionalstrain. He was worried that

he had betrayed his dad and was suffering from

nightmares and bed-wetting”Family


have been very difficult for me if there hadbeen no local legal aid advice available.

My solicitors they told me what my optionswere, including applying for a residenceorder or special guardianship order. I tooksome time to think about it. I liked the soundof a special guardianship order. It soundedlike the role I wanted to have where I wouldhave the same rights as a parent when mak-ing decisions about my grandson. I alsowanted to ensure that he couldn’t just betaken away again. With the SGO in place itwould mean someone would have to get acourt order to take him from me.

I was also happy because I could explain allthis to my grandson. He was having a diffi-cult time and was worried that his dad couldtake him back at any time. He wanted to beable to visit his dad but he didn’t want to livewith him.

I went back to my solicitors and told them Iwanted to apply for an SGO. They told methat I would have to get a residence order inplace first, and then I could apply for an SGO.They applied for the orders for me, putting allthe evidence and information together. I donot think that I could have done this on myown – I needed the help of those who werequalified and able to work on my behalf.

I’ve been to court around four timesthroughout this process. Each time a solicitorhas been there with me, which I have found agreat support. In that time my son wasbanned from direct and indirect contact withhis son. He also received a two-year sus-pended sentence. I haven’t got the SGO quiteyet but we’re going to court again in a coupleof months and I’ve been told that I should getit then.

Since coming to live with me my grand-son’s come a long way. The bed-wetting andnightmares have tapered off and you can see

from the way he holds himself that’s he lesstense and more relaxed. He is opening up andexpressing himself more – his dad always cuthis hair short but he decided he wanted anAfro. I wasn’t sure about it myself but we’rebeginning to see who he really is.

I think having call centres as the first pointof contact would be a mockery of the legalsystem. When I needed legal advice I wasvulnerable and felt that I needed someone totalk to face to face, not over the phone. I don’tthink legal aid costs too much – you can’t puta price on things that are priceless. If youremove this funding then it would cause evenmore breakdown in society.

If I had not been able to afford legal advicethen I might have tried to represent myself.But I don’t know how I would have dealt withall the paperwork or known who to chase andfor what information to help my case. Itwould have felt as if it was me up against allthe other authorities involved. In the end itwas the court that got the local authority to doall the things it should have been doing in thefirst place. Before the court hearings no infor-mation had come from social services; it hadall come from the solicitors. I felt like socialservices were waiting to see what everyoneelse – the police, the courts, and so on – woulddo.

I am very grateful to legal aid and my solic-itors for their help so far. The school says thatmy grandson is a changed child. He wasalways able academically, but now he hasblossomed and no longer bottles things up. Idon’t think that could have happened with-out taking the action that I did.

Without legal aid my grandson would beliving in an uncertain and unsafe situation.There would have been a constant risk thathis father would come and take him away atany time. He can’t do this now.



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the case for legal aid: the rule of law

Shami Chakrabarti

© R

ipon

Ray




7. The case for legal aid: the rule of law

What is the rule of law?For the late Lord Bingham, a former seniorlaw lord, the rule of law meant: “All personsand authorities within the state, whether pub-lic or private, should be bound by and entitledto the benefit of laws publicly made, takingeffect (generally) in the future and publiclyadministered in the courts.”1

That is, everyone must adhere to the law, noone should be above it, and everyone shouldhave the protection of the law when they need it.

According to Bingham, the rule of lawencapsulates a number of different principles,including:! Equality before the law: the laws of the

land should apply equally to everyone. ! Ministers and public officers at all levels

must exercise their powers in good faith,fairly, for the purpose which they weregiven to them, without exceeding the lim-its of such powers and not unreasonably.

! The law must provide adequate protec-tion of fundamental human rights.

! Access to justice: as an unenforceable rightis of little value to anyone, everyone shouldhave the means to resolve their disputeswithout prohibitive cost and as a last resortpeople should be able to go to court to havetheir civil rights determined.

! A fair trial: procedures for resolving dis-putes should be fair. This encapsulates

the idea of ‘equality of arms’, i.e. that thedice should not be loaded against oneside or the other.

The importance of the rule of lawThe rule of law is central to our modern sys-tem for protecting human rights. The first ofthe major human rights documents drawn upafter the Second World War was the UniversalDeclaration of Human Rights, adopted by theGeneral Assembly of the United Nations on10 December 1948. The affronts to humanitycommitted during the war were still fresh inthe minds of the commission, chaired byEleanor Roosevelt, which drafted the declara-tion. The preamble to the declaration says “itis essential, if man is not to be compelled tohave recourse, as a last resort, to rebellionagainst tyranny and oppression, that humanrights should be protected by the rule of law”.

It is precisely this principle, among others,upon which the European Union is founded.Article 2 of the consolidated version of the EUtreaty states:

“The union is founded on the values ofrespect for human dignity, freedom, democ-racy, equality, the rule of law and respect forhuman rights, including the rights of personsbelonging to minorities. These values arecommon to the member states in a society inwhich pluralism, non-discrimination,

“Wherever law ends, tyranny begins” was how 17th century philosopher JohnLocke summed up the rule of law. We considered a range of evidence andinformation to the effect that the rule of law is integral to a democratic society

and that legal aid is a vital component of this.

the

rule

of l

aw




tolerance, justice, solidarity and equalitybetween women and men prevail.”

In 2008, the then leader of the opposition, now the British prime minister, DavidCameron, declared his commitment to the ruleof law stressing its importance to British society:

“There’s a long list of things we mightinclude in any description of our nationalcharacter, or ‘Britishness’. But I don’t think we need engage in some protracted exerciseto define our shared values. We can do it in asingle phrase. Freedom under the rule of law.This simple, yet profound expressionexplains almost everything you need to knowabout our country, our institutions, our his-tory, our culture – even our economy. It is whyBritish citizens are free men and women, ableto do what they like unless it harms others oris explicitly forbidden. And why no one andnothing is above the law. These shared values,enshrined in our constitution and institutionsover centuries, are the foundation of ourcivilised society. They are democratic, pro-gressive and protect our human rights.” 2

These points were echoed in the Ministry of Justice’s 2010 green paper on legal aid,which states that “the government stronglybelieves that access to justice is a hallmark of a civilised society”.

The role of legal aid We have considered a broad cross-section of evidence on the role of legal aid in uphold-ing the rule of law. The judiciary is particu-larly outspoken on this. Lord Binghamexplains in his book is that “denial of legalprotection to the poor litigant who cannotafford to pay is one enemy of the rule of law”.Lord Clarke, former Master of the Rolls,argues that the government cannot simplypick and choose what parts of the justice system it funds. He says:

“[T]he state should properly understand thatproperly funding the civil and family justicesystems is as essential a part of a society com-mitted to the rule of law and to open democraticideals, as is properly funding the criminal jus-tice system. It is essential in this way becausethe three systems are in fact no more than threefacets of an indivisible whole and it is thatwhole that is or should be the living embodi-ment of our commitment to the rule of law.”

It is well established that legal rights are mean-ingless without the means to enforce them:

‘‘Ibi jus ubi remedium as the courts used to saywhen Latin was still in vogue. The languagemay have fallen out of favour since the Woolfreforms, but it cannot be denied that the truthexpressed by the claim that where there is aright there must be a remedy remains as validtoday as it did in 1702. The truth expressed hereis one that those interested in civil justice ingeneral, and access to justice in particular, havelong understood. It is a truth that Bentham,that great 19th century philosopher andreformer, noted when he attacked what wouldsoon become known as our, then, Dickensiancivil justice system on the grounds that its inad-equacies rendered ‘talk of equality, rights, lib-erty and justice’ a chimera. In the absence of ameans to effect a remedy through which toenforce legal rights and obligations, the lan-guage of rights is meaningless. As our Ameri-can cousins are known to say, talk is cheap.” 3

Lord Justice Jackson in his comprehensivereview of civil litigation costs also recognisedthe importance of the legal aid system inmaintaining access to justice, stating:

‘‘…the vital necessity of making no furthercutbacks in legal aid availability or eligibility.The legal aid system plays a crucial role in pro-moting access to justice at proportionate costsin key areas… The maintenance of legal aid atno less than the present levels makes sound




economic sense and is in the public interest.’’ 4

Lord Neuberger, Master of the Rolls, has beenequally forthright. In his keynote address to theLaw Society and Bar Council in 2009, he said:

“Today, not least because of the effects of thecredit crunch, many countries are finding it dif-ficult to fund legal aid. Economic reality must,of course, play a part. It must play a part in anyfuture reform. But we should still ask how wemanage to find ourselves in the situation thatthe total (criminal and civil) legal aid budgetfor 2008 came to nomore than the totalNHS budget for twoweeks. Reverting toHeber Smith, the ruleof law and thedefence of the realmare the most funda-mental and well-established duties ofgovernment: if eitherfails, the morerecently developed,high-profile andexpensive govern-ment services, such asthe provision of health, education and socialsecurity, become impossible or of little value.Why some might ask, as a society, are we will-ing to invest so little on legal aid, when both theunacceptably unfair effects on individuals andthe fundamental risks to society of the denial of justice to many citizens are so profound?” 5

The impact assessments published along-side the government’s 2010 green paper setout in alternate terms the effects of cutting legal aid. They warn of the “widersocial and economic costs” of cuts and sayreducing legal aid may result in “reducedsocial cohesion” as a result of “failure to apply

the rule of law fairly”, encouraging people“not to respect rules and regulations and notcomply with social norms and expectations”.

Similarly the impact assessments note thepotential for “reduced business and economicefficiency” as “failure to enforce rights andnot applying the rule of law may underminework incentives, business certainty and theoperation of markets”.

Campaign group Liberty stressed to thepanel the constitutional role of legal aid in

upholding the rule oflaw and protectinghuman rights. Itdescribed legal aid as“fundamental toenforcing individualliberties across theboard and ensuring athriving culture ofrights”, saying:“Access to the courtsto uphold individualrights does morethan simply vindi-cate the individual inthe particular cir-

cumstances of his or her case. Successful chal-lenges set precedents, raise awareness andhelp to instill human rights considerationsinto public sector decision making.” 6

Liberty’s evidence stressed that humanrights are illusory without legal aid to helpenforce them: “[E]ffective access to the courtsis an integral part of the human rights regimeas a whole. Without publicly funded legal rep-resentation many individuals will be effec-tively precluded from seeking redress andthus denied access to an effective remedy.”

It also pointed out that cuts to legal aidwould create an inequality of representation.“The principle of equality of arms will never

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“Access to the courts to upholdindividual rights does morethan simply vindicate the

individual in the particular circumstances of his or hercase. Successful challenges

set precedents, raise awareness and help to instillhuman rights considerations

into public sector decision making”




Notes for Chapter 7

1. Tom Bingham, The Rule of Law (2010, Penguin London)

page 8

2. Speech to the Foreign Policy Centre, 24 August 2008

3. Lord Clarke of Stone-cum-Ebony, Hope springs

eternal: The Mary Ward Legal Advice Centre

Annual Lecture

4. Lord Justice Jackson, Review of Civil Litigation Costs:

Final Report, December 2009

5. Lord Neuberger MR Keynote address, the Law Society

and Bar Council Opening of the Legal Year Ceremony,

30 September 2009

6. Liberty, Response to the Ministry of Justice Proposals for

the Reform of Legal Aid, February 2011

be achieved if publicly funded legal represen-tation is of a lesser quality than privatelyfunded representation, or is so scarce as to bein practical terms unavailable.”

The evidence suggests that, without a prop-

erly funded public legal system, those unableto afford private representation will haveeither poor quality representation or none atall. If ordinary people cannot access justicethen the rule of law is undermined.

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8. The case against legal aid: the arguments for changing the current system

the case against legal aid: the arguments for changing the current system

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The panel considered arguments for reducing legal aid in depth. The government’s 2010legal aid green paper provides a comprehensive case for reducing legal aid. We alsoinvited the Ministry of Justice to participate in the event on 2 February 2011. Jonathan

Djanogly, under-secretary of state for justice, declined to attend the evidence session butresponded in writing (Appendix 3).

We made a point of contacting organisations which had expressed or, in our view mightexpress, support for the principle of cuts to the legal aid system. We approached the AdamSmith Institute, the Taxpayers’ Alliance, the Society of Conservative Lawyers and the PolicyExchange. Of these organisations the Taxpayers’ Alliance and the Adam Smith Institute did not respond. We have considered the latter organisation’s publication Access to Justice: Balancing the Risks .

The Society of Conservative Lawyers told us that they had no ‘party line’ on the availabilityof legal aid and provided us with a copy of its publication Access to Justice which containsessays by individuals on the funding of litigation.

Policy Exchange offered to reply to written questions. We also considered their publicationControlling Public Spending: How to Cut 25% , and an article by their director entitled How can weget the legal aid bill down?

Too much unnecessary litigation and legalismA recurrent theme in the documents is thatthere is too much unnecessary litigation insociety. Or, as the Adam Smith Institute putsit, legal aid is encouraging “risk-free specula-tive litigation”.1 In support of this, in his letterof 20 January 2011, Jonathan Djanogly states:

‘‘The scope of legal aid has widened enor-mously over the years and we believe that thishas encouraged people to bring their prob-lems before the courts too readily, even whenthe courts are not well placed to provide thebest solutions. This has led to the availabilityof taxpayer funding for unnecessary litigation. The aim of our proposals is to

reserve taxpayer funding for legal advice andrepresentation for serious issues which havesufficient priority to justify the use of publicfunds subject to people’s means and the mer-its of the case. The proposals would ensurethat legal aid continues routinely to be avail-able in cases where a litigant’s life or liberty isat stake, or where they are at risk of seriousphysical harm, the immediate loss of theirhome, or where they face intervention fromthe state in their family affairs which mayresult in their children being taken into care.”

This mirrors the stance taken by the LordChancellor Ken Clarke, introducing the legalaid green paper to the House of Commons: “Itcannot be right that the taxpayer is footing the




bill for unnecessary court cases that wouldnever have even reached the courtroom doorwere it not for the fact that somebody else was paying.”2

The implication is that the taxpayer is fund-ing cases which are either trivial or could bebetter solved by other means. Neither the gov-ernment nor the Adam Smith Institute citesany specific examples of unnecessary litiga-tion funded by the taxpayer.

However, Ken Clarke has given educationlaw, where current funding is only forpreparatory work, as an example of over-legalism: “It is simply not right for the tax-payer to help inject an element of what isreally legalism into problems that should inthe end be resolved taking into account thebest interests of the child from an educationalpoint of view.”3 The green paper proposes toscrap education altogether from legal aid.

Not always necessary The second principle criticism directed at thecurrent legal aid system is that public fundingmay not be necessary to resolve the dispute.For example, the government in proposing theareas of law which it considers should beremoved from the scope of legal aid have beenguided by whether or not the individual mightbe able to present their own case without legaladvice or representation; whether alternativesources of funding such as conditional feeagreements or insurance might be available; or whether there are alternative routes to reso-lution, such as advice from a voluntary organi-sation or the existence of an ombudsman.

To the same end Policy Exchange advocategreater reliance on the voluntary sector and assert:

“There is also significant scope for bringingnew money into the system to help moderatedemand on the taxpayer. One possibility is

that the insurance market could step in moreas the state withdraws, providing before-the-event legal expenses insurance to a muchwider portion of the population (somethingwe are investigating at Policy Exchange).”4

Taking responsibility A third criticism of the legal aid system,implicit in the government’s green paper, isthat individuals are not taking sufficientresponsibility for their problems. The govern-ment states that “in many matters, we wouldexpect individuals to work to resolve theirown problems, rather than resorting to litiga-tion at the cost of the taxpayer” and that theirproposals have been guided by a desire toencourage people “to take greater personalresponsibility for their problems” (greenpaper, paragraphs 2.11 and 4.3).

Closely linked to this is the idea that caseswhich have arisen from a personal choice madeby an individual are less worthy of public fund-ing. For example, the government states:

“There is a range of… cases which can veryoften result from a litigant’s own decisions intheir personal life, for example, immigrationcases resulting from decisions about living,studying or working in the United Kingdom.Where the issue is one which arises from thelitigant’s own personal choices, we are lesslikely to consider that these cases concernissues of the highest importance” (greenpaper, paragraph 4.9).

Too expensiveThe fourth point which is made is that our current system, which costs in the region of £2bn per year (green paper, paragraph 2.9),is simply too expensive. To this effect, the Policy Exchange says “funding for what is themost generous legal aid system in the worldcannot be sustained at current levels” and



that while the government proposed reformsare “significant” they “still leave us with oneof the most expensive legal aid systems in theworld” and could go much further.5

Similarly, the government has maderepeated references to the fact that our legalaid system is expensive when compared to other jurisdictions, labeling it “one of themost expensive such systems in the world”and that: “While comparisons with othercountries are difficult… evidence suggeststhat we spend more legal aid than other com-parable countries in Europe and elsewhere”(green paper, paragraph 2.9).

Grown beyond original intentionsThe fifth and final criticism that we have noted

from the reports is that the legal aid system has expanded beyond that which was origi-nally intended.

The Lord Chancellor, Ken Clarke, whenintroducing the government’s green paper toparliament on 15 November 2010, stated: “I believe that there is now a compelling casefor going back to first principles in reforminglegal aid. The current system bears very littleresemblance to the one that was introduced in 1949.”

Similarly the green paper notes that:“Although economic recovery is one of themain drivers, legal aid is, in any event, in needof fundamental reform. It is an expensivescheme which has expanded far beyond itsoriginal intentions” (paragraph 1.7).

Notes for Chapter 8

1. A Barton, Access to Justice: Balancing the Risks, page 3

2. Hansard, 15 November 2010

3. Ibid

4. Neil O'Brien, director of Policy Exchange, ‘How can we

get the legal aid bill down?’ The Daily Telegraph

5. Ibid; A Lilico, H Sameen and E Holmes (Policy Exchange,

2010) Controlling Public Spending: How to Cut 25%


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9. Findings of the panel

We carefully considered the arguments both for and against reducing legal aid in eco-nomically challenging times. In receiving evidence, we were struck by the key rolelegal aid plays in a diverse range of issues that we all consider essential for a healthy

society: these included fairness before the law regardless of wealth and fighting for the rightresult, whether it be keeping your home or uncovering errors by the state that have caused thedeath of a loved one. Our eight findings are firmly rooted in the evidence we received:

(1) Legal aid is vital in protecting therights of vulnerable peopleWe were struck both by the importance of theissues and the vulnerability of those who toldtheir stories. The impact on the well-being ofany of these people had they not receivedlegal aid would have been devastating. Fromthe testimony which the panel received, thefollowing stood out as examples that under-pin this finding:

Mrs Whitehouse, who received legal aid tohelp to successfully challenge an attempt byher landlord to evict her, said:

“The prospect of being moved from ourhome was frankly terrifying. We had lived inour flat since 1962. We were now elderly (myhusband was 79 at the time of our trial and Iam now 78) and we had hoped to stay living inour home until we were no longer wellenough to do so.”

Yvonne, who received legal aid to help gainguardianship of her grandson who had beenabused at the hands of his father, spoke of thechange which this made to the child’s life:

“Since coming to live with me my grand-son’s come a long way. The bed-wetting andnightmares have tapered off and you can seefrom the way he holds himself that he’s lesstense and more relaxed. He is opening up andexpressing himself more – his dad always cuthis hair short but he decided he wanted an

Afro. I wasn’t sure about it myself but we’rebeginning to see who he really is.”

18-year-old Subera gave oral testimony tothe commission about how her local authorityrefused to house her and her 12-year-old sis-ter, until she was helped by legal aid lawyersat the Tower Hamlets Law Centre:

“I tried to hide the fact that my sister wasliving with me just until I could find some-where else to live, as I knew they would askme to leave and otherwise we would be home-less… In the end I had to tell the people at thehousing scheme about my situation… I wasgiven one week to leave my home.”

Steven, who had legally aided representa-tion to help him arrange contact with his chil-dren and resolve his debt issues, also gave oralevidence to the commission, saying: “I cannow move on with my life and work on build-ing a better future for myself and children.”

EP, who received legal aid for her divorce and to help her when her local authority started care proceedings to removeher children, described her life before theseproblems were resolved:

“Over the years my husband’s behaviourbecame worse. He was older than me and verydomineering and controlling. He was alsophysically abusive. My health began to sufferbecause of his behaviour and our situation. Ibecame withdrawn. I began to spend almost all



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of my time in the house just with our daughter.I did not have support from my family at thetime. I began to drink heavily and ended updeveloping a serious alcohol addiction.”

The experiences of EP mirror those of SHwho described in her testimony what life waslike before legal aid helped her gain occu-pancy of the home she had shared with herabusive partner.

“Over time our relationship began to breakdown. My partner started to drink more and hewould be abusive towards me… He wasaggressive and controlling and would shout atme over nothing, telling me I was worthless.Sometimes he would take my bank cards andkeys and leave the house for long periods, leav-ing me stranded in the house and unable to goanywhere. I became afraid for myself and mychildren. I decided that I had to get out.”

Souleikha Mouhamed, who received assis-tance from Hackney Community Law Centrefor his asylum and housing applications,described his life before he found sanctuary:

“My mother and I came to the UK in Decem-ber 2002, as we fled the civil war in Somalia. Myfather was murdered in the civil war, and tothis day we do not know whether my brothersor sisters are dead or alive.”

Leena, who received legal aid to help herwith her debts, said in her evidence:

“I had so much debt that I could not see anyother way out and it was ruining my life. Ihave two young children and I was finding itincreasingly difficult even providing theessentials for them.”

Mrs Hughes described her physical disabil-ities to the commission:

“I suffer from multiple sclerosis and a lungcondition. Due to my ill health I am depend-ent on my wheelchair to move around outsideand sometimes indoors. My husband caresfor me full time.”

When a new block of shops was built nearher house which she was not able to access inher wheelchair, legal aid enabled her to bringa disability discrimination claim to have theproblems rectified.

AB who received legal aid across a spec-trum of interwoven areas including commu-nity care, immigration, asylum support andhousing, described how his problems spi-raled before his solicitor was able to help him achieve stability:

“My benefits stopped because I was nolonger entitled to receive them. This meant thatI could not afford to pay my rent and aroundthree years ago I was evicted… I had to sleep onthe streets because I had nowhere else to go… Iwas attacked on quite a few occasions. I alsobecame ill very quickly and eventually I endedup in hospital around a year later. I was diag-nosed with a long-term illness that meant I hadproblems with my physical health. I was alsosuffering from severe depression.”

Finally, Simi Azmi, who received legal aidto help with her debts and her housing prob-lems after her husband had ran up tens ofthousands of pounds of debt against theirhouse and in her name, described her situa-tion before legal aid helped her to file forbankruptcy successfully:

“I was scared and I did not know what todo. I got a letter from the bank’s solicitors inearly 2009 that threatened to repossess myhouse. At this stage I realised that I had to dosomething or my children and I wouldbecome homeless.”

The picture painted by the evidence we con-sidered is clear. Many of those who receivelegal aid are among the most vulnerable insociety. They include the elderly, the disabled,the abused, children and the mentally ill. Theyeach have legal rights which they would nothave been able to enforce without legal aid.



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They have a wide variety of complex problemsthat raise issues of homelessness, destitution,domestic violence and the separation of fami-lies. Such issues are not only of great personalimportance to the individuals involved but areof importance to any society as a whole as theyare rightly problems which a forward-think-ing society should strive to eliminate.

The panel regards it as wholly correct thatlegal aid is available to help these individualssolve their problems and rejects outright anychange which would result in these individu-als going unaided, their difficulties unsolvedand their rights denied.

(2) Legal aid is vital in upholding the rule of lawEvery person we heard testimony from wasentitled to the protection of the law. Withoutlegal aid they would not have received thisprotection. It is on this basis that our secondfinding is that legal aid is vital to upholdingthe rule of law.

The panel was strongly influenced by com-ments made by members of the judiciary, bothformer and current, such as the late LordBingham who described “denial of legal pro-tection to the poor litigant who cannot affordto pay [as] one enemy of the rule of law” .1

That the rule of law is fundamental to ourdemocracy can be seen clearly in article 2 ofthe consolidated version of the EU treatywhich sets out the values and ideals uponwhich the EU is built and to which we con-tinue to aspire:

“The union is founded on the values ofrespect for human dignity, freedom, democ-racy, equality, the rule of law and respect forhuman rights, including the rights of personsbelonging to minorities. These values arecommon to the member states in a society inwhich pluralism, non-discrimination,

tolerance, justice, solidarity and equalitybetween women and men prevail.”

Without a properly funded public legal system, those unable to afford private representation will have either poor-qualityrepresentation or none at all. If ordinary people cannot access justice then the rule oflaw is undermined. There can be no sem-blance of equality before the law when thosewho cannot afford to pay a lawyer privatelygo unrepresented or receive a worse kind representation than those who can.

We have considered the argument that personal life choices should play a part inwhether a person is entitled to legal aid. Forexample, this argument would mean that aperson should not be entitled to legal aid iftheir problem arises from a choice to come tothe UK to study. This argument does not takeinto account the complexity of human life anderror. For the rule of law to work effectively,legal aid must be available where injusticewould otherwise follow.

We received persuasive evidence fromcampaign group Liberty. Liberty’s evidence

“The picture painted by theevidence we considered isclear. Many of those who

receive legal aid are amongthe most vulnerable in society.They include the elderly, the

disabled, the abused, childrenand the mentally ill. They eachhave legal rights which theywould not have been able toenforce without legal aid”

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stressed that human rights are illusory with-out legal aid to help enforce them:

“Effective access to the courts is an integralpart of the human rights regime as a whole.Without publicly funded legal representationmany individuals will be effectively pre-cluded from seeking redress and thus deniedaccess to an effective remedy.” 2

We agree with this statement but wish toemphasise that upholding the rule of lawrequires more than upholding those rightswhich are classed as ‘human rights’, i.e. thoserights which are specifically protected underthe Human Rights Act 1998. There is simplyno point in having any legal rights at all – bethat a right to a home, a right to asylum, or aright to have contact with one’s children – ifthose rights can not be enforced. As LordClarke puts it, “talk is cheap”. 3

(3) Legal aid is essential to holdingthe state to accountLegal aid plays a vital role in holding the stateto account for its mistakes and failings, andensuring that they do not happen again.While philosophically this may fall within theambit of our second finding, we felt that thisissue was so important that it should beaddressed distinctly.

Of all of the evidence that we considered,there is no case which illustrates this pointmore poignantly than that of Darwin Kealey,who was found hanging dead in his cell atHMP Wormwood Scrubs on the morning of12 September 2008. He was 28 years old:

“The jury at Darwin’s inquest, which con-cluded in March 2010, identified no less thannine failings on the part of the police, Serco,the prison and the Primary Care Trust andfound that Darwin died of an act of self-harm‘in part because the risk of taking his own lifeor harming himself was not recognised and

appropriate cautions were not taken to pre-vent him from doing so’.

“As a result of the jury’s findings, HerMajesty’s deputy coroner for West London,Elizabeth Pygott, wrote to the Lord Chancel-lor, Sir Paul Stephenson (then commissionerof Police for the Metropolis), the chair of NHSHammersmith and Fulham Primary CareTrust, the secretary of state for health and thechairman of Serco Group Plc to make a reportin accordance with rule 43 of the Coroner’sRules 1984. This rule provides that where evi-dence at an inquest gives rise to concerns thatcircumstances create a risk that other deathswill occur, or will continue to exist in thefuture, action should be taken to prevent theoccurrence or continuation of such circum-stances, or to eliminate or reduce the risk ofdeath created by such circumstances.”

The importance of legal aid in holding thestate to account for its failings was also clearfrom the evidence received from Subera andfrom EM, whose cases had been handled in anovertly inappropriate manner by the state.For example, when Subera told her localhousing department about her plight and thatof her 12-year-old sister:

“The housing department still refused tohouse me and my sister. They told me that ifmy sister really did not have anyone else to carefor her then I should put her into foster care.”

Similarly, EM related to us her experienceafter she approached her local authority to askit to transfer her to a property away from herabusive partner:

“I asked the council to transfer me. I showedthem pictures of my bruises and injuries. Igave them police records and crime referencenumbers. My case went to the emergency re-housing panel but they turned me down.Apparently I did not have sufficient evidenceto show that my life was seriously at risk.”

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Vicky Guedalla, retired immigration solici-tor, also gave us details of a number of youngclients who required her advice and assistancefor immigration claims. She helped them over-turn wrong decisions by the Home Office andobtain support from social services or theHome Office where it had been wronglyrefused. In one memorable instance shedescribed the decision which she helped tooverturn as being an “egregious error of law”.

Liberty, in its written evidence, stressed thelong-term benefit of correcting such mistakes:

“Access to the courts to uphold individualrights does more than simply vindicate theindividual in the particular circumstances ofhis or her case. Successful challenges setprecedents, raise awareness and help toinstill human rights considerations into public sector decision making.” 4

Without legal aid, decisions such as thosedescribed above would remain unchallengedand the failings of the public bodies wouldstand unnoticed and uncorrected. The panelregards the ability to hold the state to accountas a fundamental facet of the rule of law. Wherelegal aid is necessary to achieve this it shouldalways be provided.

While alternative forms of legal funding arebeyond the remit of this Commission ofInquiry, we have considered with interest thereport of the Justice Select Committee, whichrecommends that bad decision making by pub-lic bodies be penalised through the principlethat ‘the polluter pays’.

‘‘[W]e think there is potential for… a ‘polluterpays’ principle to be extended considerably,with the DWP (and other public authoritieswhose decisions impact upon the courts and tri-bunals) required to pay a surcharge in relationto the number of cases in which their decisionmaking is shown to have been at fault. We thinkthat in rejecting this idea as a ‘robbing Peter to

pay Paul’ transfer of funds around the publicpurse, the minister is overlooking the potentialbenefit such a policy would have in providing afinancial incentive to public authorities to gettheir decisions right first time.” 5

If savings are to be made from public expen-diture then we regard such solutions as prefer-able to reducing legal aid. It would be wrong inprinciple for the state to tolerate bad decisionmaking by public bodies while at the same timeremoving the ability of ordinary people to holdthose bodies to account for their mistakes byreducing legal aid.

(4) Cutting legal aid is a falseeconomyWe see considerable force in the argumentthat cutting legal aid is a false economy as theprovision of legal aid to solve problems earlyon creates significant savings further downthe line. We note that this has been recognisedby the Ministry of Justice in the impact assess-ments accompanying its 2010 green paper onlegal aid. 6 These set out the potential forreductions in legal aid to cause:! Increased resource costs for other depart-

ments. If civil and family issues are notresolved effectively people might continueto rely upon the state, including becausefailure to resolve one issue may lead toanother arising. This may include health,housing, education and other local author-ity services including services provided bythe voluntary and community sector.

! Increased transfer payments from otherdepartments. Similar to the above,reduced resource transfers from the legalaid fund might lead to increased financialtransfers to the poorest, e.g. via welfarebenefits or tax credits. For example, peo-ple who previously received legal aidmight use up their own savings in future

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to finance a case, and in so doing theymight pass a benefits threshold.

Citizen’s Advice quantify these “knock-oncosts” as follows:7

! For every £1 of legal aid expenditure onhousing advice, the state potentiallysaves £2.34.

! For every £1 of legal aid expenditure on debt advice, the state potentially saves £2.98.

! For every £1 of legal aid expenditure on benefits advice, the state potentiallysaves £8.80.

! For every £1 of legal aid expenditure on employment advice, the state poten-tially saves £7.13.

The extent of the false economy of legal aidcuts was clear from the individual testimonythat we received which demonstrated thepotential for unsolved legal problems to spiralout of control. For example, AB who receivedlegal aid across a spectrum of interwovenareas including community care, immigra-tion, asylum support and housing, describedhow his problems spiraled before his solicitorwas able to help him achieve stability:

“My benefits stopped because I was nolonger entitled to receive them. This meant thatI could not afford to pay my rent and aroundthree years ago I was evicted… I had to sleep onthe streets because I had nowhere else to go… Iwas attacked on quite a few occasions. I alsobecame ill very quickly and eventually I endedup in hospital around a year later. I was diag-nosed with a long-term illness that meant I hadproblems with my physical health. I was alsosuffering from severe depression.”

In this instance a lack of benefits advice earlyon escalated to result in homelessness, togetherwith physical and mental health problems.

This placed an increased burden on the localauthority housing department as well as localhealthcare facilities. This economic cost was inaddition to the devastating human cost.

When coupled with the human cost to thevulnerable and socially excluded of reducinglegal aid, the panel finds these increased eco-nomic costs are unacceptable. These knock-oncosts provide a strong argument for maintain-ing levels of legal aid at least at the level theyare currently at.

(5) A holistic approach is needed in providing legal aidFor legal aid to be effective, a holisticapproach must be taken. That is, it must allow a person to solve all of their interlockinglegal issues and not just discrete aspects ofthem. In considering the evidence the panelwas struck by how certain legal issues areoften interwoven with others. For example EP, who gave oral testimony to the panel,described how the domestic abuse which shesuffered at the hands of her partner exacer-bated her alcoholism. Increasingly she foundherself unable to look after her children atwhich point the local authority initiated proceedings to take them into care.

Legal aid helped her defend the childcareproceedings and divorce from her husband. It was only by solving this entire web of issuesthat EP was able to break away from her abu-sive husband, move on with her life with herchildren and start studying.

The legal issues (domestic violence, child-care proceedings and divorce) cannot be neatlyseparated out. If legal aid were not available forany one of these issues then the outcome of EP’scase might have been very different.

Equally, in her oral evidence, Laura Janes ofthe Howard League for Penal Reform spokeof a young person who she had represented



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for a number of years who had just beenreleased on parole. He had come from a trau-matic background, fleeing from Kenya withhis mother at the age of six years, and from ayoung age had been moved from pillar to postthrough the care system with his needs nevertruly being met by social services. He becameinvolved in crime and was sentenced to a longterm of imprisonment at the age of only 16. Incustody he made exceptional progress win-ning a national music prize, and mentoringother children in the prison.

To secure his release on parole, Ms Janesexplained that she had to battle with socialservices to ensure that he would have a hometo go to when he was released; fight with theprison service to ensure that he was notmoved to an adult prison, undermining hisrehabilitation; stop the Border Agency in theirattempts to deport him; before finally, suc-cessfully, representing him at his parole hear-ing. The young person is now employed as amentor in the community working with otheryoung people from troubled backgrounds toensure that they do not make the same mis-takes that he did. If the young person had notbeen able to get help for any one of his variedand complex legal issues then the final out-come might not have been such a happy one.

The finding which we make is that to solve aperson’s problems effectively, he or she must betreated as a ‘whole person’. Legal problems are

interlinked and each problem must beaddressed if there is to be resolution. Thismeans that legal aid must be available acrossthe spectrum of legal issues which affect indi-viduals. Any attempt to remove legal aid fromcertain areas of law, for example debt, on thebasis that those issues are less important thenanother of law, say housing, is overly simplistic.

(6) Cuts to legal aid will drive outcommitted lawyersWe are concerned that cuts to legal aid willresult in committed lawyers withdrawingfrom the legal aid profession.

In her oral evidence, Shami Chakrabarti,director of Liberty, referred to Tony Blair’sstated intention to “derail the gravy train oflegal aid”. Ms Chakrabarti described this as a“wicked misrepresentation” in her testimonyand we agree. We were impressed by the com-mitment and dedication of lawyers working inlegal aid who gave testimony to us. Ms Janes, inher capacity as chair of the Young Legal AidLawyers, emphasised to us that in her experi-ence young legal aid lawyers entering the pro-fession were uniformly motivated by socialjustice and frequently spent long periods oftime undertaking unpaid internships or low-paid paralegal work and accumulating largeamounts of debt to achieve this.

We are aware that lawyers in private practiceearn considerably more than those dependenton legal aid. We are aware that there are a hand-ful of barristers, principally conducting criminaldefence work, who are paid large sums from thelegal aid scheme. We are sympathetic to the LawSociety’s proposal that no individual shouldearn more than £250,000 per annum from legalaid. However, we believe that these few high-earning barristers are unrepresentative of legalaid lawyers as a whole. On 17 November 2009The Guardian published a survey of public sector

“There can be no semblance of equality before the law

when those who cannot affordto pay a lawyer privately gounrepresented or receive aworse kind representation

than those who can”

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pay rates. The average salary of a legal aid solici-tor – after several years of experience in the job –was £25,000, number 74 in the list, lower thanaverage salaries of social workers, environmen-tal health officers, nurses or indeed the publicsector median salary of £27,686.

Our principal concern is that cuts to legalaid will mean that fewer and fewer committedlawyers will be able to work in this area. Ulti-mately, this can only mean that the vulnerableclients who rely on these lawyers will lose out.

By the same token we are concerned any fur-ther cuts to remuneration for legal aid lawyerswill mean that firms will not be able to subsist asit will no longer be financially viable for them topractice in those areas of legally aided law.

At the oral evidence session, Kathy Meadeof the Tower Hamlets Law Centre spokeabout how increasingly stretched theresources of the law centre are becoming. Thecentre now faces considerable cuts if the pro-posals contained in the government’s 2010green paper are implemented. If law centreslike Tower Hamlets are forced to close thenthose who live in that area will not be able toget the legal help they need. This will be to thedetriment of the individuals who lose out onthe protection of the law but it will also be tothe detriment of communities as a whole whorely on these local services for support.

(7) Cutting legal aid is not a fair oreffective way to reduce unnecessarylitigationCutting legal aid should not be used as a bluntinstrument to attempt to reduce litigation. Weagree in principle that the taxpayer should notbe funding unnecessary or trivial litigation. Wealso agree that alternative dispute resolutionand mediation can assist in achieving justice forlitigants and should be used where appropriate.

However, we consider that the appropriateway to achieve these goals is through properuse of the existing restrictions on legal aidwhich already mean that legal aid will only beprovided where: ! There is “sufficient benefit” to the client

to justify work being carried out.! There are no viable alternative

sources of funding.! Alternative steps to bringing the case

have already been explored. ! The prospects of success are reasonable. ! “A reasonable private paying client would

be prepared to litigate (in non-moneyclaims) or where the prospects of successare over 50 per cent (for money claims).”8

If these criteria are used robustly then legal aidwill not be available for unnecessary litigation.The alternative of cutting legal aid is not a fairmeans of achieving this goal as it will not pre-vent the rich, or businesses, from litigating, itwill only prevent poorer more vulnerable peo-ple from litigating to protect their rights.

Equally, cutting legal aid is not necessarily aneffective way to reduce litigation. Many ofthose who gave evidence to us were defendantsin legal proceedings, so the litigation had beeninitiated by a person or organisation that didnot receive legal aid. One example is RosamundDuring: “I needed legal help after my landlordstarted court action to evict me for rent arrears...

“Shami Chakrabarti, directorof Liberty, referred to TonyBlair’s stated intention to‘derail the gravy train of

legal aid’. Ms Chakrabartidescribed this as a ‘wicked misrepresentation’ in her testimony and we agree”



panel findings

I do not feel that I could have representedmyself in the possession proceedings.”

Cutting legal aid will not prevent such liti-gation. It will simply mean that either theweaker party will be unrepresented or will bedeterred from pursuing justice altogether.

(8) Findings specific to the government’s 2010 green paper onlegal aid reformFinally, at the time the commission was receiv-ing evidence, the government was consultingon the content of its green paper Proposals for theReform of Legal Aid in England and Wales. There-fore, in addition to its more general findingsthe commission considers that it is appropriateto comment on these proposals in light of theevidence that it has considered.

The first point to make is that we understandthat the government’s proposed cuts areintended to preserve legal aid for “those whomost need it, for the most serious cases” (greenpaper, paragraph 2.2). In making this assess-ment they have considered “whether the conse-quences of the case at hand are objectively soserious as to add weight to the case for the pro-vision of public funds” (paragraph 4.13). Theimplication is that the cases for which they pro-pose that legal aid should no longer be available– which corresponds to nearly 70 per cent ofcases for which legal help was granted in theyear 2008/09 (paragraph 43) – are not suffi-ciently important to justify public funding, orcould be resolved or funded by other means.

While we agree with the principle that legalaid should not be available for trivial issues orbe used to fund unnecessary litigation, we areunconvinced either that legal aid is beingused to fund unnecessary cases or that thegovernment’s proposal would ensure that themost serious cases are still funded.

As we have set out in our findings above, it

was only too clear from the testimony which wereceived that legal aid funds cases that are ofgreat importance both to the individuals con-cerned and to society as a whole. We note thataround half of the cases which the commissionreceived evidence on would not qualify forlegal aid if the proposals in the green paper areimplemented (see Appendix 2). None of thesecases involved large sums of compensation andso it is difficult to see how a conditional feeagreement would work. In each of these caseslegal action was the individual’s last resort.

Second, we understand that it is the inten-tion of the government that much of the legaladvice which is currently provided by solici-tors and advice agencies across the countrywill instead be provided through a telephoneadvice service. We consider that such a devel-opment would be profoundly unwise. It wasclear from the evidence which we receivedthat many legally aided individuals are toovulnerable to communicate their problemsover the phone. For example, Yvonne, whogained guardianship of her grandson with thehelp of legally aided advice, stated: “I thinkhaving call centres as the first point of contactwould be a mockery of the legal system. WhenI needed legal advice I was vulnerable and feltthat I needed someone to talk to face to face,not over the phone.”

Kathy Meade of the Tower Hamlets LawCentre also made the practical point that try-ing to take instructions over the phone takesmuch more time.

Third, we are concerned with the govern-ment’s intention to replace legal aid for adviceand representation in family proceedingswith funding for mediation only. Many of thefamily cases which the panel consideredinvolved incidences of domestic violence. Forexample, JG who needed legal aid to gain cus-tody of her children after her husband took

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panel findings

them away without warning: “My husbandhad been physically and emotionally abusivetowards me. On one occasion the abuse was sobad that he was arrested and bailed to stayaway from me.”

Mediation may not be appropriate in suchcases. Where mediation is appropriate, webelieve it should be properly funded and notforced on the parties involved. Mediation isonly likely to be successful if both partiesenter into it freely.

Fourth, and finally, we are concerned thatthe government considers that cuts to legal aidare needed as the legal aid scheme hasexpanded beyond its original intentions. The Lord Chancellor, Ken Clarke, when introducing the government’s green paper to parliament on 15 November 2010, stated: “I believe that there is now a compelling casefor going back to first principles in reforminglegal aid. The current system bears very littleresemblance to the one that was introduced in 1949.”9

We disagree with this reasoning. The origi-nal intention of the legal aid scheme, as setdown by the Rushcliffe Committee, was thatlegal aid should be available in all courts andin such manner as will enable persons in needto have access to the professional help theyrequire. The idea was that it should not be lim-ited to those who are “normally classed as

poor” but should include “those of small ormoderate means”.

Before the 1949 Act, legal aid consisted oflimited assistance for impoverished crimi-nals, whereas civil legal aid was virtually non-existent and legal advice for poorer litigantsin civil cases relied heavily on the good will oflawyers prepared to work for free. The Actwas drafted at a time when social change,such as increased demand for divorce, and thesocial reforms of the early 20th century wereleading people to recognise that a more com-prehensive system was needed. When thecivil legal aid scheme was set up in 1950 it pro-vided 80 per cent of the population with ameans-tested entitlement to legal aid. By 2009only 36 per cent were eligible. Almost 80 percent of those receiving legal help in 2009 andaround 90 per cent of those receiving legalrepresentation were in the poorest 20 per centof the population.10

The green paper proposes that legal aidshould no longer be available for the majorityof civil cases, and that eligibility for civil legalaid should be reduced further so that only the very poorest are eligible for legal aid.Remuneration for criminal cases will also bereduced. This to us seems to be a retrogradestep which overlooks the history and contextof the legal aid scheme and runs contrary tothe intentions of its founders.

Notes for Chapter 9

1. Thomas Bingham, The rule of law (2010, Penguin),

page 88



3. Lord Clarke of Stone-cum-Ebony, Hope springs eternal:

The Mary Ward Legal Advice Centre Annual Lecture



5. House of Commons Justice Committee Government's

proposed reform of legal aid: Third Report of Session

2010–11, HC 681 Volume I

6. Legal Aid Reforms: Scope Changes Impact Assessment

7. Citizens Advice, Towards a business case for legal aid,

July 2010, page 2

8. Legal Services Commission, Funding Code Criteria

9. Hansard, 15 November 2010

10.Legal Aid Reforms: Scope Changes Impact Assessment



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appendix 1

Appendix 1: overview of the 2010green paper

The following is a brief synopsis of thechanges to legal aid proposed in thegovernment’s 2010 green paper on

legal aid.

(1) Changes to the scope of civil legalaidLegal aid will no longer be available for thefollowing issues:! Debt matters where the client’s home is

not at immediate risk. ! Education. ! Employment.! Other housing matters. ! Immigration where the individual

is not detained. ! Private law children and family cases

(where domestic violence is not present). ! Welfare benefits. ! Ancillary relief cases where domestic

violence is not present. ! Clinical negligence. ! Tort and other general claims. ! Consumer and general contract. ! Legal help for the Criminal Injuries

Compensation Authority.

Legal aid will remain available for the following issues:! Asylum. ! Claims against public authorities which

involve the abuse of position of power;and/or significant breach of humanrights; and/or negligent acts or omissionsfalling very far below the required stan-dard of care. Claims which involve only

“serious wrongdoing” to be excluded.! Claims arising from allegations of abuse

and sexual assault. ! Community care. ! Domestic violence where there is objec-

tive proof of the violence consisting ofongoing (or recent) legal proceedings fordomestic violence; where there is a courtorder in place relating to domestic vio-lence; or where there is a conviction fordomestic violence.

! Family mediation in private law familycases.

! Housing. ! Immigration detention. ! International child abduction. ! Mental health. ! Judicial review.! Public law children. ! Legal help at certain inquests. ! Discrimination proceedings. ! Environmental matters.

(2) Changes to the financial eligibilitycriteria for civil legal aidProperty value to be considered:Currently a person will be ineligible for legal aid if they have more than £8,000 of disposable capital. During assessment theLSC disregards the first £100,000 of equityand the first £100,000 of their mortgage. The government proposes to remove thisequity disregard and extend the mortgagedisregard to £200,000 (£300,000 for low-income pensioners).Increased contributions from capital:



appendix 1

The government intends to increase contri-butions which people should make towardstheir legal aid costs from their capital. Thosewho have between £1,000 and £3,100 of dis-posable capital will pay a flat fee of £100.

Increased income contributions:Currently those who have a disposablemonthly income which is between £315 and£733 have to pay contributions toward theirlegal aid bill up to a maximum of 20 per cent ofdisposable income. The government pro-poses that this be increased to 30 per cent.

Abolition of benefit passporting:Those who are in receipt of income-based JobSeeker’s Allowance, Employment SupportAllowance, Income Support or GuaranteeState Pension Credit will no longer be auto-matically ‘passported’ onto legal aid. Therationale is that those who receive these bene-fits may have up to £16,000 savings. Normallya person who has more than £8,000 in savingswould not be eligible for legal aid. Thismeans, in effect, that the rules are more gener-ous for those on benefits.

Abolition of pensioner disregard:Currently pensioners who have less than £315disposable income per month are subject to amore generous eligibility threshold in thatthey can have up to £100,000 in savings andstill be eligible for legal aid (the pensioner dis-regard). The government proposes to abolishthis pensioner disregard.

(3) Changes to the way civil legalservices are delivered – the singletelephone gatewayCurrently, clients are free to obtain legaladvice through a solicitor of their choice inperson. The paper proposes introducing

a single telephone gateway, although thescope and extent of this is not clear. From thelimited information in the paper, it couldreplace almost all initial face-to-face legaladvice with a mandatory phone service.

(4) Changes to the fees which legal aid lawyers are paidThe fees which are paid to lawyers forundertaking civil legal aid work are to bereduced by ten per cent across the board.Competitive tendering is to be introduced forlegal aid contracts, whereby legal aid contractswill be awarded by the LSC to those firms thatcan undertake the work for cheapest.

(5) Changes to criminal legal aidThere is to be greater use of ‘fixed fees’,whereby a fixed amount is payable for a legalaid lawyer to undertake a particular piece ofwork irrespective of the amount of timewhich that work takes. Fixed fees are to be used to incentivise early guilty pleas, sothat the longer a case goes before thedefendant pleads guilty the less their lawyer will get paid. Competitive tenderingis also to be introduced.



appendix 2

Appendix 2: who would get legal aid if the proposals in the green paperare implemented?

This appendix is intended to illustratethe impact of the government’s 2010green paper on legal aid on the

individuals who gave testimony to the panel.The list below aims to set out which of theseindividuals would still receive legal aid if the proposals in the green paper areimplemented. In some instances theindividual would still be eligible for help witha certain part of their problems, but not withanother. In these instances the list includesviews of panel as to whether that personwould have been able to satisfactorily resolvetheir problems.

The list below only considers whether a per-son’s problem falls within one of the types oflaw for which legal aid will still be available.So, for example, legal aid will no longer beavailable for debt advice if the proposals in thegreen paper are implemented so anyone with adebt problem would not get advice. However,the effects of the green paper are substantiallymore wide ranging than this. It seems likelythat many firms will not be able to continueproviding legally aided advice because lowervolumes of work and a cut in rates will makepublicly funded work non-viable and this willcreate legal aid advice desserts where itbecomes difficult or impossible for people incertain areas of the country to get help.

The green paper also proposes that everyperson should have to go through a‘telephone gateway’ to get legal advice. Somewill be referred on to solicitors, others will

have to make do with the advice they receiveover the phone. It seems eminently possiblethat a number of very vulnerable people willstruggle to communicate their problems overthe phone and will miss out on the help towhich they are entitled. The list below doesnot take into account whether telephoneadvice would have been suitable for theperson.

Finally, the green paper proposes that thefinancial eligibility criteria for legal aid betightened. It will become harder for pension-ers, homeowners and those on benefits to getlegal aid. Those on very low incomes willhave to pay increased contributions towardthe cost of their case and that might deter peo-ple from seeking legal advice. Since the panelreceived no information on the financialresources of those who gave evidence, nocomment has been made as to whether theperson would still be financially eligible.

Where the list says that a person would stillget legal aid, it must be read with the caveat‘Assuming there is a solicitor to help them,they are able to manage with telephoneadvice and they are not financially ineligible.’

AbbiAbbi, the graduate with debt issues who hadrecently secured a part-time job, would nolonger be eligible for legal aid to help resolveher debt issues. Without legal aid, by her ownadmission, she would not have been able toapply for a bankruptcy order and her

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appendix 2

numerous creditors would not have stoppedharanguing her.

Ahmed Ahmed, the torture survivor from Iran, wouldstill be eligible for legal aid with his asylumclaim but would not be eligible for advice onapplying for asylum support. The testimonyshows that Ahmed’s traumatic backgroundand his mental health problems meant that astable environment was crucial to his abilityand willingness and to make the claim for asy-lum. It may be that without help and advice toapply for asylum support he would not havebeen able to carry on his asylum claim.

Simi Azmi Simi, whose husband took out a number of loans and mortgages in her name, wouldnot receive legal aid to help her resolve herdebt issues though would still get legal aid to help he obtain local authorityaccommodation after she became homeless.In the view of the panel, early legal advice onher debts might have meant that she neverlost her home in the first place and theexpense of local authority accommodationmight have been avoided.

ABAB, who had fled persecution in his homecountry and was suffering from long-term ill-ness and depression, would still get legal aidfor his asylum claim, for his community careissues and to help him when he was homeless.However, he would not be eligible for legalaid to help him with his asylum supportissues. AB is clearly an exceptionally vulnera-ble person. Not having legal help with his asy-lum support would certainly have impactedharshly upon his welfare and, in the circum-stances, would likely have increased the bur-

den on social services who were caring forhim in other ways.

CarolineCaroline, who has severe mental healthissues, would still be eligible for legal aid tohelp with her housing applications after shebecame homeless.

Rosamund DuringRosamund, who faced eviction, would still beeligible for legal aid.

Vicky GuedallaVicky Guedalla provided evidence of a num-ber of extremely young and vulnerable chil-dren who she has advised and represented intheir immigration cases. None of these chil-dren would be eligible for legal aid.

SHSH had an abusive partner who subjected herto domestic violence. There is a high likeli-hood she would not get legal aid. The greenpaper proposes that legal aid should be avail-able in this type of case where there is ‘‘objec-tive evidence’’ of the domestic violence. Thethreshold is a high one and the victim mustshow that there are either ongoing legal pro-ceedings relating to domestic violence, acourt order relating to domestic violence or acriminal conviction for domestic violence.On the face of it, the domestic violence in SH’scase does not make the grade. As well as thisthe domestic abuse which she experiencedwas not physical, rather it was emotional andpsychological. The green paper implies thatlegal aid will not be available for this type ofabuse.

Mrs HughesMrs Hughes, who has MS, would still get



appendix 2

legal aid for her disability discriminationclaim.

KamaljeetKamaljeet would not get legal aid to help withher immigration appeal.

Zoe KealeyZoe would still be eligible for legal aid.

L L would not get legal aid for advice on how tobest represent her severely autistic child at theEducation Tribunal.

LeenaLeena would not get legal aid to help herresolve her debt issues.

DMDM would still get legal aid to help him whenhe became homeless.

EMEM would still get legal aid to help her andher son when they became homeless.

Mr and Mrs Mansell The pensioners Mr and Mrs Mansell would nolonger get legal aid to help overturn therefusal to award them pension credit or to dis-pute the £11,000 which it was claimed thatthey owed.

Jean MartinJean Martin would still get legal aid to contesthis eviction from his home.

Souleikha MouhamedSouleikha, the homeless asylum seeker,would still get legal aid for his asylum claimand homelessness issues.

EP EP, who became increasingly dependent onalcohol as her husband became increasinglyabusive, would still get legal aid for the courtproceedings when the local authority tried totake her daughter into care. However, there isa good chance that she would not get legal aidfor the divorce proceedings as she lack suffi-cient ‘objective evidence’ of the domestic vio-lence. This is crucial in her case, as it was onlyby obtaining a divorce that she was able tomake a fresh start.

StevenSteven would not get legal aid for his divorceproceedings, where contact arrangementswere put in place so that he could see his chil-dren.

Subera 18-year-old Subera and her 12-year-old sisterwould still get legal aid to help them whenthey became homeless.

Mrs Whitehouse There is a real possibility that MrsWhitehouse, who together with her husbandfaced eviction from their home of 50 years,would not get legal aid. This is because theyhad been offered somewhere to live and sowere ‘merely’ facing the loss of their homeand not homelessness.

YvonneYvonne would still receive legal aid to help her apply for the guardianship of hergrandson.

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appendix 3

Appendix 3: letter from Jonathan Djanogly



appendix 3

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Law centres, individuals and solicitors' firms who assisted in the gathering of testimonyand/or contributed to the event on 2 February 2011. First and foremost we would liketo thank all of those who gave testimony to the panel.

Thanks also to the Haldane Society and the Young Legal Aid Lawyers who had the idea forthe event and spent a lot of time on organising it. Special thanks to Katherine Craig, RussellFraser, Simon Behrman, Michael Goold, Majida Bashir, Declan Owens, Katie Brown, MarjhaGolding, Chris Loxton, Felicity Williams, Connor Johnston, Omar Khan, Ellie Cornish, SallyCheshire, Vicky Fewkes, Joanna Fleck, Benjamin Grant, Paramjit Ahluwalia, Laura Janes,Sophie Khan, Anna Morris, Marcela Navarrete, Owen Greenhall, Rosemary Tackley, CaritaThomas, Samuel Hawke, Sophie Wood, Liz Davies, Margaret Gordon, Charlie Dobson, MarkDobson, Ripon Ray, Rachit Buch and Jeremy Corbyn MP.

This publication was made possible with generous support from the Law Society, RichardElsen, Jon Robins and Gus Sellitto at Jures, and Solicitors Journal.

We would also like to thank the following organisations:

1 Pump Court ChambersDoughty Street ChambersFisher Meredith LLPFoster & FosterGarden Court Chambers GMB Hendon branchHackney Community Law CentreHansen PalomaresHodge Jones & Allen LLPImmigration Law Practitioners AssociationMedical Foundation for the Care of Victims of TortureMitre House Chambers Philcox Gray & CoPierce GlynnSheffield Law CentreThe Howard League for Penal ReformTower Hamlets Law CentreTurpin & MillerWainwright & Cummins

Appendix 4: acknowledgments

appendix 4


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SOLICITORS JOURNAL


Edited by Jon Robins

Justice Gap series

The Justice Gap refers to the increasing section of the public too poor to afforda lawyer and not poor enough to qualify for legal aid. At the heart of any

notion of a decent society is not only that we have rights and protections underthe law but that we can enforce those rights and rely upon those protections ifneeded.

To that end, the Attlee government introduced our system of legal aid in 1949as a fundamental building block of the welfare state. The architects of that welfarestate decreed that legal aid shouldn’t be restricted to those people ‘normallyclassed as poor’ but should also include those of ‘small or moderate means’.

Something has gone wrong. That scheme is in danger of being reduced to aminority sink service. Eligibility for legal aid dropped from 80 per cent of thepopulation in Attlee’s day to less than one in three of us.

This publication is part of a series co produced by Jures and Solicitors Journalabout closing the justice gap.



R.R.P: £9.99ISBN : 978-1-85783-172-62011 © Solicitors Journal and contributors. All rights reserved.No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying,recording, or otherwise, without the prior written permission of the publishers.

Published by Wilmington Publishing & Information Ltd, a Wilmington Group company.

Jures (pronounced 'JOOR-REZ') is a new independent research company and thinktank dedicated tothe legal services market. Our aim is to be a leading source of considered, independent-minded and

thought-provoking commentary on the law in a way that informs and influences debate within theprofession and beyond. Jures brings law and research together.

www.jures.co.uk

SOLICITORS JOURNALJustice Gap series

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