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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
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Taken before the Justice Committee
on Monday 7 February 2011
Sir Alan Beith (Chair)
Mr Robert Buckland
Examination of Witnesses
Witnesses: Rt Hon Sir Nicholas Wall, President, Family Division, Rt Hon Sir Anthony May, President, Queen’s Bench Division, and HHJ Robert Martin, President, Social Entitlement Chamber, gave evidence.
Chair: Sir Anthony, Sir Nicholas, Judge Martin, we are very glad to have you with us this afternoon to help us with the work we are doing on access to justice. We obviously recognise that you all hold very senior judicial positions which will affect the kinds of things on which you want to comment or perhaps how you want to comment on them but we will fully understand that. There are two members who might have interests to declare.
Mr Buckland: Thank you, Chairman. I have been a practising barrister for nearly 20 years, primarily in the field of criminal legal aid. I still have a practising certificate but I don’t have any new cases at the moment. I sit as a Recorder in the Crown Court.
Yasmin Qureshi: I was a barrister before becoming a Member of Parliament. I still am but I have returned my practising certificate. Before that, I received receipts from criminal legal aid as well as from some civil work that I used to do.
Chair: Thank you very much. I now turn to Mr Buckland to start the questioning.
Q137 Mr Buckland: Yes, thank you. We are focusing today, gentlemen, on access to justice and the potential impact of the proposed legal aid reforms to that. I would like to open with some general observations with which you may be able to help the Committee. It has been said, and in fact the statistics seem to bear it out, that we are spending more per head in England and Wales on legal aid than in other comparable jurisdictions, whether they be common law or jurisdictions within Europe. I would be grateful for any thoughts you may have as to why that should be, first of all.
Sir Anthony May: We are here, I hope, to speak on account of our respective major jurisdictions. I am President of the Queen’s Bench Division and I am here principally on account of the Administrative Court, Sir Nicholas Wall is here on account of the Family and Judge Martin on account of Tribunals. We obviously have experience of other parts of the business and I dare say that criminal legal aid is a contributor to the large amount of money that is spent on legal aid. I would not myself reckon to say very much about criminal legal aid today.
Mr Buckland: Very well.
Sir Anthony May: I would, however, say that I think there are diverse reasons for the expenditure of legal aid in various parts of the judicial system and they are not all the same. I am personally convinced-and this is a personal statement and not a representative statement-that one function which necessarily increases expenditure, be it legal aid or private expenditure, is the time that cases take. We have had clear experience over the past 10, 15, perhaps 20 years, where cases which, 20 years ago, would take three or four days are now taking two or three weeks.
In some parts of the justice system there is also a multiplication of complexity and a multiplication of the number of parties. It is fairly obvious that if you have a very complex criminal case with six defendants, each of whom is separately represented, you are going to have six lots of legal aid on a case which, shall I say, if it were more economically prosecuted would not be so expensive and would not last so long. That is a statement outside my specific sphere but I think all of us have experienced that.
When it comes to the Administrative Court, cases in that court on the whole do not last a very long time. Cases in excess of a day are relatively rare, but expenditure on legal aid where it exists in the Administrative Court occurs in large measure because there are so many cases. One case lasting a day is going to cost a day’s amount, but 5,000 cases each lasting a day are going to cost a great deal of money, particularly where some of those do not come to court.
I don’t know whether the President of the Family Division would like to enlarge on that.
Sir Nicholas Wall: The only point I would add in addition is that there has been a very substantial increase in the volume of work in the Family Division in the last few years, particularly in the public law sphere and, of course, that is outwith our control.
Judge Robert Martin: It may, in part, be a function of the amount of legislation and regulation. I can give you a specific example from my own tribunal, which, two years ago, was dealing with something like 240,000 cases a year. This year we expect to reach nearly 400,000. The main driver in that increase is a Government programme, Welfare to Work, and the conversion from incapacity benefit to employment and support allowance, which has driven most of that increase.
Q138 Chair: I have been toying with the thought that the Departments which created a great deal of extra work should perhaps be a source of funds for the costs arising from it. If it had been on their budget they might start to notice.
Judge Robert Martin: In the case of the Department for Work and Pensions it does, in that the Ministry of Justice, to my understanding, cross-charges some of that; but where there might be scope for change would be if the charge made reflected the quality of the original decisions that are coming before the tribunal.
Q139 Mr Buckland: That was a very interesting comment you made about the cross-funding. I don’t know whether, Judge Martin, you may be able to help us on where we can get hold of those figures, because on the most recent analysis of legal aid for 2008-09, for legal help with regard to welfare work, I think just over £27 million was spent by the LSC on legal help. The proportion for legal representation was dramatically smaller than that, it is fair to say, but I thought that figure was quite striking. I don’t know what your view is on that.
Judge Robert Martin: Striking for its modesty?
Q140 Mr Buckland: I thought, first of all, the difference between representation and help was striking, but what it said to me-and you may correct me if I am wrong-is that far too often the error, the mischief if you like, is further back in the system. There are errors within the DWP and the whole system itself, which then have to be ironed out by the lawyers. Would that be a fair characterisation of the situation?
Judge Robert Martin: I think so. A theme that ought to occur throughout the consultation paper is to make intervention in terms of public funding where it will have the most consequence. That might be towards the start of any dispute or case rather than further down the line, because, if it can be resolved very early on in that process, it is probably cheaper and to the benefit of all concerned.
Q141 Mr Buckland: As I say, if you do have access to those figures we would be very grateful.
Judge Robert Martin: I will endeavour to forward those to you.
Mr Buckland: I am very grateful, Judge Martin.
Q142 Chair: You might be interested to know that in previous times the Committee did look in some detail at the work of entry clearance officers, particularly because the large number of successfully challenged decisions suggested there was something wrong with the decision-making process.
Judge Robert Martin: Yes.
Q143 Mr Buckland: Following on from that particular area, I have mentioned the figures about legal aid being higher than other jurisdictions. The converse of that, as shown by a study commissioned for the Ministry of Justice by the university of York fairly recently, showed that in contrast to other countries, the costs of judicial administration and the courts were lower. Do you think that the proposed cuts to legal aid could have an impact upon costs within the court system?
Sir Anthony May: Yes, I do, and I think it is variable between the jurisdictions that we represent. If public funding of claims in court is reduced, there will be an increase in the number of unrepresented litigants. On the whole, there are some very good unrepresented litigants, who present and prepare their cases well, and who concentrate on the main issues, but there are a large number of them who do not and who therefore necessarily increase the time and, to some extent, the expenditure that the court system has to spend on them. It is, however, I think, variable between jurisdictions. Sir Nicholas Wall can tell you about what happens in the Family jurisdiction.
I am fairly clear that, if there was a reduction in public funding of classes of case that might come to the Administrative Court, yes, there would be an increase in the number of unrepresented litigants, but it would, to some extent, be balanced by a reduction in the total number of cases with which the court had to deal. It is quite clear that in some respects litigation is engendered, at least in part, by the very availability of public funding, and if public funding was not available some of these cases would not reach the court at all. That may be a good thing or it may be a bad thing. It would certainly be a bad thing if meritorious cases were unable to be brought when they should be brought, but the experience we have is that quite a large part of our statistically difficult list is occupied by cases of little merit. If some of those never arrived, there would not be much detriment to access to justice. The Family position, I think, is different.
Sir Nicholas Wall: In family law, if public funding is removed from private law applications, which is plainly on the cards, then there will be a massive increase in litigants in person. If you want maintenance or to be maintained, or you want to have contact with or look after your children, you are not going to be prevented from doing so by an absence of public funding.
We are doing our best in the private law programme to ensure that, at the first point with any child case, the District Judge and the CAFCASS officer attempt to resolve the issue, identify the issue and, if necessary, settle it. There is undoubtedly going to be a cadre of insoluble cases which are going to take much longer. They are going to be much more difficult to try and the litigants in person will proliferate. I think it is quite clear. The Green Paper does not recognise that as a problem, which undoubtedly does exist. Every day of the week, if you talk to any judge who tries family cases, you will find parents appearing in person. Sometimes, in a very difficult case, the child is represented but the case takes longer and it is much more difficult. You have to explain; you can’t take shortcuts. You have to explain, to be courteous, and cross every "t" and dot every "i", and that takes a great deal of time. It will take more time in the family justice system.
Q144 Ben Gummer: I would like to follow up on that. I do not want to put you in a difficult position, but the Ministry of Justice has claimed to this Committee and to others that the offset, as they have suggested, in the time that you will spend on litigants in person will be effectively balanced so that the cost of the court in time and money will be equal. Everyone but the Ministry of Justice has professed some surprise at this. Do you agree with them or not?
Sir Nicholas Wall: I share the surprise.
Sir Anthony May: I share the surprise in part, because I do think that to some extent there will be a balancing out. I think the likelihood is that if legal aid was withdrawn in Administrative Court cases one needs to identify what they would be. You would get an increase in unrepresented litigants and those individual cases would take longer and require more court, judicial and administrative time. But I do actually believe that there would be fewer cases.
Sir Nicholas Wall: One of the other difficulties of course is ancillary relief. Private law is not limited to the choices of children. It is a question of money. If married parents separate they want to sort out their finances. One of the aspects which disturbs me most is not only the proposed withdrawal of public funding from that whole sphere but also the fact that legal advice will not be available. We in the family justice area rely very strongly on the lawyers to give sensible, practical, down-to-earth advice which settles cases. Most people settle their cases. It is only a minority who fight. But, with the absence of any advice, it seems to me the likelihood is that more cases will be contested. More cases will be contested on the basis that they have no legal representation. That will take longer, be more difficult and will slow the whole process down very substantially.
Q145 Chair: I was wondering if Judge Martin thought the position of unrepresented litigants was different in the tribunals sphere, given that many were surely created on the assumption that they would not require representation.
Judge Robert Martin: The position varies across tribunals. At the moment legal aid is not available for representation in many tribunals. In the Social Security Tribunals, 72% of appellants are not represented at the moment. I think the proposal to reduce legal help will have a big change. It will not affect the number of appeals that go forward as much, but it will change the nature of them. We will see more people with cases with no prospects of success because they have not been filtered out, as they are at the moment through good advice. We suspect that many citizens with winnable cases will not reach the tribunal because, again, they are not getting the effective support at that early stage. The absence of legal help also means that cases will tend to be less well prepared for the tribunal, which will extend the amount of time we have to invest in the case to make sure that a good outcome is reached.
Q146 Mr Buckland: Can I put some questions specifically to Sir Nicholas because they relate to private family law and you have already touched on it? This Committee is particularly interested in the focus in the Green Paper upon the definition of domestic violence. It seems, on the basis of the Green Paper proposal, that that is going to be a key, if not the key, criterion for the determination of whether or not a case is in scope. It has not escaped this Committee’s notice that there seem to be several definitions of domestic violence, to say the least, between different areas of Government and in particular disciplines. I would be very grateful for your view as to where we are with the definition of domestic violence. What is your view of it and what do we need to do to create a better and clearer criterion?
Sir Nicholas Wall: I think the Government is very ill advised to concentrate on violence in the context of domestic violence. "Domestic abuse" is the term which we currently use because much domestic abuse is not violent. It is psychological, often financial and emotional; it is not physical. There is a perverse incentive, it seems to me, in the proposals put forward in the Green Paper that people will be obliged to take out injunctive proceedings against a former spouse. They will be obliged to litigate in order to open the gateway to legal aid. As you know only too well, so much domestic abuse is hidden. It is not brought into the public domain. It is not brought forward into police action. It is not brought into prosecution. So there is a perverse incentive not only to litigate to obtain an injunction but also to make allegations of domestic violence as opposed to abuse in order to open the gateway to legal aid. I think that is very detrimental.
Equally detrimental is the fact that we won’t apparently be good enough, according to the Green Paper, to settle. Most injunctions these days are dealt with by way of undertakings. A man will frequently say, "I undertake not to assault or molest in the future, irrespective of my conduct in the past." That undertaking is accepted by the court and the case proceeds on the basis of that undertaking. That will no longer be possible. We will be forced into litigation on injunctive issues, and if the Green Paper stands we will be forced to deal with abuse in terms of violence, but abuse is much broader. The ACPO definition of domestic abuse is much, much broader than physical violence. Indeed, common sense dictates that. We all know that domestic abuse is much broader that domestic violence. It is most unfortunate, it seems to me, that the Government has concentrated on violence in this context.
Q147 Mr Buckland: What would you make of the other issue that there seems to be a lack of clarity about whether it should be violence between adults as opposed to involving the children of the family?
Sir Nicholas Wall: Absolutely. At the moment, as I read the Green Paper, it is limited to the applicant. Of course much domestic abuse is directed at children and third parties, and it seems to me there is a lack of clarity in the proposals. I would be very reluctant to see a system which denies access to justice to the most needy people, who are in desperate need of assistance because they are the victims of abuse but they have not ticked the right boxes or gone through the right hoops.
Q148 Mr Buckland: As I read it, the criteria involve a time limit of 12 months. In the preceding 12 months there would have had to be proceedings. Conceivably, on 31 December 2009, if there had been concluded proceedings then and violence or abuse on 1 January 2011, there would be a problem in terms of scope.
Sir Nicholas Wall: I read it the same way. All deadlines produce anomalies, but at the moment one deals with a case purely on the basis of merit and judges are usually very good at assessing merit. It troubles me that this is an artificial standard being imposed.
Q149 Mr Buckland: There has been much discussion again about mediation. I would be very grateful for your assistance here. Where in the system do you think that could come in, and can mediation operate without legal help? In other words, could it just be a direct alternative to any legal input?
Sir Nicholas Wall: Mediation works best with legal help. Most mediators will tell you that, I think. They like their clients to have good legal advice, particularly if you are dealing with all issues in mediation and you are mediating on money as well as on children. The Government is very keen on a pre-action protocol, which means that anyone who is applying for a private law order has to go to a meeting or seek a meeting with a mediator, if it can be arranged, within so many miles and so many days of issuing the application. That may take some people out of the system.
Mediation is simply one of many very good alternative dispute resolution procedures. As I have already mentioned, many of the mediators get their mediations because, at the first appointment, the Judge, District Judge or CAFCASS officer says, "Why don’t you try mediation to resolve this dispute? It is much better that you should do so." Mediation is one of the factors in alternative dispute resolution, but it is by no means a panacea. To be fair to the mediators, they will say to you it is not a panacea. They will say it is very good for a particular category of case where both parties are willing to discuss the issue frankly and openly and make concessions. It is not a panacea in any sense of the term.
Q150 Ben Gummer: On that point, the Lord Chief Justice-I do not want to misquote him-has suggested that the adversarial system is not helpful in almost any circumstance in the resolution of private family law cases. How can we fill the gap, therefore, between that suggestion and the idea that mediation would solve everything, or not? Of course, that is what the Lord Chancellor has picked up on in his submissions to Parliament.
Sir Nicholas Wall: There are times when the adversarial approach is inevitable. For example, if you have to make a finding of facts, then you have to have the two cases put before you and decide between them. There is no alternative. We have long recognised that in many family law disputes, particularly relating to children, the adversarial system is unhelpful. It encourages parents to recriminate and use their children as ammunition on a battleground. That is why we have introduced the private law programme, why we have parenting information programmes and why we encourage mediation and alternative dispute resolution.
One of the difficulties the family law system operates under is that it was grafted on to the common law system and has inherited a lot of its aspects. We are the first to recognise that certain aspects of those do not fit with family justice. That is why, as I say, we have gone for alternative dispute resolution and why the judge in a family case, as opposed to a Queen’s Bench action, may be much more inquisitorial than the traditional role of the judge, which is simply to sit back, listen to the argument and the evidence and make a decision. Judges manage cases; they intervene in cases much more. Of course, I suspect with litigants in person we are going to have to try and do even more than we have done already.
Q151 Chair: Is there scope to take that further? Could that be done to a greater extent and thereby reduce the requirement for a whole series of representatives: one for each parent, one for the child, and all to argue over things which the judge could surely perfectly well ask the parties?
Sir Nicholas Wall: In private law proceedings the child is very rarely represented. Only if the case is one of extreme difficulty is the child separately represented. Private law disputes tend to be parent against parent. As I say, all the effort is going into alternative dispute resolution. If it fails, and it will fail in a number of cases, then there will be no alternative but for the judge to decide the issue. You will be left with this cadre of very difficult family cases on which we will have to adjudicate. They will take time and they will be slow, difficult and expensive.
Q152 Ben Gummer: Can I press you again on that? The point is that you said it has been grafted on to the common law. Is there something that we could do that is rather more radical about the distribution of family justice than just to accept we have to have an inquisitorial system?
Sir Nicholas Wall: Of course, we are waiting for the Norgrove review. Judges in public law cases are already case managers taking a much more active inquisitorial role. There is a recognition that in private law cases ADR has a very substantial role to play. The difficulty is, what is the alternative? Is the judge to become a French inquisitorial judge, who gets off the bench, goes round and opens the fridge and has a drink with the child in the home? We are where we are. We are part of a common law system. My mind is entirely open on that, but that would be a very radical change if we were to hive ourselves off and become exclusively inquisitorial.
Q153 Yasmin Qureshi: As somebody who is very much a champion of the adversarial system, in relation to family law matters there is talk about civil legal aid, but is it not right that in the last two or three years there have been a lot more cases where children have been taken into care which has resulted perhaps in a lot of money being spent in civil legal aid funding for family law cases? I have certainly had experience of a lot of councils saying to me that they have taken a lot more children into care as a result of the Victoria Climbié and Baby P case. Has that not been one of the factors that has increased the amount of civil legal aid?
Sir Nicholas Wall: It has increased the amount of public funding-there is no doubt about that-but there is no proposal in the Green Paper, I am relieved to say, to interfere with that. When the State intervenes in the life of a child the parents have a right to be represented, as does the child. The child is always separately represented in public law proceedings. The State has to justify removing the child from parental care and there are very clear criteria laid down for that.
What is surprising about Baby P is that one expected a peak after Baby P, but one has not had it. There has been a peak and it has been maintained. One expected a peak and then a trough again and for things to go back to normal, but they haven’t. The work has increased exponentially throughout the period since Baby P. I don’t know whether that has been the same in other fields, but certainly it has caused enormous difficulties in public funding because, as you rightly say, a huge amount of money has had to be spent on local authority intervention and these cases are all publicly funded. Local authorities have become much less risk averse.
Q154 Yasmin Qureshi: Discussing areas of law which the Government is proposing that legal aid will not cover any more such as education, employment, housing and immigration, it has been suggested by the Legal Aid Practitioners Group that the proposal to remove funding for education would cause a lot of problems, because at the moment 92% of education cases are successful and the majority of them relate to young people with special educational needs. Would you fear that there would be a real adverse effect on certainly that particular area of the law if legal aid was taken away?
Judge Robert Martin: Yes. I agree that it will have a major impact on the Special Educational Needs Tribunal. It is a high rate of success, but what would count as success is any change in the original decision which is of benefit to the appellant. Without legal advice, because representation would not be covered, there is a risk that more polarised positions would be taken and there would be less willingness to compromise or go down the mediation route. The unadvised litigants in person would not really be in a position to evaluate an offer that had been made or compromise their intent to say, "Well, we go for the whole aim of our claim." There will be adverse effects, not only because it may make it more antagonistic, but in my view because it would leave the unrepresented appellant feeling that the proceedings have been less than fair because of an inequality of arms. On the one side, the local authority will have access to educational experts and will have reports prepared. On the other, you are put in that defensive position of only being able to challenge or dispute someone else’s evidence. You would not be in a position to put forward alternative proposals by being able to afford your own expert evidence. So I think it will have an adverse impact.
Q155 Chair: Isn’t a 92% success rate an indication of an appalling decision-making process by the body against which the appeals are being made?
Judge Robert Martin: It may be that the local authority takes the view that the child concerned doesn’t warrant any special assistance. The parents may feel that the child should have 24 hours a week special teaching. If there is a success in gaining one hour, then it may rank as "success". That might reflect that it has changed the original decision but only partly in favour of what the appellant would see as a fair outcome.
Q156 Yasmin Qureshi: Continuing on from that, we have the Immigration Tribunals where quite often there are quite complex issues such as nationality, asylum and others. Do you foresee that, if there wasn’t legal representation, that may lead to possibly more appeals and applications for judicial review to the Divisional Court?
Judge Robert Martin: Yes. Perhaps we could take that in two parts.
Sir Anthony May: Could I try to deal with that? It is quite complicated, and I hope you will forgive me if I give some background and expand on the question a little. The Administrative Court two years ago, in the calendar year 2009, had nearly 16,000 claims of various sorts. Of those, about 7,500 were asylum claims or similar. When I became President of the Queen’s Bench Division, the Administrative Court was in danger of being overwhelmed, administratively, by asylum-related litigation.
The Government legislated by, among other matters, repealing section 103A of the Nationality, Immigration and Asylum Act 2002. That alone had been responsible for about 5,000 of the 7,500 cases before 2009 which were classed as reconsiderations. They were, in essence, last ditch-perhaps that is not a very fortunate expression-or end-of-the-road applications attempting to establish a claim for asylum where that claim for asylum had failed before the Secretary of State, had failed before the Asylum and Immigration Tribunal, as it then was, and had failed in an appeal system. The form in which those cases came until two years ago was by means of reconsideration applications under section 103A.
At the same time as the Tribunals Service was set up in its modern form, with First-tier Tribunals and Upper Tribunals, the Asylum and Immigration Tribunal went to the tribunals system and there was grafted on to it the standard First-tier and Upper Tribunal appeal system. In asylum cases, that is supposed to operate, in the main, with the Secretary of State’s decision, an appeal to the First-tier Tribunal, an appeal to the Upper Tribunal if permission is granted-I am sorry to be a bit complicated but it is quite important to get to the end of this-and then, if there is a point of law which should go beyond, an appeal to the Court of Appeal. That would be an orderly progression of appeals in cases where permission is granted through the tribunals system up to the Court of Appeal, and the Administrative Court would not enter into it at all, thereby reducing this very large number of cases coming to the Administrative Court.
It was shown that the nearly 16,000 cases in 2009 reduced to 13,500 cases in 2010. But there has grown up a kind of surrogate version of the reconsideration application, the administrative burden of which we now have to shoulder, which are applications by failed asylum seekers who are on the verge of being removed by UKBA removal activity who apply, very often at the last moment within just a few hours before the plane is about to depart, to a judge of the Administrative Court seeking a stay on their removal. Sometimes we have to deal with 20 or even more such applications every day when there is a chartered flight going out of Gatwick, Stansted or wherever it is. These, as it were, are a substitute inflow of these latter-day applications, a large number of which have no merit whatever but a few of which do have merit. Let us say that 85% of them-that is a figure I rather pluck out of the air but it is of that order-are of no merit and are in cases where an appropriate decision-making process, including an appeal and the opportunity of applying for a second appeal, has taken place.
Against that background, you have the proposal that the Government has put forward to remove legal aid in immigration cases but to retain it in asylum cases. In the main, the cases that I am talking about are asylum cases, but the critical point is that at the moment the law is that you cannot bring judicial review proceedings to the Administrative Court from a refusal of permission to appeal from the lower First-tier Tribunal to the Upper Tribunal. That applies just as much in immigration cases as it does in asylum cases.
That is the law in England and Wales, but it is not the law in Scotland. The Scottish courts have reached a different decision on this particular point. The disparity between the law of England and Wales on the one hand and Scotland on the other is coming up for decision in the Supreme Court in March. If the Supreme Court decides that Scotland is right and England is wrong, then there will be the opportunity for all these cases which used to be reconsiderations to come by way of judicial review to the Administrative Court.
I am sorry to have taken so long, but this is the point. In the legal aid context you have one fact and one prospective possible fact. The last-minute applications in the case of charter flights are brought with the benefit of public funding and would, unless a change is made, as I understand it, continue to be brought with the benefit of public funding. These are cases that have been through the system, where 85% of them are of little or no merit. I personally think that consideration could properly be given to whether some mechanism might not be found to moderate the availability of public funding in that respect. That is the first point.
The second point is that, if the case of Cart in the Supreme Court is decided to the effect that Scotland is right and England is wrong, then, because the proposal is that judicial review will continue to qualify for legal aid, all these applications which we can foresee would happen would qualify for legal aid and you would get a whole lot of immigration cases-at the moment the proposal is that they should not have legal aid-getting legal aid not because they were immigration cases but because they were judicial review applications.
If you want my tentative suggestion as to how the first of those problems might be dealt with, it would need mature consideration. There is a well-worn procedure in the Court of Appeal Criminal Division in relation to applications for leave to appeal to the Court of Appeal Criminal Division where the leave has been refused by a single judge on paper. The system is that public funding for the first instance proceedings for a defendant in criminal proceedings who is convicted and sentenced extends to the giving of advice in relation to an appeal and will therefore sustain the lodging of an application for leave to appeal to the Court of Appeal Criminal Division. That happens every day of the week. If that application fails on paper, the application can be renewed orally before the full CACD, but that is at risk as to public funding. The way it works generally is that the application is made without the benefit of public funding. If it succeeds, public funding will, generally speaking, be granted for the succeeding appeal, but if it fails the lawyers don’t get paid for what they have done.
I don’t see why an equivalent system couldn’t be put in place in relation to these late asylum applications. They are actually applications for a stay in an asylum case. So the proposals would result in them being publicly funded as they are at the moment, but if that particular variety of application did not qualify for legal aid, unless it was successful and the judge said so, then the amount of legal aid on those cases would be reduced by about 85% and there are 5,000 of those cases every year. It seems to me that that is a proper means of doing it.
I have to declare, as it were, that my administrative interest is to reduce the number of these cases. That has nothing to do with how they should be decided. We just have an influx of these cases that it is very difficult to deal with. In a sense, by virtue of my office, I have an interest in that, but it seems to me that that is something which should be considered. I am sorry to be so long.
Q157 Chair: No, it is a very interesting point. It causes me to muse as to whether the Secretary of State and the Lord Chancellor are represented in the Cart proceedings in respect of potential costs arising from the outcome.
Sir Anthony May: I am sure that the Secretary of State is deeply interested in the Cart proceedings.
Q158 Mr Buckland: As somebody who has been in the Court of Appeal in criminal cases with both scenarios, Sir Anthony, either having had leave granted after refusal by the single judge or not-in some cases where I have had to return home empty handed-your suggestion has a lot of merit. Do you think that could be extended to other areas? I know that, generally, there is a permission procedure when it comes to applications for judicial review, but could that principle be extended to other areas in this review?
Sir Anthony May: I am sure one can think about it. All judicial review proceedings require permission. Generally speaking, if an application for permission is refused the question of awarding costs doesn’t arise, but a lot of these applications will have been publicly funded and therefore will have cost the Legal Services Commission money. I doubt, off the top of my head, if a proposal to limit public funding for all judicial review applications, irrespective of their nature and merit, would receive much backing. There is such a wide variety of these applications that one would find it very difficult to put in place something as sweeping as that.
On the other hand, I do think that, if an economical system could be put in place where legal aid was available for meritorious claims but not available for claims which had no merit, that would be of advantage.
Q159 Ben Gummer: You have almost answered the question I was going to ask. The contention of the Lord Chancellor is that the Ministry did not want to take judicial review out of scope precisely for the reason that you have mentioned, but you have given one instance where it is perfectly possible to do so and not jeopardise the rights of citizens apropos their relationship with the State. By extension, there must be other areas within judicial review where it is possible to do that without jeopardising that relationship. Sir Anthony May: Thinking on my feet, if you have an asylum decision by the Secretary of State which then is appealed to the First-tier Tribunal and the appeal fails, and there is then an application for permission to appeal that decision, it is at least a question worth asking whether public funding for that application might or might not be considered. The analogy with the criminal side of it is that the application for permission ought to carry on the back of the public funding for the first instance appeal.
Q160 Chair: Can I turn back to tribunals for a moment? There are two things I want to say about tribunals. First of all, they have expanded with the State’s decision-making activity and its willingness to grant some kind of appeal mechanism for decisions which have a big impact on the lives of individuals or families. Generally speaking, many of them, when they were created, were meant to be user-friendly and not to generate the sort of proceedings that would be normal in a court of law, even though they have some of the legal bases for the court of law. Do we no longer view tribunals in that light? Are we simply now treating them like any other court of law?
Judge Robert Martin: How times change. The complexity of the law has multiplied. When Social Security Tribunals were first set up, at that stage I was an adviser. The law that we used was encapsulated in a very slim handbook. The reference materials that we issue to our tribunals now extend to 7,500 pages spread over six volumes. The ability of tribunals to act in that simple, accessible, informed way is not assisted when the law itself becomes increasingly complex. We endeavour to live up to the original reasons to justify tribunals being informal, but that is against the formality of the court. For many of the people who appear unrepresented it is still a very daunting and stressful experience, no matter how friendly we try to be.
We still preserve the notion that tribunals should be expert bodies and therefore it is easier for a person who has not had the benefit of professional representation to set out their case, to be enabled to present their case, because the tribunal itself will adopt an enabling role. But there are limitations to what we can do. One of those limitations is that this is a criticism of the proposal in the consultation paper which says that you should look at the ability of a citizen to present his or her case. What we really need is assistance in the ability to handle the entirety of the case, because so much groundwork has to be done before someone gets to the door of the tribunal. That is where I have a concern. The removal of legal help from so many areas of activity in the tribunal will set people off handicapped on their ability to win their case.
Q161 Chair: Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal?
Judge Robert Martin: Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal. Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success.
Q162 Chair: It is not always lawyers, though, is it? It is often trade union officials or welfare rights advisers who can point the client to the aspect of the case which needs to be brought out.
Judge Robert Martin: Yes. The majority of legal help in the social security field is carried out by welfare rights advisers and citizens advice bureaux. In the employment field, obviously trade unions are to the fore. One of the beneficial changes in the legal scheme over the year has been the extension of public legal funding to cases where specialist help is not necessarily that of a solicitor or barrister but someone who has particular expertise in that field, whether it is housing, social security, welfare or education.
Q163 Chair: Can the tribunal and its office and staff do more to say to people, "What the tribunal will want to establish in your case is whether or not X"-whatever X may be-"happened and that is what you will need to concentrate on and satisfy the tribunal on if you are to win your appeal"?
Judge Robert Martin: So much of a tribunal hearing at the moment is taken up with general information and education: what is going to happen next in the tribunal and what the tribunal needs to concentrate on. For the appellant, they are there because they feel that they have not been treated fairly and a decision has been taken that they don’t think is right, but they don’t necessarily have the ability to translate that into what the law might regard as the appropriate outcome for them. We spend a lot of time in each hearing explaining exactly what the tribunal can and cannot do. We endeavour to allow people to have their full say and, in effect, clear their chest of what they believe the issues are, but then to try and steer that into what the law allows us to take into account or ignore. With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter.
Q164 Chair: It has been put to us by one witness, and probably the same view is shared by some other organisations, that there is an inequality of arms in the tribunal situation if one side, whether it be a Government Department or an employer, is legally represented and the other is not. Do you regard it as an inequality of arms-an article 8 issue, if you like-or is that something that the tribunal can satisfactorily compensate for?
Judge Robert Martin: There is inequality of arms in different ways. The amount of preparation that can be put into a case varies according to the resources. If you are coming up against a Government Department, whether it is the Department for Work and Pensions, or a local authority in special educational needs, or I could extend that to say in an Employment Tribunal where the employer in effect is able to set off the costs of representation against tax, then there is a disadvantage in that way. There is an inequality of arms to that extent. The tribunal will endeavour to rectify that by assisting a disadvantaged party to present their case effectively, but we maintain a balance between trying to even up the two parties to the appeal without at the same time being overly seen as leaning over backwards in a way that might be perceived as bias in favour of one party rather than another.
Q165 Yasmin Qureshi: When parties come before a tribunal, I understand it obviously tries to offer as much assistance as it can, but of course, one of the problems is, when somebody is preparing their case for the tribunal, they need to have advice as to how to go about gathering their evidence to prove their case. If there is no legal aid or no legal mechanism, what system exists to help them?
Judge Robert Martin: In many cases where a social security appeal turns on a person’s state of health, we see an appeal letter or correspondence from the appellant which says, "My GP knows all about my health problems. You are quite free to ring him up and he will help you." But the tribunal really isn’t in a position to pick up the phone, interrupt a GP’s surgery and say, "We have an appeal on at the moment." Legal help comes in where the advice worker can say, "The tribunal won’t be doing that, but I can do that for you," and possibly even pay for a short medical report. The person then arrives at the tribunal equipped with that evidence.
Q166 Ben Gummer: The Government seems to have advanced its case for reform with three statements which were repeated. The first is that there is a deficit, and we all agree with that. The second is that reform is possible cost-wise apropos the increase in the use of mediation. That has caused some surprise, as we agreed earlier. The third is that we have a very expensive system in this country. Yet their own evidence, presented to them by the university of York two years ago, suggests that in fact that is not a conclusion one could come to with great certainty, the costs of the courts in this country are considerably lower than in other jurisdictions, and it is an unfair comparison in any case because of the relative difference in deprivation in this country compared with some other common law jurisdictions. Could you comment on that last statement?
Sir Anthony May: I am not personally very well informed about comparative costs in other jurisdictions. What strikes a chord with me when you ask the question is the underlying implication that, if the cost of publicly funded legal representation is reduced, there will be an increase in the cost of publicly funded courts. I don’t see that happening because, in circumstances where, as with so many other public services, the cost of the court administration is running in the opposite direction and where there is no prospect, as we see it at the minute, of the number of judges being increased in any jurisdiction but certainly not in those jurisdictions with which I am concerned, it is perfectly obvious that the effect, it seems to me, is not likely to be an increase in the cost of the justice system but an increase in the pressure that is put on the judicial side of it and, importantly, on the administrative side of it.
There has to be a danger that a rather indeterminate spin-off consequence would be that the actual quality of the justice which is delivered will be in danger of reducing. It may be in danger of reducing because the administrative preparation that is provided to the judges is not so great. It may be in danger of reducing, God help us, because the judges are under so much greater pressure that they have to do cases in a shorter time than they ought to be given, and that kind of thing. It is terribly important that a reduction in the expenditure on the justice system, however it is effected, can only take place in the end either by reducing the number of cases, which in certain instances is a possibility but in others is a complete impossibility, or in extending the time that these cases take. The only thing that one can do with the same number of cases but a smaller resource to deal with them is to extend the waiting times.
Sir Nicholas Wall: Can I just add to that? I do think there is not an adequate appreciation of the pressure that the family justice system is under at the moment already, with a succession of cuts and very low fees for lawyers. The pressure on the Circuit Bench and the District Bench, particularly, who do the majority of this work in the County Court, is enormous. I have great anxiety not just for the quality of justice but for the health and well-being of the judges if they are put under additional pressure.
Judge Robert Martin: As you say, one of the goals in the consultation paper is to refocus the funding on the most disadvantaged and the most vulnerable. I think the strategy adopted is completely ineffectual in doing that by focusing on categories of law rather than real-life individuals. If I can illustrate this, community care will be left within scope because it is to be directed towards those who are elderly, frail and disabled, but what would be taken out of scope is attendance allowance, which is a benefit designed for people who are elderly, frail and disabled. One of the differences may be that the payment of attendance allowance would allow an elderly, disabled person to remain in their own home. If you remove that, it has a knock-on effect because then they may be displaced into residential care, which is much more expensive. It seems to be a failure to refocus upon those who are the most disadvantaged and a failure to bring into account the knock-on economic effects of not supporting people, quite cheaply I believe, through effective legal aid.
Q167 Chair: Bearing that in mind, can I ask one slightly exasperated question? Why is it that a decision that someone needs attendance allowance can’t be well made in the first place and then subject to a process which does not necessitate a lawyer advising the person on what method he would have to employ to challenge the decision or a lawyer appearing at a tribunal in order to advocate a different outcome? Surely that very personal and very vital decision can be made in some better way, can it not?
Judge Robert Martin: When we reach that golden age, we can not only say goodbye to legal aid but to lawyers in courts and tribunals as well.
Q168 Chair: Thank you very much. We are very grateful to all three of you for your help this afternoon.
Sir Anthony May: Simply as a matter of information, this week, a Sub-Committee of the Judges’ Council on behalf of the Judges’ Council is about to submit a written response to the consultation paper. I think the deadline is next Monday, and that deadline will be achieved. I have seen this document in draft. It covers a very large proportion of the entire consultation paper. I am sure that it will be published and be useful.
Q169 Chair: We certainly hope to take note of that and allow it to affect our thinking at the final stages of what is going to be a very short process, but that should be in time for us to do so.
Sir Anthony May: It will come to the consultation this week.
Chair: Excellent. Thank you very much indeed.
Examination of Witnesses
Witnesses: Campbell Robb, Chief Executive, and Simon Pugh, Head of Legal Services, Shelter, gave evidence.
Chair: Mr Robb and Mr Pugh, welcome. We are very glad to have you giving evidence. You are respectively Chief Executive and Head of Legal Services at Shelter. Mr Gummer is going to start.
Q170 Ben Gummer: I will ask a general question. Most people who appear in front of this Committee and most people whose doors I knock on at weekends accept that there have to be cuts of some description in most budgets. With that in mind, how do you view the Government’s proposals on legal aid?
Campbell Robb: Thank you. Just to start from our perspective, it is worth pointing out that the civil legal aid budget has fallen year-on-year for nearly the last seven or eight years. We are not in an area where there has been a growth in the amount of money that is spent. In fact over the years the rights and support for legal aid in the areas in which we work have been salami sliced. It is not our place to comment on other areas of law particularly. We can only really comment on the ones where we are. Certainly from our perspective, we do not believe that there is much scope for cutting further in housing because it is a hugely complicated area and the type of legal support that many people need to avoid repossession, eviction or to get decent repairs is very, very important.
Q171 Chair: Repossession stays in, does it not?
Campbell Robb: Yes. We have just had some clarification about the evidence we gave to the Committee. The original proposals of the Government had been somewhat opaque and uncertain about what would and would not stay in. In fact we met the Minister earlier today and he gave us some more clarification. Quite a lot of the housing stuff now would stay in, so we are very pleased about that. There are other areas, clearly, where maybe some work could be done but we believe that in housing there is hardly any room for further cuts.
Q172 Ben Gummer: I don’t know if my experience is universal amongst colleagues, but certainly I should think two-thirds of my constituency inquiries are about housing benefit.
Campbell Robb: Yes.
Q173 Ben Gummer: Will the introduction of the universal credit and the simplification of the benefits system have a collateral effect on what you do?
Campbell Robb: We would hope so. In principle, we are very supportive of the universal credit. Until we have seen the detail of it, we would first of all have to see how well that works and whether housing costs are within the universal credit or not. There is some discussion about whether or not that will be the case. In effect, you would not need to cut the legal aid bill in advance of that because there should be a natural reduction in the number of cases because many of the cases in that area are about clarification or administrative error due to the complexity of it. We would definitely argue that you would have to wait to get through the transition of the universal credit before double-checking that, if you see what I mean, because you would naturally have that. We are worried that in that transition period you will get a lot of people wanting to challenge and understand what their legal rights are. We would want to be in a position to be able to help them.
Ben Gummer: Yes, that is a very important point.
Simon Pugh: If there is going to be a substantial change in the benefits system, there are always going to be issues with that change, even if the change is ultimately successful. There is going to be a transitional period where there is going to be uncertainty about how things are applied. People are not going to be sure of their rights and they are going to require advice. In the longer term, if the universal credit does work, then the demand will drop off and it will not be necessary to cut the scope.
Q174 Ben Gummer: Perhaps I could ask you one final, obvious question to which I am sure you will know the answer but it would be good to have it in black and white. The Government claims that of course there are lots of other organisations that can provide help and legal support to people free of legal aid.
Campbell Robb : Indeed.
Q175 Ben Gummer: What do you judge the capacity now to deliver that, and what could be done to increase that capacity so that at least the Government’s aims, if not the reality, can be realised?
Campbell Robb: That is a very good question. The first thing to say is that we do not give legal aid support to anyone who is not liable to get legal aid support. It is not funding a whole series of things that are not currently in scope. We are under intense scrutiny from the Legal Services Commission and others to make sure that we provide only that which exists. We provide a wrap-around service at Shelter that supports that legally-aided work with other advice and support for ineligible clients and people like that. Generally, I am quite fearful that if the Government was to go through with all of its proposals-the combination of the things taken out of scope and the introduction of a mandatory helpline-you would see a massive reduction in small localised providers. Shelter is a reasonably big organisation. We can maybe move things around and we are very lucky to be supported by public donations. We might be able to survive, but we would not be able to give the size and scope of face-to-face front-line advice that we currently give. That would be the impact on us.
Simon Pugh: There are just a couple of points that I would add to that. First, the consultation paper’s own impact assessments say that something like 77% of the funding of the not-for-profit sector-and we are very much a part of the not-for-profit sector-would go under these proposals. In addition to that, if the telephone gateway comes in, something like 80% of cases would be diverted to that. There would be very little left to us. We believe that a substantial proportion of our funding will go from that, and it will be very difficult for us to sustain the holistic services that we provide without the legal aid income that forms an important part of the funding of our services.
The second point I would say as a solicitor is that Shelter has a number of solicitors who provide advice to the public. The advice that we give in terms of court representation we really can’t do in any other way other than under legal aid. Without legal aid, clients don’t have costs protection. Conditional fee agreements are very difficult to come by in the sort of work that we do, and with pro bono work there is no costs protection for clients. It is very difficult to advise people to take cases to court without legal aid because they are at risk of costs if they lose.
Q176 Chair: I understand that 1 million people seek your help in one way or another in the course of a year.
Campbell Robb: They do.
Q177 Chair: But of those only 25,000 are people you can deal with under your legal aid contract.
Campbell Robb : Indeed.
Q178 Chair: So it represents a very small part of the total value of what you do for society.
Campbell Robb: Indeed, but it is a massively important one for a number of reasons. I should point out that 1 million people come to us for everything just from the very basic saying, "I’m a little bit worried." The vast majority of those people are through our website. We get hundreds of thousands of people a month who come to our website for a bit of advice on a tenancy, a landlord or deposits and a whole range of stuff like that.
Q179 Chair: I send people to see you.
Campbell Robb: Indeed, and most of your colleagues do. We are grateful for them, but some of the most vulnerable clients that we work with, who are those that are most in danger of being evicted, repossessed or made homeless, are supported by this core bit of work, which is the legally-aided work. That legally-aided work is the most expensive part of what we do, and those people who need the most help are those that walk into our service and say, "I’m just about to be made homeless," "I’m about to be thrown out," or, "My landlord is evicting me and I think it might be illegal." To work through the complexity of that case and the Government support to do that is such a significant part, and we can build offices and support around that, but, if you take that out, then our ability to do anything other than telephone and web becomes much more difficult for us. That is the issue. Some people absolutely need that sustained face-to-face legal advice. Many of the people you may have referred to us may end up getting legal aid because of the nature of their case, and we just wouldn’t be able to help them in the same way without it.
Simon Pugh: Year-on-year, about 60% of the people we see in our face-to-face advice services are funded by legal aid. We help a lot more through our website, through information and through our helpline, but face-to-face advice services are about 60% legal aid funding.
Campbell Robb: To make another point, for many of those the legal aid allows us to stop that getting to court or stop that getting worse. A bit of early legal advice which says, "You’ve actually got a very good case. We will get in touch with your landlord or we’ll talk to the local authority," or whatever, stops that getting to the point where it gets even worse. If we get to this point, we could see many more people ending up in court or being dispossessed and the cost to the state will be far greater. Even though it is a relatively small number against the total number we help, they are the most vulnerable and sometimes have the most multiple needs.
Q180 Chair: Do you have areas of the country where you do not have LSC contracts?
Campbell Robb : Indeed.
Q181 Chair: But you continue to provide advice.
Campbell Robb: Not in all areas; in some areas we do. Generally speaking, certainly since the Legal Services Commission started about four or five years ago, there have been, as I am sure you are aware, contracting processes. In the recent round of contracting, we lost contracts in some areas and other people won them. Shelter definitely tries not to leave any deserts, and the LSC has tried hard to make sure there are contracts in other areas. However, not just us but a number of providers are now the sole providers in one area. For example, in Cornwall and in Kent, we are effectively the monopoly supplier of advice. The changes over a number of years have meant that other suppliers have just not been able to stay viable. If we were then to be forced out of business in those areas, you begin to create deserts and that is one of our fears about these proposals.
Q182 Chair: Presumably there will be a smaller legal aid contract for the areas that are still in scope.
Simon Pugh: But the issue there is that a small legal aid contract is very unlikely to be viable. If only a very few matters are left per area per year, then it is very difficult to see how anybody could deliver that in any kind of sustainable way.
Campbell Robb: We already underwrite our Legal Services Commission with voluntary funding to make it viable in those areas where we work. We will put in donated income to underwrite the cost of the contracts.
Q183 Chair: That is really why I am trying to establish what you do in those areas where you don’t have an LSC contract. Are you continuing to help?
Campbell Robb: Yes. We might not have an open service where you can just walk in. We might be providing some local authority funded work to do support work, but there will be other providers in that area. We work very closely with Citizens Advice and other types of providers who may have won the contract in that area. There certainly are some citizens advice bureaux. If we are not operating in an area, we will almost certainly refer them to the citizens advice service in that area. We try to make sure that we are doing that.
Q184 Ben Gummer: Can I ask one supplementary on that? You say that conditional fee agreements are difficult to find. If I can play devil’s advocate, if you were to withdraw from the scene, would there be a growing business opportunity for those organisations that could provide them?
Simon Pugh: Not in the sort of cases that we deal with, no. A lot of the cases that we deal with are not money related, and the value of the ones that are-the disrepair claims and so on-is relatively small. The difficulty of getting insurance to cover the costs risk is quite high, and the costs that would be required to fund that insurance are quite high. We don’t think there is going to be a market that develops in the kind of work that we do.
Campbell Robb: Most of our clients do not, in effect, want to end up in court. They come to us as a measure of last resort, in effect, to save their home in one way or the other. The disrepair cases are different, but, generally speaking, our clients are quite desperate when they get to us in terms of seeking legal aid.
Q185 Yasmin Qureshi: The Green Paper says that it is going to keep legal aid for housing cases if somebody is at risk of becoming homeless, but you have said in your papers that you think their definition of who is going to become homeless is very narrow. Can you explain why you think their definition is narrow and perhaps give us an example of some cases where somebody may be facing homelessness but would not be eligible for legal aid under these proposed reforms?
Simon Pugh: There are two aspects to that. The first is that, on the face of the consultation paper, in terms of homelessness advice, the Government only refers to retaining in the County Court appeal stage of homelessness advice. There was a parliamentary answer last week and we have had a meeting with the Minister today at which it has been clarified that their intention is to retain in scope all homelessness, including the application and the review stage. We are very grateful for that, but our evidence to the Committee was on the basis of what is on the face of the Paper, which is only that the County Court appeal stage would stay in.
There are other areas where we think that people who are at risk of homelessness, even if not actually homeless, would no longer get advice under these provisions. An obvious example would be people who are suffering from illegal eviction. Again, the cause of action for that, which is breach of covenant for quiet enjoyment, is expressly stated as going out in the consultation paper.
We are very keen to stress as well that a fundamental part of what we do is advice as well as court representation. We help people at the early stages. We help them resolve their housing benefit problems. We help them if they have arrears problems in dealing with debts. We stop cases getting to court. Those people are at risk of homelessness even if they are not at immediate risk of homelessness. If we can’t provide that early advice and intervention, which is legal advice but is not advice in court yet, then more cases will get through to the court stage. More people will be at immediate risk of homelessness and, in many cases, it will be too late.
Q186 Yasmin Qureshi: Can you give us some examples of where you think early intervention in housing problems could save funds in the longer term? Are you aware of any hard evidence which backs these assertions that by intervening at early stages, public savings can be made?
Simon Pugh: In terms of hard evidence, Citizens Advice produced a paper last year which said that, in housing and debt cases, for every £1 the state spends on legal aid it saves about £3 and it is about £9 on welfare benefit cases.
Q187 Chair: Yes; they have given us that advice. We wondered if you had a similar perspective.
Simon Pugh : Yes, I am sure they have.
Campbell Robb: We do, but we agree with Citizens Advice on that particular one.
Simon Pugh: There are a number of examples. There is the one I just gave about resolving problems with housing benefit, for example, which enables arrears to be cleared without the case having to go to court. There is negotiating with landlords. It happens relatively frequently that landlords want tenants out of the properties and they don’t necessarily know what their obligations are so they just tell them that they have to leave. Obviously that is not the proper process. If we get involved and we negotiate with the landlord at that stage and say, "This is not the way it is supposed to happen", then we can prevent people being unlawfully evicted and having to go back to court to seek reinstatement to their property. There are a number of examples.
Campbell Robb: On occasion we also stop people going to court, in a sense. We can also advise people. People will come and say, "I want to take my landlord to court", and we can advise them that they don’t have a good case. It is not always about taking people to end up in court: we can stop people getting there as well. It is both sides of the coin, if you see what I mean.
Q188 Yasmin Qureshi: Do you think there are any areas in the housing case scenario that could quite properly be taken out of the scope of the system?
Campbell Robb: As I said at the beginning, I am afraid one of the unfortunate things about housing is that it is an extraordinarily complicated part of the law.
Q189 Chair: So is everything else, everyone tells us.
Campbell Robb: Indeed. There are some that are slightly simpler but not many. The scope in housing has been reduced. We were genuinely having this as a discussion before we came here because we knew we would be asked this question in the inevitability of, "You must accept bad things are going to happen."
On the housing front, I am afraid that, for us, the work we do in supporting people in housing need in terms of legal aid is as close as it gets to keeping people in their houses. For us as well, with the cumulative effects of everything else that is happening-there are very significant reforms from CLG on housing reform, on tenure, on dispersal of homeless people into the private rental sector, changes to housing benefit reform-all of those combined means that, if you add in a significant change to the housing rights funded through legal aid, we would be really worried that we wouldn’t be able to protect some of the most vulnerable people in this country. We absolutely understand that savings have to be made and we are happy to discuss those, but on housing in particular I am afraid we feel that, even when pushed, there is very little that could be taken out. It is a tiny percentage. It is less than 3% of the total legal aid budget; it is not a huge area in terms of total amount of spend.
Q190 Chair: How much of the legal advice that you give at Shelter to people with housing issues is provided by professional lawyers?
Simon Pugh: We employ about 40 solicitors who give advice. We have solicitors in not all but in most of our advice services around the country. We also employ advisers who are not necessarily qualified lawyers; sometimes they are. But that doesn’t meant that the quality of the advice that they provide is any the worse for that. They are all experts.
Campbell Robb: And all paid for by the legal services. They are money funded through-
Q191 Chair: Forget the large number of people who don’t come under the legal services contract. There must be quite of lot of those to whom you are giving advice which has a legal context to it. Who gives them the advice?
Campbell Robb: What we will try to do, for example, on our website and helpline is create crib sheets and advice sheets which our legal team will support and advise, so you will get what is effectively supported by the knowledge and expertise that they get on the ground from doing that. Part of Simon’s job is to help our web team, our advisers and others to put in place advice which has a legal basis, but it is not the same as getting advice from a lawyer. For all the people that come to the website, we work very closely to ensure that that is right but we wouldn’t ever say that you had had good legal advice.
Simon Pugh: We have advice services that are funded substantially by legal aid, and we do supplement that funding with our charitable income. We can use that charitable income to give advice to people who are not eligible for legal aid, and we do do that.
Q192 Chair: It prompts the question, because I know a lot of people donate to Shelter, what it is that your charitable income mainly gets used for.
Campbell Robb: A variety of other things. It pays for some of our campaigning work. Many people support Shelter ultimately to campaign for better housing across the board. We do a lot of work on that. A lot of our funding also goes to some support services. The Keys to the Future campaign, which we ran a number of years ago, worked substantially with young people, children and families around the country and has been a massive contribution in helping them. It is a variety of different things. Most of our donors accept that some of the money is used, in effect, to make sure that Shelter is giving the best possible advice and support. On occasions we have to use some of our money to help to get that done.
Q193 Chair: Sometimes, presumably, it is information about where they should go for alternative resolution of their problem.
Campbell Robb: Absolutely. We have a helpline, free to use, which is almost entirely funded by voluntary funding. The Government has supported certain specialist parts of it, on mortgage support or other support. That helpline is effectively funded by donated income as well.
Simon Pugh: And open to anybody.
Q194 Mr Buckland: At the back of the Green Paper we have the box chart with various pros and cons. I am sure you are very familiar with it. One of the arguments inserted into one of those boxes is the ability of clients, it is claimed, to be able to represent themselves in many cases or find alternative sources of support. What proportion of people who are in need of advice and representation on housing cases do you think that would cover?
Campbell Robb: I will make a broad point, but the honest answer is that it is very hard to tell. The number of people we help, i.e. the number of people that we are currently funded to do through the Legal Services Commission, are the people who are due and under the current legislation are able to get legal aid, so that is the amount that we help. In terms of self-representation, Simon will definitely have something to say on that.
Simon Pugh: Many of the people that we help are very vulnerable for one reason or another. They have physical or mental health problems. They have difficulties with various other issues. The people that we help tend to be the most vulnerable in society, and it is very difficult to see that they would be able to help themselves or represent themselves. The legal process, the court process, the tribunal process in the case of welfare benefits is extremely complex and difficult. The law is complex and difficult and has become more so over the years. So it is very difficult to see that people could navigate that and certainly in a way that enables them to present their case in the best possible way.
As Campbell says, it is very difficult to quantify what sort of numbers of people would be able to do that, but very few of the clients that we represent would be able to do that in a way that would achieve the same degree of success that we would be able to if we were representing them on their behalf.
Campbell Robb: The core of this is, what is legal and what isn’t? This is the crux of this matter, in a sense, is it not? We would argue, yes, we can continue to give advice and support. That is part of our raison d’être and our donations will continue to fund that. We will always have a website and a helpline that offers advice and support to people. No matter what income range they are and whatever their housing need, we will continue to get in touch with them and we will try and advise them.
However, we believe absolutely and utterly that there is a role for the Government to pay for legal aid to support some people, not just the most vulnerable but whoever needs it the most, to help them take housing issues when their home is threatened, when they are threatened with repossession or made homeless or to be evicted, or their home is in such a state of disrepair that they have no other recourse to get it funded than through the law. We believe that you should keep a substantial part of what already is in in scope to allow organisations, not just Shelter but others, to do that. We believe that, if you don’t do that, then you will be substantially letting down, particularly over the next coming years, some of the most vulnerable people in the community at risk of really significant loss of their housing rights.
Q195 Mr Buckland: Because a person will come to you not as a legal case but as an individual.
Campbell Robb: Exactly.
Q196 Mr Buckland: Initially you may not know the nature of the problem.
Campbell Robb: No, we don’t, and they present with different problems. Quite often people come with a debt problem, but the problem is not a debt problem; it is a housing problem. Sometimes people move from our helpdesk to our face-to-face and things like that. You are absolutely right. What we try and do is to sort out all of the problems of the individual. It is not just solving that. Stopping them being evicted would be the first part of our potential work with that client, which they may transfer from a legal aid thing.
Just to give an example-it is not really relevant-we do a lot of work at the court desk. Many of you will be aware that at the court desk people will turn up about to be evicted or repossessed and they have had no legal advice at all. They will turn up at the desk and it will be a Shelter solicitor who is the duty clerk. We will argue against the thing. We will stop the repossession order and the judge will give them eight or 10 weeks to come back with a plan. We will then work with that person to get them decent debt advice so they can talk to their lender and come up with something else. That is legal advice leading into better-
Q197 Ben Gummer: It sounds like making an argument for public funding rather than for legal aid funding.
Campbell Robb: That is the question about what is legal and what isn’t, in that sense. I think, yes, there is a case for legal funding because there is a case very specifically in housing and some of the other areas where you need to take legal representation, where you need to go to the court to seek justice for what is going on.
Simon Pugh: Our legal aid funding does not fund general advice, help or support. What it funds is specialist legal advice on complex legal problems. That is what we need the legal aid funding to do.
Q198 Mr Buckland: In other words, the client would come in through the door, you do your assessment, work out whether it was an advice case or something more complex and then, if it was a complex situation, the legal aid funding would kick in.
Campbell Robb: The first series of questions we would ask any client, if they are coming through, is, are they eligible for legal aid? If they are not eligible for legal aid, then we have to work out another way through other Shelter mechanisms whether we can afford to support them, whether somebody else can support them in their local area if there is another provider.
Q199 Mr Buckland: That is important. You apply the same criteria as any practitioner would in the marketplace.
Campbell Robb: We have to, absolutely.
Simon Pugh: Because we are subject to exactly the same contracts and exactly the same terms in those contracts as anybody else. We are subject to exactly the same rules about the merit of cases, the scope of what can be funded and that it must be a matter of law and a legal problem and so on.
Q200 Chair: Isn’t some of the advice that we are talking about here advice which ought to be given-and in my experience sometimes is given-by local authorities? If somebody goes along, they go and complain to the local authority about the state of the property or the landlord, and the local authority is supposed to take appropriate action. In other cases they might go to the local authority and say, "You’ve got to house me because I’ve had this notice to quit." The local authority says, "That notice to quit has no effect whatsoever. If the landlord wants you to leave, he is going to have to get in front of the court and secure your eviction."
Simon Pugh: There is a degree to which that is true, but there is funding pressure on local authorities as well and they are unable to continue providing that service to the same degree. There is also the issue that in some cases, not all cases, what we are challenging are decisions of the local authority and people cannot get independent legal advice from the local authority in that sense.
Campbell Robb: Our picture is a very mixed one of different local authorities. Again, as Simon said, we would worry about what we are hearing about some of the changes in cuts that are happening in local authorities. It is bound to have an impact on their capacity to support and advise. There is a double-whammy going on as well.
Q201 Chair: In some cases the advice has an interest behind it. They do not want to be advised to rehouse someone tomorrow who has not gone through the legal processes that are available to them.
Campbell Robb: Indeed, and part of our challenge as an organisation as well is maintaining relationships with local authorities where we are constantly challenging them on some of these issues.
Q202 Chair: Thank you very much. We are very grateful to you for your help this afternoon, for the interesting evidence you have given us and for the written evidence.
Campbell Robb: We should just apologise. We will update it but our evidence was based on the presumption in the Green Paper which was suggested on housing. We will send you an addendum to that which makes it clear now that we have had that clarity.
Chair: And for good reason. Thank you very much indeed.
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