The family courts victim: ‘We have to give people access to advice’
Caroline (not her real name) believes a lack of legal aid led to her ending up in prison, deprived her of a life with her children and rendered her homeless. The 55-year-old is still trying to reverse the multiple miscarriages of justice she says she has endured.
She and her husband separated after she alleged he was violent and had threatened to kill her. He complained to social services that she was neglecting their children because of a dispute over schooling.
The children were taken away from her and given to the father, who obtained a non-molestation order against her. She insisted she had always been a good mother and that the allegations of neglect were false. Realising she needed legal help, she consulted a solicitor. This was 2013, immediately after cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) had come into effect. Legal aid funding for family law cases had just been withdrawn.
“He told me that if I had come to see him two weeks earlier he could have helped,” she recalls. “I couldn’t get legal aid to fight to get my children back.”
She defied the court orders and went to see her children. At one stage she went to a police station and said she wanted to be arrested, staging a sit-in protest for three days.
She was taken to court and released but again went to see her children in defiance of the order. “I thought [legal aid, criminal and civil] was all the same and if I got legal aid [to help defend a criminal case] I would be able to fight to get my children.”
She says she was asked when brought before a judge if she had reasonable cause for defying the order. “My argument was that I had no other option to get my children returned.”
She was sent to prison where she refused to cooperate, ending up on hunger strike.
Now Caroline finds herself caught in a limbo, which cannot be fully explained for legal reasons. Although she should qualify for legal aid (she is homeless), she has found it impossible to pass the means test for eligibility.
One solicitor advising her said: “She should be eligible for legal aid as a victim of domestic violence. Some solicitors are not willing to apply on her behalf because if you make an application and it fails you can get a black mark against your firm. Get a number of them and it affects future contracts with the Legal Aid Agency.”
What are the legal aid cuts affecting England and Wales?
The Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act of 2012 was not just a bureaucratic mouthful: it was a huge piece of austerity that many thousands of people in England and Wales have found hard to swallow.
The cuts in central government funding have amounted to about £950m a year in real terms. As a result, the number of people receiving legal assistance in civil (not criminal) cases has fallen by more than 80%.
As a result half of all law centres and not-for-profit legal advice services in England and Wales have closed over the past six years. In 2013-14 there were 94 local areas with law centres or agencies offering free legal services, the Ministry of Justice has confirmed. By this year, 2019-20, the number had fallen to just 47.
The figures also reveal that, between 2010-11 and 2018-19, MoJ funding for law centres through legal aid contracts dropped from £12.1m to £7.1m. The impact was caused by a double blow because removal of legal aid eligibility for many types of cases coincided with a financial crisis among local authorities, which have been forced to withdraw support for local law centres.
Who qualifies for legal aid now?
Anyone earning as little as £23,000 a year is no longer entitled to any legal aid in lower court cases. For more serious Crown Court cases, the threshold is £37,000.
Even if you get legal aid, you may have to pay 'contributions', which can escalate over the course of a case. For those who get no legal aid at all, private legal fees can run to tens or hundreds of thousands of pounds.
Around 140,000 people received legal aid in 2017/18, compared to 785,000 in 2010/11.
What is the impact of this?
More than half of all magistrates courts in England and Wales have closed since 2010, and they are now full of large numbers of people who have to defend themselves. They are known as 'litigants in person' and many find the byzantine system and procedures disconcerting and unfamiliar at best, and impenetrable and stressful at worst.
Some may lose their case because they are inadequately represented. Some may even get longer jail terms because they have no lawyer to advise them how to plea. Antagonists in domestic disputes, divorce or custody battles often have to confront each other directly in court, rather than through their lawyers.
The department suggests that the figures may reflect consolidation where law centres have closed offices but continue to deal with large volumes of legal aid work.
Mark Rice-Oxley and Owen Bowcott
Another, an expert in domestic violence law, is hoping to mount a high court challenge over the refusal to grant Caroline legal aid. “The government said they were preserving family legal aid for victims of abuse,” McCurley says. “The reality is that the most vulnerable victims often fall through the cracks due to the unbending rigidity of the legal aid rules.
“This case just demonstrates the persistent and serious consequences for victims when the rules work against them.”
The Legal Aid Agency says: “Applicants for legal aid for civil cases must satisfy merits and financial means tests.” It denies operating a black mark system against legal aid providers. OB
The judge: ‘We have to give people access to advice’
Lord Thomas of Cwmgiedd stepped down as lord chief justice of England and Wales just over a year ago, but he has not finished grappling with the problems inflicted on the justice system by cuts to legal aid.
As chair of the commission on justice in Wales, he is investigating the country’s legal system, assessing problems and devising recommendations for the future.
Lack of legal aid and the disappearance of expert lawyers feature prominently in the more than 160 submissions he and his fellow commissioners have received since calling for evidence in February.
“What has surprised me is the lack of an overall approach as to how you fund legal advice,” Lord Thomas says. “There’s absolutely no doubt that some solution to provision of representation has to be found.
“We have to restore advice and representation otherwise we are undermining the rule of law. Without legal aid, people are being deprived of access to justice.”
Thomas and his fellow commissioners – including Juliet Lyon, a former director of the Prison Reform Trust – have found there is a critical shortage of young lawyers becoming criminal solicitors because the profession has become so unattractive financially. For example, in mid-Wales, there are only 11 duty solicitors out of whom seven are over 50.
There has also been a “brain drain” of lawyers who specialise in housing and benefits. “The situation in Wales is worse than elsewhere,” Thomas says. He accepts the UK’s finances may not be in a situation where all cuts can simply be restored but says: “We have to give people access to legal advice.”
For much of his career, Thomas was a commercial barrister. He was at one stage nominated by the Department of Trade and Industry to investigate the affairs of Mirror Group Newspapers when it was owned by Robert Maxwell.
Reflecting on his four years in office, from 2013 to 17, which coincided with Laspo’s introduction, Thomas says: “I don’t think there’s any judges these days who are not worried as to what has happened as result of Laspo. The effect has been most profound in the areas of employment, housing, social security and family law.
“Some [past justice secretaries] have agreed to huge cuts without being fully prepared to face up to the consequences of what they were doing. If you were going to make a cut of ‘X %’ you couldn’t just impose it on legal aid without imposing it on other areas. We have gone in for cuts without rethinking how it should have worked.”
The situation could have been worse, Thomas reflects. “What saved the courts from chaos is that they have cut police funding. If you restored funding to the police and they caught and prosecuted more [suspects], the courts would be in desperate trouble.
“What we have at the moment is general unhappiness because of Laspo. It’s taken a huge amount of people out of the scope of legal aid and has badly hurt the third sector.” OB
The mother: ‘It’s exhausting fighting this on our own’
The council turned up at Roxy’s house recently and told her that if she didn’t send her eight-year-old son to the local pupil referral unit (PRU) he would be permanently excluded from education and it would be her fault. “They said I’d be taken to court,” she says, still shaken.
Since moving to a new area over the summer, Roxy has been fighting to get her son, who has autism and ADHD, accepted into the local academy at the end of her road. Despite agreeing to accept the child during a tour of the school before she moved house, the academy later refused to accept his application, saying they had too many children with special educational needs already.
The council offered Thomas a place at a different school, which was further away. This, she says, was impossible. “I’m not on a bus route and can’t drive. Thomas is on medication which means he can’t sleep, so he wakes up in the mornings exhausted. If he had to walk 40 minutes to school every day, he simply wouldn’t go. He’d have meltdowns and I couldn’t cope. Then I’d be prosecuted for his absences.”
Now the council is telling Roxy she has to send Thomas to a PRU for children who have been excluded from mainstream education. It is twice as far away as the alternative school.
“Thomas hasn’t been excluded from mainstream education,” she says. “He’s not naughty; he’s got mental health issues. I don’t want him going to a PRU where he’ll pick up all sorts of behaviour from the troubled kids. And anyway, how could I get him there?
“The council are trying to force me into a situation which I can say with absolute certainty will end with Thomas missing school and me being prosecuted for it.”
Roxy, her sister Rachael and a friend have spent four months battling with the council to get Thomas into the local school. But they’ve had to struggle on their own.
Roxy has post-traumatic stress disorder and cannot work. She was told she wasn’t eligible for legal aid because Thomas’s father – from whom she is separated – is in full-time employment. Last week, however, a charity suggested this advice might have been wrong and is now looking into her case.
“My ex actually works two jobs,” says Roxy. “But because he pays child maintenance to me on top of the cost of his new family, he has no spare money at all.”
The threat of prosecuting Roxy turned out to be baseless but it took her sister and the friend many hours of research to establish that.
“It’s exhausting trying to fight this on our own,” says Roxy. “Every email we send the council takes at least two hours to draft and we’re fitting it in alongside caring for our families and, in the case of my sister, a demanding full-time job. We’re getting replies from at least 10 people, each of whom is trained and employed to fight this fight. By comparison, we’re totally clueless.
“I doubt myself all the time. I’m trying to do the best for Thomas but is it best for him to be at home all these months, isolated and unstimulated? His behaviour has deteriorated terribly since all this began but he can’t go to that PRU; he just can’t.
“I can’t believe the justice system has completely abandoned a little boy struggling to get an education,” she says. “If we had a lawyer, this would have been sorted out months ago and Thomas would be in school and happy.” AH
The solicitor: ‘People will have no option but to defend themselves’
Luke Meyer’s day as a defence solicitor at Medway magistrates court in Chatham, Kent, is a succession of inconclusive court appearances, quickfire conferences and a lot of waiting around.
Restrictions on criminal legal aid have made his cases more challenging, deprived some defendants of representation and meant he sometimes takes on cases without pay.
Meyer, 40, is a partner with Tuckers Solicitors, one of the largest firms in England specialising in criminal defence. He regularly works as duty solicitor, representing people who turn up without a lawyer.
He explains: “It’s rare for them to have a solicitor if they are in court for lower level offences. The ‘interests of justice’ test means that if it’s not considered a serious offence [such as likely to result in imprisonment] they can’t have a [legal aid] lawyer.”
For many drink-driving or speeding cases, defendants are unrepresented. Meyer acknowledges that sometimes people choose not to have a lawyer.
First-time court appearances are not means-tested for legal aid; problems arise if a defendant pleads not guilty and the case goes to trial. At that stage, strict financial criteria kick in to assess eligibility.
The figures, based on household income, have been frozen since 2010 and not updated for inflation. In magistrates court cases, anyone in a household with a gross annual income of more than £12,475 will have a means assessment and only if they have an annual disposable income of less than £3,398 will they be entitled to legal aid. If their gross household income is above £22,325, no legal aid is available.
Few people in work therefore qualify. “How do van drivers and care assistants not qualify for legal aid?” Meyer wonders. “The threshold is too low.” Those who might meet the requirements have to fill in complex forms and provide extensive evidence. The number of unrepresented defendants at trial is definitely increasing, Meyer says.
“As a duty solicitor you may get seven, eight or nine cases cases in the morning. You will do three or four of them and then discover the others have gone: they have got bored of waiting so represented themselves,” Meyer says.
For his duty work Meyer is paid £49.14 an hour – 8.75% less than in 2015 when cuts to fees were introduced by the then justice secretary, Chris Grayling. There has been no fee increase for inflation over the past 25 years.
He does take on some cases for free, pro bono, if he knows the client and that they will not qualify for legal aid. “Lawyers involved for the most part care about the clients and their individual circumstances. It feels as though successive governments have taken advantage of this.
“Unfortunately there is a point when there will be so few lawyers undertaking legal aid work that there will be no option but for people to defend themselves even if they would ordinarily qualify.” OB
The pensioner: ‘I’ve got no idea if I’ve prepared my evidence correctly’
At 71, Marcus (not his real name) says he is too old to be a solicitor, but he has got no choice. Despite being on pension credits he is ineligible for legal aid because he owns his own flat as a leaseholder. Marcus will have to face his freeholder in court next month.
If he loses his case, the freeholder will repossess the flat and the pensioner will be made homeless.
“The anxiety of going through this on my own is severe,” he says. “I’ve been working to 2am every night for the past six months collecting evidence. The very real fear of being homeless has made me iller than I’ve ever been in my life before.”
Marcus bought his flat 15 years ago but soon realised no work was being done on the property despite the substantial service charges he had paid. Gradually, the property fell into disrepair.
“There are a group of us leaseholders here and eventually, after the freeholder totally blocked all our efforts to get them to spend our service charge on maintaining the properties, we did the work ourselves,” says Marcus.
But they couldn’t do everything, and the leaseholders decided to withhold their service charges until essential work was carried out. Then Marcus found his mortgage company had paid a substantial sum to the freeholders without his permission and increased his mortgage payments by over 100%.
“I now have just over £100 a month to live on. I can barely keep afloat but I still can’t get legal aid to help me fight these bullies.”
Unable to sell their properties because of the poor state of repair, the freeholders have now focused on Marcus. “They’re taking me to court for thousands of pounds they say I owe them in service charges and ground rent. If they win I will walk out of the court with nothing and only then will I be able to get some free legal advice.
“I’ve paid taxes and national insurance all my life. How is it right that when I’m being bullied and threatened with homelessness, the state won’t protect me?
“I’ve got no idea if I’ve prepared my evidence correctly. There’s a real risk that I’ll be made homeless not because my case doesn’t have justice on its side but because I’m a retired hairdresser with no idea how to present it. How is that just?”
Marcus is not alone. Sara Taylor, of Hammersmith Law Centre, is a duty solicitor at Brentford county court in west London, representing those who have been summoned to court for unpaid rent and have no one to represent them at first appearance.
Because legal aid is now only available for housing problems at the point tenants or mortgage holders face being made homeless, Taylor says, problems are left until they have become far more serious.
Laspo also withdrew legal aid from most welfare cases just at the moment when confusion over universal credit payments became widespread. Benefit difficulties often trigger housing crises.
Taylor’s first client of the day, 54-year-old Alice (not her real name), had a son-in-law who died of brain cancer. Her daughter spent money caring for him. Alice has recently been switched to universal credit. Delays in the payments tipped her into debt and the council wants to repossess her home. “I get very confused on the computer,” she says. She has depression, asthma and arthritis. Taylor succeeds in persuading the judge not to grant a repossession order, saving Alice from losing her home as long as she keeps up with a new schedule of payments.
“They had taken away her sickness benefits and told her to be available to sign on [for work],” Taylor says. “She could have applied to the social security tribunal but she didn’t even know about it. If she had walked in they would have seen she had health problems.”
The rewards for saving people from homelessness, Taylor points out, are slender: “We get paid £71 for representing a client in court and writing letters afterwards so private practice firms tend not to bid for duty contracts. At the last round of contracts we were forced to compete against each other for legal aid contracts, so the government is simply driving down standards.” AH and OB
The litigant in person: ‘We needed someone to hold our hand’
Billy (not his real name) was 13 when he was permanently excluded from school. He is autistic and had clashed with his school in multiple ways that his parents felt were clear examples of discrimination based on his disability.
Permanent exclusion leaves a mark on a child’s education records that Billy’s father, Tom (not his real name), feared would affect every future application their son made to schools and employers.
Despite having learning disabilities and mental health issues himself, Tom decided to challenge the school’s version of events. Laspo removed legal aid for most educational disputes, although there is help for victims of disability discrimination. Tom, however, was told by the government’s advisory agency on legal aid that his son was not eligible.
“We were told we fell into the income category for a claim but that what I was describing was not discrimination,” he says. “But the adviser I spoke to had no legal qualifications and they worked for a charity entirely funded by the government.
“It rapidly became apparent to me that this was a gatekeeping agency tasked, as they had plainly done with my son’s case, to dissuade the public from making claims for legal aid.”
Not dissuaded, the family set out to find a legal aid solicitor, only to be repeatedly told none would take the case because no one had ever succeeded in getting a child reinstated in a school that did not want them back.
This, however, is what Billy’s family eventually achieved – albeit after working on the case on their own for almost a year. It was not easy. The governors’ decision meeting found in the school’s favour and the family were told Billy would have to be educated at a PRU 15 miles away, which they didn’t consider suitable for their son.
Tom appealed to the Department for Education, the independent review panel, the pupil placement panel, and got Billy an educational healthcare assessment. It was only when Tom got his son a hearing in front of the special educational needs and disability (Send) tribunal that things started to change. The case, instead of being heard locally, was scheduled at the royal courts of justice in London.
“This was utterly terrifying. What we needed more than anything was someone who was on our side, someone who had been here before who could hold our hand and reassure us. Legal aid cuts denied us that.”
By this time Billy was almost 15. He had lost 11 months of education and was struggling to cope. “There were regular violent, verbal and physical altercations between members of the family,” says Tom. “Billy was self-harming and on a number of occasions I sat up all night in his bedroom, terrified that if I left him alone he might kill himself.
“On more than one occasion I walked to the local canal and looked to throw myself in, and only stopped myself when I worked out that without me my children would be at the total mercy of the council and the school.”
When his case finally came in front of the Send tribunal, things quickly changed: after a hearing lasting three hours, the judge considered the case for just 10 minutes before finding in Billy’s favour.
Billy was back at school within the week, after almost a year of exclusion. “That whole period of his life was torture for him and it was so totally unnecessary,” says Tom. “We should have had a solicitor who could have written to the school and no doubt resolved the whole dispute in under a month.” AH
