Legal aid deserts and a culture of refusal

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Legal aid deserts and a culture of refusal

Justice in a time of austerity: a Justice Gap series

In June 2019 the Guardian published an article by its legal correspondent Owen Bowcott describing reports of a ‘culture of refusal’ at the Legal Aid Agency (LAA).  The article reflected a feeling amongst lawyers acting for homeless people that in addition to the deeply damaging LASPO reforms, a cultural imperative to refuse legal aid had taken hold at the LAA, at the behest, implicitly or explicitly of the Ministry of Justice (MoJ).

I had written about this myself in Legal Action magazine but my own experiences were as nothing to the account that Birmingham legal aid law firm Community Law Partnership (CLP) published on their website as to their 32 month battle to secure legal aid for the landmark case of Samuels v Birmingham [2019] UKSC 28.

As CLP’s Rosaleen Kilbane points out, because their client Terryann Samuels won that vitally important homelessness and social welfare case in the Supreme Court, the LAA will pay nothing and will have saved money because CLP fought them so hard to secure funding to take the case to the UKSC. If CLP had given up and not taken the decision to work at risk in the meantime the public fund would have paid out CLP’s costs from county court to their losing in the Court of Appeal, a significant sum, and the important principles of social justice contained in the UKSC judgment would never have been secured. Samuels is totemic of how the administration of legal aid has, even on its own terms, clearly lost its way.

Owen’s article and its pithy title reflected a feeling amongst some legal aid lawyers that problems with decision-making at the LAA were reaching a tipping point which might lead to an existential crisis in the sector.  The Law Society has published maps demonstrating the extent to which vast swathes of England and Wales are effectively without any housing and community care legal advice provision and discussion amongst the sector abounded as to how lawyers could effectively represent clients in the face of poor decision making, delays in decisions, and an ineffective, unfair and above all snail-paced appeals procedure.

A public meeting was called for October 9, 2019 by Garden Court Chambers with the involvement of Legal Aid Practitioners Group (LAPG) and Public Law Project, as well as practitioner, writer and campaigner Sue James, and myself. Initially it was to be held in a 40 seat venue at Garden Court.  The demand for tickets was such that it had to be moved to a larger venue and in the end 200 people attended.

It became clear that the publicised examples of delay alongside poor and unreasoned decision-making were simply the visible efflorescence of what had nevertheless been identified as a culture in the LAA and MoJ to prevent people who should have legal aid from getting it.  Those responsible for ensuring access to justice through legal aid were and are in fact engaged in practices which emphasise the refusal of applications rather than ensuring that eligible people have representation. Where there is push-back from legal aid lawyers in the form of complaints and appeals, those are dealt with unfairly, against the principles of natural justice and at such a tectonic pace that often the appeal is rendered redundant by the time of any redetermination.

Lastly there was absolutely no evidence that the LAA had learned anything or had any interest in learning anything from clear examples of where they have lost their way such as Samuels.

The October meeting was considerably enlivened by the testimony of a ‘whistle-blower’ who had worked at the LAA and who was able to tell the meeting:

In terms of when a decision is made, and you guys appeal it for whatever reason, there isn’t a system whereby that decision is looked at by somebody else. That decision gets back directly to the person that actually originally made the decision, […] and that individual looks at it again based on the submissions that you guys have made and decides whatever they decided […], it only then goes to an independent person on your second challenge, so again, the argument about independence . . .         

When asked whether what they were describing was a culture or a policy,

If I’m honest, it’s a mixture of both. Because there are individuals in there that (without trying to breach confidentiality) I have would say seen decisions that a member of staff would have made and granted funding and it gets circumvented because of policy.

While the welcome contribution of this individual did not tell us anything not suspected already, it was a valuable intervention inasmuch as it confirmed  those suspicions and galvanised the feeling that engagement with the LAA on these issues needs to be put on a more authoritative and assertive footing.

It was clear that the information that was being shared by practitioners needed to be collated and put to the LAA.  Individuals and even representative bodies who have engaged with the LAA and/or MoJ are wearily familiar with their bland ability to deflect and sidestep the sector’s concerns with promises to ‘take that issue away for consideration’ and by referring to meaningless management statistics.  LAPG rightly took the view that if sector wide concerns could be collated into a meaningful data reflecting widespread concerns rather than individual cases then that would form more powerful evidence to put those responsible for legal aid. The October meeting was able to publicise LAPG’s survey and call for as many responses as possible.

Alongside that initiative to try for more effective engagement with the MoJ and LAA there was an impassioned call for more direct forms of action. The possibility of industrial action by civil lawyers working under contract with the LAA, lawyers whose raison d’etre is to protect the rights of vulnerable individuals in the face of national and local authority power and/or corporate and financial power, has always been and for many remains a difficult conundrum. The feeling of reaching a watershed outlined at the top of this piece may mean that action is more likely, as the sector recognises the existential threats it faces from the mixture of explicit and policy and culture of those responsible for administering legal aid.

The October meeting ended with Sue James promising to follow up on the thoughts and momentum that had been generated and a further meeting was held last week on February 27, 2020.

LAPG’s survey had achieved around 550 responses, requiring detailed and sophisticated sorting and analysis.  Chris Minnoch and Kate Pasfield of LAPG presented the results at the February meeting. What did not require much analysis was the unsurprising and yet powerful conclusion that the sector almost universally considers that legal aid is not being administered according to the legislation and guidance because of a predisposition to prevent people from accessing legal aid. Simple questions asked of respondents confirmed what we knew already – that the experience of CLP in Samuels was far from being a one-off but was in fact merely a spectacular example of widespread practice.  Free-text boxes included within the survey allowing practitioners to be more discursive resulted in a very large number of angry ‘rants’, some which were described by a concerned Kate Pasfield as ‘upsetting and bordering on hysteria’.

From LAPG’s point of view as the representative body for legal aid lawyers if that this significant data set, properly organised can be put in evidence to the LAA and MoJ in a way that they cannot dismiss and one-off cases or as not being representative of their own performance data. That will be done alongside the data being published for practitioners to see for themselves.

This is important. A theme that came up again and again at this follow up meeting was that the LAA and MoJ don’t appear to have any intention of learning from obvious failures to get to right such as with Samuels.  It was noted by many that the MoJ’s responses to legal aid problems in the press and to representative bodies demonstrates astonishing complacency and an apparent impunity in the face of failure.  It follows that those administering legal aid are not concerned about the reaction to their decision making and the culture of refusal and that goes equally for the legal aid deserts identified by the Law Society. It can fairly be said that if health treatment and outcomes were as subject to the same postcode lottery as legal aid services then the outcry would be greater and the actions of practitioners more militant.

The general feeling of the meeting therefore was that while engagement through representative bodies and writing journal articles is important and must continue, the complacency of the LAA/MoJ will need to be punctured by more direct action.  Cormac Mannion of Legal Sector Workers United and Sue James spoke warmly of the French lawyer’s actions publicised in the British press recently. What sort of action is possible in our sector?

Contributions from Cormac, Garden Court barrister Tim Baldwin and myself emphasised the need for the sector to come together because any action to be taken must be taken collectively. There was a call from all speakers for people to join the fledgling LSWU union and I amplify that again now.

Ollie Persey of Young Legal Aid Lawyers echoed that call but also spoke tellingly about the culture of refusal and well-being of junior legal aid lawyers. It has been noted that negative decision making and delays at the LAA often leave lawyers caught in a dilemma between the best interests of clients and a lack of funding for the work to represent them.  Firms often have to decide whether to ‘at risk’ of not being paid. Junior lawyers are for the most part caught in the middle of those dilemmas, without the authority to make decisions, but being on the front-line in explaining the issues to often very vulnerable clients.  At this time there is quite properly pressure to promote well-being amongst lawyers.  Ollie’s contribution suggested that the LAA and MoJ are on the wrong side of that debate currently and must be made to recognise that fact.

The main consensus from the speakers and floor was that (i) a diverse range of engagement activities, publicising activity and direct action is needed, (ii) that both engagement and direct action require the sector to come together through representative bodies and other alliances, including with colleagues in criminal law, to be effective and to present a unified front, and (iii) the fledgling LSWU union can be the starting point for planning for direct action.  

It was resolved that a letter calling for the Justice Select Committee to enquire in to the culture of refusal and legal aid deserts will be drafted and signed by as many interested bodies as can be mustered. This will be valuable in itself but may also form a springboard for the kind of joint working across the sector that is required.  But Cormac Mannion of the union trenchantly argued that letters to the select committee and opinion pieces in the press were unlikely to be sufficient to meet the aspirations of attendees – he called for direct action and soon.

I am gratified to be given the opportunity to set out my views in articles such as this, and I will work with LAPG and others to help with engagement activities with the LAA/MoJ.  However, ultimately it is important to put one’s (subs) money where one’s mouth is.  Consequently, while speaking to the meeting on 27th February 2020, I completed the application form to join the LSWU.  I beseech anyone interested being involved in the fight to save legal aid to do the same.