Caroline – which is not her real name – had already represented herself at the two civil court hearings previous to this because her access to legal aid had been stopped. Her alleged attacker (her ex-partner) was at both because he was pursuing a civil case for child contact against her.
Legal aid was first established in England and Wales 65 years ago as part of the postwar effort to create a welfare state for those too poor to afford basic services. Reductions to the legal aid budget have been ongoing for years, but the coalition’s legislation has been designed to transform the system.
In April, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. The bill was defeated 14 times in the House of Lords and ultimately passed after a tied vote. Services and individuals feeling the impact are now giving evidence to the House of Commons justice committee. People such as Caroline can no longer access funding.
Having first met her ex-partner in February 2010, Caroline ended the relationship when their daughter Rose was born the following January. Four months later she stopped giving him access to Rose.
“I was scared to leave him alone with her. Rose would cry when she saw him and start to get constipated. It would make him angry. He would swear and shake her,” she alleges.
She continues: “I wish I had taken control of the situation and left him sooner, but I was scared and embarrassed by what he did. By the time Rose was born it felt real and I felt strong enough to end the relationship for her sake.”
Caroline, 26, has spent more than three years in the family court system; sometimes representing herself. At first this was due to problems finding a solicitor she could trust; later it was the result of legal aid issues. At court hearings in the meantime, she fainted and experienced panic attacks. Unable to communicate the violent history of their relationship on her own, social services had interpreted her anxiety as evidence she was not able to look after her daughter and threatened to take custody away altogether.
Even smelling him [her ex-partner] could trigger flashbacks. I still see his face sometimes when I try to go to sleep. When I had to face him in court, I tried to defend myself but I couldn’t get my points across or I couldn’t even speak.
The Ministry of Justice said that the annual £2bn legal aid budget is “one of the most generous in the world” and that by 2018 about £500m will have been saved. In 2010, then justice secretary Kenneth Clarke pledged to cut civil legal aid by £350m by 2015. Campaigners say that the comparison is unfair because other legal systems spend more money elsewhere and the knock on costs to other services will exceed the savings. According to research by Dr Nick Armstrong of Matrix barristers’ chambers, the estimated costs of some of the changes – to prison representation, judicial review and the residence test – will be at least £47m.
LASPO has seen whole categories of law taken out of scope for funding. Family law is one such category; legal aid is now only available with evidence of domestic violence, forced marriage or abduction. Two thirds of family law cases now feature somebody representing themselves. Resolution, the national organisation for family lawyers, has warned this is causing long delays and says the family courts system is now “at breaking point”.
Caroline was eventually saved the experience of cross examining her alleged attacker on that March morning by a letter from Cris McCurley, a lawyer specialising in domestic violence cases. It prompted a last minute intervention from the judge, which bought them time to mount a legal challenge to the Legal Aid Agency’s decision to stop her legal aid. But Caroline did not know this until she walked into the courtroom:
I begged the usher not to make me go in. I tried to prepare the night before. I tried to write down what I would say to him. I wondered: is this against the rules? Would I say this if I was a barrister? I didn’t know where to look for information. I couldn’t think straight and by the time I went into the courtroom I hadn’t been able to prepare any questions.
To be granted a legal aid certificate, applicants must cross three hurdles. They must first prove that their claim belongs in a category of law that is eligible for funding. Secondly, they must pass a “merits” test by demonstrating that their case is serious. Finally, a “means” test assesses their income and capital. In most cases, this must be less than £2,657 gross monthly income.
Caroline had originally claimed legal aid because she applied before the changes were introduced. However, when she started studying again, the Legal Aid Agency reassessed her income and ruled that her student loan added to her childcare costs tipped her over the limit; despite being poor enough to require housing benefit. This decision meant that she would have to start a fresh application for legal aid under the new rules, which would put her claim out of scope altogether.
The threat of legal challenge was enough to make the Legal Aid Agency back down. They changed the rules of the means test and reinstated her original legal aid certificate, so she could access legal aid under the old rules. But McCurley says this decision was only made because the judge who intervened is especially sympathetic and the firm “kicked up an almighty fuss”, mobilising her MP and women’s rights organisations.
Caroline is one of the lucky ones. McCurley is clear that if she had been forced to apply for a certificate under the new legislation, Caroline would have fallen at the first hurdle.
Although legal aid is still available for domestic violence victims, they must provide evidence when they contact a solicitor. This can come from various sources, such as a criminal conviction or a letter from a GP or social services. The government has responded to lawyers’ concerns and widened the criteria but it still does not include evidence from a counsellor, a police callout record or direct from a domestic violence support organisation. Crucially, the evidence must be less than two years old. Caroline would not be able to provide this evidence; neither could 43% of the victims who rang the legal helpline provided by the charity Rights of Women in the first year since the changes.
McCurley says:
We are sending away people in Caroline’s position every day. It has probably taken every ounce of their courage to ring and ask for help, but they can’t get proof so we can’t help them.
McCurley has given evidence to the UN to say that the legislation puts the government in breach of their convention on gender discrimination. Last year the UN echoed these concerns and asked the government to take action.
Caroline did not want to be anonymised, but the legal restrictions surrounding criminal allegations and the protection of children and vulnerable witnesses make it necessary.
Alongside the complex nature of the legal system, this can make reporting on the legal aid cuts very difficult. The campaign group Justice Alliance says lack of media coverage has made it very difficult to challenge the narrative of the cuts.
Campaigner Carita Thomas says: “The legal aid cuts are removing the forgotten pillar of our welfare state, but it has been hard to get it in the media in the same way as education or the NHS. The government PR machine works very well; their repeated attacks on lawyers always get coverage, but every legal aid lawyer I have ever met does this for love not money.”
Another challenge for reporters is that the people worst affected are also the most difficult to find; they have already been turned away or given up. Yet the statistics show they exist: across all funding for civil legal aid in 2013/14, 43,000 fewer people were granted legal aid to be represented in court and 420,000 fewer people were given legal help than the year before LASPO – an overall decrease of 62%.
As legal aid firms close across the country because they can no longer make a profit, solicitors are signposting people on to Citizens Advice Bureaus (CABs), law centres, and other charities. But many of these also depend heavily on legal aid and are having to cope with reduced funding alongside rising demand; last winter Hackney law centre experienced a 400% increase in people looking for help with welfare benefits. Since the introduction of LASPO, 10 law centres have closed; 44 remain.
Meanwhile in the first year of the legislation CABs have given legal assistance to 16,000 people; 9% of the 136,000 they assisted the previous year. They report that 40% are not getting through on the phone or to assessment.
In other areas, law students are picking up the cases. This is how I find James Evans, who lives alone in Huddersfield with his dog, Lady. James was beaten up when he was 15, which left him with a severe hip disorder, making it difficult for him to walk, drive and stand for periods of time. His dyslexia also means he cannot read or write.
James wants to challenge a decision for his claim to Employment and Support Allowance (ESA), a benefit for people whose ability to work is limited or made impossible by a sickness or disability. It classified him as fit for work, although his doctor says he is not. Every time James is called to the job centre, he gives them a sick note from his doctor to excuse him from the appointment.
Legal aid is no longer available for benefits cases, unless they reach the upper tribunal or high court. James has already tried to represent himself, but the tribunal ruled against him, a decision a solicitor has since told him is very surprising. James says he found the experience very stressful:
I didn’t understand what was going on and I felt nobody was listening to me. If I’m unable to read my bills, I can’t read a law book. The law is there and gives you rights but there is no way to enforce them unless you’ve got money in your pocket.
James first contacted the University of Huddersfield in June, after trying his local CAB and “every solicitor in Huddersfield”. Since starting the project last October, the students in Huddersfield have received 163 queries; 64 were given appointments. James has been on the waiting list for three months, with 98 others. When they return, the students will start to give them legal advice; they are supervised, but cannot represent people in court. Philip Drake directs the project. “Demand has been immense and the students do a brilliant job, but we are an advice centre of last resort. Our aim is to empower people to deal with the problem themselves but they are often very scared and have no idea what’s going on.”
If he could be reclassified as needing the higher level of support, James would not have the constant worry of falling into arrears and would be able to pay for a higher level of care. He currently finds it very difficult to clean his flat and do basic tasks such as washing up and cooking because he cannot stand for long and knows that if he falls over, he cannot get back up. He would also not be under pressure to find work.
Kimberley (not her real name) cannot work either, but nor has she recourse to public funds. The state refers to her as a destitute person. Kimberley cannot work or receive benefits because she has no immigration status. She came to the UK legally from the Caribbean. In 2011, she used legal aid to apply for status but her application was refused and she cannot now appeal the decision because legal aid is no longer available for immigration cases not involving detention or asylum.
Under European law, Kimberley should have the right to reside and work in the UK because both of her children were born here. Although the court accepted the man she says is the father is British, they asked her to prove his paternity. The court told her she can do this in three ways: by providing a DNA test, which costs £252 or if the father agrees to pay child maintenance – but he is not responding to her requests. She could also obtain an order for a declaration of paternity from the family courts; but there is no legal aid available for family law either.
Kimberley is bringing up her two young children on her own in a small flat on £65 income a week; the children are entitled to child maintenance and local authority housing because they were born in the UK. However, without status, Kimberley cannot work or access any other funds.
“I want to work, I want a purpose. If the Home Office gave me six months to prove myself, I would die trying. I think the idea of no recourse to public funds is to make you lose yourself. I feel worthless. I want to provide a life for my children; I want to tell them that in a year everything will be OK.”
Kimberley spends much of the £65 on nappies and formula milk for her youngest, buys food close to its sell by date and uses the local food bank. The stress has caused her blood pressure to rise, the cold has aggravated her arthritis and the old mattress she sleeps on without a bed base wakes her up with neck ache every morning.
Kimberley has not seen her family since October 2012 when the local authority moved her out of London into accommodation more than 100 miles away. Her father and all five of her siblings have legal status, but they cannot afford the cost of the journey to see her. The only people she knows in the area are the woman who owns the local Caribbean shop and a local vicar, who noticed her one day walking a five-mile round trip to a hospital appointment with her sons in tow.
With thousands facing similar dilemmas the legal charity Justice are exploring how the civil justice system could be reformed to “put the user at the centre”. Director Andrea Coomber says: “Our working party is looking at systems that operate without lawyers, such as the system for parking adjudication and the financial ombudsman service. More help could be offered online and over the telephone.”
The Ministry of Justice believes that tribunals and similar bodies are “already designed for people who don’t have lawyers”. A spokesperson said: “We have to ensure that legal aid is sustainable for those who need it and for the taxpayer. We aimed to give it to the most vulnerable, we are monitoring the impact and we believe it has worked. Making tough choices were unavoidable.”
Thousands of other people are also facing a tough choice: between representing themselves and giving up on their case. Before LASPO was introduced 18 months ago, the UK’s most senior judge Lord Neuberger warned:
The removal of legal aid will start to undermine the rule of law. People will feel like the government isn’t giving them access to justice and that will either lead to frustration and lack of confidence in the system, or it will lead to people taking the law into their own hands.
James is frustrated; he says he is not worried about taking legal advice from students, but he knows they cannot represent him. Kimberley is stuck in limbo, still trying to tackle the problem herself. She recently approached a family solicitor, but was told a basic advice letter would cost £200. Without money, none of her options are feasible.
Caroline has accepted that her partner will get supervised child contact and is not looking to pursue a criminal case. After three years, she says she has lost faith in the legal system. “If I try to fight my case again, things might get worse, not better. Even now, I still don’t understand the law. There is nothing worse than going to hell and back, and then not being able to tell anyone.”
* Some names have been changed
Original Article
Source: theguardian.com/
Author: Emma Howard
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