JusticeWatch: Growing ‘justice gap’ in discrimination cases

David vs Goliath
Victims of discrimination were being denied access to justice and offenders going unchallenged as a result of a ‘failing’ legal aid system, as reported in the Justice Gap.

A new report by the Equality and Human Rights Commission revealed that between 2014 and 2018 no workplace discrimination cases were backed by legal aid for representation in the employment tribunal and only one in 200 cases taken on by discrimination specialists received funding for representation in court.

The EHRC argued that the legal aid rules ‘effectively limit funding to cases with high compensation awards’ and ‘[missed] the point’ as discrimination cases were ‘about challenging unacceptable behaviour and upholding rights than obtaining financial awards’. ‘The threat of legal action is a powerful deterrent for perpetrators and makes it clear that society will not tolerate injustice,’ commented EHRC chair David Isaac. ‘Challenging complex issues such as discrimination should never be a David vs Goliath battle, and the system is failing if individuals are left to fight cases themselves at an employment tribunal or in court.’

The introduction of tribunal fees in 2013 led to a drop of around 70% in the number of claims. Despite the fees being abolished in 2017 when the Supreme Court held them unlawful, the Commission noted that the number of claims had yet to recover to the pre-2013 levels. While legal aid is available for advice and representation in certain types of discrimination case, it does not cover tribunals. ‘This means that individuals must either pay privately for representation or represent themselves, often against an opponent with more resources and professional legal representation,’ the EHRC noted. ‘This “inequality of arms” is particularly stark when cases are factually and legally complex, which is often true of discrimination claims.’

Since LASPO most people seeking help for a discrimination issue have to contact a call centre through the ‘telephone gateway’. They can then be referred for face-to-face advice. Of 7,768 discrimination cases taken on between 2013/14 and 2017/18, only 18 such referrals were made. Most gateway cases received only telephone advice (i.e., no casework and no representation ) and just 13% resulted in a positive outcome. The commission also revealed ‘an unexplained disparity’ between the number of white and ethnic minority service users receiving positive outcomes.

Only a tiny number of gateway cases (0.5%) received funding for representation. The EHRC reckoned that this was mainly because of two misunderstanding about the rules. The first is that the discrimination claims were often treated as being ‘primarily for damages’ even when they might have been seeking an injunction or declaration. The ‘cost benefit’ test for claims simply compared likely cost of the case with likely damages and it was difficult for discrimination claims to pass the test because ‘their complexity means legal costs tend to be high, while damages awards tend to be low’. The second misunderstanding was the assumption that a discrimination claim would be brought in the small claims track where funding is not available. The group pointed out that the complexity of claims meant they were often allocated to another track where there was funding.

It also found that the government’s so called ‘safety net’ mechanism – the exceptional case funding regime – was ‘not usually available’ and ‘not working as it should’. Only ten applications were made for exceptional funding for discrimination cases in a five-year period and none were granted.

The group also found that people living below the poverty line were not financially eligible for legal aid. ‘There is a growing justice gap between those who are eligible for legal aid and those who can afford to pay for their own legal advice. On top of that, the complex evidence requirements can put some people off applying for funding,’ the group said.

Important judgment for the future of the welfare system
The Supreme Court has ordered a council to reconsider its decision to declare a single mother of four ‘intentionally homeless’ because she was unable to afford the rent, reported The Guardian. The unanimous ruling by five justices set ‘a significant precedent that will expand the housing responsibilities of underfunded local authorities’, the paper reckoned.

The case of Terryann Samuels, whose children are all under the age of 16, also highlighted the way in which the Legal Aid Agency ‘repeatedly refused to support her appeal even though she was in immediate danger of being turned out on to the street,’ the Guardian reported. ‘The Supreme Court judges specifically criticised the “very substantial delay in bringing the case to court” caused by the LAA’s refusal and belated change of mind,’ it continued.

Samuels applied to Birmingham city council as homeless after she had been evicted because of rent arrears. There was a shortfall in her housing benefit of around £150 a month and she could not afford to bridge the gap by using her other benefits payments. 

The chief executive of Shelter, Polly Neate, said it was ‘an important judgment for the future of the welfare system’. 

‘When someone is forced to choose between rent and keeping their children fed, they cannot be viewed as ‘intentionally’ homeless when they choose the latter,’ she said. ‘Housing benefit cuts mean it has not kept pace with rents for years – it now doesn’t cover a modest rent in a shocking 97% of the country – and cases like this are the result. We are hearing from more and more families who are choosing between rent and absolute necessities like heating and food. We urge the government to lift the freeze and make sure benefits cover at least the lowest third of the rental market.’

‘This important case would never have reached the supreme court if the Legal Aid Agency had had its way,’ commented Mike McIlvaney, Samuels’ solicitor at the Community Law Partnership in Birmingham. ‘Decisions such as these are churned out across the country on a daily basis, finding individuals to be intentionally homeless in circumstances where they can’t meet the rent.’ 

Mike McIlvaney was The Times Law’s lawyer of the week. His ‘funniest moment’ was being chased down the road by a man ‘wielding a saveloy in retribution for using his doorway to make an emergency injunction application’ on behalf of a homeless family who had been refused help. He recalled: ‘It was after office hours on a rainy winter night. When I explained my predicament the judge exclaimed over the phone: “Run, man, run.” Fortunately he made the order.’

’Law centres, like food banks, work on a frontline imposed by government policy, funding cuts and the moral stain of discrimination,’ began Eduardo Reyes in the Law Society’s Gazette. ‘That frontline stretches across welfare benefits, immigration, community care, housing, employment and debt. If austerity has created a hostile environment for many of their clients, it has also had a huge impact on law centres.’

Reyes quotes Pete Moran, head of Cumbria Law Centre on the impact of LASPO: ‘We lost contracts in debt, welfare benefits, community care and employment. Previously around 90% of our clients were eligible for legal aid. Now that is only around 20%.’ Of the eight centres the Gazette focused on for this feature, ‘all have lost people since legal aid cuts hit. Remaining employees have a high caseload, given the level of need, but the impact of such losses goes further. Expertise is being lost and with it the capacity to train new lawyers and caseworkers in complex areas.’

According to the article, South West London Law Centres handled 1,714 housing cases in 2017/18 and directed 4,276 people through its pro bono advice clinics. 

‘Problems are getting more complex and multi-faceted. There is a noticeable rise in mental health issues which we think are both triggered by the stress of dealing with austerity and [the system’s] complexity, and the… additional problems of not being able to cope with court and tribunal processes.’ 
Nick Whittingham, Kirklees Law Centre chief executive

Access to Justice Foundation
The Access to Justice Foundation is now inviting expressions of interest for grant funding from frontline charitable organisations in England and Wales providing free legal advice to members of the public with unmet legal need.  One-year grants are for £40,000 to £60,000 to local or regional organisations which are ‘providing or could provide a comprehensive service to those with unmet legal need across their locality or region’. Only one organisation will be funded per area.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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