JusticeWatch: Legal aid’s failing safety net

No safety net
Almost four out of 10 legal aid firms do not use the LASPO ‘safety net’ and make exceptional case funding applications, according to a new study by the Public Law Project – reported on the Justice Gap (here).  More then three-quarters believed the scheme was not effective. The PLP survey by Professor Joe Tomlinson and Emma Marshall drew on responses between from 89 legal aid providers and other groups providing legal advice and was conducted in October/ November last year. The aim was to engage with providers working in four areas – immigration, family, housing and welfare benefits. Researchers identified 1,276 organisations with a legal aid contract working across these four areas.

The survey results showed:

  • 77% of respondents disagreed that ECF is effective in ensuring that people can access legal aid when it is needed (61% ‘strongly disagreed’)
  • 64% of respondents made between 0-5 applications in the last year (20% made none)
  • Nearly 50% of respondents have only made between 1 and 5 applications since the scheme was introduced
  • 39% of respondents said they do not make ECF applications on behalf of their clients

Reasons stated for not using the scheme included ‘the risk of not being paid because of the low success rate’.

The report quoted 2015 research from the Children’s Society which showed ‘the lack of engagement by solicitors’ with the scheme. ‘Not one participant across the participant groups spoke about knowing children that had been assisted through this,’ it continued. ‘When exceptional funding was raised during the interviews, it was highlighted as an elusive opportunity rather than the safety net that it was designed to be.’

It was noted by some participants that lawyers ‘did not see the point in submitting an exceptional funding application given the poor quality decision making of the process in conjunction with the long and complex process of putting an application together’. ‘It was not considered a good use of time and practitioners considered it more time efficient to secure pro-bono work,’ it continued. The Children’s Society published a follow-up report two years later which acknowledged that usage of the ECF scheme had improved mainly as a result of litigation. However, it reported that many providers still had not made an ECF applications due to ‘a preconception that they will not succeed’.

According to a study by Rights of Women based on research conducted between in 2017 and 2018 whilst the organisation the legal charity supported 23 women at risk of domestic or sexual violence in making ECF applications. On average, caseworkers spent nine hours preparing ECF applications, the average length of a cover letter for an ECF application was over 11 pages for immigration and 10 for family cases. Of the eight ‘urgent’ applications submitted, only one was determined within the LAA’s five day target for processing urgent applications (since increased to 10 working days).

The RoW project saw high levels of successful applications, with all 18 immigration applications granted and four out of the five family applications granted.

‘Due to the complexity of the scheme, the vast majority of ECF applications are made on behalf of individuals by legal practitioners but, as our survey suggests, there is little faith in the system and not enough appetite to use it. Over three quarters of those surveyed do not agree that the scheme meets its original objective, which was to ensure that people can access legal aid when it is needed.’
Dr Joe Tomlinson

2020 LALYs kick off

The early signs are not good
The Guardian reported that the new attorney general was ‘a member of a controversial religious sect which continues to venerate its founder despite well-documented claims that he was a serial sexual predator’. ‘Suella Braverman is a mitra – Sanskrit for “friend” – within the Triratna order, one of Buddhism’s largest sects, which has been rocked by claims of sexual misconduct, abuse and inappropriate behaviour,’ the article continued. .

Her appointment to succeed Geoffrey Cox was ‘one of the biggest surprises in a dramatic cabinet reshuffle’. ‘Braverman’s position within the sect is likely to raise questions about her personal beliefs and whether this could affect her judgment as the government’s senior legal expert,’ the article continued. .

‘The new attorney general must surely be aware of the long-standing allegations against the organisation,’ said Mark Dunlop, a former follower, who said he had felt compelled to have sex with Lingwood over a four-year. 

Prospect magazine reported that Braverman’s appointment was ‘met with widespread derision’. ‘Apart from pompous mocking of her relative inexperience as a lawyer, her apparent membership of a Buddhist cult and links to bizarre media performances, there is legitimate concern regarding her attitudes towards the judiciary,’ Jake Richards began. ‘Civil liberty groups have expressed alarm about government plans to stifle judicial review of government decisions. The genesis of this policy appears, inevitably, to be Dominic Cummings—who has recently raged at court decisions and created a commission to, in the words of one insider, “get the judges sorted.” Braverman, an ardent Brexiteer, is a perfect fit in this context.’

The government’s attitude to judicial review revealed ‘a shallow, populist zeal’. ‘The role of judicial review is deeply conservative and aims to protect individuals and businesses from an over-bearing state. Equally, the Human Rights Act merely enshrines the European Convention on Human Rights into domestic law—ensuring freedoms and rights enjoyed by us all are protected,’ he continued. ‘It is worth remembering that the convention was originally proposed by Winston Churchill (Boris Johnson’s hero), and drafted by UK lawyers in the aftermath of the war.’

‘The issue of judicial review is a useful litmus test for this government. Is it a serious administration, intent on ambitious reforms of our economy and politics, while respecting basic constitutional principles? Or is it in fact a chaotic cabal that will engage in further culture wars, dividing the country rather than healing our wounds? The early signs are not good.’
Jake Richards

Sir Andrew McFarlane is undertaking a review of transparency in the family courts, according to the Law Society’s Gazette. ‘Secrecy shrouds the family courts, as hearings are generally held in private,’ the article continued. ‘But a recent High Court judgment condemning a leadership judge for employing ‘obsolescent concepts’ on sexual consent highlighted how worrying this lack of transparency can be.’ Te article was referring to to the furore over a decision by Judge Tolson to dismiss a woman’s claim she had been raped, as she had done ‘nothing physically’ to stop the alleged perpetrator. According to the BBC, over 130 lawyers and women’s rights groups call for Judge Tolson’s continuing cases to be reviewed.

‘Had Tolson’s order not been appealed to the High Court – which delivered its anonymised judgment in open court and published it – we might have been none the wiser, wrote the Gazette’s Monidipa Fouzder. ‘Is it time for the doors to the family court to be pushed open a little wider? This is something Sir Andrew McFarlane, president of the Family Division, is pondering in his transparency review. He has issued a call for evidence.’

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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