Sunday, 28 May 2017

The cost-cutting continues

More cuts to legal aid will further limit tenants’ ability to bring cases to court, says Ole Hansen, partner at Hansen Palomares Solicitors

Partner, Hansen Palomares Solicitors

The legal aid budget has been falling since 2005 but, days after cuts to civil aid became effective on 1 April 2013, the government announced plans for even more.

After the recent abolition of legal aid in disrepair and welfare (including housing) benefit claims, the government has published a consultation document, Transforming legal aid: delivering a more credible and efficient system, which proposes:

  • removing legal aid where prospects of success are ‘borderline’;
  • restricting it in judicial reviews;
  • barring anyone who has not been a lawful UK resident for at least a year.

Borderline cases

At present legal aid is granted in borderline cases of overwhelming importance to the individual, such as possession or homelessness claims. Borderline does not necessarily mean likely to lose. By definition every case in which the outcome was a change in the law was originally borderline. Such cases will no longer be supported by legal aid if the proposals are implemented.

Judicial reviews

A judicial review is the means of challenging unlawful public authority decisions, for example over housing or care support. It is a two-stage process, and a judge must first give permission for it to proceed. The government proposes that lawyers on legal aid will not be paid in the 60 per cent of non-immigration cases which settle at the permission stage - although that usually happens because the defendant accepts that it has acted unlawfully. Faced with the risk of not being paid, few lawyers will therefore be prepared to bring judicial reviews.

Former Lord Justice of Appeal, Sir David Latham, expresses the view of senior judges and lawyers. He said he is ‘extremely concerned that the present proposals are likely to inhibit proper scrutiny of executive decisions’, describing them as an ‘excuse for Daily Mail politics to piggy back on Treasury financial constraints’.

Recent UK residents

Tabloid xenophobia is the basis for excluding anyone not lawfully in the UK for 12 months from legal aid and hence from the courts, however strong their legal claims. The savings in expenditure are miniscule but the hardship - including to victims of torture and domestic violence - will be immense.

Also pandering to tabloid prejudices - and of little effect on the size of the legal aid budget - is a proposal to deny prisoners access to legal aid. The government will put criminal defence work out to price-competitive tendering, a step which is likely to see solicitors’ practices replaced by companies employing low-wage law graduates. That will kill off many practices which also undertake civil work and so, whatever shreds of provision remain, the providers will become infinitely more difficult to find. That should concern not least public authorities and landlords who will be faced with litigants representing themselves.

The government consultation closes on 4 June, visit for more details

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