Wednesday, 20 August 2014

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 http://bit.ly/Zzev0P for more details

ohansen@hansenpalomares.co.uk

Readers' comments (7)

  • Daedalus

    The main reason for cutting legal aid is to stop lawyers attaching themselves to the gravy train of legal aid with little consideration for the merit of the case, or the needs of the client.

    Why not make legal aid "no win no fee"? There would be two advantages:
    1. Lawyers would not take on hopeless cases just for the fees.
    2. Any lawyers with a moral conscience (I know, I know!) would be able to take cases with a low chance of success, based on the fact that it would cost them if they did not win.

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  • spot on Daedalus but until the obscenity of the law society deciding what " fair " fees should be milked is stopped there will be plenty of fat briefs out there. by the way point 2 is extremely far fetched ( allegedly ) the lawyer does not recognise the concept of moral conscience and actually ALWAYS wins. pro bono - wash your mouth out!!

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  • Daedalus appears to be living in a bit of a fantasy world. Legal Aid is already subject to a merits test - no hopeless cases.

    In housing, it is only available where a person is homeless, or at immediate risk of losing their home, or there is a serious risk to their health through lack of repairs (and even then, only for the repairs). None of these types of case are suitable for 'no win no fee' as they aren't the types of case where the court makes a costs award against the landlord. But they are of vital importance to the homeless person or tenant.

    Ah, the gravy train. This has been nonsense for years, if it was ever true, but is still trotted out. Legal aid rates for solicitors are about a third of the rates a costs court would set in a non legal aid case. No solicitor would do legal aid work if they were looking for a gravy train as there is much more to be found in non-legal aid work. Most legal aid solicitors' practices struggle by and the average legal aid solicitor earns less than a primary school teacher. They do the work because it is important. I realise that might sound like a moral conscience.

    The only people benefiting from these proposed changes are the government and other public bodies, who will no longer face challenges to their unlawful decisions.

    Philthy - the Law Society does not set 'a fair rate' and it certainly doesn't set legal aid rates. Those are set by a part of the MoJ. I can only wonder what your objection to people being paid for their work is?

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  • Giles - i assume you are a solicitor if you think they just get a fair pay rate. i was recently quoted £1000 for three hours work - a lovely rate if you can get it. i know the law society doesnt set legal aid rates but understand they set the legal charges which have to be met from legal aid in some cases - i am glad you concede they are not fair. they are certainly not affordable to a normal low paid or unemployed person

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  • Philthy. You understand wrongly, I'm afraid. The Law Society doesn't set rates. For private work (not legal aid) solicitors can charge what they want or what the market will bear. Just like plumbers, locksmiths, private dentists etc.. There are court guideline rates for what costs can be recovered from the losing side in court proceedings, agreed with the Law Society. (e.g http://www.wigg.co.uk/fee_earner_grades.asp) Under no circumstances will legal aid pay more than the legal aid rates, you are simply wrong on that. And low paid and unemployed people are who legal aid is for, so I am surprised to see you championing it being further cut. Bit of a hole in your logic there.

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  • Giles - i am not championing legal aid being cut. i would champion extortionate legal fees being cut. £300 odd an hour is obscene and i am disgusted you appear to think it isnt. after you with the trough

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  • Chris

    It is extraordinary (or perhaps it isn’t) that the current public disquiet about legal aid cuts is asking 'why the silence on legal aid cuts'. Where were those protests, where were the barristers striking and taking to the streets when it was tenant's access to the law being cut, housing advice centres being cut, and preparations to make defending against the bedroom tax all taking place.

    The people of this country really need to wake up to the fact that an attack against one section of the working class is an attack against all. Leave it unchallenged and the elite will attack you next. This is what is now being seen in legal aid, in employment, in housing, in welfare and soon in pensions and the NHS too.

    Yet still the apologists will scoff so sure that they will not be next. Be warned, you are next.

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