Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Benjamin Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, I agree with other speakers that during the passage of the Bill we have heard many heart-warming speeches on the importance and the practical benefits of helping people with a disability. I very much support what the noble Baroness, Lady Doocey, and others said in this debate. The Bill will lead to something like 75,000 children and young people aged under 25—it is the raising of the age level that my amendment addresses—losing access to legal aid each year.

Research by JustRights shows that as many as 80 per cent of these young people, as well as being vulnerable on account of their age, fall into one or more additional categories of vulnerability, such as being a lone parent, a victim of crime, or having a disability or mental health problem. How are these young people expected to cope when they have problems if they cannot obtain legal aid? They will not have families to back them up and give them advice, which other youngsters at least may have.

Amendment 21 has modest aims. It seeks to protect legal aid only for the most vulnerable of these young people, including those with a disability, those who have been in care and those who have been victims of trafficking—which, alas, is a growing trade. It is hard to think of groups of people who are more vulnerable than they. Of course, I wish we could retain legal aid for all young people. Youngsters are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. Therefore, it will be important that we do our best for this group. This applies particularly to vulnerable young people who are more prone to experiencing multiple and severe problems and who are therefore far more likely to require specialist legal intervention to prevent their situation escalating and spiralling out of control.

It is vital that all vulnerable groups listed in the amendment are protected. However, I will say a few words about young people with a disability. Amendment 21 would protect young people with a physical or mental health impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. We know that disabled young people are more likely than other young people to experience very complex legal problems, and are also more likely than older people with disabilities to experience them. There are significant precedents for extending additional protection to this group, in recognition of the fact that they may need this help. For example, the Connexions service, which was set up to provide help and advice to young people aged 13 to 19, extended this help to young people up to the age of 24 who had a disability or learning difficulty. It did so because it saw that it was practically needed.

JustRights gave me a case study about which I will tell noble Lords. Chantelle was 18 when she came to a law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college. They were worried that they could not afford to buy her a car and that she would be unable to attend university. They had applied for disability living allowance for Chantelle, but that had been refused. The law centre helped Chantelle to appeal, gathering evidence from her school and her hospital specialist and representing her at the benefit tribunal hearing. Chantelle was successful in her appeal and was awarded lower rate care and higher rate mobility for DLA. She swapped her mobility payment for a Motability car and passed her driving test. She now has a place at university and will be able to drive herself there each day. That will make a huge difference to her independence and quality of life, but think also of the extra sum of money it will save the rest of us if she is able to qualify and earn her own living.

What will the consequences be for these young people if they cannot get advice? Research by Youth Access has shown that vulnerable youngsters are significantly more likely than the population as a whole to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. It has calculated that each year 750,000 young people aged between 16 and 24 become mentally or physically ill as a result of their unresolved social welfare problems. That is costing the NHS at least £250 million a year, much of which could be avoided if they had received better support.

It cannot make any sense to deny vulnerable young people access to the legal advice they desperately need to resolve their problems and turn their lives around, so I very much hope that everyone will support my amendment, Amendment 21, when we come to it, and the other amendments in this group, all of which make very important points. Above all, I hope the Minister and the Government will have listened and will take action as a result.

[Baroness Benjamin]

My Lords, I have put my name to Amendment 46, which would maintain legal aid for all children. I thank the other noble Lords on all sides of the House for putting their names to this amendment. I have also put my name to Amendment 21, along with the noble Baroness, Lady Howe, who has spoken eloquently and passionately, as always.

To illustrate the reasons why I have put my name to these amendments, I shall give three stories, which are supported by the Children’s Society, that were told by young people about their experiences of attending court. They are about migrant children who had to go through immigration cases.

“I felt very scared, terrified in fact. It was such an official atmosphere, and I felt small and vulnerable. You know that decisions that affect the rest of your life are made in this one morning, and I just felt so scared knowing that”.

“I had a solicitor and she had explained what was going to happen before we went, but even that could not have really prepared me. I was lucky because I had a solicitor. I had a barrister at court who was able to argue for me. Without him I don’t know how I would have coped”.

“The Home Office person made me feel scared and the whole time kept on saying I was lying and that I should return home; this made me feel upset and angry as I knew that I was telling the truth. My barrister was great though and kept on arguing back about my case”.

This convinces me that a different approach is needed when it comes to children because children are fundamentally different from adults. They generally have a lesser capacity to make complex decisions that will affect their future and will not always be able to understand the full consequences of their decisions and actions. Equally they do not have the capacity to represent themselves effectively in legal proceedings or to engage in detailed evidence gathering to support their case.

The Children’s Commissioner for England, Dr Maggie Atkinson, has said:

“Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings. Failure to afford children effective access to justice in cases engaging their civil rights and obligations will be in violation of Article 6 ECHR. It will also—even in immigration cases that do not benefit from the protections of Article 6—prevent them from being afforded their substantive rights and an effective domestic remedy for breaches of those rights”.

The Government have recognised that children need special consideration. As my noble friend Lord McNally said in response to a Question on legal aid:

“As far as possible, our intention is that, where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]

However, in reality the Bill will remove legal aid from 6,000 civil justice cases in children’s names each year, compared with provision in 2009-10. In a letter to the Times, the top six UK children’s charities pleaded with the Government not to abandon these 6,000 children, who will have no other choice but to represent themselves in court, with no one to protect them and manoeuvre them through the legal system. The Government have not explained why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year.

While there is provision in the Bill for,

“Children who are parties to family proceedings”,

and cases involving the,

“Unlawful removal of children from the United Kingdom”,

by their parents and, most recently, for some clinical negligence cases, legal aid is not to be provided if they are party to legal proceedings generally: for example, in immigration, welfare, housing, education and the majority of clinical negligence cases. Surely in our society it is unacceptable that a child involved in legal proceedings, who will have no financial resources to pay for their legal advice and representation, will be expected to present their own case in an adult legal system as a litigant in person—something many adults would struggle to do effectively.

It is also worth highlighting that legal aid is already restricted to those who cannot pay for legal assistance by any other means and therefore provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Ending legal aid for whole areas of law will affect the poorest and most vulnerable and marginalised families. Many children are likely to suffer as a knock-on effect of limited access to justice for their parents and carers. This will be particularly important in areas such as housing, welfare, immigration and debt, where children are affected by their parents’ lack of financial resources and ability to navigate the legal system, which may be hindered by a number of factors, such as parental disability, language barriers, poverty and mental health issues.

The Justice Minister has stated that there will be a safety net in the form of the exceptional funding scheme. This would come into play; if not, giving legal aid would breach individual rights under the Human Rights Act 1998 or European Union law. However, the Government have not published details of the full scope of the new scheme or how it will function. I would be grateful if the Minister could enlighten us as to how this will work, to put our minds at rest.

The impact assessment states that the Government anticipate that only 5 per cent of excluded cases for education will gain exceptional funding, and no cases for immigration will. The Children’s Society has estimated that just over 4,000 cases involving under-18s will be excluded from scope and will not receive exceptional funding. If the Government intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower or more costly process or, worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children and young people.

The Minister stated very strongly that in civil cases claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. He said:

“The civil justice system as a whole does not generally require children to act on their own behalf”.—[Official Report, 16/1/12; col. 447.]

However, here are some very clear illustrations of how that is not always the case. For example, a young person—let us call her B—was sent to the UK when she was 12 years old to stay with her uncle. Almost as soon as she had arrived, the uncle sexually abused her, which continued until she ran away from home when she was still a teenager. During this time she attended school and achieved good GCSE results. After running away, she reported her uncle to the police and he was arrested. He was convicted on several counts of rape and sentenced to five years.

--- Later in debate ---

[Baroness Verma]

Perhaps I may remind noble Lords that we are at Report stage. Points should be quite short and directed to the amendment. I should like just to indulge the House with that request.

[Baroness Benjamin]

I would like to ask my noble friend the Minister the following questions. Why is legal aid being withdrawn for advice in cases covering 6,000 children a year who would qualify under the current rules? Will he explain why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year? And how, when and where will professional legal provision, not just advice from social workers or the use of community legal advice helplines, be made to ensure that vulnerable children and young people are not left to suffer even more, though no fault of their own? If my noble friend does not have the answers to my questions now, will he have them before Third Reading? Can he give me an assurance that we will have a meeting to discuss what the Government have in mind to replace the protection that will be given to these children? Also, will he undertake a series of meetings to keep myself and those interested informed? Will he agree to make sure that this is a live issue that is retuned to at Third Reading? Finally, will he give us a timeframe and report back to us on when all this will happen?

We cannot abandon children who are in need. It cannot be morally right for us to neglect any child who cries out to us in need. I urge my noble friend to consider the content of these amendments and to respond favourably.

[Lord Low of Dalston]

My Lords, I am not sure why we are discussing all these amendments in the same group as they seem to deal with rather different issues. I should like to take the House back to Amendments 11 and 12 which were introduced at the beginning of the debate. I am sorry that I was not able to take part in the Committee stage of the Bill, but I want to give my support to Amendments 11 and 12, which deal with the removal of welfare benefit cases from the scope of legal aid. Amendment 11 deals with advice and assistance for reviews and appeals to the First-tier Tribunal and Amendment 12 deals with advice and assistance at Second-tier Tribunals in the Court of Appeal and the Supreme Court, plus representation. I will do so briefly as we have already heard from a heavyweight team of speakers who between them have deployed all the main arguments in favour of the amendments with as much passion, power and eloquence as one could expect. However, there are one or two additional points that I should like to make.

The proposal to remove legal aid for welfare benefit cases represents a triple whammy for disabled people. I do not wish to be unduly disabled-centric about this. The proposal to withdraw legal aid for challenges to welfare benefit decisions affects benefit claimants and recipients generally, but as the noble Lord, Lord Newton, mentioned when quoting from the letter of my noble friend Lord Pannick, some 81 per cent of all benefit cases heard in the First-tier Tribunal are for benefits related to disability, so your Lordships can see why this matter is of such concern to disabled people.

This represents a triple whammy for the following reasons, and noble Lords will not be surprised to hear that there are three of them. First, disabled people are disproportionately out of work. The gap between disabled and non-disabled people’s employment rates has shrunk over the past 10 years or so, but disabled people are still some 60 per cent less likely to be in work than non-disabled people. Secondly, benefits for disabled people are set to be reduced, as the noble Lord, Lord Newton, told us, on a dramatic scale as a result of the Welfare Reform Act. Disability Rights UK puts the figure at at least £3.5 billion. The Joint Committee on Human Rights in its report, published last Thursday on the right of disabled people to independent living, in the context of the UN Convention on the Rights of Persons with Disabilities found that reforms to benefits and services risk leaving disabled people without the support that they need to live independently and that restrictions in local authority eligibility criteria for social care support, the replacement of DLA with personal independence payment, the closure of the independent living fund and changes to housing benefit risk interacting in a particularly harmful way for disabled people. So there is less work, much less benefit support and now no legal aid to challenge the mistakes that are bound to be made in such a colossal re-engineering of the benefits system. There is little wonder that it is described as a triple whammy.

People fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care. In the Government’s legal aid consultation paper, which prefigured this legislation, they stated that legal help for community care should be retained on the ground that,

“the issues at stake in these cases are very important because they can substantially affect the individual's ability to live an independent and fulfilled life”.

Surely, that rationale applies with equal force to disability benefits. The Joint Committee concluded that there is a risk of retrogression in respect of the UK’s obligations under Article 19 of the UN convention—the article on independent living—as a result of the cumulative impact of spending cuts and reforms. It argued that this risks breach of Article 19. If the Government do not look out, with these provisions on legal aid they also risk breaching Article 13 on access to justice, which requires that:

“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others”.

Disabled people are twice as likely as non-disabled people to live in poverty. Welfare law is incredibly complex, as your Lordships know. Few of us could credibly claim to understand it. There is no hope of people on benefit, who would count as socially excluded by many measures, being able to cope with such cases without assistance. Someone came to brief us yesterday from Citizens Advice who illustrated just what those cases can involve by holding up a lever arch file stuffed full of case papers. That was only one of three files and by no means untypical.

The views of the Joint Committee on Human Rights and its international obligations should give the Government pause in going down this track of withdrawing legal aid from those in need of taking up welfare benefit cases.