Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Grey-Thompson Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Shipley]

My Lords, I speak to Amendment 101. As we have heard, this group of amendments relates to two matters: first, ensuring equal access to justice for those who are vulnerable or on low incomes; and, secondly, dealing with the impact of the very fundamental changes made by the Welfare Reform Bill, which will inevitably increase substantially the number of people who need help and who are unable to represent themselves.

Quite separately from these two issues, the cuts already made to CAB budgets and to third-sector advice bodies as a whole have been very high and have caused significant dislocation to their services. The consequence of all this is that, as things stand, there will not be equal access to justice, and yet, for a comparatively small sum in the context of the legal aid bill as a whole, many of the problems could be dealt with. It does not help, of course, that relevant funding streams lie across several Whitehall departments, so I still hope that cross-Whitehall discussions might enable solutions to be found to the serious loss of resource faced by the sector, amounting to three-quarters of the legal aid funding currently received, all of which impacts on the estimated 650,000 people who currently secure early and preventive help.

I spoke on this issue in Committee. The danger is that the exclusion of benefits work from legal aid will tie the hands of advisers who are trying to prevent homelessness, for example, for which legal aid may apply, leading to many more unresolved cases filling the courts. The courts will then have more adjourned hearings and will ultimately have to make more possession orders because there is no one to resolve the benefits issue. This will result in higher costs to the taxpayer. The Bill proposes that all benefits work is to be removed from the scope of legal aid except for cases that go to judicial review, yet early intervention to resolve benefits issues often prevents these situations escalating into more serious proceedings, with all the costs involved in that.

Amendment 11, moved by my noble friend Lady Doocey, seeks to retain legal aid help for those facing welfare benefits reviews and appeals at the First-tier Tribunal. It is a relatively low-cost amendment that would address the problem whereby the removal of social welfare advice from the scope of legal aid will have a disproportionate impact on vulnerable people, particularly disabled people.

My Amendment 101 also relates to funding advice and representation, and seeks a solution by giving a power to the Lord Chancellor to add new civil legal services to the scope of the Bill and to make funding available on a permanent basis through the provision of grant in aid, where doing so would reduce knock-on costs or secure equal access to justice.

My primary concern relates to ensuring that there is long-term funding for CABs, law centres and third-sector housing advice centres to help vulnerable clients. Earlier this week, the Chief Secretary to the Treasury said that there would be additional funding in the current spending period and that details would be announced in the Budget. It is essential that advice services are made sustainable in the long term, and I am grateful to the Minister for understanding the financial problems that face the sector and for being willing to seek solutions to the funding issue. We await the outcome, but it should come before we return to the Bill at Third Reading. For those of us who have supported the work of the advice sector and CABs in particular, I hope the Minister will be able in his reply to set our minds at rest regarding securing the necessary resources to finance the sector adequately and maintaining the principle of equal access to justice.

[Baroness Grey-Thompson]

My Lords, I rise briefly in support of Amendment 11 because I covered the appeal process extensively during our debates on the Welfare Reform Bill. I completely agree with the noble Baroness, Lady Doocey, who is absolutely right to say that the current proposals will represent the most major and life-changing reform to the welfare system. Her amendment offers some protection to ensure that the right people are supported. Both inside and outside your Lordships’ Chamber, we hear an awful lot about how we want to help and support disabled people. If we want to do so, this is our chance to prove it. I strongly support the amendment.

[Lord Goldsmith]

My Lords, I raised in Committee the issue of the advice sector and advice agencies, about which the noble Lord, Lord Shipley, has spoken. If one takes stock of where we have got to in this debate, in which there have been many speakers, one sees that everyone from every Bench has said that the Bill will not do and does not provide necessary support in the welfare area. I do not for a moment want to repeat the powerful speeches of the noble Baroness, Lady Doocey, the noble Lord, Lord Newton, or others. The question is not, “Does the Bill need to be amended to deal with welfare benefit in some way?”; the question is, “How should it be amended?”.

I therefore want to speak to Amendment 101, which was seductively spoken to by the noble Lord, Lord Shipley, and the exceptional funds that we have been told about and, no doubt, will be told about. The fact in relation to the advice agencies—and I have explained my connection with them—is, as the Minister helpfully told me in a letter that is now in the Library, that the funding given to the not-for-profit sector will be cut by 77 per cent. That represents more than twice—nearly three times—the £20 million that the noble Lord talked about as an addition. The Advice Services Alliance estimates that 800 specialist advisers will be lost from the advice sector as a result. As many noble Lords have said—and from my experience as a lawyer it is true—it is important to bear in mind that the welfare benefit side requires an expertise that most lawyers do not have. It is also another reason why the argument sometimes put forward for the Bill—that it will reduce the fat cats—is completely lost. No cat gets fat on welfare law.

The questions are on whether the vague and hedged promises of some money are sufficient, and whether the amendment of the noble Lord, Lord Shipley, is enough. For three reasons, I respectfully say that it is not. First, it is rather confusing. It divides into two parts. Proposed new subsection (1) mentions the Lord Chancellor having a power, as the noble Lord said. He may make funding available. That is a discretion. As we discussed in Committee, you cannot enforce a discretion; what the Lord Chancellor—or, as I rather mischievously suggested, the Chancellor of the Exchequer—decides to do determines what happens under that subsection. We have a new subsection proposed which states:

“The Lord Chancellor must make permanent arrangements for such purposes”,

and then specifies certain things. There are two problems with that. First, it appears to conflict with the first subsection, which identifies a discretion. Indeed, if you have to identify the hierarchy of the subsections, the first appears to be the most important, because proposed new subsection (2) says that the Lord Chancellor must make permanent arrangements “for such purposes”. “Such purposes” is a reference back to proposed new subsection (1), which is discretionary. So my first concern is that that does not impose a duty on anybody.

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However, in truth, the saving is much greater than that to which the government figures point because the figure of £17.5 million that the Government have put forward is erroneous. It includes the cost of expert reports in successful cases as well as unsuccessful ones. The cost in successful cases is recorded by the Legal Aid Fund but is not—this is the vital point—paid by it. If you exclude successful cases from the figure of £17.5 million given by the Government, you come right back to the figure of £6.3 million, which is the figure that I have given all along. On that view, the saving is not what is conceded to be a saving by the Government, but one of £10.6 million. These figures were contained in an e-mail that was sent to the Government on 2 March, which has not, as far as I know, been answered. I beg to move.

[Baroness Grey-Thompson]

My Lords, I will speak to Amendment 15, which is in my name and in the names of the Baroness, Lady Finlay of Llandaff, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Beecham. As my noble and learned friend Lord Lloyd said, this amendment seeks to retain clinical negligence cases within the scope of legal aid. It is completely non-discriminatory, is not based on age or condition and saves money.

The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided—clarification and a guarantee of what was already on the table.

I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said:

“We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid”.

It went on to say:

“A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue”.

This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice.

The independent report by King’s College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget—costs of £28.5 million set against a “saving” of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. “After the event” insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard.

If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism that it is possible to devise is being put forward to achieve this policy objective. I agree with that comment. Solicitors will be forced to cherry pick only the most obvious cases of negligence, with others being left with no way of moving forward. I do not believe that this is acceptable in our society.

[Baroness Eaton]

My Lords I ask noble Lords to support Amendment 31, which stands in my name and in the names of my noble friends Lord Newton and Lord Cormack and the noble Lord, Lord Crisp.

Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.

I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering—a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.

The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb’s palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is 73 days old, he or she will be ineligible for medical negligence. However, if he or she suffers neurological damage two days earlier at 71 days, they can be granted legal aid. This seems a rather arbitrary and upsetting situation. I ask noble Lords to try to imagine how they would explain to their friends, family and neighbours why a baby who suffered neurological injury at birth could have legal aid but a baby blinded at birth, say by a forceps delivery, could not. Last year, £4.6 million was spent on legal aid for children who were victims of clinical negligence. The majority—estimated to be around £3 million—went on legal aid for babies who suffered neurological damage. As I say, this group has been conceded by the Government, so in reality we are arguing about a further £1.6 million or so to cover all remaining children.

I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.

I therefore ask noble Lords to support children like Sophie next year and the year after—children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.

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Moved by

[Baroness Grey-Thompson]

15: Schedule 1, page 125, line 5, at end insert—
“Clinical negligence (No. 2)(1) Civil legal services provided in relation to clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence.”

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[Baroness Grey-Thompson]

I am very conscious of the late hour so I do not wish to delay your Lordships’ House too much longer. I thank the Minister for his answer but, unfortunately, I am not satisfied with it. I believe that a huge number of disabled people and people in general will be discriminated against. I wish to test the opinion of the House.