Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Grey-Thompson Excerpts(12 years, 8 months ago)
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“Children under 181 (1) Civil legal services in relation to advice and proceedings where a child is, or proposes to be, the applicant or respondent in proceedings, or where the child is represented by a legal guardian, including—
(a) private family law;(b) any benefit, allowance, payment, credit or pension under—(i) the Social Security Contributions and Benefits Act 1992,(ii) the Jobseekers Act 1995,(iii) the State Pension Credit Act 2002,(iv) the Tax Credits Act 2002,(v) the Welfare Reform Act 2007,(vi) the Welfare Reform Act 2011, or(vii) any other enactment relating to social security; (c) all areas of education law not otherwise covered in this Schedule;(d) all areas of housing law not otherwise covered in this Schedule;(e) all areas of debt-related disputes not otherwise covered in this Schedule;(f) all areas of immigration and asylum law not otherwise covered in this Schedule;(g) all areas of clinical negligence law not otherwise covered in this Schedule;(h) all areas of consumer law not otherwise covered in this Schedule;(i) appeals to the Criminal Injuries Compensation Authority;(j) civil legal services relating to a review or appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; and(k) civil legal services relating to an appeal to the Supreme Court.”
Baroness Grey-Thompson
My Lords, I speak to the amendment in my name and in those of the noble Baronesses, Lady Eaton and Lady Benjamin. I am also very proud to say that the name of the noble Lord, Lord Newton of Braintree, was included on this amendment, and I know that I speak for all those in this Chamber when I say that he will be greatly missed.
This amendment would make legal aid available for children in all current cases, including when they are victims of medical negligence. At present, legal aid helps just over 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid for around 35,000 children every year will continue, but legal aid will not be available for around 6,000 children under 18 who would qualify if the current rules remained in place. The Government have so far not explained why those 6,000 children will be treated differently from other children who have problems under the same categories of law.
This is now the 40th day of debate in your Lordships' House and in the other place. I do not believe that the Government have been able to explain the criteria that will decide, for example, why 220 children will continue to receive legal aid support in cases about their education but 110 will not. This is from among the numbers remaining after the Government conceded last June that legal aid would be kept for cases involving children with special educational needs—numbers obtainable only through a freedom of information request by the Children’s Society.
When put on the spot about which children will lose legal aid, the Government say that they will be able to apply to be treated as exceptional cases under Clause 10. I do not believe that there should be any confusion or delay as to whether a child under 18 is entitled to legal advice and representation in British civil justice. Children are not adults—they do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them.
The question of a child’s capacity to represent themselves is explicitly recognised and provided for in international law. The Children’s Commissioner for England, Dr Maggie Atkinson, wrote to the Lord Chancellor to warn that denying children a voice in legal proceedings would be in breach of the European convention. She said:
“Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings … Children’s need for legal aid in civil cases where they are a party should not be viewed as ‘exceptional’”.
Lord McNally
The most reverend Primate the Archbishop of York may be disappointed to know that he may have been absent to defeat us on that point at an earlier stage. As the noble Lord, Lord Bach, has indicated, the Government will look at these matters between now and consideration in the other place.
The only outstanding point that I wanted to cover was that made by the noble Lords, Lord Thomas and Lord Avebury, about the balance between CFAs and legal aid in injury cases. Although I am not a lawyer, I would say that, on balance, CFAs are the most effective way of taking these cases. It is worth remembering that 82 per cent of cases are already covered by CFAs. People are not left abandoned on a lonely sea—the process works.
It is always difficult to draw lines and easy to say that the lines have been drawn in the wrong place. As I said in opening, the amount of coverage for young people in this area is completely different from what was suggested in some speeches today. We believe that between the coverage of scope that we put into this Bill, the workings of exceptional funding and the availability of wider advice, there will not be the kind of consequences that have been suggested. I also make it clear that we do not think that Amendments 3, 4 and 5 are consequential, so if noble Lords do press them, we would want to test the opinion of the House on each. However, I hope that the noble Baroness will agree to withdraw her amendment.
Baroness Grey-Thompson
My Lords, I thank the Minister for his comments and consideration. The House appreciates that he has perhaps been given little or no room for manoeuvre. I would also like to thank all Members who have tried to ensure that children’s interests are safeguarded in this Bill. Most of all, I thank Members on the government Benches who have understood the problems with this legislation right from the start and have been prepared to raise them. We all understand that this is a very difficult thing to do. However, because of the very nature of the legislation and its impact on those unable in law to represent themselves, we need to ask the other place to take another look. Therefore, I wish to test the opinion of the House.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Grey-Thompson Excerpts(12 years, 9 months ago)
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“( ) Notwithstanding subsection (1), the Lord Chancellor’s duty under section 1(1) must include a duty to secure that a person eligible to legal aid advice is able to access it in a range of forms at the outset, including securing the provision of initial face-to-face advice.”
Baroness Grey-Thompson
My Lords, the amendment is also in the names of the noble Lords, Lord Bach, Lord Newton of Braintree and Lord Pannick. It seeks to remove the provisions for both a mandatory telephone gateway and the delivery of legally aided services exclusively by telephone. Instead, the amendment would insert a duty to promote the plurality of provision and the delivery channels in order to have regard to the needs of clients when procuring services.
The Government have said that they will introduce the mandatory gateway initially in four areas of law. However, the Bill gives the Government wide powers to make legal aid services available exclusively by telephone or other electronic means in the future. I move the amendment for several reasons. A telephone-only service may work for a large number of people. However, it may adversely impact the most vulnerable clients, who may struggle to explain complex problems over the phone. I should like to ask the Minister to share with us how the coalition Government will identify the groups of people for whom this service is not suitable, and the criteria that will be used, given that the Government acknowledged the difficulty in their impact assessment, which stated:
“Disabled people may … find it harder to manage their case paperwork through phone services. They may also find it harder to communicate via the phone or manage any emotional distress more remotely”.
Indeed, it may be hard for many people even to access a telephone suitable for dialling in. Many people in current times do not have a land line but only a mobile. Accessing a telephone gateway via a mobile could be expensive. Due to waiting times, credit may even run out before a conclusion has been reached. Also, fewer public phones are available, and they are perhaps not the best way to try to resolve issues. I am also concerned that people with language or speech difficulties may be deterred from seeking advice. Without early intervention, it is likely that their problems will become more complex and costly to resolve at a later date, and their problems will be pushed to another area.
We must also think carefully about training operators. It is my understanding that they will receive some training, but there will be no formal legal training. As a result, operators may not be able effectively to interpret the nuances of complex cases put to them, let alone cases put to them by clients who may be confused or have some difficulty in communicating.
The Government’s savings from their proposals will be negligible, and they may in fact cost more. The June 2011 impact assessment predicted savings of between just £1 million and £2 million—a relatively small amount. In fact, a study by the Legal Services Research Centre found that telephone advice can take longer to resolve problems than face-to-face advice. Face-to-face advice is important in many cases for fostering trust and building relationships in order to get to the right resolution.
We could also lose the current streamlining. Much good work has been done by local advice agencies, which collaborate to streamline advice, whereby clients need to go through the advice journey only once. The mandatory telephone gateway will fracture this again, because clients would need to phone in first and then be referred to special advice elsewhere.
During the Bill’s Second Reading and Committee stage in your Lordships’ House, Peers from all sides expressed the view that a telephone-only legal aid service would not be appropriate for all users. While I accept that it may suit many, those with language difficulties, learning difficulties or mental health problems may be disadvantaged. Vulnerable clients, perhaps those experiencing bereavement, loss of a job or debt, or those with low self-esteem or poor literacy or numeracy, are much more likely to be disadvantaged.
The Government risk excluding vulnerable people from accessing meaningful and effective legal advice. I beg to move.
Lord Phillips of Sudbury
My Lords, I started in a Suffolk solicitor’s office in the late 1950s. As was common then and now, a lot of preliminary advice, particularly to people who could not pay anything, was given by junior members of staff. Ever since, I have been imprinted by early recollections of how difficult it is for some people to give instructions at all. Later, I became non-executive director of a company that ran the first telephone helpline in the country, and observed first-hand, as one might say, how that worked. Of course, a great many people in the present age feel perfectly comfortable with telephones. Provided that there is no cost factor, to which the noble Baroness, Lady Grey-Thompson, referred, that may prove an adequate way to give instructions. However, we know that there are many, even now, who are not comfortable with telephonic communication and for whom, if the matter they are seeking advice on is painful to them or arouses great emotion, it is not a satisfactory way to try to impart instructions.
If one thinks of poor people—perhaps I should not have said poor people, because they can be highly articulate, but inarticulate people and those who cannot begin to analyse their problem and do not know quite what it is—the telephone is unlikely to be an effective means to impart information without which the adviser cannot hope to help them to best effect. We are all wholly aware of the Government’s need and wish to save expenditure on legal aid, but I put it to my noble friend that this is the falsest of false economies. Anyone who has given such advice will readily say that the cost in the adviser’s time is released when the client is in front of them, when they can help the client, who is often confused or emotional, to give them the precious information without which they cannot hope to do a satisfactory job. On cost grounds, the savings assumed for the telephone helpline as an exclusive channel of advice are misconceived. More importantly, I think we all agree, so it does not need emphasising any further, that justice cannot be done if there is no alternative to deliver advice by face-to-face means.
I end by saying that where the person needing help is poor, confused and deprived, the notion that one should add to that catalogue of disadvantage the inability to access the only advice that will work for them—face-to-face advice—would be a terrible indictment of our claim to be a democracy where we are equal before the law.
Lord McNally
I am very grateful that my eloquence has won the noble Lord over. I would ask the House to consider what he has rightly drawn attention to: namely, that some people may be in need of an hour-long chat, which is why the gateway is important for the volume that we are dealing with and for making sure that people get the right and the best advice as quickly as possible.
Baroness Grey-Thompson
My Lords, I thank the Minister for his response and I recognise that there has been much positive movement. I also thank all noble Lords who contributed to the debate and have expressed their support. I will not précis each contribution, but I feel that there is significant support on all sides of the House. Perhaps I may quote the noble Lord, Lord Wigley, who said that this section is controversial. It is about respect and dignity.
In his response to the noble Lord, Lord Bach, the Minister said that there is no evidence that people will be reluctant to use the telephone gateway. I am afraid that I disagree, and I do not believe it is patronising to say that people will have difficulties with or will be put off from communicating in certain ways. The noble Lord, Lord Pannick, said that it is about access to justice. People should be able to access justice in the most appropriate way. I still do not feel that we are in the right place yet because some cases are incredibly complex. While I welcome the clarity on the training of operators—it is very positive news that the operators of the telephone lines will be better trained than those who do face-to-face interviews—it still comes down to the ability of the client to use the right keywords. If they do not do that or are not able to express things in the right way, I am very concerned that we will be doing a great disservice to a huge number of people.
Again, I thank the Minister, but I do not believe that he has gone far enough, and I wish to test the opinion of the House.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Grey-Thompson Excerpts(12 years, 9 months ago)
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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.
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.
“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.”
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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Grey-Thompson Excerpts(13 years ago)
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Lord Bach
My Lords, we come on now to an important element of Part 1 of the Bill, which is the mandatory gateway. Although I am sure the Committee knows this very well, I just remind noble Lords that if the relevant area of law is out of scope, there will be no point in ringing up the mandatory gateway, because the client will be told—no doubt very politely—that this is not in scope and that they will have to go elsewhere if they want legal advice. When we talk about the mandatory gateway, it is for the areas of law that remain in scope, such as parts of housing law, very small parts of debt, community care and parts of education. We are talking about a limited field. It is no answer to the areas of law that it is intended to take out of scope.
I start by saying that my experience as a Minister was that the telephone advice centre is a fantastic channel for delivering advice. I am sure that the noble Lord and his colleague the Legal Aid Minister have, as I have, visited telephone advice centres and been impressed. I certainly was in my turn. It can be convenient for those with busy lives, allowing them to access services at their convenience, and it can be—although it is not always—a cheaper way to deliver advice than face to face through a bricks-and-mortar centre. We also have the community legal advice helpline, which is excellent. All of us, I am sure, would be glad to see the work of that organisation continue and expand.
However, there is a “but” here, and it is a big “but”. We on this side of the House do not think that the right way of dealing with the issue of getting advice lies in the Government’s plans to institute a mandatory telephone gateway. We will ask the Government exactly what they intend, but this would seem to mean that anyone seeking to use a service funded through the legal aid and advice scheme would have first to call a hotline that would then direct them to the right service.
Our concerns are these. It is proposed to introduce the mandatory single telephone gateway first for matters of debt, although comparatively few debt matters are left if the Bill goes through in its present form; for special educational needs—that part of education law that the Government have had second thoughts about and that is still now in scope; for discrimination—the only part of employment law that remains; and for community care cases, which, again, the Government quite rightly had second thoughts about. The Government have stated their intention to roll it out to other areas of law as soon as practicable.
It is hard to find much mention of the mandatory gateway in the Bill. You have to look pretty hard, but in Clause 26 the Committee will see that there is mention of various ways in which advice can be given. It is otherwise something that we know about because the Government have spoken a lot about it, but it is not something that appears directly in the Bill. Clause 26(2) is actually the subsection that I am thinking of.
If the Government have stated their intention to roll out this mandatory gateway as I have said, they have failed in our view to answer, particularly in another place, some fairly fundamental questions that need answering before Parliament should sanction such a departure from the present abundance of channels. Perhaps the Minister can illuminate us as to how the Government’s thinking has evolved on this issue, which I am sure they have spent a long time thinking about.
When an individual with learning difficulties, for example, communication and speech problems or mental health problems tries to find help, will they be able to, first, find this new gateway service, secondly, properly access and understand the service and, thirdly, gain full utility from it? Will an individual who may be severely upset or traumatised—a victim of domestic violence, perhaps, or someone who is in extreme debt and feels rather ashamed about it—be willing to speak to a distant person without the comfort of direct, human interaction? Is it really the Government's case that they will all be happy to do that?
How will someone who is utterly impecunious be able to make a lengthy telephone call, in which the caller refers to documents and must wait for interpreters and answer detailed questions, in anything close to an acceptable manner from, say, public telephone boxes, which still exist? For those with English as a foreign language, there may be a particular problem. There might be an interpreter, too; three-way conversations are hardly practicable. It will be difficult to consider documents over the phone. What if the caller is perhaps semiliterate or, in fact, illiterate? They will obviously need personalised help—the kind of help that they get at the moment. What if there is a mass of documents, only one or two of which are particularly relevant? Visually, someone obviously sifts through these papers, as they are using knowledge in a particular form that is relevant, but it could become a nightmare on the telephone.
We think that those fears, which I am sure the Government have thought about, might prove an insurmountable hurdle to a number of those who, quite justifiably and within their rights, need legal advice or help. There are those with communication problems or mental health issues, those with learning difficulties or literacy issues, and those who just cannot express themselves in a particularly articulate way. Those who would be unwilling to use a phone need the immediacy of face-to-face contact and we fear that they may drop out. If the mandatory gateway is the only way through, will they actually get the advice that may solve the problem or get them their rights?
There is an economic argument, too, because if telephone conversations become muddy and too long, with both parties struggling to make themselves understood while sifting through masses of paper and language difficulties, cost-efficiencies look much less likely. We think that there are ways of mitigating these issues, but at the moment there has been no proper debate about this issue. In a way, I am sorry that this debate is taking place in Committee at this time today, but it is still an opportunity for the Government to express their views and for other noble Lords to say whether or not they agree. On how this part of the Bill will actually work, we have little to guide us. We have Clause 26(2), but that gives us little insight into how it will work. I look forward to the debate on this issue in the time available to us.
I end, I hope not too pretentiously, with this comment: when the great writer EM Forster talked about only connecting—“Only connect” was his model for living—he was talking not about connecting two telephone wires but about human interaction. The Government should not discount human interaction when they or lawyers are in the business of giving advice on some of the matters that we have been discussing in this Committee. I beg to move.
Baroness Grey-Thompson
My Lords, I support Amendment 4, which has been comprehensively moved by the noble Lord, Lord Bach. I have a number of concerns about the gateway and how people may access it, specifically disabled people in the wider sense. While it makes a lot of sense to limit the access to the gateway to four areas initially, I feel that this could cause some difficulty for a number of people who may be confused about signposting. We are talking about areas of rights and obligations that are complex and specialised and require a great deal of knowledge of the system.
That leads me straight on to staff training. The Justice Minister in Committee in another place said that,
“legal qualifications will not be a contractual requirement”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 6/9/11; col. 294.]
I seek further assurance that, if this is pursued, appropriate training will be carried out.
While I am supportive in principle of simplifying any system—for disabled people especially, the idea of cutting down on travelling, which can be difficult, is very positive—I immediately start thinking of the number of people who might just find this method too difficult to use. Does the Minister have any thoughts on the number or possibly the percentage of people who may struggle to use the proposed system? Whether they be people with a hearing difficulty who might not have access to the right equipment if they are only recently impaired, people whose impairment may make this type of communication difficult, people with language difficulties or people with learning disabilities, the group could be wide and varied. It is not easy to categorise those people who might find some difficulty with this. Also, that presumes that the individual knows and understands how their individual impairment affects them. What about those who do not, or those who need extra help making the initial phone call?
I have also been thinking about those people who might find it difficult to take down an accurate record of what has been discussed, perhaps even to follow the line of questioning. I would like some more detail about how records are going to be kept and what information will be sent to the individual. If they do not agree with the record of the conversation, how will this be monitored? What is the follow-up?
I would like to understand how the system will be evaluated. Obviously, you need a trial system in operation to iron out as many bugs as possible, even if this is the trial system for wider expansion. I know from my work on the Welfare Reform Bill that the assessment process is critical not just to asking the right questions—that is hard enough—but to getting the correct and useful information from the individual and then being able to tie all that data together to get to an appropriate outcome. I receive a reasonable amount of correspondence about face-to-face assessments, where the visual recognition of response and the nuances of conversation are easier to pick up. That is why I am so concerned about the initial assessment being through a phone call.
The Minister mentioned the use of technology. I am a huge fan of technology, and for lots of disabled people it can be used in an incredibly positive way. I do not think that any of us would be surprised at how many young people are using technology now or at the stories in the media about toddlers who think that every TV screen is a touch screen and can flick through the channels—they are almost born knowing how to use this technology. The reality, though, is that older people and disabled people still struggle with different forms of technology. For me it is not just about the access to technology; that is just the first part. The second part is actually understanding how to signpost people to get to that information, and that is difficult for a large number of people.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Grey-Thompson Excerpts(13 years, 1 month ago)
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Baroness Grey-Thompson
My Lords, I have a number of concerns about this Bill, specifically in the area of legal aid which has been outlined wonderfully by the noble Lord, Lord Thomas of Gresford. Like many, I have worried that we have been creeping towards a more litigious society. However, research suggests to me that instead of encouraging litigation, legal-aid advisers recommend that clients go to appeal only if they judge that there is a realistic chance of winning. They act as independent gatekeepers, keeping costs down.
The Bill proposes that legal aid should be provided for some alleged victims of abuse in private divorce and children proceedings, but not for the alleged perpetrator. This will almost certainly result in those alleging abuse, including disabled people and vulnerable adults, being cross-examined by the accused, creating significant risks to their welfare through the court process. The final report of the Family Justice Review points out that protections are available to prevent vulnerable witnesses going through this ordeal in the criminal courts, but not in the family courts.
It was announced this morning that in Middlesbrough, the nearest large town to where I live, there were 4,500 reports of domestic violence in the last year. I am seriously concerned that many women, and some men, will be put in the vulnerable position of not taking cases forward because of fear of the system they are entering.
Disabled people are facing the biggest changes to the welfare system that we have seen in a long time. I think many in your Lordships’ House would agree that reform is necessary, and I welcome a simplification of the system. Based on the Government’s projection, approximately 250,000 households with a disabled person living there will be lifted out of poverty due to the introduction of universal credit. However, this could be undermined in the absence of appropriate legal advice that might prevent a disabled person taking up their entitlement. The Government have said that they want to protect those with the greatest need, but many hundreds of thousands of disabled people could have their support removed, and for many, the proposals in this Bill could act as a double whammy.
No benefits system is easy to understand. However, to push technical advice to volunteers or to Jobcentre Plus is not appropriate. Specialist advice is required in compiling evidence and also to meet the tight timescales in the appeals process. I am very interested in this area as I have an amendment to the Welfare Reform Bill, now in Grand Committee, which seeks to remove an extra step to the appeals process. One reason that I believe in protecting legal aid for disabled people is that in 60 per cent of appeals in which disabled people were eventually found to qualify for ESA, zero points had been allocated at the initial assessment. That is a massive turnaround, highlighting some of the problems with the assessment process, which quite rightly has been discussed elsewhere. However, it is clear to me that it is right to support people through the appeals process and this must be protected.
The Government's impact assessment shows that disabled people make up a disproportionate number of those who receive legal aid for welfare benefits cases: some 58 per cent. This translates to over 78,000 disabled people who could be denied specialist legal help if these measures go through. I have spoken many times about my desire to get more disabled people into work, but it is about getting the right advice and putting the right steps in place to encourage this to happen.
The Government’s own research has found that the public will face poorer case outcomes, longer delays in the resolution of cases and a declining prospect of settlements, and vulnerable people with complex needs will be forced to present their own cases. The court system could be thrown into chaos by the increasing number of litigants in person. This process can be intimidating for the most articulate and informed of individuals.
There are several questions that I would like to ask the Minister. Citizens Advice has provided evidence to the Government that removing welfare benefits from legal aid will cost more in the long term. Can the Minister explain what account has been taken of that advice? The Government’s own impact assessment has suggested that there could be increased costs for other departments due to these proposals. What are these costs, and which departments are involved? I accept that we are in difficult times and that tough choices have to be made. To redress the balance, the Ministry of Justice will rely on a proposed exceptional funding test as stated in Clause 9. However, the threshold for the test means that very few—only 5 per cent of cases—will likely be brought back into scope.
I also have serious concerns about the telephone gateway being proposed for community care law, debt, discrimination and special educational needs. The cases of disabled people are complex. A phone call will not take into account the nuances of the situation. If a disabled person has struggled to put their case forward in an assessment process, a phone call will not make it easier. In these tough times, I am concerned that local authorities may risk breaking the law at the level of care provided, hoping or even knowing that many people will not know the course of action open to them.
Data from the Civil and Social Justice Survey show that disabled people are more likely to report that they do now know their rights compared to non-disabled people: 69.2 per cent compared with 63 per cent. The 63 per cent figure also causes me concern, but perhaps it is not something to address here.
The Disability Law Service believes that this Bill will deny legal representation and advice to 650,000 people on low income, many of them disabled people. Where will these people go for help, advice and support, and the opportunity to get into work if more barriers are put in their way?
My final question concerns the consultation process. I understand that there were 5,000 responses and that around 90 per cent did not support the proposed changes. What notice has been taken of the consultation process?