Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Massey of Darwen Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, this group of amendments contains tremendous overlap. It is for that reason, among others, that your Lordships will see a number of our names on one another’s amendments. I am very happy to follow my noble and learned friend Lady Butler-Sloss, because we could not have a greater expert in what happens in courts. I am sure that we have all taken in everything that she was discussing just now.

I shall concentrate on the amendment that I have tabled, which is to do with young people with disability. As it stands, the Legal Aid, Sentencing and Punishment of Offenders Bill will lead to some 75,000 young people under 25 losing legal aid each year. This amendment would provide particular protection for young disabled people.

Young people with a disability have usually received special protection and additional access to services in recognition of the fact that they may, and probably will, need additional support. The amendment would ensure that they continued to be able to access legal aid up to the age of 24. The definition of disability is that used in the Equality Act 2010, which identifies a person as having a disability if they have a physical or mental impairment and if this impairment is expected to have a substantial and long- term adverse effect on their ability to perform normal day-to-day activities.

Other amendments to the Bill seek to protect access to legal aid for all children aged up to 18, but there is a significant precedent for extending additional protection to young people up to the age of 24 and particularly to young people with disabilities. 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, encompassing those with a statement of special educational needs, mental health difficulties, autistic spectrum disorders, dyslexia, ADHD and physical, sensory and cognitive impairments.

We also know that disabled young people are more likely to experience legal problems than other young people or older people with disabilities. Data from the Civil and Social Justice Survey showed that 56 per cent of under-25 year-olds with long-term disabilities had experienced problems compared to 35 per cent of all young people. It also found that young disabled people were more likely to experience legal problems than older people with a disability—51 per cent compared with 37 per cent. Disabled young people in general were more likely to experience multiple legal problems, in particular problems relating to housing, debt and welfare benefits.

JustRights, a coalition of more than 30 organisations in the children’s, youth and legal advice sector co-ordinated by the Law Centres Federation and Youth Access, has provided me with a case study which shows how legal advice can be vital in helping young disabled people to access their rights.

Chantelle was 18 when she came to the law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college and 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 had been refused. The law centre helped Chantelle appeal against the refusal, 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 the low rate of the care component of DLA and the higher rate of the mobility component. She swapped her mobility payment for a Motability car and passed her driving test. Chantelle now has a place at university and will be able to drive herself there each day, making a huge difference to her independence and quality of life, and probably her ability not to be dependant on other forms of public support. We know that advice provided early in cases such as Chantelle’s is cost-effective, and saves money in the long run through preventing the costs of problems spiralling.

I support all the amendments in this group. I hope that this particular modest amendment will receive a sympathetic hearing and acceptance by the noble Lord, the Minister, and I hope that he will give equal consideration to the equally important amendments that others are proposing.

[Baroness Massey of Darwen]

I speak to Amendments 80A, 82A, 82B and 82C. Perhaps I may first say how delighted I am to be speaking after so many passionate speeches about children, children’s welfare, and children’s rights by so many noble Lords, because children are a touchstone as to how we treat those who need help. My Amendment 82A simply adds to the amendment tabled by the noble Baroness, Lady Howe, and she has spoken to that so I will not deal with it.

Before I speak to this group of amendments in my name I would like to add briefly to the concerns expressed so eloquently by the noble Baroness, Lady O’Loan, and the noble and learned Baroness, Lady Butler-Sloss. Before the dinner break, the noble Lord, Lord Newton, talked about the costs of taking children into care. He implied that there are—and I know that there are—huge costs in terms of finance and of social adjustment and academic achievement.

There is also a group of people whom we have not talked about this evening but whom I want to talk about: family-and-friends carers who can prevent children going into care and make sure they are well looked after. I want to make a plea for those people. The noble Lord, Lord McNally, was good enough to meet me and the Family Rights Alliance and a young family carer to discuss this. I hope he will be sympathetic. In a Green Paper on legal aid reform, the Government announced that they propose to withdraw legal aid from private law children applications. This will include applications by family-and-friends carers. A number of organisations concerned with the interests of children living with family-and-friends carers have raised anxieties about the impact of these proposals because such carers might in future be prevented, through lack of legal aid, from applying for the relevant order to provide permanence for a child, particularly when the other party in the proceedings, who is alleged to have failed in their parenting task, may be their son or daughter.

Following consultation on the Green Paper, the Government announced that a private law application would be retained within the scope of public funding, where the application was with a view to protecting the child who is at risk of abuse. This is not really the point. Clause 11 of the current Bill deals with the availability of public funding where the child is at risk of abuse. However the Government have made it clear that they will by regulation require that evidence of abuse is provided by the applicant in order for the application for public funding to be successful. This has its own limitations. The effect will be to prevent family members taking action to protect children when they are first at risk of harm—for example, when they are first subject to child protection enquiries. The 12-month time limit referred to in the Government’s response to consultation could also prevent a family-and-friends carer applying to court to take on the care of a child who is within the care system for more than 12 months. These potential carers will therefore not qualify for public funding to apply for residence or special guardianship orders because they fall outside the 12-month time limit. It is essential that family-and-friends carers with such an order have access to public funding to be legally represented at such applications. It is vital that the Government do not introduce such restrictions to legal aid, and I hope that the Minister will be able to comment on this, if not now then later.

I turn to my Amendments 80A, 80B and 82C. These seek to retain access to legal aid for young people aged up to 24 in social welfare cases. As it stand, the Bill will lead to nearly 26,000 people aged under 25 losing legal aid for social welfare cases each year—for example, over 9,000 for debt and 9,000 welfare benefit cases. The figure for employment cases is almost 2,000, while the 500,000 housing cases cost about £1.5 million.

The coalition has made commitments to support children and young people. For example, the recent Positive for Youth paper states that:

“This Government is passionate about creating a society that is positive for youth. Young people matter. They are important to us now, and to our future, and we need them to flourish”.

The MP Dr Julian Huppert supported this by saying that the Liberal Democrat youth policy included a commitment to providing young people with access to specialist support and advice on legal aid and responsibilities.

Young people’s alienation from the legal system and, in turn, from mainstream society needs to be addressed. Research, which has been quoted before, has shown that many young people view the legal system as there for their punishment rather than for their protection. Reform of legal aid provides a golden opportunity to create a more modern, client-centred system that does not serve to exclude this important section of society.

Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost just £5.8 million a year. In comparison, the Prince’s Trust estimates the weekly cost of youth unemployment at £20 million. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a very modest amount. I wonder if the numbers for these groups have been costed along with the other costs associated with them.

We know that many of the children and young people who seek help with social welfare problems are highly vulnerable and are unlikely to be able to navigate the legal system without help. Recent research shows that 80 per cent of 16 to 24 year-olds with civil justice problems fall into at least one vulnerable group—for example, they may have a disability or mental health problems, or they may have been a victim of crime. Half of the young people seeking advice are not in education, employment or training.

The Government’s recently published youth policy, which I quoted earlier, says that disadvantaged and vulnerable young people can be at risk of poor outcomes and need additional and early help to overcome the challenges that they face. Changing the Welfare Reform Bill may mean that more young people with disabilities face social welfare problems. The Bill removes the youth condition for qualification for employment and support allowance, which allowed disabled young people to qualify automatically for the contributory form of benefit. That means that many more disabled young people could potentially face means testing, although of course the House discussed this last week. The Bill also seeks to replace the disability living allowance with the personal independence payment, which will require a face-to-face assessment to qualify. This may lead to young people needing help to understand the new benefit regime.

With youth unemployment now over 1 million, this group of young people will be in particular need of support over the next few years and we cannot afford to abandon them. However, advice services for young people are already being cut. Local authorities are trying to spend 38 per cent less this year than last year on Connexions, the national information, advice and guidance service for 13 to 19 year-olds. Research by Youth Access, the national membership organisation for young people’s information, advice and counselling, found that 42 per cent of their members faced the risk of closure this year. Advice for children and young people can help stop problems escalating, generating considerable long-term cost savings. A new report by Youth Access on the impact of advice shows that removing legal advice from vulnerable children and young people may save money in the short term but actually cost more in the long term.