Civil Legal Aid (Procedure) Regulations 2012

Baroness Scotland of Asthal Excerpts

Wednesday 27th March 2013 Lords Chamber

[Baroness Grey-Thompson]

My Lords, I spoke extensively on the telephone gateway during the passage of the legal aid Bill. I feel a sense of disappointment in tabling this regret Motion as I am left with many concerns about access and operation.

The mandatory telephone gateway will require those seeking legal aid to call a telephone operator service and then be assessed over the telephone to decide whether they can receive advice under the legal aid scheme. It is a great shame and a missed opportunity that the regulations were not open to consultation. However, I thank the Minister for his offer yesterday to visit a gateway operator and to see the system in action. I shall take him up on his kind offer. I also thank him for his willingness to meet and discuss this issue and for the opportunity to speak with his advisers, who clarified a number of points.

For many people the telephone service is welcome and can be a valuable part of the whole picture. For those in scope, those with simple cases and those who find it easy to use the phone it is hard to see any issue. However, because of the massive changes in legal aid, I still have a number of concerns about whether people will even get as far as the operator service; whether the operator service will prove competent to handle complex legal questions around scope and eligibility; and whether face-to-face services will realistically be available to those who are entitled to them.

The Legal Services Research Centre, the independent research division of the Legal Services Commission, found that telephone advice takes on average 14 minutes longer than face-to-face advice and provides a smaller proportion of tangible outcomes. In 2011 it was open to debate whether the economies offered by the lower overhead costs of telephone provision would be sufficient to offset the cost generated by higher advice times. I would like reassurance that the companies which will be undertaking these services will have the appropriate number of staff to deal with the inquiries.

The Ministry of Justice cumulative impact assessment of 21 June 2011, page 24, paragraph 1.7, stated that the overall proposals have the potential to impact a greater proportion of women, black, Asian, minority ethnic people and ill or disabled people. In my opinion, nothing has really changed.

In the three areas that have been selected for telephone gateway—special educational needs, discrimination and debt, although it is perhaps best to describe it as home repossession—the Government have picked some very challenging areas to test out. In certainly the first two groups, SEN and discrimination, cases are often extremely complex and there may be many wider issues at play as well, such as benefit appeals, which may muddy the waters. I am sure the Minister will offer his reassurance that in the case of SEN the Children and Families Bill will sort out many of the existing problems. However, in Wales the education system is different. It has its own tribunal service and so two systems will need to be understood. The cases with which I am being presented by parents show that it is not a simple matter. It is emotive, and local knowledge is essential.

In the area of discrimination, often many disabled people do not even realise that they are being discriminated against because, at a low level, it is such a regular occurrence that it is accepted, wrongly, as the norm. It might be only when other issues are being dealt with that a person could realise that they were also experiencing discrimination. With the telephone gateway this may be missed. Discrimination will not disappear, it will be just be hidden.

I know this because I experience discrimination at least every week of my life. I am talked down to, patted on the head, treated differently and refused access to goods and services that many take for granted. I am in a better position than many and possess the skills to cope with it and the ability to deal with it. Many disabled people are not.

Hate crime figures against disabled people are at their highest level in 10 years of reporting. A joint study by Her Majesty’s Inspectorate of Constabulary, the Crown Prosecution Service and the National Probation Service published last week argues that there is underreporting of offences. However, it acknowledges that there is no clear and uncomplicated definition of what constitutes disability hate crime. There is a lack of awareness and inconsistent reporting standards.

The report goes on to say that CPS lawyers display a lack of clarity in identifying and analysing offences. I know that this is slightly at a tangent but, if the CPS lawyers are struggling, how is a newly trained, non-lawyer telephone operator going to cope when there are other issues to deal with as well? It is a huge amount of pressure on those individuals operating the system on the front line.

There are also a number of idiosyncrasies in the proposed system. If someone arrives at citizens advice looking for help—which is a very sensible place to go because citizens advice will have some legal aid capacity—even though the adviser is there, the receptionist would have to direct the person to the telephone gateway. They might use the telephone at the citizens advice office but then the receptionist would have to call the CLA to make an appointment for the client with a person sitting in an office 10 feet away. Does this not seem a little odd and strange?

The Law Society provided a useful example as it applies to mortgage repossession cases. It is not uncommon for a lawyer under the duty scheme to see someone at a court and for the hearing to be adjourned for negotiations to take place between the lender and the borrower. Very often a new hearing date will be set for two to four weeks hence. At present, the adviser will take on the work as a new case under a legal aid contract, undertake those negotiations and hopefully return to court with an agreed position at the adjourned hearing. If the position is not agreed, the adviser will be there to explain the negotiations and the stumbling blocks to the district judge.

From next week, the adviser will not be permitted to do this. Instead the case must go through the mandatory telephone gateway. This will involve duplication of work as the telephone adviser will have to go through all the information that the duty lawyer already has. It is possible that the telephone adviser may sign off the case as needing face-to-face advice and refer it straight back to the duty lawyer, but this is by no means certain. The client may well have to post papers to the telephone adviser as well as dealing with legal aid means forms by post. Once those formalities have been disposed of, the telephone adviser will then have to conduct the negotiations, having lost several days. It may or may not prove possible to conclude negotiations before the adjourned hearing but it is less likely than if the duty lawyer took on the case. The client will then return to court, again, hopefully, with an agreed position. However, if the position is not agreed, the case will have to be picked up once again by a duty adviser, who will then have to duplicate the work done by the telephone adviser to find out what happened in the negotiations. I am not a lawyer, but this seems to be more complicated rather than less.

This scenario has been confirmed by the Ministry of Justice as being possible. People with complex issues could find themselves being directed to a face-to-face for one part of their problem, a phone gateway for another one, then passed to the second tier, which could then direct them back for a face-to-face—and if you want benefit advice as well, good luck to you. Can the Minister clarify that the best way for a person to find out if they are exempt from the gateway, if they do not have access to the internet or may struggle to follow the guidelines issued by some of the charities, is to call the gateway, the one thing they know they have problems with?

Yesterday, the Minister and his team provided some reassurance over the provision of British sign language interpreters or potential webcam interviews. Perhaps the use of technology could be explored to allow more face-to-face contact. It certainly would be useful to have clarity about the number of webcam interviews it is possible to conduct and how people will be informed that it is possible, especially if they do not have direct access to the internet. Perhaps the Minister will offer a reassurance that these services will genuinely be open to those who need them.

On the issue of third parties, I was disappointed that this was not covered in the regulations; however, it is in guidance. Proving the identity of a third party and whether they have an unconflicted relationship will not be easy and I have many unresolved difficulties with this area in particular. Face-to-face interviews would be able to pick up on the nuances of the relationship.

If finally, after going through all these hurdles, someone is granted a face-to-face interview, can the Minister offer reassurance that travelling distances will be reasonable; that services such as British sign language interpreters will be provided if necessary; and that the centres will be accessible. We have seen in work capability assessments that a number of disabled people have been sent to interviews where they cannot even get into the building, park within a reasonable distance or even use the toilets. I cannot imagine anything worse than beating down all these barriers to get to a face-to-face interview and then find that it is not accessible.

The monthly data that will be collected are vital to improving the system but a more in-depth analysis is essential. On closer thought, comparing it to the per capita rate of disabled people in the population is a little crude. Currently data on disability, if held, are held only if the client wishes them to be supplied and included on the form. It is very difficult to compare what is happening now to what will happen in the future.

Last year, the Royal Mail launched a report, which I worked on, showing that 4 million disabled people had never used the internet. That is a worrying figure. Even if it is dropping, it highlights a major concern that I have about how people are going to be signposted to some of these areas.

Trust is important in building up the success of this service. At a time when the welfare system is going through big changes, signposting has to be effective. Many people are worried about explaining themselves on the phone. The same group might be reluctant to send off their paperwork, regardless of the free postage. Indeed, what if they do not even have the paperwork that is required? How does the operator know that the person has understood what they are being asked to provide? I have spoken to a number of solicitors working in this area and they all say that many people do not present in a coherent manner. Measuring the length of a phone call is one way to assess the service, but would it not be easier to look someone in the face? While the previous system might not have been perfect, it was straightforward and people knew what they had to do. The rules for the new system are more complex. Operators might ask some or all of the right questions, but so much is being left to the judgment of the individual operator.

I want to talk about exceptional funding only briefly because it is very complicated. Can the Minister provide a reassurance that the operator will inform people of when they have the right to apply for exceptional funding? Equally important, will they be told that they have the right to have their information checked or to be able to speak to a supervisor if they are turned down for access to legal aid in the first phone call? The Ministry of Justice is expecting around 6,000 people to apply for exceptional funding, and I would be interested to know what analysis has been made on the current thinking behind this.

I realise that I have asked a lot of questions but, ultimately, I believe that the current definition is too narrow. I would like to ask the Minister to amend the definition of those exempt to include disabled and vulnerable people. We could be in danger of not providing people with the help they need. These are some of the most vulnerable people in society and they will not even get to the first phone call. Instead of making the system easier, we could just be pushing the costs somewhere else and making the lives of disabled people infinitely harder. I beg to move.

[Baroness Scotland of Asthal]

My Lords, I rise to speak to my Motion, which regrets that,

“the Civil Legal Aid (Procedure) Regulations 2012 … fail to deliver on Her Majesty’s Government’s expressed promise to provide adequate legal aid provision for victims of domestic violence; that significant numbers of victims will not be able to satisfy the evidential criteria, contrary to Her Majesty’s Government’s expressed intent, resulting in a diminution of access to justice; and that, as a result, domestic violence victims will be exposed to an increased risk of injury and death”.

I should say straightaway how much I regret the necessity for this regret Motion. I thank all those who battled so hard on all sides of the House to make the regulations and, indeed, the Act more palatable in relation to the victims of domestic violence, and I would particularly like to remember Lord Newton of Braintree. He was not with us when we debated the amendment on the Tuesday before this matter went back to the Commons. Had he been in the House, the tied vote of 231 to 231 would, I hazard to say, have gone the other way.

I accept entirely that the regulations pursuant to the Act purport to implement that which was decided during the debates, but we need to be very clear indeed that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 is now to be the gateway through which the victims of domestic violence must pass if they wish to receive legal aid, but it is a very narrow and treacherous gate. It will exclude many victims who have hitherto benefited from the legal support and assistance necessary to free themselves and often their children from the worst excesses of domestic violence.