Legal Aid for Inquests

Ruth George Excerpts

Wednesday 10th April 2019 Westminster Hall

[Ruth George (High Peak) (Lab)]

I hope that my constituent’s experience can help to illuminate some of the learned arguments that have been made today. Families can provide important inputs to help a coroner reach correct findings and make recommendations to help state bodies to improve their systems and avoid more tragic cases.

My constituent, Angela, is a senior manager in social care. She has huge experience of local care systems. Her son, Adrian, suffered from mental health issues all his adult life. In 2016, he was taken into the care of a mental health hospital but discharged a few weeks later into the care of the community mental health team. He was told by that team that he would be discharged from any support just two weeks after his discharge from the hospital. He was distraught about that. His mother, Angela, was frantically seeking some support for her son on the Friday before he took his life. She had obviously been involved with him throughout his life. Having not found support on the Friday—

[Mrs Anne Main (in the Chair)]

Order. This is not an ongoing case, is it?

[Ruth George]

It is not an ongoing case, Mrs Main. I took your advice.

[Mrs Anne Main (in the Chair)]

We have to be very careful.

[Ruth George]

Absolutely. I have full permission from the constituent to raise the details.

[Mrs Anne Main (in the Chair)]

Thank you.

[Ruth George]

Adrian took some drugs and alcohol on 10 December. He was found by police at 2.30 in the morning and taken to the local A&E. However, the police left, and he was allowed to walk out without being triaged. He later lost consciousness at a friend’s home and passed away.

The inquest with the coroner involved the mental health trust, the hospital trust and the police. It was to take place over an eight-day period—although that was reduced to four days—with barristers representing the three bodies, all with their legal representation funded by the state. When I first met Angela, before the inquest took place, she had been told she would not qualify for legal aid. Although she was desperate to use her personal and professional experience to make changes to the systems to make sure no other parent had to go through this, she was not sure she would be able to participate fully in the inquest, due to a lack of representation.

The coroner, when considering applying article 2 of the Human Rights Act and using a jury, finally decided that the family should have legal representation, but that was just three days before the inquest. Angela had to go through very detailed financial statements, which was very personally intrusive at the time she was grieving, a year after she had buried her son.

In the end, she was able to participate with the help of her lawyer, and she pays tribute to the lawyer and the barrister. With three organisations all arguing about who was culpable in the circumstances, Angela felt it was very important not only that she was able to be involved and put the facts of the matter straight, but that she could make sure that recommendations were made.

I quote Angela’s comments on the coroner’s report:

“Following Adrian’s death, the burning question we asked ourselves was ‘did we do everything we could to gain support for him? Did we call enough people or shout loud enough to be heard? Was there more we could have done?’. Given the evidence that was heard through Adrian’s inquest, it became clear that as a family we had not failed our son, although this may not be said for some of the professionals involved in his care. We will miss Adrian for the rest of our lives, but hope that changes will be made in the near future to avoid further deaths following the recommendations made by the coroner”.

Families in this situation have just one opportunity to make a difference; that opportunity is at the inquest, where, as some learned Members have said, incredibly difficult facts may be put to them about the death of their loved one. It is not only important that families are able to grieve, have their voices heard and find the truth, but that we as a society and our state agencies can learn from their experience and their support and make recommendations so that no family has to go through this again.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing a debate on this important subject. She spoke passionately about the issue, and I am pleased to have the opportunity to respond.

Last Friday I had the opportunity to visit Westminster coroner’s court to watch an inquest. I saw first hand the professionalism of the coroner and the importance of the inquest process to the bereaved family. Before turning to the individual points that have been made in this debate, I would like to set out some facts in relation to the inquest process, the purpose of an inquest and what we have done to improve that process. I would also like to mention some of the types of cases that inquests deal with, which we have heard about throughout the debate, and to respond to the points that have been made in relation to legal aid. I would like to do that, because it is important to understand the process and how legal aid fits into it.

The starting point is, what is the purpose of an inquest? An inquest is an investigation by a coroner into a death reported to them, and it should answer four questions: what is the identity of the deceased, what is the place of death, what is the time of death, and how did the deceased person come to his or her death? An inquest is a public court hearing to determine those matters.

As my hon. Friend the Member for Banbury (Victoria Prentis) said—as we heard, she has considerable experience of these issues—an inquest is meant to be an inquisitorial process, not an adversarial one. Bereaved families have a special status in any inquest. They do not have to make legal arguments, but they can question witnesses, or ask coroners to question them on their behalf. Inquests are essentially about fact finding.

At the inquest I saw on Friday, a man had either taken his own life or died from natural causes. The family were given every opportunity to question the toxicologist and the doctor present. There was no legal representation on either side, and at the end of the inquest the father of the deceased thanked the coroner for her findings and commented that she could not have done much more.

As with all legal processes, we can make room for improvement. The hon. Member for Hammersmith (Andy Slaughter) suggested that not everyone who appears at an inquest—for example, coroners or legal representatives —always behaves as they should. We have sought to improve the experience of bereaved families who go through this process at such a tragic time, and I wish to highlight some of the changes that we have made or are making.

First, we are in the process of revising the information we give families on coronial processes, to ensure that it is tailored to them. We have re-established a stakeholder forum to engage with other Departments and external stakeholders and to consider what more can be done to ensure that the process is inquisitorial, as it should be. Our reforms allow bereaved families access to most documents seen by the court, and they should expect the coroner’s office to update them at regular intervals and explain each stage of the process. We have also introduced the role of Chief Coroner, who provides leadership, guidance and support to coroners, and we have engaged with him on training for coroners and their officers, which will be delivered in 2019-20.

As we have heard, many types of inquest come before coroners. My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) mentioned stillbirths and the tragedy in his constituency. My hon. Friend the Member for Banbury spoke of her experience in a number of matters, and the hon. Member for Ellesmere Port and Neston (Justin Madders) mentioned some terrible stories. The hon. Member for High Peak (Ruth George) told us of the experience of someone in her constituency. At the inquest last week, a number of cases were opened at the start of the hearing. They involved men who had died—some had taken their own lives, some cases involved drugs, and some were in foreign countries.

None of those cases involved the state. Other cases do involve the state, however, and there is a question over whether the state or its agents were responsible. Those are known as article 2 inquest cases, in reference to the state duty to protect life under article 2 of the European convention on human rights. In those cases an enhanced investigation must decide not only who died, when, where and how, but the broader circumstances of their death.

As hon. Members have suggested, it is likely in such circumstances that the state will be represented. Bereaved families may require representation, and legal aid for that may be available through the exceptional case funding scheme—my hon. Friend the Member for East Worthing and Shoreham mentioned that, as did the hon. Member for Ashfield (Gloria De Piero).

Legal aid for representation through the ECF scheme may be provided where failure to provide representation would amount to, or risk, a breach of article 2, or where there is a wider public interest. In the last two years, 339 applications for publicly funded representation at an inquest were granted, and we have taken a number of measures to ensure that ECF funding is more easily granted.

As the hon. Member for Strangford (Jim Shannon) mentioned, most people who apply for legal aid generally in civil law have to satisfy a means and merits threshold. That is to ensure that public money is well spent. Those who do not merit legal aid should not get it, and those who can afford to pay themselves should do so. We have recently made it easier in two ways to obtain legal aid. First, we have made changes to ensure that there is a presumption that the article 2 threshold is satisfied in cases where there is a death in state custody. Secondly, we have relaxed the means test.

The hon. Member for Leeds North West (Alex Sobel) mentioned the stress of filling in the form at a difficult time. In June, we updated the Lord Chancellor’s guidance so that the Legal Aid Agency can disregard the means test and take into account the stress that the family are going through, which may be exacerbated by the legal aid process. Furthermore, only the individual applicant’s financial means will be tested, and not the means of family members, which will help to ease the burden of the application process.

As the hon. Members for Barnsley East and for Enfield, Southgate (Bambos Charalambous) mentioned, the process is complicated. In February, we identified that we will do a wider review of legal aid. We have committed to simplifying the exceptional case funding forms and guidance to ensure that applying for legal aid is as simple as possible. We will put more money into resourcing that to ensure that funding decisions by the Legal Aid Agency are made in as timely a manner as possible.

[Ruth George]

The Minister has described how there is some process for people to apply for legal aid, but in my constituent’s case the decision was made only three days before the inquest. She had to attend a pre-inquest trial with three barristers, which was incredibly upsetting. She also had to go through her personal finances, including her car finance, to make the application again—on top of what was happening with the inquest and the anniversary of her son’s death. Does the Minister agree that that process would be assisted if there was automatic legal aid for victims’ families?

[Lucy Frazer]

I hope that I have identified a number of measures that we are putting in place that may help the hon. Lady’s constituent. We are making sure that the process is easier. The Legal Aid Agency is looking at linking up with banks and Her Majesty’s Revenue and Customs, not just in relation to inquests but across the board, to automatically see whether people satisfy the means test, without them having to fill in a whole load of forms. I appreciate that, obviously, automatic non-means-tested legal aid would be much easier for everybody, but we are taking steps to make things easier within the ambit of having a means test.

In February, we announced another measure that may help the hon. Lady’s constituent, which is that we have agreed to backdate the legal help waiver. The director of legal aid casework has the discretion to backdate funding for ECF representation to the date that the ECF application was made, but he did not have the discretion to backdate funding for legal help, even when an application for the means-test assessment to be waived had been successful. We have committed to changing that by the end of the year.

The hon. Member for St Helens South and Whiston (Ms Rimmer) mentioned the threshold for legal aid, as did several other hon. Members. Our action plan sets out a broad, across-the-board review of the means-test threshold for legal aid, which will include the means test for inquests. We have committed to looking at the threshold at which people become eligible for legal aid across the board. We have also committed to launching a campaign to raise awareness about the availability of legal support, including legal aid, which will ensure that all bereaved families are aware of their rights to claim ECF.

I was disappointed by the cynical suggestion of several hon. Members, including the hon. Members for Barnsley East and for Hammersmith, that the timescale of the review that we conducted was somehow inappropriate. The hon. Member for Hammersmith identified that that review ran alongside the legal aid review, and the timing was dictated by the legal aid review, which we promised to publish by the end of the year, as he is aware.