This year the litigation team at Osbornes attended the 20th anniversary of the Legal Aid Lawyer of the Year 2022 (“LALY 2022”) awards. The event is annually organised by the Legal Aid Practitioners Group to celebrate the achievements of those lawyers who continue to represent some of the most vulnerable members of our society despite the cuts that the industry has faced particularly in the post Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) era. Our team was proudly cheering for Samuel O’Flaherty who was nominated as the Legal Aid Newcomer of the year. Even though Samuel did not win on this occasion, we at Osbornes are proud of his work including his remarkable victory against Brent Council that allowed over 1200 homeless individuals and families onto the borough’s housing list.
Those Legal Aid lawyers who started their careers prior to the passing of LASPO were able to advise their clients in a more holistic manner on various interlinked legal issues faced by those who often come from underprivileged backgrounds. Now the same lawyers must refuse many enquiries as they do not meet the eligibility criteria that would qualify them for Legal Aid. This is due to changes brought about due to LASPO, which has drastically reduced the areas for which legal aid is available. Many areas have been taken almost entirely out of scope, such as welfare benefits. In areas where funding remains, such as housing, the rules have been made more restrictive. For example, it is not possible to get advice on potential possession or eviction until you have received a notice from your landlord. In disrepair work the threshold introduced under LASPO forces Legal Aid lawyers to assess whether there is a “serious risk of harm” to their client’s health and safety before legal aid becomes available to address poor housing conditions. In practice this means that matters must get worse for clients before their cases can be taken on – rent arrears must lead to a formal notice of eviction, and disrepair has to make them at risk of physical or mental illness.
It is of course not only housing and social care lawyers at Osbornes who face this reality. Other areas of Legal Aid cuts include family law cases, such as divorce and child contact, as well as debt, education, employment, criminal law, clinical negligence, and immigration.
Legal Aid was first introduced after the Second World War in 1949, as a principal pillar of the welfare state. When it was introduced, over 80% of the population was eligible for advice and assistance. Remarkably, now around 72% of Legal Aid clients are from Black, Asian, and minority ethnic backgrounds. Following LASPO, in 2007 only 27% of the British population were eligible for Legal Aid, and the further cuts since have further driven this figure down. The results of the cuts should not surprise anyone. The ideological approach has been to cut access to justice for communities. Information on even in the wide the internet is not available in plain English about areas of law that still fall into the scope of funding, or differences between the Legal Help and the Legal Aid scheme. Not only are many areas of law no longer practiced, but even those areas where practice still exists, clients do not qualify for free advice if their monthly income is even just £1 over the threshold for qualification for funding. The difference between Legal Aid and privately funded case is enormous. The initial cost to cover 4-5 hours of solicitors’ time is likely to cost around £1000 or more. The cost of representation, expert evidence, and potential court fees thereafter can easily result in clients incurring costs in the thousands. For most low to middle income clients this is simply unaffordable, and they are left without access to justice.
What then is the way forward? What are we even celebrating, given there is only so much Legal Aid lawyers can get paid to do? The simple answer is that during LALY 2022 awards we were celebrating commitment. We were celebrating commitment to our clients, values, principles, and access to justice. We were celebrating commitment to Legal Aid work against all the odds. We were celebrating those who have practiced as caseworkers, solicitors, judges, and barristers, but also for the first time those who have been supporting our Legal Aid lawyers over the decades – paralegals, secretaries, and receptionists. Finally, and most importantly, we were celebrating our clients, both those who have now secured their rights thanks to Legal Aid, and those who continue the struggle to do so.
Finally, there is hope. The government has proposed a means test review that may make as many as 5.5 million more people eligible for Legal Aid. Legal Aid is still in scope for areas like unlawful eviction, possession proceedings, housing disrepair, harassment, public law, homelessness, and community care. Even some welfare benefits work remains in scope if the matter is in the Upper Tribunal. It can also be possible to obtain exceptional funding for cases that are out of scope where this can be justified (usually in cases of considerable complexity or involving vulnerable clients). Our committed team values our Legal Aid clients just as much as our privately paying clients.
If you are wondering whether you could get Legal Aid for your housing or social care issue, please get in touch with one of our paralegals or complete an online enquiry form.
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