Legal aid eligibility restrictions now affecting more people than just the most vulnerable, lawyers say
26 July 2017
Lawyers have urged the government to review the financial means tests for legal aid as part of its review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The call comes in the wake of comments by Mr Justice Francis in the Charlie Gard case on Monday expressing concern that Charlie’s parents were not eligible for legal aid and had to rely on lawyers representing them pro bono throughout.
The main organisation representing the junior end of lawyers involved in publicly funded work said the lack of legal aid for the parents of the terminally ill 11-month-old “highlighted the unacceptable effects of the stringent financial means test for civil legal aid” brought in by LASPO.
“The government should also consider whether legal aid for families in cases concerning withdrawal of life-sustaining treatment, such as that of Charlie Gard, should be non-means tested,” Young Legal Aid Lawyers said. “The government must ensure legal aid is not reserved only for the very poorest and most vulnerable in society, but rather is available to anyone who is unable to pay for legal advice and representation.”
YLAL said while it was heartening that experienced lawyers represented Charlie’s parents on a pro bono basis, this should not have been necessary. “The government has a duty to provide access to justice. It is currently not meeting that duty. Mr Justice Francis further pointed to the fact that there are many parents around the country who, with cases which are far less public, have faced similar difficulties to Charlie’s parents but have been forced to represent themselves despite the high stakes involved and their lack of expertise.”
The group pointed to the Rushcliffe Committee report in 1945, which led to the Legal Aid and Advice Act 1949. Its recommendation was that legal aid should not be limited to those classed as poor but should include those of moderate means.
Under current rules, individuals with savings or disposable capital of over £8,000 are financially ineligible for civil legal aid, as are those whose ‘disposable’ income exceeds £733 per month.
“In practice, this excludes the vast majority of the population, including those whose modest incomes make it impossible to pay for legal representation, regardless of the merits or importance of their case,” YLAL said.
In its submission to the Bach Commission on Access to Justice the group said the financial means test for civil legal aid had resulted in “serious denial of access to justice” and undermined one of the founding principles of the legal aid system.
In concluding remarks in the Gard case, Francis J said it could not have been the will of parliament when enacting LASPO to restrict the availability of legal aid in cases such as this, especially as it remained available in care cases.
“When parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation.”
He also invited parties involved in similar disputes to consider mediation, which is now the norm in family proceedings. Even if this did not result in complete resolution of the dispute, he said, it would allow the parties to have a better understanding of each other’s position.
“Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee,” he said.
Mediation has reportedly been suggested by the hospital in the latest development in the case. The parents have said they would like Charlie to be brought home to die but doctors said there were practical issues such that they weren’t confident this would be safe. Charlie’s parents are said to have refused mediation.
This story was first published on Solicitors Journal on 4 May 2017 and is reproduced by kind permission