Elizabeth OHara
Elizabeth OHara

By Elizabeth OHara

A more credible and efficient legal aid system?

The dust had barely settled on the last round of cuts to legal aid before the Government announced plans to reduce the budget yet further.

The new proposals include limitations on funding for judicial review cases, a key mechanism for challenging the lawfulness of decisions or actions of public bodies.

The majority of judicial review cases Shelter undertakes are where local authorities have refused to help a homeless person.

We often encounter families who have been denied support and had to sleep in parks, in stations or in hospitals, or who have been travelling on night buses to keep warm.

In these cases it is usually the threat of a judicial review that prompts the local authority to provide temporary accommodation, because they know that judicial review works. Without it, there is every chance that families with children would be sleeping on the streets.

When funds are tight, judicial review is more necessary than ever to scrutinise decisions made in the interest of cutting costs.

Judicial review is also vital for challenging policies that are irrational or unlawful. Current legal challenges to the bedroom tax and benefits cuts that will hit thousands of families who rely on it.

The Government’s new proposals seek to limit funding to only those cases where permission to proceed is granted by a judge. This is meant to ensure that frivolous cases (particularly on immigration) are not funded at public expense.

It’s true that a significant number of cases are either refused permission or withdrawn. But this is not evidence that they should never have been funded in the first place: quite the opposite. Many cases are settled in favour of the applicant, because the state accepts that its decision was wrong.

In our experience of homelessness cases, most judicial reviews are settled before the permission stage. Far from being frivolous, this shows that the claims in question were sound, and that a good resolution of the dispute was achieved with limited or no use of court time. These cases would not get legal aid in the future.

These proposals will also end funding for people facing eviction whose chances of success can not definitely be said to be more than 50%. But predicting results at the start of a case is tricky: many families are still in their homes today because they won cases which were classed as borderline. In future they will be unrepresented and likely to be evicted.

Recently we helped a mother of three young children, who had fled domestic violence. The family had had six homes in as many years, but the children were just beginning to thrive at school when she got into rent arrears. When her landlord sought to evict her, Shelter secured legal aid to defend the possession proceedings even though she only had a borderline chance of success.

This meant we could adjourn the case giving us enough time to negotiate a settlement with the landlord that allowed our client to stay in her home. Without our intervention funded by legal aid, she would have been evicted. Predicting chances of success at the start is not an exact science and borderline cases win as often as they lose.

Much of the press coverage of the proposals has been around removing legal aid to wealthy defendants in criminal proceedings – a handful of cases a year. Removing legal aid from thousands of vulnerable families, and making it harder for the Government’s decisions to be challenged, has gone almost unnoticed. It should not.

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