June Venters QC has written personally to the Lord Chancellor, Shadow Lord Chancellor and Chief Executive of the Legal aid agency to express her immense concern at the change to the means testing of legal aid. She drew to his attention one particular case as an example in respect of which she is instructed and which involves potentially serious risks to an abducted child where urgent High Court Orders were necessary to seek the child’s return to the jurisdiction of England and Wales. Legal aid was not available because the client did not qualify on means even though she was in receipt of a “passported benefit.”
Extracts of her letter are as follows:
I am writing to you to express my immense and continuing concern about the inadequacies of our failing justice system brought about in particular by the implementation of what I can only describe as illogical and unfair legal aid decisions which are seriously impacting, in my view, on the ability to secure necessary access to justice.
I have always accepted that legal aid needed to be controlled and I accept in the past just as with any system there has been abuse but what is now happening is that there is a justice system for the rich and none for the rest of society in many instances and I cannot believe that is the desire or intention of this Government.
I wish to draw to your attention one particular example with which I am involved and in respect of which I have spent many hours of providing pro bono work.
My client failed the means test because of recent changes to legal aid whereby even though previously the receipt of certain state benefits would automatically “passport” someone to legal aid eligibility this is no longer the case and capital has to be taken into consideration.
She explained that in her client’s case the client whilst having a property which had, on paper, an equity of £200,000, in practice she was not in a financially credible position sufficient to enable her to raise monies against the equity in order to fund her legal costs.
The client was in receipt of income-related employment and support allowance [a “passport” benefit] but because of the equity in her property [which was not in dispute within these proceedings and thus could not be disregarded] she was not eligible for legal aid.
She went on to say in her letter:
It has to be questioned why it is that one Government department deems my client’s income sufficiently limited so as to justify supplementing it by way of a state benefit when another Government department responsible for justice deems my client’s financial position sufficiently able to fund her own legal costs. I understand that the theory behind this illogical decision is that my client could raise a loan against her property, however, my client’s debt is such that she is not able to acquire a loan and in any event if she did this would increase her outgoings placing an additional burden on her income necessitating further supplementation by way of state benefits..
I urge some consideration for changing the current policy with regard to legal aid financial “passporting.” It is not serving the public and in my view is placing children at risk such as in this case.
One further issue and which I know has been raised by our professional bodies, the removal of legal aid per se in relation to family cases [save for child abduction] unless it meets the domestic violence criteria which remains increasingly difficult is also having a seriously negative impact on the most vulnerable members in society. Time and time again I am faced with family issues that cannot be resolved without legal advice and representation and at times court intervention. At times members of the public and their children are left in an untenable situation and which then impacts negatively on their health which in turn affects their ability to work and takes up NHS resources. I know that as an individual I am not going to achieve the abandonment of this policy when our professional organisations have failed to do so but I felt I could not ignore this subject whilst writing about my concerns. It is my view that the short term saving the Government will have made with regard to this policy will be the Government’s long term loss overall although without proper financial monitoring and reporting the losses that will be incurred to other Government departments as a result of this policy such as NHS and DWP will simply be absorbed without the cause for such losses being obvious.
I am perfectly aware of the drive to provide pro bono services. I have done this the whole of my career and continue to offer a pro bono clinic one evening every week. However, if I am to remain in business and employ staff and I hope provide training to future lawyers I cannot undertake only Pro Bono work as much as I would like to do so.
I urge this Government to review its policies with regard to legal aid and in particular with regard to the specific issue which I have addressed in this letter concerning the “passporting” of benefits.