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Monday, 28 November 2011

Blunting the cutting edge

My first real job as a lawyer was at the Vauxhall Law Centre in Liverpool. In the early 80s this was in one of the most deprived areas in the UK. We took action against public and private landlords for tenants in atrocious living conditions. We took on cases that private law firms could not or would not.

 I recall one client who said she wanted advice about her husband's 'infidelity'. I listened with interest as she went on to say that the social said he could work and were stopping his infidelity benefit!

It was the Law Centre that I first experienced law at the cutting edge. Cases were taken on to develop the law as it affected some extremely vulnerable clients. These were normally backed by legal aid. One case, about disturbance allowance,  was run to trial in the High Court with a possible value to the client of a couple of hundred pounds but potentially worth millions to displaced tenants generally. This has been one of the unsung benefits of a healthy, publicly funded scheme. Our laws have developed through the use of precedent as such cases are pursued through the higher courts.

This is highly unlikely to happen much in the future.

In so many areas of law cases can only be run on a no win no fee basis as funding has been eroded. The nature of these cutting edge cases is that they are risky. How many law firms can stake their business to change the law. Some do. Most cannot. This is bound to continue as whole areas of law are excluded from legal aid.

The capacity of our laws to develop through creative ltigation has made our system the envy of many.

It does seem a shame that only the safest of cases will be pursued - and many of them will not!

What future for our common law apart from those pursued for and by the wealthy?

Sunday, 27 November 2011

Welfare Benefits Sting

Anyone claiming Disability Living Allowance (DLA) has their medical condition assessed by ATOS – a private company contracted to the DWP. Their refusal rate is alarming. According to a report in the Guardian complaints are made by some disabled claimants that their centres have no or little disabled access!

But a more disturbing matter is the number of wrong decisions.

According to the same Guardian report; as many as 40% of appeals succeed.

Another site has a success rate as high as 70%

What is this costing the taxpayer?

But something far more disturbing is on the horizon. When the infamous Legal Aid Sentencing and Punishment of Offenders Bill (LASPO) becomes law in 2012, it will no longer be possible to get any publicly funded legal advice for welfare benefits. Such advice is entirely removed from the scope of legal aid under the bill. This can be a very complex and technical area of law. The removal of legal aid will cover all benefit related advice and assistance including appeals to the Supreme Court!

So we have a major problem. There is the classic inequality concern – the state has the unlimited resources of its legal departments. A claimant refused DLA by an agency that has a remarkable ability to get it wrong, has no recourse to advice.

Far be it from me to suggest that there is agenda here…

So what do we do LASPO had a severe mauling in the House of Lords last week. So might there be concessions – possibly.

But the only other advice is – don’t get sick or injured for the next few years at least.

Monday, 21 November 2011

Domestic violence - Back to the future

Although I am not a family lawyer the proposed restrictions in cases of domestic violence defy all logic.

Under the proposed new regime a victim of domestic violence will find it virtually impossible to get legal aid to apply to the court for protection. The victim will have to establish that there is a ‘high risk of violence’, before legal aid will be available.

Most commentators and practitioners accept that in reality this means that there will have to have been reports to the police. Statistics show that very few women report violence to the police. Speaking recently in the House of Commons Helen Goodman MP said – ‘most women experience 20 episodes of domestic violence before they reported to the police.’

Firms who specialise in family law and have recently audited files and report last caseload which numbered hundreds will be reduced to single figures once these cuts take effect.

The reason a civil remedy was brought into existence in the 1970s was to address this very problem. These provisions take us back 40 years and will seen many women trapped in abusive relationships.

Any civilised society has to have a rule of law. However if that rule of law is to be of anything but notional value, there must be an equal right of access. To deny that some of the most vulnerable members of society the support of that society to seek protection is a dangerous and retrograde step. I certainly hope that these provisions will be opposed in the Lords