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 Say Goodbye to Legal Aid

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PostSubject: Say Goodbye to Legal Aid   Sat Nov 27, 2010 3:40 am

Ken Clarke's intention to cut £350 million - in real terms close to £500m - from the legal aid budget of £2.1 billion is part of the coalition government's attack on the welfare state.

The proposals in the Ministry of Justice's green paper on legal aid, published on November 15, will prevent all but the very wealthy from access to justice.

For the near destitute certain types of litigation will still be accessible to them. Everyone else, including some benefit claimants, will be shut out.

The green paper proposes three savage changes to the current system of legal aid - draconian means-testing, whole areas of law withdrawn from the legal aid scheme and cuts in legal aid payments of over 10 per cent, with rates frozen for the next five years.

It's already hard to qualify financially for civil legal aid. People receiving benefits are entitled to free legal aid - paying a contribution if they have capital assets between £3,000 and £8,000. Anyone earning slightly more than benefit levels has to pay 20 per cent of their weekly income as a contribution to the legal costs.

Someone with more than £8,000 in capital does not qualify. Only 29 per cent of the population pass the current means-test and most of those are on benefits.

Clarke proposes that anyone with capital assets of £1,000 or more should have to pay a £100 lump sum contribution. Even the Department for Work and Pensions doesn't require that. You're entitled to benefit if you have capital of less than £3,000.

For someone with savings of £1,000, paying £100 up front is a significant barrier.

Even more worryingly, home equity will be included in the definition of "capital." Given the economy's obsession with house prices, it's not at all unusual for a poor household living off benefits or on very low wages to have equity, particularly an elderly home-owner.

That equity isn't a realisable asset.

Home owners with equity of £8,000 or more will be shut out of the legal aid scheme altogether, however low their actual income.

And, if you do qualify financially, you'll be required to pay a huge 30 per cent of your weekly income towards your legal aid costs.

Even if you are eligible for legal aid, you may find that the representation you need isn't available.

Clarke intends to withdraw legal aid for civil damages claims, disputes between divorcing or separating couples except where domestic violence or child abduction is involved, clinical negligence claims, consumer protection disputes, criminal injuries compensation claims, debt, disputes over education, employment cases - already only getting limited funding - welfare benefits and all immigration matters except for asylum.

Contrary to the general view, the use of lawyers in all these areas often makes the disputes easier to resolve and costs the public purse less. Family lawyers are required to be as conciliatory as possible, as they help separating couples resolve financial and children issues.

Legal aid lawyers claiming compensation - against hospitals for negligent treatment, against the police for assault or false imprisonment, against landlords who have allowed rented homes to fall into disrepair - can only bring the claim if the likelihood of success is 50 per cent or more. In other words, the claim is more likely than not to be settled successfully or to win in court. In either case, the losing side would pay the legally aided litigant's legal costs so there's no cost on the legal aid fund.

Individuals who bring claims against public authorities without the help of a lawyer don't have the same responsibility and so courts are likely to see more and more losing claims brought by litigants in person, using up court resources and increasing the legal costs of the authority defending the claim.

Finally, legal aid lawyers face a 10 per cent cut in their rates of pay - which will be frozen for five years - so that each year's pay is less than the rise in inflation.

Legal aid lawyers are not the "fat cat lawyers" that the government and right-wing media love to attack. A year ago a Law Society survey found that the average salary for a legal aid solicitor was £25,000.

Some lawyers work in mixed firms where private work can subsidise legal aid cases. However since the 1970s there has been a growth in specialist legal aid lawyers working in housing law, consumer protection, debt, education, claims against the police, crime and family cases. Those lawyers' earnings have been cut to the bone and too many found that they could not afford to run their offices - paying salaries, rent and other overheads - on legal aid rates.

Struggling legal aid lawyers have long waiting lists and there are "advice deserts" in several areas of the country where legal aid on housing, social welfare or family advice simply cannot be found.

An immediate cut of 10 per cent, and then a failure to keep up with inflation, will force more and more legal aid lawyers out of business.

What can be done? The Ministry of Justice is inviting responses to the green paper by February 14 2011. The more people who respond to the consultation and express outrage the better, particularly people who are not lawyers.

All of the organisations involved in legal advice and representation have condemned these proposals. The Haldane Society and Young Legal Aid Lawyers are holding a public inquiry into "the case for legal aid" on February 2 2011.

Unite the Union, together with National Citizens Advice Bureaus, the Law Centres Federation and other advice and legal groups have launched Justice4All - a campaign to defend free, independent advice and representation.

But the alliance has to broaden out. Legal aid was introduced as "the fourth pillar of the welfare state" and it needs to be defended by trade unions and anti-cuts campaigns with as much vigour as the NHS, state education or rights to welfare benefits.
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