Consultation Response: Submission to Bach Commission on Access to Justice

By: Vicky Pearlman
Published: May 2016

Submission to the Bach Commission on Access to Justice

Access to justice is a cornerstone of civil society, and Legal Aid is a key mechanism within it. Legal Aid is the means by which people on a low income – who would otherwise be unable to access justice – can enforce their legal rights.

Shelter has seen a large number of people calling our helpline and visiting our website for advice. 4.5 million people came to us last year - online, in person and over the phone. In 2014/15, we saw an increase of 12% increase in demand to our helpline and of 8.6% in the number of people who accessed our 'Get Advice' pages.Legal Aid is crucial to prevent and resolve housing issues, helping people enforce their rights to housing, housing benefits and a decent service from landlords, and providing support to people at times of crisis so that a crisis does not become a disaster.

But changes to Legal Aid have meant that fewer households can get the timely advice they need, until they hit crisis point – by which time it might be too late to avoid homelessness. An increasingly crisis-driven approach to housing advice in general, and the removal from scope of housing benefit in particular, is leaving people to fall through the net.

If free legal advice and advocacy were available at a much earlier stage, it would be easier to negotiate a mutually-acceptable outcome to housing problems and many of the knock on costs – to the court system, local councils, the NHS and, most importantly, families and individuals themselves, could be avoided.

Shelter's biggest concerns about the current state of access to justice are:

- The increasing complexity of the law, coupled with the complexity of accessing it, makes it burdensome, inefficient and expensive. Worse, it denies access to justice to many.

- There are significant practical barriers to access, including court fees, advice deserts, court closures, Legal Aid contract restrictions and bureaucracy.

- The reduction in scope of Legal Aid funding is driving an increasingly crisis-driven approach to housing advice. The lack of early prevention work adds to the cost and burden of the system, increasing costs to the wider public sector and causing additional, unnecessary distress to vulnerable households.

Prevention is better than cure. It is more effective and less expensive. It is better to keep a person or a family in their home, rather than help them to find a new one. This is why free legal advice on issues including debt, housing and other benefits and disrepair is so important to the households who seek help from Shelter.

Housing law is enormously complex, and successive governments have continued to add to or amend existing legislation until it becomes virtually unreadable. The law itself needs to be simplified. This is a central aspect of access to justice, especially when many people are left to discover the law for themselves and have to decide how it applies to their case, even before they embark on the process of finding an effective remedy or working out how to defend a claim for arrears or for possession. 

In the meantime, however, we have to ensure people can find their way round this complex system. Shelter's recommendations for practical solutions include:

- Make the means test for civil Legal Aid easier to apply

- Abolish the capital limit for Legal Aid

- Restore housing benefit, and any out of scope housing issues related to in-scope Legal Aid cases.

- Provide access to a housing advice and representation service in every court

- Reduce the bureaucracy imposed by the Legal Aid Agency and ensure the contract requirements are simplified addressing concerns over barriers to access and advice deserts

- Create a single stream of Legal Aid funding, across Legal Help and Legal Representation (certified cases)

- Review the funding provisions for Legal Aid for judicial review applications

- Abolish the risk element introduced by the Legal Aid Remuneration  Regulations 2014

- Consider bringing the Judicial Review Pre Action Protocol in line with the Pre Action Protocol for Housing Disrepair

- Consider introducing a simpler procedure for judicial review in emergency homelessness cases.

- Establish an alternative dispute resolution process (Early Neutral Evaluation) in the courts

- Create a statutory duty on local authorities to provide a Tenancy Relations Service commensurate with the size of the PRS in their area

- Ensure that increasing access to justice by introducing more online processes does not disadvantage people who cannot use them

- Create 'Court Access' hubs to support people to use online courts

- Address the arguments for reductions in civil Legal Aid