Big hearted lawyers and the Rule of Law

Usually on this blog I try to only write about something where I (hope I) have something new to add to the debate (ideally at length, and on an obscure topic of fairly ‘niche’ interest). Today I’m not going to say anything new or difficult to grasp, just something that needs saying again and again and again and shouting from the rooftops in the hope that one day somebody in government listens and does something about it: the cuts to legal aid suck, big time, and are hurting real people.

I could start off by talking about the rule of law, how important it is, and how effective access to justice is the bedrock of the rule of law and how the legal aid cuts hammer away at this basic ingredient of a democratic society. But the truth is that unless you’re a legal-eagle the rule of law isn’t the most catchy of catchphrases: it sounds dry, abstract, and – if we are frank – a little party-pooperish and dreary.

No. I think people are much more likely to understand the sheer injustice which is resulting from a lack of (effective) access to justice if we look at a few recent examples. Readers of this blog will no doubt be familiar with Mark Neary, the father of Steven Neary – the heroes of Neary v LB Hillingdon. I hope Mark doesn’t mind me recounting here, in brief, his most recent predicament – he has in any case outlined it on his blog, and you can read it in the most recent instalment of Neary v LB Hillingdon, which I am just coming to. Back in 2009 Mark and Steven moved out the family home which they shared with Mark’s wife and Steven’s mother. This was because Hillingdon Council had stated that it was not in Steven’s best interests to live with his mother, who has a diagnosis of schizophrenia, so Steven and Mark moved into their current flat (see the ‘in a nutshell’ at the bottom of this post by Mark). Mark works, but his working hours are limited because he also cares for Steven, and so he claimed Housing Benefit to help him to pay their rent. Last year Hillingdon Council reviewed their decision to pay Mark housing benefit (HB), and decided that since he no longer lived with his wife, they were separated – which meant that the capital in the property in which his wife lived was factored into his financial means assessment and took Mark over the threshold for eligibility for HB.

Readers of Mark’s blog, like myself, watched in horror as Mark’s loss of entitlement to HB meant that he was threatened with eviction, whilst the council (to outside appearances at least) twiddled their thumbs. Unable to find suitable alternative housing, Mark and Steven were reliant upon the Council’s promise to find them new housing where Steven could be the tenant (quite possibly paying the rent out of the compensation claim for his unlawful detention by Hillingdon in 2010… *raises a cynical eyebrow*). Eventually the Council swooped in, doing a deal with Mark’s landlady without consulting Mark (Data Protection Act anyone?!) which has meant that they can, for the time being, remain in the flat, albeit without the HB to help with the rent, leaving the family extremely broke.

Mark appealed the original decision to terminate his HB. Unfortunately, he was not entitled to legal aid to help him with this and the Tribunal would not allow the person he had brought to assist him to address the Court. Hillingdon had a barrister. A barrister. For a Tribunal – which is, according to the Legal Aid consultations of 2010 ‘relatively informal, simple and designed to be accessed by participants without the need for Legal Representation’ (‘We consider that legal aid for advocacy before most tribunals is not justified given the ease of accessing a tribunal, and the user-friendly nature of the procedure’). So Hillingdon – a public authority which will have in-house solicitors with considerable knowledge of housing law – felt it necessary to spend public funds on a barrister, whilst Mark was left to advocate for himself.

The injustice and inequality of arms is palpable in the judgment; in paragraph 2 the judge thanks Hillingdon’s barrister: ‘I was greatly assisted by counsel for the Respondent who not only brought out further relevant evidence from Mr Neary but who was also able to guide the Tribunal and the Appellant through the relevant legislation.’ How kind of them, lucky they were there eh? The judge concluded that Mark was estranged from his wife, and that accordingly the capital in the property that she lived in could not be disregarded and so he was not entitled to HB. Shortly after this judgment, Mark wrote a blog post explaining why he felt unable to appeal this decision without legal advice and representation. I don’t blame him. I wouldn’t have the first clue where to start appealing a ruling from a HB tribunal, and I consider myself better informed about matters legal than your average citizen. Following Mark’s post, many lawyers contacted Mark offering to act pro bono for him to help to bring an appeal. One of these lawyers was a lovely bloke, who I’m only not naming because I don’t want to embarrass him, who within hours of hearing about Mark’s plight had assembled a full legal team including a solicitor and counsel. Mark’s appeal looks like it is now back on, thanks to the kindness of these big hearted lawyers.

Another big hearted lawyer is barrister Kerry Bretherton, who acted pro bono in the case R (Moosa) v Legal Services Commission. The situation was pretty familiar to those with an interest in the Court of Protection. There was a dispute between the family of a young man and the local authority about whether or not he should remain living in residential care or should return to live in the family home. The mother had very limited income but owned the family home, and the capital in that home meant she was not eligible for legal aid for advice and representation in the Court of Protection. She had another son, who was a student and had very little capital or disposable income who then applied for legal aid to put, essentially, the same arguments as the mother before the Court. The Legal Services Commission refused, in essence saying that it wasn’t going to fund the son to bring the same case as the mother, when the mother could (because she owned her own home) afford it. The case was a judicial review of that decision, and the family were represented by Kerry Bretherton, acting pro bono, who – if the transcript is anything to go by – wants to take the case to the Court of Appeal.*

Proceedings in the Court of Protection can be extremely lengthy, costly, are often concern complex questions of fact and law and can be very emotive. These were precisely the factors in Airey v Ireland which led the European Court of Human Rights to hold that Article 6 required in cases like this that the state ensure that a person has access to a lawyer to represent them. Yet in these cases, the State would counter, it has no need to provide a lawyer because the person ‘can afford it’ – according to their calculations.

So Mark Neary could turf his wife out of her home, and the Moosa family could pay for legal representation to argue that their son should be allowed home to live with them by selling that self-same home. And what of other people caught up in the machinations of the MCA? If you want to challenge an act that is being done in a person’s ‘best interests’ (perhaps some serious medical treatment, a refusal of medical treatment, a move into a care home or restrictions on contact with your family…) and you happen to own a property or have savings – is the only means a person or their family has to effectively challenge these acts to part with their home and/or life savings? It’s worth observing that in many countries with more traditional legal capacity legislation the kinds of decisions which are routinely made on an informal basis under the Mental Capacity Act could not be made without a formal declaration of incapacity, which court process would usually carry with it free legal representation.**

You don’t have to be a legal eagle to feel the injustice here. You don’t even have to be a rabid lefty socialist – after all, aren’t these cases about the poster children of traditional family values, people who want to care for their relatives and – in Mark’s case – go out to work as well? It’s just plain wrong.

That’s what the rule of law is all about. Ensuring that people have an effective means to stand up to injustice (and perceived injustice) and fend of incursions into a person’s privacy, home and family life – even their bodily integrity. It’s about protecting people from arbitrary and unfair decisions by those in power. It’s no wonder that those wielding that power aren’t such fans of the rule of law.

I was telling some non-legal people recently about these cases, about the big hearted lawyers who stepped into the breach, and they were staggered – both by the reality of cuts which they had thought sounded pretty fair and sensible when Ken Clarke presented them, and the sheer generosity of the lawyers who have stepped in to fill the gap. The trouble is, as the recent closing of public-law specialists Tooks Chambers shows, this is not a sustainable solution, and soon enough there won’t be enough lawyers (big hearted or otherwise) practising in these vital areas of public interest law to step up to challenge injustice. I am a big fan of Tooks Chambers and their fantastic work***, but ultimately this story isn’t about lawyers losing jobs, this is about the unheard stories of all those people who needed their help and weren’t able to get it.

*As an aside, the fact matrix in Moosa could in fact have happened long before the reforms in Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) as it was already the case that people with capital in their property would struggle to be eligible for legal aid (the rules are too complex to give a pithy description here, sorry).

**I’m not suggesting their approaches to legal capacity are better – far from it – but they do at least recognise the seriousness of what is at stake, instead of dancing around calling it ‘empowerment’.

***Barristers from Tooks have been involved in (at least) two of the most important cases before the Court of Protection to date: Neary v LB Hillingdon and CC v KK.

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