Extending legal aid to tribunals
Representation is not funded in many tribunal hearings. In this article, Paul Draycott, a barrister at Garden Court North, and Steve Hynes, director of the Law Centres Federation, discuss the limited avenues open for state funding, and the arguments for extending legal aid to tribunals in some cases.
This article first appeared in the June 2007 edition of 'Legal Action' and has been reprinted with kind permission from the authors and the Legal Action Group.
Introduction
Currently, legal aid is available for representation before the Asylum and Immigration Tribunal, Mental Health Review Tribunals, the Lands Tribunal and the Employment Appeal Tribunal (EAT) (see Access to Justice Act (AJA) 1999 Sch 2). The issue of extending legal aid to the Social Security and Child Support Appeals Tribunals and Employment Tribunals (ETs) was raised in the debate on the Tribunals, Courts and Enforcement Bill in March 2007. In response to a question on this issue, Vera Baird QC, MP hinted that if cost savings were made from introducing fixed fees, legal aid might be extended to some tribunals, though she would not elaborate on which tribunal would be the likely recipient.
In The treatment of asylum seekers. Tenth report of session 2006-07 (pdf), the parliamentary Joint Committee on Human Rights stated, regarding the issue of representation in the asylum support appeal process, that: 'The absence of provision for representation before the Asylum Support Adjudicators may lead to a breach of an asylum seeker's right to a fair hearing, particularly where an appellant speaks no English, has recently arrived in the UK, lives far from [the tribunal in] Croydon and/or has physical or mental health needs.'
In the reported case of R(H) 3/05, 9 September 2004, a Tribunal of Social Security Commissioners emphasised the need for exceptional funding to be granted to claimants in complicated proceedings, stating that:
It would have been unfortunate had none of the claimants been represented in these difficult and important cases. As Baroness Hale recently pointed out ... 'The general public cannot be expected to understand these complexities' (Kerr v Department for Social Development [2004] UKHL 23, [2003] 1 WLR 1372, R 1/04)' It would have been difficult if not impossible for the claimants adequately to represent themselves on the issues these cases raise ...Whilst nothing we say can or should be taken as a judgment on the merits of any application for funding, had there been no legal representative to put the claimants' case, the resulting inequality of arms would have been a real concern.
In Tribunal users' experiences, perceptions and expectations: a literature review, the authors conclude on the value of representation before tribunals:
Most of the research concludes that appellants find it difficult to represent themselves. When people have the opportunity to be represented ... they tend to make use of it. Although some appellants choose to represent themselves, they often find that the process is more complex and legalistic than they had imagined and regret their decision afterwards.
The report goes on to say that there is little support for the assertion in the Leggatt Report that through 'a combination of good quality information and advice, effective procedures and well-conducted hearings, and competent and well-trained tribunal members', the majority of applicants can represent themselves at hearings.
Excluded work
Before discussing the arguments under article 6 of the European Convention on Human Rights ('the convention') for extending legal aid to representation at tribunals, it is useful to look at the funding currently available:
- Chapter 3 of the Legal Services Commission's (LSC) The funding code: decision making guidance (The LSC manual, volume 3, Part C) provides guidelines on excluded services, which: ' ... can nevertheless be funded because they are within the Lord Chancellor's directions on scope'.
- Part 2 of the Lord Chancellor's direction, which is included in chapter 3,
concerns 'legal representation' and authorises the LSC:
... to fund legal representation, including excluded services, in any of the following types of case: ...
(b) ... (Proceedings against public authorities concerning serious wrongdoing, abuse of position or power, or significant breach of human rights) ...
(h) Proceedings arising out of allegations of the abuse of a child or vulnerable adult;
(i) Proceedings arising out of allegations of sexual assault; ...
If the merits and means tests are met, applications for funding should be made in tribunal proceedings involving allegations of sexual assault, the abuse of disabled claimants or those employed by a public authority who have been subjected to 'serious wrongdoing', 'abuse of power' or 'significant breach of [their] human rights', such as a sustained campaign of harassment.
Special cases exception
AJA s6(8)(b) allows the Lord Chancellor to authorise the funding of exempt tribunal proceedings ' ...' in specified circumstances or, if the [LSC] request him to do so, in an individual case'.
Chapter 27 of the LSC's funding code guidance concerns 'exceptional funding' and provides that the Lord Chancellor will consider funding where the LSC is satisfied that the client meets the means and merits tests, that evidence has been provided that there are no alternative means of funding available, and that the matter is of:
- significant wider public interest; or
- overwhelming importance to the client; or
- ... [where] it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings (Jarrett complexity).
Note: See R (Jarrett) v Legal Services Commission and others [2001] EWHC Admin 389, 22 May 2001
Applications are made to the LSC's Special Cases Unit, which makes an initial assessment of the case before passing it on to a minister for a final decision. In 2005/06, 350 applications were made for exceptional funding, of which 147 were granted, the bulk of which (59 per cent) were in connection with inquests (see LSC annual report 2005/06, p21).
In so far as the successful applications concerned tribunal proceedings, the majority are likely to have been deemed of 'significant wider public interest'. 'Wider public interest' means the potential of the proceedings to produce real benefits for individuals other than the client. Such benefits will usually fall within the following categories: protection of life or other basic human rights; direct financial benefits, for example, that the proceedings will lead to the government making higher payments to an entire category of claimant; potential financial benefits, in that the proceedings may establish a principle which will assist other claimants making similar claims; and cases concerning intangible benefits such as health, safety and quality of life.
In order to gain exceptional funding, this 'wider public interest' must be 'significant', which will usually be the case if the proceedings raise a specific point of law that the tribunal will have to resolve.
Cases will be deemed to be of 'overwhelming importance' if they are of exceptional importance to the client beyond the monetary value (if any) of the claim, because they concern the life, liberty or physical safety of the client or his/her family, or the roof over their heads.
Successful applications based on the 'Jarrett complexity' (see above) of ET proceedings will usually concern discrimination claims brought by claimants suffering from either a learning disability, a chronic physical condition or a significant clinically recognised mental illness (or, for example, those who have little understanding of English) and whose employer or former employer is legally represented. Any such application will need to be accompanied by expert medical evidence confirming the nature of the claimant's condition.
Factors that will generally assist applications for funding are the number of days the claimant's hearing will last; the number of allegations of discrimination to be decided; the size of the tribunal bundle; the number of the respondent's witnesses to be cross-examined; whether expert evidence will be called and the experts cross-examined; the amount the claim is worth; the level of resources and experience of the respondent's legal team; whether allegations of harassment are involved or other distressing matters of a personal nature; and the complexity of the relevant issues of law.
The funding code guidance states that: ' ... most tribunals have been excluded from legal aid on the grounds that their procedures are intended to be simple enough to allow people to represent themselves'. Unfortunately, this bears no relation to the increasing legal and procedural complexity of ET proceedings, especially following the commencement of the statutory dispute procedures. The LSC should be reminded in the course of an application that there is no duty on an ET, of its own motion, to ensure that every allegation in an originating application is dealt with, unless it has been expressly abandoned (see the Court of Appeal's decision in Mensah v East Hertfordshire NHS Trust (1998) IRLR 531).
Article 6 challenge likely?
Article 6 of the convention safeguards an individual's right to a fair hearing. While article 6 does not in any way confer an absolute right to legal aid, the convention requires: ' ... that a litigant is not denied the opportunity to present his or her case effectively before the court ... and that he or she is able to enjoy equality of arms with the opposing side ... ' (see Steel and Morris v UK App No 68416/01, 15 May 2005; (2005) 41 EHRR 22, among others).
The question of whether the provision of legal aid is necessary under article 6: ' ... must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively' (Steel and Morris see above).
Note: See Airey v Ireland App No 6289/73, 6 February 1981; (1979–1980) 2 EHRR 305 and P, C and S v UK App No 56547/00, 16 October 2002; (2002) 35 EHRR 31.
Although, thus far, attempts to argue article 6 in relation to discrimination proceedings have met with fairly mixed results (for example, see Fry v Ministry of Defence EAT/0146/02, 1 April 2003), if cases are sufficiently complex and meet the European Court of Human Rights' criteria, the legal representation of the client will be a prerequisite for a fair hearing, and the state should provide this through the grant of legal aid.
The Scottish Executive has taken a more general view of its obligations under article 6. Since 1 December 2002, legal aid has been provided for appeals to the Social Security Commissioners which meet the necessary means and merits tests while, in 2000, the Scottish Executive introduced legal aid for representation in complex cases before ETs.
The future
If it is conceded that there will not be a general loosening of the purse strings to fund representation in every tribunal, the above criteria would seem a useful starting point to establish which cases are funded. Such a move would also pre-empt a gradual creep towards funding of such cases through the special cases exception.
Moreover, with the new strands of discrimination law (age, sexuality and religion or belief) on the statute book, as well as the establishment of the Commission for Equality and Human Rights (CEHR), due to swing into operation in October this year, might an extension to tribunal cases involving human rights and equality issues be warranted? From the public policy point of view, this would complement the services that the CEHR can provide and, most importantly, ensure that many of the most disadvantaged claimants get a fair hearing in complex cases.
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