To Have and Have Not

I have been a family lawyer for many years.  In that time I have seen immense changes.  The last three or four years, however, have seen more changes than at any time in the last three or four decades.  The changes have not been for the better.


For most of my working life I have seen parties in court cases and tribunals be in a position of “equality of arms”.  No matter how much money the opponent had, there was still a more than reasonable chance of getting a fair hearing.  This was because of the wonderful, but now emaciated, legal aid system.


Legal aid was available for many of the main areas of law.  It enabled a potential litigant to seek advice from a qualified lawyer, and in appropriate cases for the lawyer to represent them in court in legal proceedings.




The cold wind started blowing in the South West many years ago in all areas of criminal law.  Despite the politicians’ mention of bringing in local justice, Magistrates Courts were closed altogether or amalgamated with other courts.  Defendants then had to travel, usually at great expense due to an absence of buses, to courts many miles from home.  And that was just the start.  Now we see most firms of solicitors unable to function at the rate of pay allowed under legal aid.  Now there are very few on the entire peninsula willing or able to represent defendants involved in criminal proceedings.




Legal aid used to be available for many wishing to seek compensation as victims of accidents caused by another.  These could be accidents at work, road traffic accidents, clinical negligence, and so on.  The view of most of my lawyer colleagues who operated in this field was that the cost to the Exchequer was minimal.  On a merits test, only cases which had a reasonable chance of success got legal aid in the first place.  Those legally aided clients who did get compensation got their costs from the other side, usually funded by insurers.




In the field of family law, there is very seldom the question of getting compensation.  The areas of dispute have been more about people’s lives.  Big questions needed legal solutions.  Should my child be taken into care?  Should I be able to see my children or have them live with me?  Can I get my partner out of the house after our relationship has ended, especially as I have nowhere else to go?  Can I get a share of the family assets even though they are in the name of my former partner?




These are the kinds of issues which desperate people need proper answers to, and proper representation.  One would expect a modern and civilised society to be able to help those in most need.  One would have expected a compassionate society to extend the hand of help to people involved in court battles over such desperately important matters.  But the answer is no.




Instead of making legal aid available to these people, the Government through the Ministry of Justice has said no.  The stark warning is that if you have a problem like one of those I have listed earlier, then you must fend for yourself.  In consequence people who have absolutely no idea of how to bring or defend a claim or how to act in court are left to do the best they can.  The result is more often than not a wholly unsatisfactory process breeding massive stress and dissatisfaction.  Litigants in person throw their hands up in horror at the whole process.






It really sticks in lawyers’ craw when they see government orchestrated attacks on their alleged greed.  Legal aid lawyers have, down the years, been those with a huge sense of social justice and commitment.  Many would have had far better incomes in the private non-legal aid sector, but have felt the compelling need to help their fellow man.  Legal aid savings were reckoned to earn the Treasury something in the order of £300 million over three years.  Yet we see taxpayers have just lost £2.3 billion in the cheap Royal Mail sell off.  We also see a Court of Arbitration order the Government to pay £224 million to an American computer company for the fiasco of the e-borders contract.




One wonders what makes these politicians tick.  For example, just look at these statistics collected by the Citizens Advice Bureau:-


  • For every £1 of legal aid expenditure on housing advice, the State potentially saves £2.34
  • For every £1 of legal aid expenditure on benefits advice, the State potentially saves £8.80
  • For every £1 of legal aid spent on debt advice, the State potentially saves £2.98
  • For every £1 of legal aid expenditure on employment advice, the State potentially saves £7.13


The Administration of Justice and Tribunals Council has this to say: “Legal aid in administrative justice represents exceptional value for money.  For example, welfare benefits legal aid cost £28.3 million in 2009/10, representing less than 0.18% of the £16 billion value of unclaimed benefits.  The success rate in this and several other administrative jurisdictions is over 90%”.




I used to regularly help many people with disability benefits problems.  To do so, I was able to help them free of charge to themselves, as they were almost all entitled to legal aid under the “legal help” legislation.  For Disability Living Allowance, the form is approaching 40 pages long.  Many difficult questions are asked.  The worst people to answer are usually the disabled person or their carer.  They live with the condition day in and day out, and forget just how much time and effort is expended on the most mundane parts of daily life.  A trained outsider knows how to frame the answers to the best advantage of the disabled person.




I regularly appeared in tribunals for those appealing the loss or refusal of disability benefits.  For minimal cost to the Government I was able to obtain much needed benefits of well in excess of £1 million for the most deserving of people and their carers.  When the Government pulled the plug on providing such necessary services, these people had to fend for themselves or pay for my services.  When this experience is replicated thousands of times across the country, one can see how much unfairness has been experienced by disabled people unable to access vital funding.




So there it is.  The legal aid system has not been entirely dismantled – but it is severely emasculated.  Trying to tell harassed litigants in person who have nowhere to turn that they are helping to save the Treasury money raises a hollow laugh.  If we live in a society that cares for those most in need, then we must be prepared to fund a justice system that works.  At present the system is deeply flawed and on the brink of collapse.  Whether there is time and willpower to go back to the drawing board and start again is another matter entirely.


John Busby

Busbys Solicitors

Bude & Holsworthy

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