Legal aid for victims of discrimination inquiry – Inclusion London’s evidence

Inclusion London submitted evidence to the Equality and Human Rights Commission’s inquiry into legal aid for victims of discrimination.

The Equality and Human Rights Commission (EHRC) launched an inquiry in 2018 to look at whether legal aid enables people who raise a discrimination complaint in England and Wales, to get justice. Inclusion London submitted evidence to the inquiry at the end of 2018.

Below is the summary of the concerns we raised and our key recommendations.

In June 2019 the EHRC published its report on the inquiry, taking into account all responses and submissions. A link to the final report is given below.

Summary of our concerns

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force in 2013 and made significant changes to the provision of civil legal aid in England and Wales. The Act has had significant negative impact on Disabled people’s access to justice.

In particular we are concerned about the following areas:

  • There is a lack of free advice due to the impact of LASPO reducing fees paid for legal aid work and the scope of legal aid.  This means that many advice agencies, which offered advice on a range of issues including discrimination, have either disappeared or advise on a limited range of issues, and discrimination is often not one of them.
  • Changes to means testing rules effectively exclude many people who in reality cannot afford to pay for legal advice. Moreover we are extremely concerned about the fact that means test does not include extra costs of disability.
  • Lawyers who used to do discrimination cases in the past tell us because of changes to legal aid tests they would find it difficult to obtain legal aid certificate for full court representation for pure private law discrimination claims.
  • The mandatory telephone Gateway obstructs access to justice for potential discrimination claims, because of problems with the Gateway which include:
    • Lack of accessibility for Deaf and Disabled people and the lack of reasonable adjustments.
    • Lack of awareness about the gateway and how and when to contact it
    • Lack of referral for face to face legal advice.
    • The provision of poor legal advice.

Our recommendations

Below are our recommendations to reduce barriers and improve access to justice:

  • There needs to be a significant campaign to raise awareness of the availability of legal aid for discrimination cases.
  • Develop information about discrimination in a range of accessible formats.
  • The reductions to the fees paid for legal aid work and the reduced scope of legal brought in by LASPO are reversed to help ensure free local legal advice is easily available at an early stage.
  • The financial eligibility test for legal aid is changed to include all people who receive means tested benefits; rules about expenditure should be revised to include disability related expenditure.
  • Set up a better system of advice on discrimination cases, where people are helped to identify whether their situation is a legal matter or not, what options they have to challenge, and support people who qualify to access legal advice paid for by legal aid.
  • Introduce a mandatory discussion about a potential referral to local solicitor.  Disabled people should be told that this is an option and asked whether there is any reason why it wo0uld be easier for them to receive advice from a local firm.
  • The legal aid agency should provide clear information on how solicitors can obtain legal aid certificates for court representation.  The cost benefit ration test for discrimination cases should be removed. As a compensation in most cases is relatively small, but the vast majority of discrimination cases achieve wider benefits for society in general.In addition to legal aid related changes we believe changes are needed to address the significant barriers Disabled people who do not qualify for legal aid face when bringing discrimination cases.  We believe urgent changes are made to the Civil Procedure Rules to extend Qualified One-Way Costs Shifting to cases brought pursuant to the Equality Act Goods & Services provisions and public functions provisions.[1] This would address a huge imbalance of powers in proceedings.

Our full submission is available to download here: IL’s submission to the EHRC’s inquiry into legal aid for victims of discrimination

More information about the inquiry is available at: https://www.equalityhumanrights.com/en/inquiries-and-investigations/legal-aid-victims-discrimination-our-inquiry

EHRC inquiry report

The EHRC have now published a report into the inquiry (June 2019) and you can download the report at: https://www.equalityhumanrights.com/en/our-work/news/discrimination-going-unchallenged-legal-aid-system