Legal Aid in England and Wales
In England and Wales legal aid previously funded advice – but rarely legal representation – for claimants who wished to appeal decisions to refuse their application for a particular benefit. However such cases were taken ‘out of scope’ by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into effect on 1 April 2013. In its consultation paper published in November 2010, the Government justified this decision as follows:
4.217 We consider that these issues are of lower objective importance (because they are essentially about financial entitlement), than, for example, fundamental issues concerning safety or liberty. While we recognise that the class of individuals bringing these cases is more likely to report being ill or disabled in comparison with the civil legal aid client base as a whole, we have also taken into account the fact that the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance. For appeals to the First-tier Tribunal with respect to welfare benefits, the appellant is required only to provide reasons for disagreeing with the decision in plain language. In many cases, decisions are overturned simply because the tribunal is able to elicit additional information which was not available to the Department for Work and Pensions.
4.218 We note that help and advice are available from a number of other sources, including Job Centre Plus and the Benefits Enquiry Line. In some cases, voluntary sector organisations may provide some help and advice, for example, AgeUK on Disability Living Allowance, Attendance Allowance and other benefits. The Child Poverty Action Group and Disability Alliance may assist in some cases. Pro bono groups such as the Free Representation Unit may also be able to assist in representation at tribunals. Some matters may be suitable for resolution by the Parliamentary Ombudsman. The presence of these alternatives is not determinative, but makes the provision of legal aid in these cases less likely to be justified.
The only potential way to secure funding would be through exceptional funding, the criteria for which mean that an applicant would have to demonstrate that Convention or EU rights were at stake to be successful.
Citizens Advice highlighted the reduction in help provided to claimants in its summary of advice trends for January to March 2014:
Bureaux helped 2 million clients – 5% fewer than in 2012/13. The main reason was the loss of LSC funded specialist contracts. We estimate that this accounts for most of 111,000 drop in clients.
Legal Aid in Scotland
In Scotland there has been no attempt to reduce the scope of legal aid availability in the way which has happened in England and Wales. Instead, the Scottish Government is attempting to reduce civil legal aid spending to “sustainable” levels by more efficient targetting; and reforming the financial eligibility test for criminal legal and requiring those who apply to make a financial contribution if they are assessed as able to afford one.
It is possible to receive legal aid for advice (but not representation) from a solicitor on welfare benefits up to £35. Although it is possible to apply for more money, this will only be granted if a case is so complex that other free-to-use advice agencies are unable to provide adequate help. Such agencies receive some block funding from the Scottish Legal Aid Board to plug any gaps in service provision.
This information was provided to me in a briefing from the House of Commons Library on 19 June 2014.