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LegalAction feature/legal aid

June 2015

The Traveller community, which was already a highly

disadvantaged group, is having its rights chiselled away
further by a combination of changes in legislation and funding.
Jo Gregson and Chris Johnson explain what lawyers can
do to try to protect Travellers and their families, and the
thinking behind the No Mad Laws campaign.

Access to justice closed off

he now defunct 201015 coalition

governments reforms of legal aid
and judicial review produced
exceptionally harsh consequences for the
already struggling Traveller communitys
ability to gain access to justice.

Judicial review
During the consultation on proposals to
limit legal aid funding for judicial review,
the vast majority of respondents indicated
that most judicial review applications
were settled successfully prior to the
permission application being determined.
Despite this, the government brought into
force provisions that meant legal aid
providers would not be paid on a judicial
review application unless permission were
granted or, if the matter were settled prior
to permission without costs being
awarded to the claimant, at the discretion
of the Legal Aid Agency (LAA): the Civil
Legal Aid (Remuneration) (Amendment)
(No 3) Regulations 2014 SI No 607.
These changes had a chilling effect as
many legal aid providers simply did not
have the financial resources to take on
work at risk and the potential for the
LAA to exercise its discretion in the
providers favour offered little comfort.
In R (Ben Hoare Bell and others) v The Lord
Chancellor [2015] EWHC 523 (Admin), 3
March 2015, these regulations were held
to be unlawful. Beatson LJ found no
rational link between the provisions and
their stated purpose of incentivising
providers to focus more sharply on the
proper application of the merits test before
applying for funding. The judgment
focused on three scenarios where putting
providers at risk of non-payment did not

promote this objective:

 where the defendant withdraws the
decision without conceding costs;
 where the court orders an oral hearing;
and
 where the court orders a rolled-up
hearing.
However, the previous governments
response was simply to introduce fresh
regulations that are virtually identical.
The Civil Legal Aid (Remuneration)
(Amendment) Regulations 2015 SI No
898 merely pluck out the above three
examples and allow them as exceptions to
the non-payment rule. Despite these
amendments, it is likely that the chilling
effect will continue. It is also highly
questionable whether the amendments
have cured the unlawfulness of the
regulations.
Judicial review provides a means by
which people can hold public authorities
to account for unlawful actions and
decisions. It leads to an improvement in
public authority decision-making
processes. The possibly disastrous effect
on the rule of law of these reforms is clear.
Gypsies and Travellers are some of the
most vulnerable members of our society
and an inability to challenge an unlawful
decision by a public body may put them at
a particular disadvantage.

What to do
Judicial review remains within scope for
legal aid under the Legal Aid, Sentencing
and Punishment of Offenders Act 2012
(LASPO). It is unlikely that the new
Conservative government will respond to
the general concerns raised by Beatson LJ
in Ben Hoare Bell and revoke the Civil Legal

Aid (Remuneration) (Amendment)

Regulations 2015 entirely. In the
meantime, providers face the difficult
choice of turning away meritorious judicial
reviews or taking on the work at risk.

Loss of home
Loss of home remains within scope for
legal aid but trespassers are now
excluded from the definition of loss of
home (see LASPO Sch 1 Pt 1 para 33).
This means Gypsies and Travellers on an
unauthorised encampment facing county
court eviction action by a local or other
public authority where that authority is
acting unlawfully (eg by flouting
government guidance on welfare
assessments) will be unable to get legal
aid to defend that action. The national
shortage of authorised stopping places for
Gypsies and Travellers, estimated to be
almost 6,000 pitches (see the Equality and
Human Rights Commissions 2009 research
report, Assessing local housing authorities
progress in meeting the accommodation needs of
Gypsy and Traveller communities in England,
by Philip Brown and Pat Niner), means
unauthorised encampment is often a
necessity rather than a choice and eviction
can have a severe impact on families, and
children in particular. It is, therefore, vital
that legal representation is available in
order to ensure that such steps are lawful
and that the local authority has complied
with its duties.

What to do
Gypsies and Travellers can still seek to
judicially review the decision to evict, as
Lord Wallace of Tankerness confirmed
during debates on the LASPO bill in the

June 2015

House of Lords (HL Debates col 109, 12

March 2012).

Mobile Homes Act 1983

In 2011, almost seven years after Connors v
UK (application no 66746/01) [2004]
ECHR 223, 27 May 2004, the government
finally amended the law to give proper
security of tenure to those Gypsies and
Travellers living on local authority-run
caravan sites by amending the Mobile
Homes Act (MHA) 1983 so that it covered
those sites in England (a similar
amendment was brought into force in
Wales in 2013). However, that positive
step was undermined when LASPO came
into force. It stipulated (at Sch1 Pt 1 paras
33 and 35) that only possession actions
and serious disrepair cases under MHA
1983 remain within scope for legal aid
(albeit that any decision that would need
to be challenged by way of judicial review,
eg a pitch fee increase, would remain in
scope). It follows that many Gypsies and
Travellers living on local authority sites
will find themselves unable to enforce
the rights they have been given under
the MHA 1983 because most disputes
under that act are now out of scope for
legal aid.
The Low Commission on the Future of
Advice and Legal Support has called for
the return of legal aid in housing law
cases (Low Commission, Tackling the Advice
Deficit A strategy for access to advice and legal
support on social welfare law in England and
Wales, January 2014). Importantly, this
would include cases under the MHA 1983.

What to do
The disputes mentioned above that are
not within scope for legal aid, if not
resolved by negotiation between the park
owner and the occupier, would have to go
to tribunal, where there is no availability
of legal aid in any event (the First-tier
Tribunal (Property Chamber) in England
and the Residential Property Tribunal in
Wales). An attempt could be made to
obtain exceptional case funding (ECF)
though doubtless this would be very
difficult (see below).

Exceptional funding
During the passage of the LASPO bill
through parliament, the government
stated that ECF would act as a vital safety
net and indicated that it was intended to
ensure that the failure to provide advice
and representation to someone does not
result in a breach of article 6 of the
European Convention on Human Rights
(the convention) the right to a fair

LegalAction feature/legal aid

No Mad Laws
The No Mad Laws campaign has been
co-ordinated by Gypsies, Travellers and
their support groups and representatives
to highlight the disastrous effect that the
coalition governments legal aid and
judicial review reforms have had on
members of those communities (reforms
that are unlikely to be reversed by the
new Conservative government). Legal aid
can be especially important to Gypsies
and Travellers given that Romani Gypsies
and Irish Travellers fare the worst of any
ethnic groups in terms of health and
education.
Practical examples of the difficulties
that can be caused can be found in
Effects of the Reforms on the No Mad
Laws website.

hearing and does not breach EU law.

The latest legal aid statistics from the
Ministry of Justice (MoJ) for October to
December 2014 revealed that:
 of 280 ECF applications only 70 have
been granted; and
 of seven ECF applications for housing
law matters only one had been granted.
It is also apparent that there has been a
drop in the number of applications, no
doubt because providers feel that making
an application is a waste of valuable time.
In the circumstances, it is not
surprising that the Court of Appeal found
the Lord Chancellors Exceptional
Funding Guidance (Non-Inquests)
to be unlawful in the recent case of R
(Gudanaviciene and others) v Director of Legal
Aid Casework and another [2014] EWCA Civ
1622, 15 December 2014. However, to
date, the government has failed to amend
the guidance, instead simply reminding
LAA staff that they should also have
regard to relevant case-law such as
Gudanaviciene (Lord Chancellors Notice to
the Director of Legal Aid Case Work, 7
July 2014).
ECF ought to be available to cover
matters involving:
 housing benefit;
 Gypsy and Traveller planning inquiries;
 disrepair issues on Gypsy and Traveller
sites that need to go to tribunal; and
 other claims under the MHA 1983.
It is absolutely clear to us that, in
these cases, article 6 of the convention
is breached because clients are not able
to deal with the relevant hearings and,
thus, there is no equality of arms (see
Airey v Ireland (application no 6289/73)

15

[1979] ECHR 3, 9 October 1979).

What to do
Obviously, legal aid providers can continue
to make ECF applications; whether they
will want to do so is another question
entirely. If ECF is refused, the only
recourse is, perhaps ironically, to seek
funding to pursue a judicial review against
the director of legal aid casework for the
refusal. The authors have experience of
three cases where either a judicial review
had to be lodged or at least threatened
before ECF was granted.

Where do we go from here?

The No Mad Laws campaign (see box)
organised a petition that gained over
1,400 signatories. It called for:
 the legal aid regulations relating to the
payment for work done on judicial review
claims pre-permission to be withdrawn
and legal aid to be reinstated for judicial
review subject to the usual merits criteria
and eligibility provisions;
 trespassers to be brought back within
the definition of loss of home for the
purposes of legal aid;
 as proposed by the Low Commission,
housing law to be brought back within
scope for legal aid; and
 as the Low Commission also
recommended, an urgent radical overhaul
of the provision of ECF.
Before the election, the petition was
handed in to the MoJ and the main
political parties (the Conservatives,
Labour, the Liberal Democrats, the Green
Party, Plaid Cymru and UKIP). The only
response so far has been from the MoJ,
which continues to rely on its stated aim
of cutting the legal aid bill by taking steps
to prioritise limited resources and
refocus legal aid for the most serious
and highest priority cases (see No Mad
Laws news item, Ministry of Justice
responds to No Mad Laws petition, 23
March 2015).
The reduction in scope of legal aid has
led to situations where Gypsies and
Travellers are being evicted unlawfully
and are otherwise being denied access to
justice. We believe that the predictions
that this will lead to increased costs in
the end are already being proved correct,
and urge readers to continue to lobby on
these issues.
Jo Gregson is a trainee solicitor at South
West Law in Bristol. Chris Johnson is a
solicitor and partner at Community Law
Partnership in Birmingham.