Proposals for the safety of older people

1.1 Law Centre (NI) is a public interest law non-governmental organisation. We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in

Northern Ireland

. We provide a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: mental health, community care, immigration, social security and employment to almost 500 member agencies. Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.

1.2 Law Centre (NI), a limited company and a charity, operates under a waiver agreement with the Law Society of Northern Ireland, allowing it to employ solicitors. The company directors of the Law Centre are members of its management committee, which is elected by its membership, together with some appointed members.

1.3 Law Centre (NI) made submissions in respect of the Northern Ireland Court Service consultation on Proposals for Revision of Fees for Civil Business in November 2006 and the draft Equality Impact Assessment consultation on Civil Fees Proposals in July 2007. We are pleased to have the opportunity to respond to this further consultation.

2.1 We welcome the introduction of a simpler and fairer financial eligibility test for civil legal aid. We note the intention of the reforms to produce a new test that is as cost-neutral as possible while preserving the current patterns of eligibility and effective targeting of social need.

2.2 We question whether some of the proposals represent a proportionate response to the objective to implement a simpler financial eligibility test which is fairer and tailored to the specific needs and circumstances of the people of Northern Ireland. We have significant concerns regarding some of the proposals within the consultation document particularly on housing equity (see below).

2.3 Given that the focus of our work is on promoting social justice, we strongly support the principle that a financial eligibility test for access to civil legal aid should not prevent access to justice and should make appropriate provision for litigants of modest means. It must be noted that the financial eligibility test for legal aid has not kept pace with inflation and consequently, the proportion of the population eligible for legal aid has considerably reduced over a period of years. Less than one in four of the population qualify for full civil legal aid based on their income and capital. In addition, less than half of the population qualify for any financial support.[1] This compares with the circumstances in 1979 when almost 80 per cent of the population were entitled to full or partial civil legal aid.

2.4 In addition, the requirement for a great number of those eligible for legal aid to make an individual contribution to legal costs can create further hardship for those pursuing a claim. For those just above the legal aid eligibility threshold, it is important that the possibility of proceeding to litigation as necessary should remain open. Further consideration needs to be given to this issue as part of any proposals for reform. For example, a lone parent with one child working 30 hours on the national minimum wage, claiming working and child tax credits and living in public sector housing faces a contribution of around £1200 towards civil legal aid.

2.5 Consideration should be given to the need for flexibility where someone is financially eligible and commences litigation but later, due to a slight improvement in financial circumstances, is deemed ineligible for continuing legal aid assistance and is therefore unable to pursue an appeal. This is particularly relevant to test cases where due to even a slight change in means the point of public importance is not resolved at the level required for a legal precedent to be set that could have a significant positive impact for the general public. Such cases often lead to another litigant coming forward, commencing the case anew and claiming legal aid leading to additional costs to the legal aid fund.

2.6 We also note our disappointment that the issue of harmonisation of means testing between the three Legal Aid schemes is not being considered at this time. We note the findings of the Dignan research that the current means tests for Legal Advice and Assistance and Assistance By Way of Representation did not need to be further simplified. This would, however, have been a prime opportunity to ensure consistency across the three schemes and it is unfortunate that this will not occur.

3.1 We are concerned that the level of housing equity disregard of £200,000 set within the consultation document may severely limit access to civil legal aid and therefore access to justice for particular groups of people. Of most concern is the impact of these proposals on older people who have paid their mortgage and have full equity on their property yet remain cash poor and therefore possibly subject to significant disadvantage under the proposed financial eligibility test.

3.2 The consultation document sets out that housing equity will only be incorporated as a criterion to act as a screening mechanism for those with an aura of wealth. The research report by Dignan and others suggested a figure of 60 per cent above Northern Ireland house prices. In 2005 this figure was £200,000. The consultation document makes no reference to this figure being updated annually to ensure the 60 per cent above average Northern Ireland house prices is bench-marked. Recent figures released by nationwide Building Society in January 2008 show the average house price in Northern Ireland is £224,816.[2] As per the Dignan report the current housing equity disregard would be set at £359,705.

3.3 Moreover, former Housing Executive and Housing Association tenants who have bought their public sector homes with the statutory discount are likely to be affected by an equity screening process of £200,000. It is likely that a significant number of people in this situation remain on modest incomes thereby undermining the effectiveness of the screening rationale for adding housing equity to the legal aid means test.

3.4 The impact of the current proposals will adversely affect older people. Age Concern Northern Ireland have advised that currently 27.9 per cent of Northern Ireland’s population is aged 60 years and over and that between 1996 - 2036 it is estimated that the population in Northern Ireland aged 65 or over will almost double from 13 per cent to 24 per cent[3].

3.5 The current proposals carry a real risk that older people who do have considerable equity in their homes will be unjustly barred from access to civil legal aid. There is considerable evidence of older people being reluctant to borrow and go into debt, (for example, older people’s reluctance to claim social fund loans). As a result many older people will not seek to resolve legal problems no matter what the consequence of inaction.

3.6 The proposals do not address this equality impact issue in sufficient detail. We would recommend that further consideration be given to the level set for housing equity to ensure that older people do not suffer any undue adverse effects. While we welcome the further reference to the possible adverse effect on older people within the draft Equality Impact Assessment (EIA) this is still insufficient to deal with this important issue and there has been insufficient consideration of mitigations of impacts. We believe that promoting access to justice must be the overriding consideration informing the approach to any proposals for reform of financial eligibility for civil legal aid in Northern Ireland.

3.7 We would also welcome further clarification whether the equity limit will take account of the need for a differential application of a housing equity limit for couples and married people, people with dependents and people with disabilities as limited information is available within the consultation document regarding these groups and how the proposed criteria will impact on them. At present we do not believe an adequate EIA had been conducted given the lack of clarity about how and whether the housing equity figure will be up dated on a regular basis.

3.8 In the absence of an absolute guarantee that the equity level set retains its value at 60 per cent above average house prices we would recommend that the housing equity proposals be dropped. We also note that if the equity limit is set at £200,000 without being tied to the 60 per cent above average prices benchmark it will not fulfill its screening out role and significantly reduce the numbers eligible for civil legal aid and no longer meet the aim of the proposals being cost-neutral. Our concern is compounded by the failure to up-rate the £100,000 limit in England and Wales since its introduction. The benchmarking process will ensure greater effectiveness should house prices fall.

4.1 We note that in England and Wales the legal aid financial eligibility limits have been relaxed for victims of domestic violence pursuing certain legal remedies to provide appropriate protection for the victim and any children. The Law Centre has worked with Women’s Aid on their long standing concern about the impact of the legal aid means test leaving women without representation when dealing with the aftermath of violence. This particularly affects women in employment who are often faced with the need to leave work to secure legal aid.

4.2 The loss of access to a partner’s income until family financial proceedings are resolved compounds this problem. As a result we would recommend one of two solutions. First, equivalent arrangements to those that operate in England and Wales should be introduced in Northern Ireland. In the alternative, consideration should be given to funding Women’s Aid or some other appropriate body to employ a solicitor to assist victims of domestic violence. Having examined the current legislation that applies to legal aid we believe there is no requirement to wait for the full implementation of the Access to Justice (NI) Order 2003 to take such an initiative.

5.1 We welcome the decision to undertake a full EIA to follow up on the pre consultation exercise in June and July 2007. An EIA on the matter of civil legal aid is appropriate given the wide-ranging impact of any changes to the current system. It is important, therefore, that any potentially adverse impact is recognised and addressed prior to implementation of any new means testing arrangements.

5.2 We are encouraged by the detail provided within the EIA and the summary provided regarding the issues that arose from the pre consultation exercise and the impact of proposed options on the nine equality categories. It is unfortunate however, that despite concerns being raised in response to the pre consultation about the application of housing equity limits and the potential impact on Section 75 groups little seems to have been done to address the problem. In our view, further work is legally required on the housing equity proposals and its impact before any implementation of the new arrangements.

Q1 Are there any additional data sources which should be used to inform this assessment?

6.1 We note the lack of data on sexual orientation and that there is no data available on how legal needs vary by sexual orientation. It is unfortunate that such a considerable gap exists in the data sources available to formulate the EIA. Consideration may need to be given to how to ensure that the needs of this Section 75 group are taken into consideration. NILSC may need to ensure more proactive consultation within this group to ensure its EIA findings are correct and recommendations appropriate.

6.2 We would recommend that the dates of each data source be included within the EIA as we are aware that not all the data available is necessarily up to date. In particular we would welcome confirmation on whether the NILSC data within the report is current or based on older statistics. We note the use of Census data but are aware that this is now seven years old and unlikely to be fully reflective of a changing Northern Ireland society.

Q2 Do you agree with the assessment of impacts detailed overleaf? Views are particularly welcome on the possible impact(s) of a housing equity disregard of £200,000 on older people and other equality groups.

6.3 On the possible impact of a housing equity disregard of £200,000 on older people we refer to our earlier comments. It is important that further consideration is given to this issue to ensure any potential adverse effects on older people are given sufficient thought.

Q3 What are your views on the monitoring that NILSC should carry out in respect of the financial eligibility criteria?

6.4 As previously stated further information regarding the monitoring of the financial eligibility criteria is welcomed. It is important that NILSC continue to monitor and allow for ongoing review of the criteria to ensure that it remains fair and accessible to all sections of Northern Ireland society. We note that commitment to review the impact on section 75 groups within two years of its implementation. We would recommend that this be shortened to a review within one year.

Q4 What are your views on NILSC’s proposals for mitigating the identified impacts and further promoting equality of opportunity?

6.5 It is regrettable that despite being made aware of a number of concerns as a result of the pre consultation exercise in June/July 2007 NILSC has failed to take these concerns into account within the draft EIA or consultation document. Instead NILSC seems to merely reiterate the concerns raised and state that it is committed to considering these in more detail. It would have been more useful if NILSC had considered the concerns when they were first raised prior to the development of the draft EIA and consultation documents rather than merely acknowledging the areas of concern already raised without providing any evidence that the draft EIA or consultation document has sought to address them.

Q5 What are your views on NILSC’s proposals for publishing the results of the completed EQIA?

6.6 We welcome the commitment to broad consultation through the development of a list of interested parties who will receive the consultation documents and via the advertisement in The Belfast Telegraph.

6.7 As the documents make particular reference to the lack of information available regarding people of different sexual orientation more practical work may need to be undertaken to ensure that the views of this Section 75 group are taken into consideration prior to the finalising of any proposals.

7.1 Law Centre (NI) welcomes the opportunity to respond to this consultation paper. We trust you will find our comments helpful. If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.

Notes

[1] Dignan, Stark and Keegan, Financial Arrangements to Access to Civil Legal Aid, Review of Arrangements (2006)

[2] Nationwide Building Society ‘House Prices’ report at www.nationwide.co.uk/hpi as at 24/01/08

[3] Age Concern website at www.ageconcernni.org