Discrimination going unchallenged in legal aid system

Published: 19 Jun 2019

Victims of discrimination are being denied their fundamental right to justice and perpetrators are going unchallenged because of the current legal aid system, our Inquiry has warned.

Access to justice means ensuring that free legal representation is available to those who need it and who cannot afford to pay for it themselves.

Our Inquiry into legal aid for victims of discrimination has found that very few people are getting the representation they need in courts or tribunals.

Between 2013/14 and 2017/18 no workplace discrimination cases received legal aid funding for representation in the employment tribunal, and only 1 in 200 cases taken on by discrimination specialists received funding for representation in court.

Our Inquiry identified a number of barriers to representation, including rules which effectively limit funding to cases with high compensation awards.

This requirement misses the point when it comes to discrimination cases, which are often more about challenging unacceptable behaviour and upholding rights than obtaining financial awards.

How should we address the problem?

We have recommended that the government change its guidance to ensure that discrimination claims (which are also seeking other resolutions, such as an injunction or declaration) are not assumed to be simply a claim for damages.

The importance of confronting discrimination for the individual and society is paramount.  

We also found that Exceptional Case Funding (ECF), which should provide a safety net for cases where legal aid is not usually available but where a victim’s fundamental rights are at risk of breach, is not working as it should. Only ten applications were made for ECF for discrimination cases in a five year period and none were granted.

We have called for the government to produce specific guidance on ECF for discrimination cases, making sure that caseworkers charged with granting funding in these cases take into account the potential complexities, the resources of the parties and any other factors that may prevent the victims being able to represent themselves.

Our Chair David Isaac said:

'Legal aid was specifically set up to ensure that those who have been wronged, but cannot afford their own legal representation, can access justice. 

'The threat of legal action is a powerful deterrent for perpetrators and makes it clear that society will not tolerate injustice.

'Challenging complex issues such as discrimination should never be a David vs Goliath battle, and the system is failing if individuals are left to fight cases themselves at an employment tribunal or in court.

'The current system is clearly in need of reform, and whilst we are pleased that the government is currently reviewing the legal aid process, it must implement our recommendations if the legal aid system is to deliver once again.'

The report also highlights that those who are not financially eligible for funding but who cannot afford to pay for their own legal advice are slipping through the cracks – including some of those living below the poverty line.

One service user told us:

'I don't earn enough in order to be able to afford a private solicitor yet legal aid judges me as financially ineligible for legal help.

'This system is very unfair on us low income single individuals.

'Legal aid should change their disposable income rules.'

We are calling on the government to change the financial eligibility threshold to expand the number of people that receive legal aid.

The Inquiry also uncovered evidence that the current system of telephone advice is simply not working for some people.

We are therefore calling for the government to follow through on its commitment to reinstate face-to-face legal advice and ensure there are enough providers, so that it can be a genuine option for anyone who needs it.

The report also examines the effectiveness of the mandatory telephone gateway, including:

  • the need for face-to-face advice
  • the number of discrimination cases taken on and progressed through the gateway and what the outcomes of these cases were
  • how aware the public and service providers are of legal aid provisions

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