The Labour party will restore legal aid for people appealing against cuts to social security, such as Universal Credit and Personal Independent Payment, the shadow justice secretary, Richard Burgon, is to announce.

The UN special rapporteur on extreme poverty and human rights, Philip Alston, warned last month that cuts to legal aid meant many could no longer afford “to challenge benefit denials or reductions” and were “thus effectively deprived of their human right to a remedy”. 

Back in 2012, I warned that without equal access to justice, citizens simply cease to be free. I strongly welcome this move from the opposition, in particular because I regard access to justice – a basic human right – as absolutely fundamental to a functioning democracy.

Those seeking to challenge decisions by the Department for Work and Pensions (DWP) on social security payments, many of which are incorrect and unfair, will be able to gain access to legal advice to help them pursue appeals, Labour has pledged.

Burgon argues that restoring such financial support would encourage the DWP to get decisions right the first time, thereby reducing costs for the Ministry of Justice (MoJ).

More than two-thirds of appeals against DWP decisions on personal independence payments (PIP) and employment support allowance (ESA) are successful, says the Labour party, adding that those decisions have affected thousands of vulnerable people with illnesses, disabilities or in poor health. 

Since the Coalition government’s Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) came into effect in early 2013, the number of people receiving legal aid to challenge benefit decisions has fallen by 99%. The MoJ spends more than £100m a year on tribunals disputing appeals against benefit decisions.

In addition, the DWP has spent more than £100m on PIP and ESA reviews and appeals since October 2015. That means  the state is spending huge amounts of money to get its’ own way in imposing wrongful decisions, while ensuring those affected cannot easily challenge such unjust decision making processes, which become embedded into an increasingly punitive social security system. It’s difficult to regard this as anything other than a politically coordinated attack on the rights of citizens and the welfare state by the Conservatives.

Since the Laspo act came into effect, many expert social security lawyers have left the field because cases were no longer funded. The MoJ has experienced the deepest cuts of any Whitehall department since 2010; its budget is to shrink further over the next two years.

Burgon said: “People should never be expected to navigate a complex appeals process all by themselves. That can force some to give up their claim altogether after a wrong initial decision. Others endure months of stress trying to prepare their own case. It’s bad now but will be even more difficult after universal credit’s rollout.

“Cuts to early legal advice have been a false economy. Ensuring that people are armed with expert legal advice to take on incorrect benefits decisions will not only help people get the benefits they are entitled to, it should make it less likely that flawed decision takes place in the first place, which would be good for the individuals themselves, and help to tackle the tens of millions of pounds spent on administering appeals against flawed decisions.”

Unless, of course, the intention all along was to ensure that the state’s ‘incorrect’ decisions stand. I rather suspect that is so.

The number of people granted legal aid in welfare cases has plummeted from 91,431 in 2012-13 to 478 in 2017-18, according to Legal Aid Agency figures.

A 2010 Citizens Advice report (pdf) concluded that for every £1 of legal aid expenditure on benefits advice, the state potentially saved £8.80.

Labour estimates that to restore early legal advice to pre-Laspo levels for benefits cases would cost £18m a year and help about 90,000 cases.

The party has already pledged to restore legal aid funding for advice in all housing cases, reversing far-reaching cuts imposed by the government five years ago. It has also promised to re-establish early advice entitlements in the family courts and to review the legal aid means tests.

Burgon says “Cuts have left vulnerable people without the legal support they need when faced with a rogue landlord, a difficult family breakup, or Theresa May’s “hostile environment. 

“But of all the cuts to legal aid, the slashing of advice for ill and disabled people unfairly denied their benefits is one of the cruellest. It creates the shameful situation where people are first denied the financial support to which they are legally entitled and then must struggle through a complex appeal without legal advice, causing further stress and anxiety.”

He says that the Labour-initiated Bach commission on access to justice outlined the direction in which the government needs to go. The Conservatives’ review (due before Christmas) should follow its recommendation to boost funding for early legal advice. Instead, however, it’s likely to be ‘another missed opportunity’. 

As Burgon notes, next year marks the 70th anniversary of the Legal Aid and Advice Act of 1949. Too often, legal aid has been treated as the forgotten pillar of the welfare state. Access to health and education are rightly recognised as the right of every citizen. Access to justice should be too.

 

See also: Labour will restore legal aid so all citizens have access to justice – not just the rich – Richard Burgon

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