Legal Spark criticises the Scottish Government's review of legal aid. The system continues to discriminate against disabled people by denying effective enforcement of human rights
Today, Wednesday 28 February 2018, the Scottish Government published Rethinking Legal Aid, An Independent Strategic Review concerning the provision of Legal Aid services in Scotland.
Legal Spark participated in the review and attended two events to present evidence concerning the need for reform.
Legal Spark conducted research over a two-year period into Scotland’s legal aid system.
We adopted a practical approach, speaking to people directly about their experience of legal aid. Our disabled service users were particularly critical, and we sought to bring this to the attention of the review.
Whilst we welcome reforms to reduce red-tape, we are disappointed that the views of our disabled service users are not reflected on two main points.
- Firstly, the review has strategically ignored that disabled people who work part-time or are in receipt of contribution-based state benefits, can be asked to make a financial contribution to the cost of legal aid.
- Secondly, the review fails to address the inadequacy of the fees paid for legal aid work, and the overall financial resourcing of the system.
Daniel Donaldson, Legal Spark’s Director and Solicitor said:
“The current system is full of red-tape, is unnecessarily complex, and difficult to understand.
“It also places an excessive administrative burden on Solicitors who must ask invasive and very personal questions about their client’s circumstances, and a burdensome “proof of eligibility” requirement on clients.
“The review made it clear that reform was necessary.
“This is very welcome. Our clients and stakeholders will appreciate reforms to make legal aid client focussed, transparent and easy to understand.
“However, we must criticise the review because it did not properly examine the financial issues around client contributions and the resourcing of legal aid as a whole.
“In our evidence, we highlighted that Scottish legal aid must become inclusive of disabled people, disabled people’s families, advocates and supporters. To a certain extent, reducing the red-tape, and making the system easier to understand achieves this desired outcome.
“However, because the system of legal aid assessment is over thirty years old, disabled people on a low income, who park part-time, or receive contribution-based welfare benefits can be asked to make a financial contribution to the cost of legal aid.
“If you are on a low income and in receipt of disability related benefits, you should not have ‘pay the state’ for the privilege to challenge disability discrimination.
“The review failed to address this inadequacy. This is extremely disappointing and frustrating.
“Regarding the financial resources available under legal aid, no attempt has been made to put in place the policies, procedures and resources necessary to ensure that disabled people can enforce their legal rights.
“Overall, the law says that disabled people are protected from discrimination, but what use is this important legal protection when it cannot be enforced?
“Cases involving disability discrimination will fail because the Scottish Legal Aid Board and the Scottish Government will not provide the necessary financial support to allow Solicitors to professionally and competently represent their disabled clients.
“I personally gave evidence which outlined the negative experiences of disabled people directly linked to legal aid fees and the limited financial resources available to disabled people.
“The failure of both the Scottish Legal Aid Board and the Scottish Government to ensure that sufficient funding is available to support disabled people amounts to discrimination.
“In refusing to examine the fees paid for legal aid work, and how the legal aid system is resourced, an important opportunity to take account of the experience of disabled people was missed.
“The review ignored its obligations to disabled people both under the Equality Act 2010 and in the UN Convention of the Rights of Persons with Disabilities.
“The proposals for reform are well intentioned, and the case for reform welcomed.
“But without examining the fees paid for legal aid work and recording the negative experiences of disabled people in attempting to access legal aid, to enforce their legal rights, this review has failed to meet expectations and must be criticised.”