Text of Sir Henry Brooke address to 2017 HCLC AGM
On Monday the 4th of December 2017, Hackney Community Law Centre was delighted that Sir Henry Brooke addressed our 2017 Annual General Meeting. Sir Henry (pictured above at the meeting with HCLC Chair Ian Rathbone) has very kindly provided the full text of his address, which you can read below. (Original blog post HERE).
SIR HENRY BROOKE ADDRESS TO 2017 ANNUAL GENERAL MEETING OF THE HACKNEY COMMUNITY LAW CENTRE
I paid my first visit to the centre last May, and it is very good to be back in Hackney so soon. Six weeks ago I was at the AGM of the Southwark Law Centre, which I have been attending off and on for years. Southwark has a lot in common with you. It, too, has very generous backing from a supportive local authority. Its mayor also takes a strong personal interest in its work. Just as you are doing with Haringey, it is throwing its weight behind a move to get a new law centre established next door in Lewisham. And it is also doing more and more in collaboration with other advice agencies in the borough. I went to a splendid event last June which it ran with other agencies concerned with asylum-seekers to highlight the contribution which immigrants were making to the life of the Southwark community.
What was different, however, was that the guest speaker at its AGM, Dame Anne Owers, had started her own working life in a law centre. There weren’t any law centres when I started at the Bar. Instead, I used to go from time to time to give pro bono advice at a free legal advice centre in Stepney Green. Those were the days when there were ten solicitors’ firms in Lincoln’s Inn Fields, and only one in the whole of the Borough of Stepney. People who had got hurt by tripping over the corporation’s paving stones used to come to us for advice. The Highways Act 1971 was not yet on the statute book, and I remember having to try to explain to my bemused clients the difference between misfeasance, when the local authority had tried to mend the paving stone and had made a hash of it (for which it could be liable), and non-feasance, when it didn’t even try (so that it could not be held liable for what it hadn’t done).
The others on the panel included a future law lord, a future chairman of the Bar, and a future senior partner of Clifford Chance. We all started our working lives by helping the people who are now the typical clients of law centres, and we learned a very great deal from the experience.
Last year I wrote a brief history of Legal Aid, which the Bach Commission published as Appendix 6 to their report. It describes how in 1945 the original Rushcliffe committee rejected the Haldane Society’s idea of a service by salaried lawyers which would be oriented towards the particular needs of the poor. It also shows how as late as 1969 social welfare law was still being largely ignored by the legal aid authorities. One survey of legal aid certificates in Birmingham that year showed that 86% of them were for family work, 9% for personal injury work and only 5% for everything else. I used to do a lot of this work, for which we would be paid at market rates, less 10% as our contribution to the cost of the scheme.
This was the background when the first law centre was founded in North Kensington in 1970. Its lawyers worked with the Notting Hill Residents’ Association, and its aim, from the very start, was to provide “a first-rate solicitors’ service for the people of the North Kensington community, a service which is easily accessible, not intimidating, to which people could turn as they would to the family doctor – or, as someone who could afford it, to the family solicitor.”
And this tradition has lasted ever since. The other day I went to see Victoria Vasey, the current director of that centre. Although its local authority is far richer than Hackney or Southwark, it gives its law centre less than one third of what you are receiving, and its small basement rooms, a stone’s throw from Grenfell Tower, could not possibly have accommodated more than a tiny fraction of those who came to them for help after the fire. Instead they had to put long tables and chairs out in the wide common walkway down the centre of the basement, and they rose to the occasion in that way. But what is so important this that they had continued to exist, and they were on the spot when they were needed.
The survival of so many law centres is one of the brightest features of the present gloomy scene. In another appendix to our report I describe how the number of law centres grew from two in 1970 to 34 in 1980 and 62 in 1991. I continued like this: “They went down to 54 in 2001, and up again to 63 in 2005. They tended to be established – and to survive - in areas where Labour-controlled local authorities provided generous funding support.
Between 2007 and 2011 their numbers dropped to 54, largely because law centres with inadequate reserves went under when the new civil legal aid contracts provided for payment to be made in arrears. By 2014, following the introduction of LASPO, the numbers fell again, this time to 45, when those who had survived since 2007 by drawing on their reserves were unable to withstand the steep fall in income when so many fields of work – particularly in the social welfare field – were taken out of scope.
Many other law centres have had to reduce the services they can provide, and they can now help fewer people. On average, law centres lost 40% of their income between 2010 and 2015 (including a cut of over 60% in their legal aid revenue as a direct result of LASPO). Only one in three people now obtain the help and assistance they need.”
Since 2013-4, however, the numbers have held more or less steady, despite the additional pressures caused by the local authority spending cuts. And they are now creeping up again with the establishment of the new centres in Greater Manchester and Ipswich, and, hopefully, the new initiatives in Haringey and Lewisham – and elsewhere, perhaps.
This is why I have been so thrilled by what you are all doing in Hackney. Your brilliant new annual report shows just how badly you are needed. I wish there was more I could do to help.
Since my last visit I helped to launch the report of the Bach Commission on access to justice. At the launch event in September I said that if enough people studied the report carefully – and also took the trouble to read a few of the papers we published with it – I thought it could mark a turning-point of the same importance as the original
Legal Aid and Advice Act in 1949.
Since then, I have done a lot of speaking and writing about it. I will be happy to answer questions about it, but for present purposes I will limit myself by saying that we placed a great emphasis on the restoration of early legal help for welfare law, we thought the Legal Aid Agency needed a major spring-cleaning, and we attached very great importance to investment in public legal education. If people don’t know there is a civil justice system, or that the problem that is shattering their lives is a legal one, what hope have they of ensuring that their rights are respected?
We also said that the development of legal help software systems was crucial, but they could be no substitute for face-to face contact for people who can’t cope with the Internet. And we pointed out that in real terms the actual cuts in legal aid expenditure have been twice as large as anything the Ministry of Justice told Parliament about.
Since our report was published, I think there has been a growing awareness that many of the strains on the legal aid budget have been caused by the complexity of so much of our law, and by the fact that many of those who are administering it simply aren’t up to the job. This is why the work of the law centres is so vital.
I read the other day of a whistle-blowing local government housing officer who spoke of what he called an institutional contempt of claimants who sought help in homelessness cases in some of the councils he worked for. He said that this was notable in councils where there weren’t law centres or local welfare rights advisers to hold them to account for decisions which were unfair and plain wrong. He added this – if you will pardon my French:“When I went to work for one council in Greater London, it was getting away with murder. Then some solicitor joined the local Citizens’ Advice… she was s**t hot. The council didn’t know what had hit them. The CAB were getting people coming in with bad homelessness decisions the council had made. The solicitor was going back to the council and saying ‘What the hell are you doing? I’m going to judicial review you and take you to court if you don’t do something.’ The council were just running around like their a*ses were on fire, going ‘we don’t know what to do now.’ The council saw these challenges to its poor housing decisions like a total affront: ‘This is disgusting. Why should people be allowed to be covered by the law? Who does she think she is, upholding the law?’”
We heard more about the cost of administrative waywardness and incompetence at an event in Gray’s Inn I attended in Pro Bono week. We were told that the success rate at the Special Education Needs Tribunal is now running at 89%. David Wolfe QC, who has had 20 years’ experience of this field of work, said that local authority education officers know quite well that they are supposed to specify precisely what help should be given, but many don’t, because their cash-strapped authorities can’t be compelled to provide specific support if they phrase their awards in very general terms. And they take advantage of the fact that most people are frightened of tribunals, as he found when three very worried QCs with children who have special needs came to him for advice.It was on that occasion that Lord Justice Ryder, the Senior President of Tribunals, made a frontal attack on the quality of decision-making within the Department of Work and Pensions. He said that ten years ago 44% of social security appeals succeeded: the equivalent figure today is 61%.
At his suggestion, tribunal judges in Leeds had spent a lunch hour going through the files in appeals which were awaiting a hearing. They were told to limit themselves to social security appeals and identify what he called “no brainers” – cases where there could be no argument in law or on the facts that the appellant wouldn’t be bound to win. The result was spot on. 60% of them.
He said he was now considering what to do next. They could inspect the files on arrival, and simply send the hopeless ones straight back and tell the department to do better next time. He was also considering making costs orders against the department for every hopeless case it lost. Although he usually hears appeals at a higher level, he sat in a first-tier tribunal the other day, when he didn’t see a single assessment that was dated, named or signed. He said that in any other context they would be wholly inadmissible. Some of them had been amended, but the papers did not show who had made the amendment or why. He commented: “So it’s hardly surprising that if that is the quality of the base product that is relied upon, 60% of it is a no brainer.”
On the same occasion I told the story of a blind woman whose relatives had written to me. She had had to seek mandatory reassessment because the PIP assessor hadn’t spotted she was blind, or had even opened the report from a top eye specialist who had confirmed this.
So much for welfare benefits. An immigration judge who sits at Hatton Cross was just as scathing. He said that with so many unrepresented appellants, and the hideous complexity of immigration law, the judges simply cannot manage in many cases without proper assistance, which they rarely received from the Home Office. Some of their presenting officers suffered from what he called “Woolly Hat” syndrome. They were reluctant to see that in real life a person’s situation can change. While they might wear a woolly hat in winter, they might want to wear a Panama hat or no hat at all in the summer, but their Home Office mentality wouldn’t allow for that change. They were also too ready to appeal decisions, even in cases where they had made concessions in the court below. And they became obsessed by minor discrepancies in an appellant’s evidence.
Another thing that is becoming more and more obvious is the extent to which investment in early legal help can be a big money-saver overall. We devoted an appendix to summarising the effect of many of the different studies that have been made of this phenomenon. Very recently the Law Society of Scotland published the findings by independent experts of what they called the Social Return on Investment of legal aid in criminal, housing and family law cases. So far as housing was concerned, their findings mirrored the results of earlier studies. They found that every pound spent on legal aid in a housing case can generate a beneficial return of about £11 for both the recipient and for wider society. One does not need much imagination to understand why – with all the savings involved in avoiding evictions and homelessness, and the savings to the budgets of local authorities and the NHS that this investment brings in its wake.
During the current review of the LASPO Act, these two messages need to be repeated again and again all over the country; early legal help saves money, and administrative incompetence in other departments is costing the Ministry of Justice a fortune.
And there is one more message I would leave with you. I am very sorry I missed your “Law for Good Hackathon” last year. As you say in your report, the coders were busy conceiving solutions to help you deal with routine problems such as having to make too many phone calls to clients to chase them for documents or to remind them of appointments, or not being able to take instructions from clients from non-English speaking communities when no interpreter was available. Very recently AdviceNow has added another brilliant software program to their website, which more and more people should be using.
Last year they launched a tool which helped nearly 8,000 people to prepare personalised letters seeking mandatory reconsideration after they had been refused a Personal Independence Payment. Now they have done the same thing with what they call their Disability Living Allowance Mandatory Reconsideration Letter Tool.
You start by answering a number of questions about the state of your – or your child’s – disability in different contexts. You are then told the number of points your answers should have gained for you, and then the answers you have given are scooped up in a weird and wonderful way within the artificial intelligence of the computer program and emerge again as part of a rationally argued letter seeking reconsideration. The funding for these two helpful tools was not very large, and I am certain that this way a lot of the future lies if only more and more such tools were developed, and if more and more people – and their advisers - knew of their existence.
That is all I have time for today. Please keep up the good work. And I will be very happy to answer any questions you may have.