Challenge to legal aid system fails

Roger Pearson reports on the challenges facing the Government following the implementation of the legal aid allocation system.

In the wake of the recent High Court rejection of a challenge to the new legal aid contract allocation system, one of the UK's leading specialists in legally-aided mental health and community work has slammed the Government's move.

Under the new system the Government has pledged to prioritise social welfare cases. But Nicola Mackintosh, a partner in Southwark firm Mackintosh Duncan, believes "the system creates social exclusion rather than tackling it".

Mackintosh Duncan, with Law Society support, sought judicial review of the new system.

Mackintosh says that on average she receives five new legal aid inquiries a day, the bulk of which turn into substantive matters. Yet when the new allocations came out her firm was given a total of 35 "new matter starts" – 10 for mental health clients, 23 for community care matters and two for employment cases – for the initial allocation period of 15 months. Effectively the 15 month allocation represents the amount of new business Mackintosh alone might expect to take on in an average fortnight.

The Legal Aid Board changed its stance during the case, making it clear that if firms such as Mackintosh Duncan find they need an increased "new matter start" allocation it would be considered.

In their 157-page judgment Lord Justice Brooke, Lord Justice Roch and Mr Justice Gage said they did not consider the new scheme irrational and they were satisfied that there were no grounds for allowing the challenge.

Lord Justice Brooke said that the court considered that the Legal Aid Board was prepared to move "swiftly and decisively" if it identified a real problem.

But Mackintosh says: "What this system does is remove or ignore quality. It ignores excellence and cost effectiveness in favour of mediocrity. Those hardest hit will be the most vulnerable clients – the homeless, those who do not speak English, the disabled, the mentally ill, all those people are going to be disadvantaged."

Justice Brooke also said: "Governments are entitled to govern. It is clear from the evidence that the present Government, like its predecessor, was deeply concerned about the uncontrolled and uncontrollable haemorrhaging of public money under the old 'green form' Legal Aid arrangements."

His comments have not sat well with Mackintosh or the Law Society. In written evidence to the court, Law Society president, Robert Sayer, said: "The society believes that the current proposals will effectively deny many of the most vulnerable members of the community access to the very help they need."

Mackintosh says: "I was shocked when the Government revealed that it had intentionally removed all entitlement to legal advice and assistance to all poor people in England and Wales, including legal advice, assistance and representation to detained psychiatric patients.

"What that means is that no one has any legal right to publicly-funded legal aid even if they are homeless, even if they are destitute, even if their liberty has been taken away. What we are left with is a discretionary system in the hands of the Legal Aid Board.

"The number of firms offering a legal aid service was reduced by 50 per cent overnight. Only those firms with franchises and then with contracts are able to undertake any legal advice and representation work.

"Situations are bound to arise where there is no alternative but to turn clients away."