In an important decision, the Parliamentary and Health Service Ombudsman (PHSO) has found that the Legal Aid Agency (LAA) has acted unreasonably and in a way that denied Law Centre clients access to justice, in what amounted to maladministration.
In an investigation published today, the Ombudsman details how lengthy LAA delays and conflicting procedures led three vulnerable people living in the UK to be locked out of the justice system and unable to challenge deportation orders against them. After LAA failed to provide legal aid to its clients in a fair and timely way, the Law Centre helping them complained to the Ombudsman.
The case goes back to 2017, when the Law Centre began helping three EU citizens whom the Home Office wanted to deport because they were sleeping rough. The Law Centre argued that the Home Office policy behind these decisions was unlawful because it discriminated against EU citizens, and wanted the decisions reviewed.
To enable the work, the Law Centre applied to the LAA for funding to represent its clients, but was met first with refusal and then with delays that left it and its clients in limbo. As the work was urgent, the Law Centre had to fund the legal challenge to the deportation orders itself, risking losing tens of thousands of Pounds, because there was no guarantee that its challenge would succeed.
As eventually turned out, the Law Centre did secure the legal aid funding and went on to win its challenge to the deportation orders - something it would have run out of time to do if it had waited to have the funding approved in advance.
However, even when LAA granted the funding, it did so only from the date of its decision, rather than backdating the payment to the start of the legal process, even though the three clients were entitled to the full support. This left the Law Centre, a small charity with limited resources, out of pocket and in a weaker position to help others in need.
The Ombudsman’s investigation found that the Agency’s decision-making processes were not always fair on applicants, particularly those in vulnerable circumstances. Once the Centre had flagged this inherent unfairness, the Agency should have addressed it, which it did not. The Ombudsman also found the delays were unreasonable and that these failings placed vulnerable people in an even more precarious situation.
Ombudsman Rob Behrens said:
"Access to justice through legal representation is a fundamental right. Whatever their circumstances, individuals must be able to hold public bodies to account, challenge unfair processes, and defend their human rights through the justice system.
"In this case, service failings essentially resulted in one government body blocking individuals from challenging the decisions of another. This sets a dangerous precedent and shows how vulnerable citizens’ rights can be when faced with ineffective and discriminatory government policies.
"Government departments and agencies must make sure that nobody is unfairly disadvantaged by their processes. This is particularly pertinent now as the pandemic has exacerbated existing societal inequalities, which means more people are at risk of falling foul of government service failings."
The Ombudsman recommended the Agency apologise to the Law Centre, pay the costs the Centre was unable to recoup because of its failings and review its processes to make sure they provide fair outcomes for all.
Julie Bishop, Director of the Law Centres Network, said:
"We welcome the Ombudsman’s finding of maladministration by the Legal Aid Agency (LAA). This is not an isolated incident: many Law Centres and other legal aid providers face delayed decisions by LAA. In some cases, we as a membership body are called upon to help get the Law Centre clarity with mere hours before a case is due to be heard in court.
"In our experience, these problems stem from a working culture within the LAA, and have nothing to do with protecting the public purse. In effect, it restricts access to legal aid, making it harder for lawyers to launch legal action with confidence and for people to resolve their legal problems. The result is that it piles pressure on legal aid providers. All this runs against the very purpose of the Legal Aid Agency. We call on them to fix it now."
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