Equality body launches enquiry to determine whether discrimination victims on lower incomes are being denied justice

Following changes to legal aid in 2012, funding for most discrimination cases can only be accessed via the Legal Aid Agency’s telephone gateway (CLA).  Evidence suggests that following the introduction of the gateway, provision of initial legal aid for discrimination cases dropped by nearly 60%, and since 2015 the number of discrimination cases referred to CLA specialist advisers has continued to fall, from 3558 in 2014/15 to 2608 in 2016/17.

Despite the CLA operator service dealing with over 18,000 discrimination cases since 2013, only 16 people were referred for face-to-face advice between 2013/16, and none at all were referred for face-to-face advice in 2016/17.  Research also suggests that this gateway is not always accessible for disabled people and those with limited English language skills.

The EHRC is concerned that lack of awareness and limited accessibility of the gateway may mean that victims of discrimination are not receiving the guidance and support they need to determine if their situation may be unlawful.

There are also concerns about the effectiveness of CLA. In 2013/14 only four cases are recorded as having received an award from a court or tribunal. This low number of successful cases suggests that even those who do receive legal aid may not always get the help and representation they need to get effective access to justice.

David Isaac, Chair of the Equality and Human Rights Commission, said:

“When anyone has been wronged or victimised, it’s crucial that they know about their legal rights and have access to advice and support to get justice. Access to justice shouldn’t only be available to those who can afford it. 

“I am concerned that the number of people now accessing legal aid for discrimination cases has dropped so significantly. I have real concerns that there may be significant barriers which prevent people from securing access to justice. It is essential that the justice system works for everyone and, as the enforcers of the Equality Act, we are ready to use our powers to examine whether things are going wrong and how they can be improved.”

The inquiry aims to determine whether legal aid for discrimination cases provides effective access to justice for those who have suffered discrimination. Specifically it will examine:

• how discrimination cases are funded by legal aid;
• how many individuals receive legal aid funding for discrimination claims, including representation or assistance with bringing a case in a court or tribunal, and how this compares with evidence of the number of individuals who seek advice about discrimination;
• whether there are barriers to effective access to legal aid;
• whether some individuals experience specific difficulties in accessing legal aid for example due to language or literacy difficulties, or because of a protected characteristic;
• the operation of the mandatory telephone gateway as the access point for most discrimination advice; and
• whether legal aid provides effective access to justice for individuals who complain of discrimination, and whether improvements could be made to reduce barriers and improve access to justice.

The EHRC has also published a number of recommendations in response to the Ministry of Justice review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). These call on Government to identify where LASPO has had a disproportionate negative impact on people who share certain protected characteristics, including disabled people, women and people from ethnic minorities, and bring areas of law back into scope where necessary; reform the exceptional case funding scheme to provide an effective safety net where the absence of legal aid would otherwise lead to violations of people’s rights; and reinstate legal aid for initial advice in family and housing cases, so that legal problems can be resolved before they escalate.

Research commissioned by the EHRC found that complex legal procedures, the high cost of legal advice, and limits on the services that cash-strapped third sector organisations can offer all prevented people from resolving their legal claims. Without appropriate support, many were faced with little choice but to risk going into debt to pay legal fees, attempt to solve their legal problems on their own or abandon their claim altogether.

During the inquiry the EHRC will gather information from a wide range of individuals, charities and advice organisations as well as the Legal Aid Agency. It will shortly be issuing a call for evidence asking individuals and organisations who have either pursued, or helped others to pursue justice for discrimination to complete a survey. The inquiry findings will be used to inform the Government’s review of LASPO and it will make proposals for reform where appropriate.

Further information on the inquiry, as well as the new research report and full list of recommendations to the LASPO review are available on the EHRC’s website. Later on this year the EHRC will be releasing its review of equality in Britain, ‘Is Britain Fairer?’ which, amongst other areas, will report on the progress in the justice and security system.

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