Civil Advice and Assistance Reform Consultation, Access to Justice Division, Scottish Executive, 2 West, St Andrew’s House, Regent Road, Edinburgh, EH1 3DG 26 January 2005
Dear Ms Macniven, Consultation on Reform of Civil Legal Advice and Assistance I am writing with comments from the Disability Rights Commission regarding the consultation on the reform of civil advice and legal assistance. We recognise and support the need for reform of reforming civil legal aid and assistance. Access to civil legal aid and assistance can be vital for disabled people who may need assistance and advice on issues connected with disability discrimination, as well as access to legal advice on a range of issues from mental health to incapacity as well as education. 1. Access to civil advice and assistance (paragraphs 2.1 - 2.4) We understand and appreciate the need to ensure that there is fair reward for legal advice and assistance, and feel that this is important in maintaining the integrity and effectiveness of the system. In this respect we feel that the new proposed simpler system can be helpful, especially in expediting decisions on funding for the provision of assistance and advice. To this end we feel that the proposal to extend the scope of advice and assistance potentially to also cover non-legally qualified advisers could be helpful, as there are a number of matters where nonlegally qualified experts could provide relevant assistance and advice to disabled people. The extension of the templating system for further/ additional advice and assistance may also assist in streamlining the system.
However we have a concern to ensure that the new system will enable providers of advice and assistance to be able to recover costs where the provision of assistance to disabled clients, as a consequence of their impairment, may require specific additional support. Not to make such provision may act otherwise as a disincentive to both provider and client. Such support can involve the provision of communication support for a deaf client, provision of materials in other formats for visually impaired people, or longer consultations due to a person’s mental health condition or learning disability. 2. The list of case categories (paragraph 2.5 and Appendix1) We note the draft list of categories to be eligible for advice and assistance under legal aid. We welcome the inclusion on the list of statutory discrimination, we would however seek reassurance that this will cover the wide range of discrimination that a disabled person can be subject to and may need advice or assistance over. Also we note that the list at present does not cover two key areas that can be important to some disabled people - notably education and human rights. In the case of education, the recent passing of the Additional Support for Learning (Scotland) Act establishes education tribunals in Scotland for the first time. It had been our understanding during the passage of the Act that individuals, including disabled children and their parents requiring advice and assistance, would be eligible for legal aid for advice and assistance. In addition there are a range of circumstances in connection with education and disability where a disabled child or an adult could be subject to potential discrimination such as in accessing auxiliary aids or services in schools and we would seek reassurance that they would be covered for legal advice and assistance. In the case of human rights, there are a number of circumstances in connection with disability discrimination where a disabled person might need to seek advice and assistance over potential redress or a legal matter that is not covered by disability discrimination provisions. Examples that could arise can include end of life decisions such as the use of Do Not Attempt Resuscitation Notices, manual lifting of disabled people and health and safety issues and social welfare decisions such as over family life and entitlements to independent living. There are for instance a range of circumstances where a disabled people may wish to seek legal advice or assistance over the provision of support from local authorities for support over their independent living such as aids and adaptations.
We would strongly urge the Scottish Executive to include the two areas of education and human rights as additional categories on the draft list. 3. Financial assessment and Income thresholds and disability benefits (paragraphs 3.1 & 3.2) We note the proposals to change the means testing basis for advice and assistance beyond the new proposed threshold. We would ask the Executive to ensure that in any means testing process for legal aid that the method of assessing a person’s income is structured in such a way as to exclude any disability benefits. Disability benefits are aimed at offsetting the extra costs related to a person’s impairment rather than as a means of income. Examples are Disability living Allowance, which has been designed to assist people with costs associated with supporting a person’s living and care needs, and the Mobility Component, which aims to assist a person with getting around.
Yours sincerely,
Lynn Welsh Head of Scottish Legal Affairs