Civil Advice and Assistance Reform Consultation, by redheadwaitress


									Civil Advice and Assistance
Reform Consultation,
Access to Justice Division,
Scottish Executive,
2 West,
St Andrew’s House,
Regent Road,

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

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 non-
legally 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
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

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
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

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