Equalities watchdog slams legal aid rules in discrimination cases

Hilsenrath: Real danger of rights being paper only

Difficulties in obtaining legal aid funding in discrimination law cases has created insurmountable barriers, leading to a denial of justice, new research has found.

Among other statistics, it found that not a single workplace discrimination case received funding for representation in the employment tribunal between 2013/14 and 2017/18.

The mistaken tendency for discrimination claims to be viewed as primarily for damages has led to a class of cases important to society not being brought – or argued by self-represented litigants ‘outgunned’ by well-funded opposition – according to the Equalities and Human Rights Commission (EHRC), in a report published yesterday.

In Access to legal aid for discrimination cases, it also argued that the telephone advice gateway that by law precedes any casework assistance unfairly disadvantaged disabled complainants.  Further, hardly any referrals led to representation in court.

Fewer than a quarter of 1% (18 out of 7,768) of callers were referred to face-to-face advice because they were deemed unsuitable for telephone advice in the four years between 2013/14 and 2017/18, the research found.

The government’s original estimate was 10% of cases would be referred.

Equally, the report said that in workplace discrimination cases, which must be brought in the employment tribunal and for which legal aid for representation was not normally available, even exceptional case funding – applied to avoid a breach of human or EU rights – was routinely denied.

The EHRC also pointed out that the 2013 LASPO legal aid reforms had removed the right of privately paying claimants to recover certain legal costs from defendants, yet the qualified one-way cost shifting regime that balanced this out did not cover discrimination claims.

The report concluded: “This uncertainty acts as a barrier to justice, discouraging people from taking their cases to court.”

In one of the most detailed parts of the report, a key finding related to the tiny number of discrimination cases (nine per year) that were funded for representation at court.

The main reason why they were rejected for funding was that they failed to meet the ‘cost benefit test’, effectively limiting funding to cases with high compensation awards.

It explained: “It is very difficult for discrimination claims to pass this test because their complexity means legal costs tend to be high, while damages awards tend to be low.”

This was a mistake, said the EHRC: “Recognising the importance to the individual and to society of challenging discrimination, it should not be assumed that discrimination claims seeking other remedies in addition to damages are ‘primarily for damages’.”

Another reason for the dearth of public funds for disputes in court was the assumption that a discrimination claim brought in the county court would be allocated to the small claims track, for which representation funding was unavailable.

Civil legal aid guidelines should state clearly that discrimination claims, regardless of their value, should be allocated to the fast track or multi track as a result of their complexity, the report urged.

It also pointed to a “growing justice gap” between those eligible for legal aid and those who could afford to pay privately for advice.

Among other remedies, it said the ‘passporting’ process –  where eligibility was tied automatically to certain state benefits – should be reinstated.

In her introduction, EHRC chief executive Rebecca Hilsenrath warned that the report showed a “real danger of our rights being rights on paper only”.

EHRC chair David Isaac said: “Challenging complex issues such as discrimination should never be a David vs Goliath battle, and the system is failing if individuals are left to fight cases themselves at an employment tribunal or in court.”

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