Poor, in debt and no lawyer

Citizens Advice Bureaux (CABs) are overwhelmed, law centres are closing down and legal aid is crumbling. There are huge gaps in access to justice for those whose incomes are already committed to survival. In the early 1990s, at the start of Poll Tax enforcement, magistrates were sending defaulters to prison without any representation; over 5,000 were incarcerated, of which over 1,000 cases were found to be unlawful when reviewed by the High Court.

There was no legal aid. It took the case of Benham v UK [1996] 22 EHRR 293 in the European Court of Human Rights for legal aid to be made available for committals to prison. Up to that point in any proceedings there remains no legal aid for people who find they are unable to pay their council tax or other civil debts.

Needle and haystack

Those subject to repossession in the county court are entitled to legal aid, but finding a lawyer with an appropriate legal aid contract has needle and haystack characteristics. For example, there are none in High Wycombe and, in the whole of Greater London, only 13 available to people who arrive unrepresented in the county courts.

New regulations are being written following the passage of the Tribunals Courts and Enforcement Act 2007 permitting the forced entry by bailiffs into people's homes and their use of force against the person; these draconian powers have not been permitted in the common law for over 400 years when the Semayne case in 1603 established that an 'Englishman's home is his castle'. Entry had to be peaceful and the debtor unmolested.

The Ministry of Justice says these new powers will only be used as a last resort, but refuses to release details of their understanding of 'last resort', nor of who makes the decision that point has been reached. Thirty pages of guidance have been released, with 15 blacked out because of claimed confidentiality.

An illogical system

At the start of the day in the magistrates' fines enforcement courts the enforcement officer of a utility company presents a sheaf of warrants seeking forced entry into their customers' homes to fit prepayment meters. These householders have been unable to pay their bills; so in the normal illogical way of a free market, their gas becomes more expensive through a meter, which also has to be fed a disproportionate sum to pay off the arrears before they can cook, heat the water or warm the home.

A couple in a council house with two children, struggling to survive on welfare, which is below the governments' poverty threshold, have to feed the meter £3 for current use, and £20 to pay off the arrears every time they need a supply of electricity.

Many impoverished households are driven further into difficulties by government (both national and local) maladministration such as overpayment of tax credits. The government apparently relies on complaints procedures to deal with the problems that arise.

Many impoverished households lack the capacity to complain. They have no landline, pay-as-you-go mobiles run out of money listening to endless Vivaldi and seven million adults have the literacy age of an 11-year-old.

Reluctance to investigate

The ombudsman service is woefully reluctant to take effective action.The Local Government Ombudsman (LGO) will only permit investigation of cases where he considers that there is a prima facie case of both maladministration and significant injustice.

In cases where he admits to finding that there have been both, he invites the council in question to pay an inappropriately small sum in compensation, or else asks them to take practical action to make good the injustice.

If the council complies with this request, the actions previously found to be maladministration with injustice are very unlikely not to be recorded or reported as maladministration or injustice. If the council complies with the Ombudsman's recommendations it is usually recorded euphemistically as a 'local settlement'.

The Financial Ombudsman Service (FOS) likewise takes a leisurely approach to complaints. Provident Plc will lend £400 at £260 a year to a family on welfare, which already has unpayable debts or fines, without any inquiry into means. Any complaint gives Provident 12 weeks to respond, then the FOS does its bit; by the time a decision is reached a substantial amount of the debt and interest have been paid. The same is true of complaints about banks that take all the income of welfare recipients to pay off the charges, on top of charges, for unauthorised overdrafts and fail to respond to urgent requests for mercy. Many have been forced to have bank accounts by the government regulation to make the administration of benefits easier.

Furthermore, the contracting out of government services to private companies makes it difficult to challenge maladministration. Bailiffs directly employed by the local authority to enforce council tax are liable to judicial review; other forms of enforcement contracted out to private companies are not susceptible to that form of review.

In this current difficult financial climate, legal advice charities need to combine to run some test cases to challenge the unreasonableness and injustice of the treatment of poor debt debtors by the judicial system.