In April 2013, the Coalition government stripped £350m from the £2.2bn budget, largely by removing entire areas of law from the scheme including most of social welfare law and family except in cases of domestic violence. This month marks the three-year anniversary of the the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) – by far the most severe retreat into the legal aid scheme since it was introduced in 1949.
Three years on from the so-called LASPO cuts, the latest set of figures from Legal Aid Agency (LAA), the part of the Ministry of Justice that provides civil and criminal legal aid and advice, reveal the extent of LASPO’s full impact. The statistics, which are issued quarterly, look at changes within both the ‘legal help’ – i.e., advice and assistance about a legal problem, but not representation before a court or tribunal – and the ‘civil representation’ schemes.
The LAA states that in the last quarter of 2015, coming up to LASPO’s three year anniversary and following a huge initial drop in spending, overall trends have levelled out at ‘around two-thirds of pre-LASPO levels’.
The recent statistics show that the ‘legal help’ scheme workload is around one-third of pre-LASPO levels and, down 11% on the same quarter in 2014, it seems to be still falling. The tbles in the report (see below) show a massive drop in new legal help cases in the first quarter following the implementation of LASPO, numbers dropped from approximately 130,000 in October to December 2012 to 40,000 in April to June 2013. Figures for the last quarter of 2015 also show a downwards trend with new cases falling below 40,000 for the first time. Figures for the representation also show an initial drop from approximately 40,000 in January to March 2013 to around 25,000 in July to September 2013; though numbers then remain fairly stable, ending 2015 slightly higher than 2014.
The number of civil representation certificates granted (see below) dropped dramatically from 40,000 immediately prior to LASPO 40,000 to just 25,000 in July to September 2013. The workload (measured using the total number of hearings and trials) remained relatively consistent at around 11,000 pre-LASPO and approximately 13,000 after.
The report states that ‘civil representation’ scheme workloads ‘now appear stable at around two-thirds of pre-LASPO levels’. However the number of certificates granted in the last quarter of 2015 is up by 12% on 2014 and the most recent quarter saw 90% of applications for Civil Representation accepted as opposed to 83% pre-LASPO. The LAA suggests that this increase may be due to the fact that the number of applications relating to the Special Children Acts (e.g., for a care or supervision order, a child assessment order, or emergency protection) have increased and as these applications are not subject to means or merits tests they are almost invariably granted.
LASPO removed most private family law issues from publicly funded legal advice, including divorce proceedings, child contact arrangements and financial and property disputes when there is no evidence of domestic violence. This change led to a rapid fall in the family ‘legal help’ workload immediately after its implementation. The LAA reports that this decline has ‘stabilised’ though there has been a further drop of 13% since the end of 2014.
The fall in ‘civil representation’ work following LASPO was less marked and is described as having ‘levelled out’; however there has been an increase recently which the LAA puts down to an increase in the issue of public law family certificates relating to proceedings brought against clients by local authorities usually regarding contact between a parent and child.
The LAA reckons that public family law accounts for ‘more than a quarter of all legal aid expenditure’. The LAA admits that this is an area of law over which they have very little or no power to control the volume of cases. There has been an increase in workload across public family law with 16% more ‘civil representation’ certificates for Special Children Act and other public law Children Act cases granted in October to December than in the same quarter of 2014. ‘Legal help’ cases completed are up 2% against the same period and workloads for both schemes are currently at higher levels than pre-LASPO.
The family law statistics show that the take up of mediation assessments (MIAMs) has reached its lowest level pre or post-LASPO. Following LASPO there was a push for family law disputes to be settled through mediation and MIAMs became compulsory for any couples considering court proceedings and mediation remained within the scope of legal aid. The report states that take up of MIAMS is now 50% below pre-LASPO levels; however their graph (see below) shows that in January to March 2014 take up was over 9,000 and had fallen to below 3,000 in the latest quarter which is a much greater decline with levels currently at two-thirds of the post-LASPO peak. This appears to show that MIAMs, offered by the government as a way to plug the gap left in private family law after LASPO, have failed to do their job and it is likely that many people are now facing these proceedings without any legal help or representation.
The LAA notes that although the mental health workload initially increased by 14% between October 2012 and October to December 2014 there has been a drop of 17% in the year since; they put this down to ‘the exit from the market of the largest provider of mental health legal help and controlled legal representation in Summer 2015’. This refers to Blavo & Co’s decision to ‘restructure’ the firm following the LAAs removal of all legal aid contracts from the firm. A representative of the firm is quoted, in an article in the Law Society’s Gazette at the time, as blaming its restructuring and redundancies on cutbacks to legal aid.
The LAA states that although there is a statutory duty to provide legal representation in the majority of cases within this area the ‘number of providers carrying out this work is small’, the number must now surely be smaller. The statistical decline is unlikely to have been caused by fewer clients requiring legal assistance but by fewer practitioners being available to provide it. Clients may now be forced to wait longer for representation and for their cases to be heard, a particularly damaging effect in an area of law where many clients are, as described by the LAA, ‘high priority detained clients’.
Asylum and Immigration
LASPO took almost all immigration work out of scope with only asylum, human trafficking, immigration detention, victims of domestic violence and judicial review remaining. Other Immigration work fell from approximately 5,200 in October to December 2012 to practically zero following the commencement of LASPO. What remains is now almost entirely asylum work, in summer 2015 numbers declined due to a change in procedure which led to long delays in asylum decisions but the October to December 2015 asylum legal help and controlled legal representation (the immigration and asylum law equivalent of civil representation) numbers are higher than pre-LASPO and 11% higher than in the same quarter of 2014. This is both as a result of the pick-up in decision making after summer and an increase in asylum applications overall, at 32,414 in October to December 2015, the highest number of applications since 2004 (33,960) according to government statistics. These asylum figures therefore have kept overall immigration numbers relatively steady. The number of agencies with legal aid contracts enabling them to offer legal assistance in asylum cases is shrinking. These factors coincide to make access to justice more difficult to obtain.
Other non-family areas
Housing law had many areas removed from scope by LASPO with only the most serious cases remaining. The volume of legally-aided housing cases halved between July to September 2012 and July to September 2013 – and there was a decrease of 11% in the most recent quarter as compared to its equivalent in 2014.
Personal Injury, employment and consumer law were removed completely from scope by LASPO.
Most other areas of law including actions against the police, community care and clinical negligence show a small decrease between October to December 2014 and the same period of 2015. However the related areas of debt and welfare benefits, which had many areas taken out of scope by LASPO, show much larger decreases of 61% and 56% respectively.
These declines are problematic with regards to access to justice; clients with debt problems or who are in receipt of welfare benefits are highly unlikely to be able to afford to pay privately for legal assistance. Claimants may turn to third sector agencies for assistance with areas no longer in scope but huge local authority and other funding cuts mean that there are a decreasing number of advisers available to help.
Exceptional case funding
Introduced under LASPO the exceptional case funding scheme is a safety net provision. It allows applications for legal where a refusal to provide funding would breach either the Human Rights Act (or an enforceable EU right relating to the provision of legal services).
The statistics show that, during the recent period, 10% of the 308 applications were made directly by the client, the highest percentage recorded. The LAA suggest that this ‘may be a result of simplifications brought in to the ECF application form, implemented in response to [Gudanaviciene I and II]’. For the LAA to put the increase in client applications down to the simplification process is to be expected but this does not take into account other possible factors.
Both legal practitioners and decision makers are more familiar with the process and so may be making better claims and decisions. It is also possible that practitioners are simply not making claims they may have done previously because of the difficulty of having ECF awarded for their client and the cost to their business if their applications are unsuccessful; the likely result is that only the very strongest cases make it even to the application stage. Despite a marked improvement in the number of applications approved the level is now 57% and as we have seen the number of applications remains low.
Who carries the cost of the legal aid cuts?
The latest figures describe the huge fall in expenditure on civil legal aid in post 2013 as a trend which ‘reflects changes to workloads, fees and the scope of legal aid’. This is a statement of the obvious but the continuing decline in legal aid work is very worrying for Young Legal Aid Lawyers (YLAL).
As young lawyers working towards a career in publicly funded law, news that the number of new cases continues to fall is demoralising. Most worrying of all though is the anecdotal and experiential evidence that, though workflow is down, need is actually increasing. People who would previously have been able to find legal help or representation under the legal aid schemes now turn to over-stretched third sector agencies. Some believe that all work is now out of scope and as a result do not seek assistance. Tribunal charges, court charges and the lack of free representation for clients mean that they attempt to deal with their situations without legal assistance and advice, a route which can very often end in miscarriages of justice and added costs for the justice department down the line. The picture painted by this report of government legislation which has saved millions through reform and cuts will be necessarily incomplete until it considers who is now carrying the costs for those without adequate access to justice. As the well-known analogy goes, legal aid is no longer that fence at the top of the hill but is now an ambulance at the bottom.