WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
September 16 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Concerns over viability of legal aid sector ‘sufficiently serious’ to justify ‘complete overhaul’

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Concerns over viability of legal aid sector ‘sufficiently serious’ to justify ‘complete overhaul’

Justice in a time of austerity: a Justice Gap series

Concerns over the viability of civil legal aid firms and advice agencies were ‘sufficiently serious’ to justify a ‘complete overhaul of the system’, MPs have said. The House of Commons’ justice committee found that a decade after the LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) cuts, civil legal aid was ‘in a difficult place’ and called upon the Lord Chancellor to make direct grants to organisations to fulfil his ‘statutory duty’ to ensure that legal aid is made available.

‘The basis for the radical change required in civil legal aid requires the Government to establish the level of need for civil legal aid services in England and Wales,’ the committee warned. MPs found it was ‘frustrating, and yet unsurprising’ that many of their concerns over the running of the civil legal aid system raised in their 2015 report and by Government’s own post-implementation review in 2019 were again highlighted in this week’s report. MPs also sounded a note of caution about the Government’s own review saying its success will ‘depend on whether it is able to put forward the radical solutions needed to make civil legal aid sustainable again’. This is the second of a two-part article on the report – we reported on the committee’s findings on criminal defence here.

MPs took issue with the ‘model of predominantly funding services by funding individual cases’  through fixed fees which it argued would ‘not enable providers to meet the need or demand for legal aid services’. They quoted the Law Society’s Richard Miller saying that it was ‘a bit strange’ that we have a system where the Legal Aid Agency (LAA) ‘makes decisions on each individual case, leading to extensive bureaucracy, which of course has a cost in itself’.

The report called on legal aid fees to be ‘regularly uprated in line with inflation’, more training opportunities for legal aid lawyers, direct grants for firms and advice agencies and duty schemes to help the vulnerable litigants. MPs supported the development of the legal not for profit sector. ‘It is not a question of simply raising fees, but rather making better use of the resources available,’ they said. ‘We believe that the best way of ensuring value of money is to focus on expanding the capacity of those providers who are able to offer a high-quality service to the public at a relatively low cost when compared to the private sector.’

The report noted a decrease in government expenditure on civil legal aid of more than one third (34%) between 2009-10 and 2019-20 which was largely explained by the huge 85% reduction in the number of legal help and controlled legal representation matters started as a result of LASPO. The MPs highlighted the problems of the exceptional case funding (ECF) regime introduced by the controversial legislation as a way to provide pubic funding for cases that no longer fell within the scheme. The report cited Public Law Project’s report on ECF, which found that more than three quarters of respondents (77%) found the scheme ineffective. MPs called for reform of the scheme and ‘recognised the strength’ of a Law Society recommendation that judges be empowered to make a direction that an individual needs representation and that should be binding on the LAA.

The LAA was accused of having a ‘culture of refusal’ by some witnesses and, according to the Law Society, it was seen as ‘the voice of the Government against the profession’. Jo Underwood, head of litigation at the homeless charity Shelter, explained that in her experience, the LAA’s emphasis is ‘on trying to find why someone would not be eligible even when their case concerns the fact that they are homeless and destitute and do not have a roof over their head’. According to Underwood, the Agency was seen as ‘an opponent in attempting to start a case and that “it is often a huge battle to get the legal aid certificate in time to get to court”’.

Guy Beringer QC, chair of the Legal Education Foundation, said that the current funding system ‘appears to presume that providers cannot be trusted’. ‘Providers are accordingly micro-managed at every stage of the process, resulting in government processing 400,000 applications and one million bills. There is no net value to the public purse in doing this,’ he told MPs.

‘We think that the LAA should be empowered to place more trust in providers and to reduce the amount of unpaid administrative work they are required to do,’ MPs said. ‘Moreover, as part of the process of reforming legal aid, the Government should consider adjusting the Legal Aid Agency’s priorities.’

A key issue for the committee was that the limited scope of legal aid scheme meant that people were not able to access advice early enough to stop problems escalating. Ian Townley, Director of Broudie Jackson Canter reported that clients often sought advice just before their court date and so they attend hearings ‘to tell the judge that they are trying to get legal aid, and the judge will vacate that hearing and re-list another one’.

MPs called on the government to revisit the case for the provision early legal advice to stop problems escalating as well as providing non-means tested advice at court on the day of hearing. ‘The government should take a whole justice system approach to the reform of the civil legal aid framework,’ the committee said. ‘The provision of early advice can help to make the courts work more effectively.’ It also recommended that government should consider whether the model of the possession duty scheme be used in other areas of the civil justice system where there are significant numbers of litigants in person. ‘Non-means tested advice at court on the day of hearing could provide an economical way of offering some legal support to vulnerable,’ it said.