WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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‘Serious decline’ in legal aid provision reveals extent of post-LASPO crisis

‘Serious decline’ in legal aid provision reveals extent of post-LASPO crisis

Justice in a time of austerity: a Justice Gap series

A Freedom of Information response from the Ministry of Justice shows just how illusory civil legal aid provision in England and Wales has become. The response shows how many matter starts (or new legal aid cases) were reported in the contract year from 1 September 2021 to 31 August 2022 in each category and in each geographical procurement area. This post sets out some analysis of that data, drawing out some comparisons and key points for each category of social welfare law, and touches briefly on the trends in the family law data as well.

In all social welfare areas of law, there are large numbers of inactive or dormant contracts, where providers did not open any matter starts in the contract year. Many more reported fewer than ten matter starts in the year, even in categories which are not subject to the mandatory telephone gateway. In some procurement areas, there are no active providers at all for a category of law: for welfare benefits, no matter starts were reported in Wales for the year, while seven housing procurement areas in England had no matter starts reported.

Although the post is number heavy, it shows how the data supports a narrative of serious decline in legal aid provision across England and Wales and of an urgency which is not matched by the timetable of the Review of Civil Legal Aid. There is a section for each area of law. These sections are of uneven length because there is vastly more detail to explore in the 431 procurement areas for housing than in the four for discrimination, and in the almost 15,000 matter starts reported for housing than in the 57 for debt.

All categories lost providers within the year: the smallest losses were in family (8%), Claims Against Public Authorities (11%) and public law (14%), while the largest were in welfare benefits (27%), mental health (21%) and housing and debt (20%).

Area of law Procurement areas Offices (Sept 2021) Matter starts reported 21-22 Inactive providers 21-22 Provider loss (Sept 21 – March 23
Housing 131 431 14,923 129  (30%) 80  (20%)
Debt 131 431 57 401  (93%) 80  (20%)
Immigration and asylum 6 262 32,714 38  (14.5%) 38  (14.5%)
Welfare benefits 8 51 119 36  (71%) 14  (27%)
Community care 12 127 1,843 52  (41%) 21  (17%)
Discrimination 4 22 198 9  (41%) 3  (16%)
Education 4 22 325 6  (27%) 4  (18%)
Mental health 5 182 32,762 5   (3%) 38  (21%)
Claims Against Public Authorities 7 102 1,416 39  (38%) 12  (11%)
Public law 7 131 2,751 39  (29%) 18  (14%)
Family law 106 1,556 23,999 489  (31%) 122  (8%)

 

My current research aims to understand the reasons behind some of these figures, particularly the obstacles to provision contained within the legal aid scheme itself and in the different regions of the UK.


Housing

  • 131 procurement areas
  • 431 offices
  • 14,923 matter starts
  • 129 inactive providers
  • 80 offices closed

In housing there were 431 offices in total during the year, and they reported a combined total of 14,923 matter starts. These consisted of 235 separate organisations and 196 second or further offices. These are divided between 131 procurement areas, most of which cover one or two local authority areas, boroughs or counties. By March 2023, the number of offices had reduced by 20% (80 offices) to 345 as compared with September 2021. The largest number of offices belong to Shelter Cymru with 26, followed by Duncan Lewis with 17, Shelter with 13 and Lawstop with nine.

However, 129 of the offices with contracts in 2021-22 (30% of the total) opened no matter starts at all. Another 211 opened 1-50 matter starts. This means in total, 79% of provider offices opened 50 matter starts or fewer.

There were 56 offices in the 51-100 band, and only 11 who reported more than 200 matter starts. Those eleven, between them, opened 23% of the matter starts in England and Wales in the year.

This does not include the multiple offices of Shelter and Shelter Cymru, who undertook 16% of the matter starts between them. Meanwhile Brighton Housing Trust alone, with three offices in Brighton and East Sussex, undertook 7.5% of all of the matter starts.

In nine procurement areas, there were no legal aid matters reported, including three in the East Midlands and three in the North West. It seems unlikely that there was no eligible need for housing legal aid in the whole year, so this most likely means it was not actually available, despite the existence of an organisation with a contract. In another five procurement areas, only one matter start was reported; four of these were in the North West.

Because of the relatively small procurement areas, we can break the provision down to a more granular geographical analysis. London had both the largest number of offices (190) and the largest number of inactive contracts (71), leaving 119 active providers, who reported a combined total of 5,360 matter starts, which was the largest number for any region. The next largest number of offices is in the North West (50), but with 13 inactive contracts, leaving it only the third highest region by matter starts (1822).

In Wales, almost all the provider offices belong to Shelter Cymru, which undertook 1301 matter starts. Of the four other offices with a contract, only one did any work in the year, reporting 9 matter starts (Virgo in Bridgend, Cardiff and Vale).

The South East, had the second-highest regional provision (1980), due to a large contribution from Brighton Housing Trust’s three offices. It had 28 active providers out of 36 contracted offices. Excluding Brighton and East Sussex, with 1,264 matter starts, only 719 matter starts were reported for the rest of the South East – 199 of which were by a single provider in Oxfordshire. In other words, the apparently robust provision is overwhelmingly down to just two different organisations.

At the opposite end of the scale was the East Midlands, with just seven active providers out of 13 contracted offices, and only 316 matter starts reported. No matter starts were reported for three of the seven procurement areas: the City of Derby, South Derbyshire and North Nottinghamshire. The North East had 17 active providers out of 20 contracted offices, and 395 matter starts reported. No matter starts were reported in one of the 12 procurement areas – Hartlepool – while only one was reported in Doncaster and another three procurement areas had fewer than ten matter starts reported: Redcar and Cleveland (3), Stockton on Tees (5) and Northumberland (8). The South West, with 15 active providers out of 17 contracted offices, had 775 matter starts reported, with the majority in Bristol and Wiltshire, and no matter starts reported in one procurement area – Dorset.

It seems very unlikely that these provision figures met the need for housing legal aid in their respective regions, even given the limited scope.


Debt

  • 131 procurement areas
  • 431 offices
  • 57 matter starts
  • 401 inactive providers
  • 80 offices closed

There is far less to say about legally aided debt advice. All housing providers also hold a debt contract, though very little debt work remains in scope after LASPO. Consequently only 57 matter starts were reported for the whole of England and Wales in 2021-22, and 401 offices reported no matter starts. Of the 30 which undertook some work in the category, 20 reported one case apiece, five reported two each, and the largest only reported eight. Shelter Cymru’s offices reported six between them and Wiltshire Law Centre’s two offices also reported a combined total of six, while 17 were in London.


Immigration and asylum

  • 6 procurement areas
  • 224 offices
  • 32,714 matter starts
  • 38 inactive providers
  • 22 offices closed

For immigration and asylum, the six procurement areas are further broken down into 26 Access Points. Not all parts of England and Wales are covered by an Access Point; initially these were intended to ensure provision in the areas where it was most needed because of dispersal of people claiming asylum. All parts of the UK now accommodate asylum applicants, not only specified dispersal areas, but there are large areas in which there is no asylum legal aid provision at all. This includes the eastern side of the East of England region, the whole of Cumbria and Northumberland, all but the far south of Wales apart from one individual in Wrexham, and all of the South West of England below Bristol, apart from two caseworkers in Plymouth.

Over the course of the year there were 262 offices with contracts; this was 224 by March 2023. These reported a combined total of 32,714 matter starts in the contract year, while 38 did not open any new matters, and another 25 opened ten or fewer. It is perhaps easier to estimate unmet need in asylum than in other categories, and these figures demonstrate a deficit of at least 25,000 between new matters opened and the number of new asylum applications by main applicants (excluding dependants) in England and Wales. The real deficit is larger, because not every matter start will concern a new asylum application or appeal, and a number of providers now routinely decline all appeals work, even for clients they represented in their asylum application. I have looked in more detail at the immigration and asylum figures elsewhere (here).


Welfare benefits

  • 8 procurement areas
  • 51 offices
  • 119 matter starts
  • 36 inactive providers
  • 14 offices closed

In welfare benefits, 51 offices had contracts during the year, opening a combined total of 119 matter starts. The number of offices fell by 14 ( 27%) to 37 by March 2023. This again reflects the very limited scope of legal aid for welfare rights cases after LASPO, with only 15 offices opening a matter start, and 36 not doing so.

The largest reported number was 24 matter starts each, by two different organisations: Kirklees Law Centre and Central England Law Centre. Only three private firms opened any welfare benefits matter starts in the year: Blackbird (9), Osbornes (6) and TNA (4). All of the other offices which opened matter starts were Law Centres or Citizens’ Advice offices – though several of these also opened no matter starts.

There are only eight procurement areas for welfare benefits, meaning they are much larger than those for housing. Even so, there are significant regional disparities: the Midlands had the highest provision with 38 matter starts opened between five offices, followed by the North West with 29 matter starts opened by ten offices, and London with 23 matter starts opened by 22 offices. In Wales, no matter starts were opened at all, by two offices, while only one matter start was opened in the East of England region, and four each were opened in the South East and North East regions, with five offices in each.

Despite the limited scope of welfare benefits legal aid, it seems unlikely that this regional pattern reflects a genuine lack of eligible need in those regions, compared with the Midlands, North West and London. The more likely explanation is that it is difficult for advice organisations and private firms to retain the expertise and capacity to represent clients in welfare benefits cases when scope is so limited.


Community Care

  • 12 procurement areas
  • 127 offices
  • 1,843 matter starts
  • 52 inactive providers
  • 21 offices closed

For community care, there were 127 offices over the course of the contract year, of 84 separate organisations, which opened a combined total of 1,843 matter starts, in twelve procurement areas. Legal aid for community care was not cut by LASPO to the same extent that other areas of social welfare law were, yet 52 offices – 41% of the total – opened no matter starts in the year and 21 offices (17% of the September 2021 provider base) were lost by March 2023. This suggests that cuts to other areas of legal aid have an adverse effect on the provider base even beyond the directly affected areas of law.

The distribution of work is striking. Almost all offices which did report matter starts did fewer than 50. This 1-49 band accounted for 54% (69) of the provider base. There were no providers who opened 50-124 matter starts. Six offices, of four firms, opened 125 or more matter starts and these six offices together did 53% of all of the community care matter starts. This reflects high demand in certain community care matters (especially age disputes for children and young people seeking asylum) where few providers have the required expertise and these offices effectively undertake all of the work for England and Wales, as opposed to the more ‘core’ Care Act type work.

As might be expected, this results in a very uneven regional distribution, where the higher numbers likely reflect the locations of the specialist firms rather than the clients. For example, there were 795 matters reported in London, 466 in the East Midlands and 274 in the West Midlands, compared with ten in the North East, twelve each in Merseyside and the South East, 18 in the South and 20 in the Eastern procurement area.

Again, however, it seems unlikely that the provision figures are meeting the eligible community care need in the less-served procurement areas.


Discrimination

  • 4 procurement areas
  • 22 offices
  • 198 matter starts
  • 9 inactive providers

Discrimination is a small field, with 22 offices of 18 organisations holding contracts over the course of the year, opening a combined total of 198 matter starts. Nine offices did not report any matter starts, while eight opened 1-9. The largest number reported by a single office was 74, and the other four undertook between ten and 28.

There are only four, very large, procurement areas and clearly it was not intended that there would be local, face to face services. Nevertheless there are strong disparities. No matter starts at all were reported for the South West and Wales procurement area. Both of the contracted providers are in Bristol, with none in Wales. In the North of England, only two out of the five offices reported any matter starts: one Law Centre (9) and one private firm (6).

The Midlands and East had four active offices. One solicitors’ firm undertook 47% of the matter starts (28) with three law centres – Central England, Derbyshire and Suffolk – doing the rest of the work. The largest amount of work in discrimination was in London and the South East, and the majority of this was done by two solicitors’ firms, whose combined total of 102 matter starts was more than half of the total for England and Wales, illustrating the very limited access to discrimination legal aid representation in most of the jurisdiction.


Education

  • 4 procurement areas
  • 22 offices
  • 325 matter starts
  • 6 inactive providers
  • 4 offices closed

The provider base in education is similarly small. The procurement areas are the same four as for discrimination. In the contract year, there were 22 offices of 13 organisations and they reported a combined total of 325 matter starts. This reduced to 18 offices by March 2023. The single largest office reported 59 matter starts, while the largest provider in total reported 98 across five offices. Six offices (27%) did not report any matter starts, and another seven reported fewer than ten, with only one office reporting more than 50. The largest are all solicitors’ firms, with only 16 matter starts reported by the not for profits, charities and law centres.

The regional distribution is a little more even than in some areas of law, though still unbalanced: London and the South East is the highest (143), with twice as many matter starts reported as the North (71) or the South West and Wales (68). Midlands and East had the fewest matter starts, with 43.


Mental health

  • 5 procurement areas
  • 182 offices
  • 32,762 matter starts
  • 5 inactive providers
  • 5 offices closed

LASPO had less impact on the scope of mental health legal aid than on many other areas and – perhaps in consequence – there were fewer inactive providers in mental health than in any other category of law, and a larger range than in any other category. There were 182 offices of 137 organisations in the contract year to August 2022 and they reported a combined total of 32,762 matter starts. Only five offices did not open any matter starts, with the largest number reporting 50-199 matter starts, but 30 offices reported numbers between 300 and 1000. Again, the procurement areas are very large, with just five covering the whole of England and Wales, which may well be hiding some areas of shortage, but there are very few inactive providers.

The providers are overwhelmingly solicitors rather than law centres or similar, which might appear to suggest mental health work is more sustainable than other areas but the Law Society Gazette recently reported that 85% of members of the Mental Health Lawyers Association (MHLA) said they favoured strike action over pay. Work is paid for on a fixed fee which the MHLA said can work out at £45 per hour for Tribunal work and £35 per hour for non-Tribunal work. By March 2023, there were 144 offices, which was 38 fewer (21%) than in September 2021, indicating that in mental health law too, providers are voting with their feet.


Claims against public authorities

  • 7 procurement areas
  • 102 offices
  • 1,416 matter starts
  • 39 inactive providers
  • 12 offices closed

There were 102 offices of 70 separate organisations with contracts for claims against public authorities during the year, and they reported a combined total of 1,416 matter starts. Of these, 39 offices (38%) did not report any matter starts and another 24 offices reported fewer than ten. Only seven offices reported 50 or more matter starts, two of which did more than 100.

The regional disparity, though, is significant. There are seven procurement areas, but 58% of the matter starts reported were in London (825) and 20% were in the North West (288), while only 0.6% (nine matter starts) were reported in Wales and 2% each in the South East and South West. These figures are theoretically explicable by differences in the conduct of public authorities in different parts of England and Wales but they seem more likely to reflect unmet need in most regions.


Public Law

  • 7 procurement areas
  • 131 offices
  • 2,751 matter starts
  • 39 inactive providers
  • 18 offices closed

There were 131 offices with public law contracts in the year, of 94 separate organisations, who reported a combined total of 2,751 matter starts. This provider base includes 25 offices of charities including law centres and specialist campaign groups like the Prisoners Advice Service, Anti-Trafficking Legal Unit (ATLEU), Public Law Project, Child Poverty Action Group and Coram Children’s Legal Centre.

Of these offices, 39 (29%) reported no matter starts and another 41 (31%) reported five or fewer. One office (in the Midlands) reported 909 matter starts, which was 33% of the total for England and Wales. That means the regional breakdown shows a high concentration of all the public law work in two procurement areas out of seven: London with 51% of the matter starts and the Midlands and East with 40%. However, removing the one large office in the Midlands and East leaves 11 organisations and 198 matter starts. Just three public law matter starts were reported in Wales, which is consistent with other reports that there is very little judicial review representation in Wales (see, for example, work by Sarah Nason).


Family

  • 106 procurement areas
  • 1,556 offices
  • 23,999 matter starts
  • 489 inactive providers
  • 122 offices closed

Since family law is outside the scope of my research on social welfare legal aid, I have only analysed the figures briefly here. There were 1,556 offices in the contract year, which opened a combined total of 23,999 matter starts. The number of offices fell by 122, or 8%, by March 2023. The same pattern of inactive contracts and very small amounts of work seen elsewhere also appears in family law: 489 offices, or 31%, reported no matter starts in the year and another 873 offices, or 56%, did ten or fewer. Only 15 offices – less than 1% – reported 100 matter starts or more, the largest being 214. The overall figures reflect the very limited scope of family legal aid but it seems likely that the disparity across offices may reflect a deskilling, a lack of client access, and a difficult environment in which to combine legal aid and other work.


Conclusion

These figures show a notable decline in the provider base over the year and a pool of providers or offices which have legal aid contracts but did not do any legal aid work, or did only very small amounts – even where the scope of legal aid did not change, as in community care. Money is undoubtedly a significant part of this and the advice droughts cannot be remedied without increasing the funding for legal aid work to a sustainable level.

In immigration legal aid, which I have previously examined in more detail, those patterns also arise because auditing drives some organisations to withdraw from legal aid; because there is a recruitment and retention crisis which has left some organisations unable to find caseworkers or supervisors to do the work; and because organisations can only cross-subsidise a certain level of losses from legal aid cases. That means that even an injection of funding is not, in itself, enough: remedial action would need to also focus on training new people into the legal aid sector and retaining them, and on changing the auditing regime and scope of legal aid.

This is worse in some geographical areas than others. There is some variation between categories of law, as to which geographical areas suffer the greatest shortages, but some parts of England and Wales experience persistent under-provision across categories: the North East, South West, Wales (in categories not supported by the Welsh Government’s Single Advice Fund) and the East of England most notably, but the South East often experiences severe shortages which are sometimes hidden by its inclusion with London in a procurement area. In many categories, one or more organisations undertakes a much larger amount of legal aid matters than all of the others, raising the average and potentially skewing the regional distribution.

It would be useful to compare these figures across different years to understand fluctuation or decline over time. My current research also aims to develop better ways of understanding and (approximately) quantifying legal need in social welfare issues in different geographical areas, to contextualise these figures and understand unmet and partially-met needs.

Most importantly though, these figures strongly indicate a crisis in legal aid provision. There are too many inactive or dormant contracts where the existence of provision in an area is illusory, and where people are unable to find legal aid advice and representation when they need it. These are last year’s figures (to August 2022) and the decline has most likely continued. The Review of Civil Legal Aid needs to look carefully at these indicators, but the sector and the public cannot wait for the conclusion of the Review.