The cost of reducing access to legal aid

Family analysis: What can be learned from the Justice Select Committee's report into the impact of the reforms to civil legal aid? Elspeth Thomson, a family and children law specialist and managing partner at David Gray Solicitors LLP, points out that the changes in the legal aid market have a knock-on effect in the rest of the legal market as legal aid firms are forced to diversify.

Original news

Government failed its civil legal aid objectives

Civil legal aid cuts by the government had not targeted the most needy and failed to discourage unnecessary litigation, the Justice Committee stated. Its report stated while the government had achieved its aim of reducing the civil legal aid budget, it could not show the taxpayer it was delivering better value for money.

What are the key findings of this report in relation to access to legal aid?

The key findings are:

• while the Ministry of Justice (MoJ) has achieved one of its four objectives--making significant savings in the cost of the legal aid scheme--it has harmed access to justice for some litigants and has not achieved the other three objectives of discouraging unnecessary litigation, targeting legal aid and delivering better overall value for money for the taxpayer
• since the reforms came into effect there has been an underspend in the civil legal aid budget because the MoJ has not ensured that many people who are eligible for legal aid are able to access it
• the exceptional cases funding scheme has not acted as a safety net, protecting access to justice for the most vulnerable, as parliament intended
• a large proportion of victims of domestic violence do not have any of the types of evidence required to entitle them to legal aid and the potentially detrimental effects of the strict requirement that the evidence be from no more than 24 months prior to the date of application, are troubling
• the reforms have led to the cutting and significant downsizing of departments in both the for-profit and not-for-profit sectors, leading to concerns about the sustainability of legal aid practice in future and there may already be 'advice deserts'
• there has been a substantial increase in litigants in person as a result of the reforms
• the MoJ's efforts to target legal aid at those who most need it have suffered from the weakness that they have often been aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive--there have therefore been a number of knock-on costs, with costs merely being shifted from the legal aid budget to other public services, such as the courts or local authorities

What is the significance of the under-spend and the lack of uptake for the exceptional cases funding?

The MoJ aimed to cut the annual civil legal aid budget by £268m but in fact cut it by £300m, an extra £32m a year as a result of funding fewer matters than anticipated.

Significantly, the under-spend means the cuts went further than intended. People who Parliament envisaged getting legal aid have not, and so have not had access to justice. The select committee concluded the under-spend arose because the Legal Aid Agency (LAA) and the MoJ failed to ensure that the people who are eligible for legal aid have been able to access it. The reasons for this failure include:

• an overly restrictive and bureaucratic approach to the exceptional cases funding scheme
• poor provision of information on the availability of and eligibility for legal aid, and
• a lack of understanding of the routes people take to mediation

It has been clear for some time to people working in the sector that eligible people are not accessing legal aid. Providers and representative bodies like Legal Aid Practitioners Group have tried to put out the message that legal aid is still available, but the government seem unconcerned and have been very slow to take action in any area except mediation. It remains to be seen if any steps will be taken to develop even a limited legal aid system which is understood by and accessible to the general public.

How have the changes under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Pt 1 (LASPO 2012) affected the legal aid market?

The annual amount spent on civil legal aid has reduced by £300m a year. Not all of this money goes to lawyers, as much covers other disbursements such as court fees or experts costs, but none the less this is a dramatic decrease in legal aid providers' income. As well as much work being removed from scope, many fees were cut again in 2012 and the impact is now being felt as those cases are finally billed. The amount of work which has to be done for free to assist clients getting the necessary means or domestic abuse evidence together to get legal aid has mushroomed. Some services are only accessible via a call centre the operation of which is criticised in the report. The squeeze on income squeezes profits and providers have responded in a number of ways:

• adapting the services offered to clients to attract those previously entitled to legal aid with a greater offering of fixed fees and 'unbundled' services--providers have not always found it easy to pitch fees successfully and there is a danger of a race to the bottom with fee levels
• focusing marketing on areas of work which remain in scope
• staff restructuring--many firms have made redundancies in fee-earning and support staff in the face of the reduced demand for services
• stopping providing legal aid either across the board or in specific areas

The changes in the legal aid market have a knock-on effect in the rest of the legal market as legal aid firms diversify.

The committee's concern about the impact of the reforms on providers and the sustainability of the legal aid market will have chimed with many providers.

What are the concerns of how the domestic violence gateway has operated? Would granting the LAA greater discretion improve the situation?

Parliament intended the domestic violence gateway to act as a safety net so people who had experienced domestic abuse could access legal aid. In practice, the requirements for evidencing legal aid were drawn so tightly and have been interpreted so strictly that many people who have experienced domestic abuse simply cannot produce the evidence in support. Often the evidence is a letter from a health or other professional but these letters are frequently deemed inadequate by the LAA for failing to follow the wording of template letters or rigorously reflect the rules in the statutory instruments. The LAA at present have no discretion to apply any common sense to implement Parliament's intention and greater discretion would certainly help. For instance, the LAA could have discretion not to be bound by the 24-month age limit rule on evidence.

How has the rise in litigants in person affected the court system? What are the suggested solutions, and do they offer any viable assistance?

The committee received evidence of a significant rise in the number litigants in person and expressed concern that it had taken the government a year to publish the Trinder Report on the subject. They noted that the rise in litigants in person included many who struggle to effectively present their case. The increase has led to an extra £3.4m spent in the family court alone. Particular issues arise when an unrepresented alleged perpetrator cross-examines the complainant, where a litigant lacks capacity or when expert evidence is required. The suggested solutions the committee considered were:

• the government's litigant in person advice scheme
• the Low Commission's recommendation of a one stop legal helpline and website
• litigants in person assistance by the courts--a move to an inquisitorial system
• McKenzie friends
• unbundled services
• Californian model (court-based support and assistance)

While these solutions may help make the best of a difficult situation in some cases none would address the particular issues the committee identified. For those, in my view, the best way forward would be to reintroduce legal representation perhaps through a sensible operation of the exceptional case funding scheme.

Some form of initial advice from a professional, who can talk someone through the options available as well as the individual's legal rights and responsibilities, is essential. Resolution proposes a form of 'family law credit'--where anyone who meets the criteria for legal aid for family mediation is able to have an initial meeting with a family lawyer to help them gather evidence they need in order to access legal aid, or to discuss their options.

It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most--so even if they end up representing themselves, they have an initial discussion about what they need or want to do.

This would provide a more comprehensive system of support and enable vulnerable people to access the domestic violence gateway to legal aid, and/or learn about and choose more options to help them than just mediation. It is also likely to result in a higher referral rate to mediation, as it would restore a major source point of access that existed before LASPO 2012.

Are any of the issues highlighted in this report likely to be addressed in the near future?

We have a general election in the near future and it is hard to predict how the new government will respond to the report and the recommendations for change but current electioneering suggests that legal aid is not at the top of the political agenda. There is little in the pipeline to address the issues and lawyers probably need to work on the basis that we are where we are for now and continue with strategies to maximise the number of clients eligible for legal aid they attract and handle those cases as efficiently as possible while increasing the amount of privately paid work undertaken.

Of the many recommendations, as a family lawyer I was particularly interested in the recommendation that consideration is given to providing legal aid for family members in special guardianship order (SGO) cases--at present if local authorities support, say a grandmother, to apply for an SGO rather than applying for a care order itself, the parents facing the permanent loss of a child are unrepresented.

Any final observations?

This is a pretty damning report and it is hard to read it without experiencing an element of 'we told you so' as so many of the conclusions of the report were actually raised by individuals firms and representative bodies in consultation responses before LASPO 2012 was introduced. The acceptance by the government that the cuts were introduced without assessment being done to properly assess the impact is striking.

Elspeth Thomson is a member of Resolution's National Committee and co-chairs the Resolution Legal Aid Committee.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.