Written evidence from Broudie Jackson Canter

EVIDENCE TO THE REVIEW

Introduction

This evidence is submitted by Broudie Jackson Canter, part of the Jackson Lees Group based in the north west of England.

Broudie Jackson Canter have delivered Legal Aid services since the early 1960’s and are committed to publicly funded work to assist the most vulnerable in society. The firm holds contracts with the Legal Aid Agency in Housing, Family, Mental Health, Crime, Actions v Public Authorities, Immigration, Community Care, Public Law and Discrimination.

This evidence is submitted to highlight just how precarious life as legal aid lawyers is and how the workings of the Legal Aid Agency militate against profitability, quality and sustainability.

Effect of LASPO on Access to Justice

There can be little doubt that LASPO has had a massive chilling effect on access to justice.

The very essence of the Act was to remove areas of law from the scope of the Legal Aid system and to restrict areas that remained within it.

The post-implementation review[1] appears to have recognised that the cuts in Legal Aid made by LASPO went far too far and as a consequence the recommendations made indicated that reform was needed. Sadly despite publication in February 2019 these recommendations have not been enacted.

Financial Eligibility

When Legal Aid was first introduced in the 1940’s 80% of the population [2]would have qualified for assistance with their legal issue. Now the position is that you have to be in the very lowest income bracket to be eligible.

There are real anomalies.

E.g 1. if you are a pensioner on Guaranteed State Pension Credit but own your own home mortgage free there is a very real possibility that you will not qualify for Legal Help. If the value of the property is over £208,000 then they would be ineligible.[3]

E.g 2. If you are in a couple on basic state pension with income of over £1,163 per month then after the partner deduction of £184.46 you are out scope for Legal Help.

E.g 3. If you are on Universal Credit but are living in your own property with a large mortgage and no equity in the property you are unlikely to qualify for Legal Aid because of the cap on the mortgage disregard.

In these situations there appears to be an assumption that you could go and borrow money to pay for your legal fees. A nonsensical assumption in the world of commercial realities.

There has been no increase in eligibility rates for many years and the current threshold of £733 per month by way of disposable income is risible.

Areas of Law

The classic social welfare areas of Housing, Welfare Benefits and Debt are intrinsically linked – it is axiomatic that if someone has difficulty paying their rent that there will be interlinked issues of debt and welfare benefits where advice is needed. It is incomprehensible that a Legal Aid system can properly function without two of the three limbs i.e Welfare Benefits and Debt. This was recognised by the post-LASPO review but sadly the recommendations for early advice seem to have been “kicked into the long grass”.

Under the Legal Aid Board and the Legal Services Commission there was a more holistic approach to the giving of advice and a requirement that providers should be able to give access to welfare benefits advice. The removal of that requirement has undoubtedly reduce the effectiveness of the Legal Aid system.

Others will comment on the reduction in the availability of organisations to give proper advice in housing. However the piecemeal system seems to have created a scenario where advice cannot be given under Legal Aid until a catastrophic failure is immediate.

As long ago as 2010 it was recognised by the Citizen’s Advice Bureau that there is a proper business and societal case for a funded Legal Aid system.  [4]

For every £1 of legal aid expenditure on housing advice, the state potentially saves £2.34.

For every £1 of legal aid expenditure on debt advice, the state potentially saves £2.98.

For every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80.

For every £1 of legal aid expenditure on employment advice, the state potentially saves £7.13.

The effect of LASPO is to create a poorer society and to negatively impact on the public purse by removal of areas of law from the scope of the system.

 

The Agency is not fit for purpose.

Culture of Refusal

There is a culture of refusal within the Agency where, on occasions, it would appear that the Agency is divorced from the reality of the world in which we live.

By way of example Mr R was arrested by Police Officers for a burglary. The evidence held by the Police was that he had deposited a quantity of coins in a CoinStar machine at his local supermarket. There had been a burglary in the local area the day before. There was no description of the burglar given. Mr R is a black man living in a pre-dominantly white area. He perceived that he was racially profiled by the police who arrested him thus breaching the Equality Act 2010.

The Legal Aid Agency refused funding on the basis that there was no evidence of discrimination. Funding was granted on appeal.

This decision was taken in August 2020 when Black Lives Matter had highlighted the very fact that from a non-black perspective the world seems to be a fair place.

The Legal Aid Agency is an agency of the state, being part of the Ministry of Justice, and as such are more than ready to support the state rather than provide the means by which to challenge it.

Access to Justice and the Legal Aid Agency

Legal Aid should be available to “level the playing field” in litigation. It is not.

There are a number of issues : -

a)      The rates payable to experts

Increasingly it is proving almost impossible to find expert witnesses who are prepared to work at the miserly rates allowed by Legal Aid. This is particularly acute in areas such as plastic surgery where the specialists are in high demand but there is a very limited supply of quality experts.

The opponents who, in much of the work we do, are state agencies, have no such problem in paying what the chosen expert requests.

The consequence is that those who are publicly funded are having to settle for second best when access to justice demands that the playing field should be level.

 

b)     The issue of proportionality

The LAA is obsessed with costs/benefit analysis and disguises this by using the term “proportionality”.

If the LAA were to properly apply the term as defined by the Civil Procedure Rules then life would be much easier.

There are regular occasions where the court will have reviewed a costs budget under their costs management powers and have determined that the work being done is proportionate in that case.

The Legal Aid Agency however will refuse funding on the basis that the costs are not proportionate to the damages, thus ignoring the other relevant factors which the court utilises to determine whether a case is proportionate.

What is particularly concerning is that in holding the state to account there are often much wider issues than payment of damages at stake. This is often a highly persuasive factor in the courts’ approach to proportionality but the same arguments are disregarded or played down by the LAA.

 

c)      The costs limit on certificates

There is a complete failure by the LAA to take into account and understand the unavoidable costs of litigation.

The court fees are astronomical when compared to the amounts permitted under a legal aid certificate.

For example in a case which is worth £20,000 in damages the unavoidable fees include i) an issue fee of £1.000 and ii) a trial fee of £1,090.

So these have to be paid from a funding certificate which may well be limited to £10,000.

The nonsense is that the client who is legally aided would probably be eligible for a fee exemption but cannot have one as this is prohibited (by statutory instrument[5]) where Legal Aid is in place. So the Ministry of Justice in the shape of the LAA pays the Ministry of Justice, HMCTS, thus creating a costs neutral position. However the Legal Aid certificate costs limit has been used to for these disbursements reducing the amount that can be spent on ensuring a case is properly prepared and argued.

 

d)     There is a glaring anomaly between the rates of remuneration that are paid to private firms who represent the state in litigation. The NHS Resolution rates paid to solicitors in clinical negligence cases are significantly above what can be recovered in Legal Aid cases. 

 

 

 

Lawyers

One of the hidden impacts of LASPO has been to make a career in Legal Aid/ Social Welfare almost impossible.

There is increasingly a massive drain of quality lawyers away from these areas of law.

The universities report that students are keen to be involved in social welfare issues. However the harsh economic reality is that there are few who can afford to work in such a lowly remunerated part of the profession.

There is a massive crisis in criminal law where the average age of Duty Solicitors is now 47.[6] The absence of Duty Solicitors in years to come is going to create an even greater crisis in the criminal justice system.

A related point in our experience has been the poaching of our staff in clinical negligence work by those who represent NHS Resolution. In the last year we have lost five newly qualified solicitors to Hill Dickinson – they have moved because the rates of pay offered are significantly greater than we can afford to pay. This is a direct consequence of the LAA rates of remuneration.

Support Staff

There can be little doubt that the Legal Aid practitioner cannot pay the salaries to support staff which are industry standard. This inevitably means that staff retention is a big issue with all the attendant costs that this brings with it.

 

There is a real concern that the court reform process has made justice much more remote for those on low incomes.

How are those on Universal Credit supposed to pay for their travel costs in a child care case which may be many miles away involving repeated court attendances? Will Legal Aid pay the travel expenses of someone who needs to attend court?

Technology is all well and good but increasingly issues of “digital poverty” are being recognised where people just do not have access to the internet.

 

  1. The biggest challenge is that there are likely to be very few providers in the system in ten years time.

The current rates of payment for complex legal work under the Legal Aid system are frankly commercially unsustainable and non-viable.

We are already seeing the decimation of the criminal practitioners – once this generation is gone then there is a massive deficit which will not be easy to fill.

The knock on effect of low rates of remuneration is low rates of pay. If you can only pay low wages it is very difficult to retain the best lawyers.

Thirty years ago there was a large gap between the rates of remuneration for Legal Aid and non-Legal Aid lawyers. However the pay was such that committed people could make a lifestyle decision and decide to stay in the Legal Aid sector. Today that choice is becoming almost non-existent. The reality is increasingly that Legal Aid lawyers cannot live on the salaries that firms can afford to pay.

The reform of remuneration is essential.

  1. There is an urgent need to sweep away the culture of refusal outlined above.

 

  1. The Legal Aid Agency should cease to be under the political control of the Ministry of Justice.

 

  1. The Post Implementation Review must be enacted as soon as humanly possible.

 

 

 

Chris Topping

Ian Townley

On behalf of Broudie Jackson Canter

 


[1] https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo

[2] https://sirhenrybrooke.me/2016/06/16/the-history-of-legal-aid-1945-to-1997/

[3] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj1zcWD15HsAhUXRBUIHTssBAAQFjAAegQIBBAB&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F332853%2Flegal-aid-guide-to-determining-eligibility-certificated-work.pdf&usg=AOvVaw13F1ILBATexwhUjnLzVeJG

[4] https://namati.org/wp-content/uploads/2015/12/Citizens-Advice-Bureau-Towards-a-business-case-for-legal-aid.pdf

[5] https://www.legislation.gov.uk/uksi/2008/1053/schedule/2/made

[6] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwje7IKI2ZHsAhUlpnEKHTxYAQIQFjAPegQIIRAB&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F799661%2Fcriminal-legal-aid-programme-overview.pdf&usg=AOvVaw3AtOcTxgQexJQt_3qvjmoR