Written evidence from Dr Jess Mant, Lecturer in Law, Cardiff University

Author:

Dr Jess Mant, Lecturer in Law, Cardiff University

Author background:

Jess Mant is a Lecturer in Law within the School of Law and Politics at Cardiff University. She publishes on subjects including legal aid policy, family law, and issues of access to justice. She is currently writing a book on the subject of Litigants in Person and the family court process after LASPO. She provides research-related support to organisations such as Public Law Project, Welsh Women’s Aid, and Young Legal Aid Lawyers Cymru. She has conducted empirical research on the impact of LASPO on family law, a summary of which was submitted to the LASPO post-implementation review.

Structure of Evidence Report:

In this report I provide evidence in four key areas identified in the call for evidence, which are grouped together as follows:

-          the impact of LASPO on access to justice and the impact of COVID-19 on legal aid services and clients

-          views on the PIR; and the challenges for legal aid over the next decade.

Please note that the evidence contained in this report relates almost entirely to my expertise in private family law, although some other areas are considered in relation to overall increases in demand for legal advice as a consequence of COVID-19.

1. The Impact of LASPO on Access to Justice, and the Impact of COVID-19

1.1 The Impact of LASPO

Comprising a desire to discourage unnecessary litigation, target legal aid at those who need it most, as well as making significant savings to the cost of the legal aid budget and delivering better value for money for the taxpayer, the legislative objectives of LASPO mirrored those of previous reforms. Earlier reforms had already placed significant emphasis on reducing legal aid expenditure and promoting mediation as a means of resolving family disputes.[1] As a result, even before LASPO, legal aid providers were under significant strain and legal aid work was often unviable, leading family law practitioners to move towards more private client work or offering mediation services.[2] Those trying to navigate their family justice problems, therefore, were already experiencing the brunt of these reforms, due to greater barriers accessing legal advice and legal services. However, the way that LASPO categorically excluded private family law (save for corroborated instances of domestic abuse) from scope, had two major impacts. Firstly, this exacerbated these existing problems to the extent that there is immediate concern about the accessibility of family justice for those who are now excluded from legal aid, and the viability of legal aid work in this area. Secondly, it created a set of new specific problems, including: the creation of a false economy in which other government departments and the family court have felt additional costs as a result of the cuts[3], a newly diverse range of people self-representing in the family court who have limited access to legal support and advice, and specific issues within the court process due to the volume and varied needs of Litigants in Person (LIPs). Three specific issues are discussed in more detail below.

Eligibility Changes

Despite significant improvements to the evidence requirements for domestic abuse, access to legal aid is still limited even for those who fall within the limited parameters of eligibility under LASPO. For example, the reliance on prescribed evidence is restrictive in comparison to other ways of ensuring that survivors of domestic abuse are able to access legal aid, such as marrying up the mediation screening process with legal aid eligibility.[4] Additionally, research has already demonstrated a significant link between the willingness of survivors to take action and the perceived availability of legal aid.[5] There is a concern, therefore, that the categorical removal of legal aid may mean that problems escalate before they come to light, potentially jeopardising the safety of survivors and their children.[6] Further, the categorical exclusion of private family law problems fails to recognise that the safety concerns which characterise public family matters often overlap into private family law in a significant number of cases[7], and that parents on very low incomes require support to navigate their family law problems.

Legal aid was retained under LASPO for Mediation Information and Assessment Meetings (MIAMs) and mediation, under the logic that this would encourage people to seek resolutions away from the family court. Evidence suggests that, if mediation is appropriate for the couple concerned, this may be a more productive dispute resolution process than court as well as a cheaper option overall for both parties and the state. However, this funding was divorced from any provision for legal advice which would support participation in mediation, and without proper consideration of why previous attempts to promote mediation had been unsuccessful.[8] Lawyers and legal advice play an important role in referring people to mediation where appropriate, supporting them through this process, and helping to screen parties to ensure that they are able to get the most benefit from mediation.[9] As a result, after LASPO, take-up of mediation significantly decreased, demonstrating the importance of legal advice for ensuring the efficacy, safety and accessibility of this process.

Legal Advice

As with previous legal aid reforms, there is a continued reliance on the not-for-profit sector to provide legal advice where legal aid firms are struggling. However, unlike previous reforms, there was no attempt under LASPO to redirect funding to ensure that this would be effective. The impact that LASPO on several areas of law has meant that the number of third sector providers has more than halved since 2013, but demand for help has increased by as much as 400% in some areas.[10] Additionally, these legal aid cuts have coincided with an already tenuous funding environment, in which local authorities were already under pressure to limit funding to not-for-profit organisations and charities.[11] Additionally, given that family assistance was generally provided by law firms, these services have traditionally felt little demand for family law advice.[12] As such, they are very unlikely to be able to stretch to the additional challenge of providing family law help.[13] This places even greater pressure on legal aid firms and other firms offering pro bono support to meet the advice needs of the significantly increased number of people who cannot afford to instruct lawyers privately and are not eligible for legal aid after LASPO. Although some individuals may be able to access legal advice on a fixed-fee or unbundled basis – and there is evidence of an increase in demand for such services[14] – this is only likely to meet the needs of those who are able to afford to pay for some legal help, and will not go far enough to meet the needs of those who cannot afford to pay for any legal services. As research undertaken by Mavis Maclean and John Eekelaar has demonstrated, there are a variety of innovative practices being undertaken by the professions as well as student-led advice clinics on a pro bono basis, but free advice services have been overwhelmed since LASPO, and simply cannot effectively meet the level of post-LASPO demand.[15]

As a result, post-LASPO research indicates that people may be less able to avoid court and make use of mediation or negotiations, even when it is appropriate, and a significant number of people are instead likely to represent themselves in court, having had access to limited amounts of legal advice, if they have been able to access any at all.[16]

Family Court and Litigants in Person (LIPs)

Existing research already demonstrates that LIPs in the family court are disproportionately those contending with vulnerable characteristics and circumstances, such as mental health problems, learning difficulties, anxiety, low levels of income and education, and prior or ongoing experiences of domestic abuse.[17] Although there are a range of reasons why people may be motivated to self-represent, cost is by far the biggest factor, and most LIPs explain that they would prefer to be represented if there were good quality representation available.[18] Since LASPO, the number of LIPs has increased exponentially – with cases involving LIPs increasing from 43% to 74% between 2013 and 2014, and remaining steady at between 79-81% since then.[19] This increased volume of LIPs in the family court process comprises not just more of the same LIPs, but an added category of those on the very lowest incomes who are now categorically excluded from legal aid. Emerging research suggests that post-LASPO LIPs therefore include even greater prevalence of low levels of income and education, domestic abuse and mental health problems.[20]

On one hand, this is creating a significant amount of strain on the family court, including increasing the amount of work for others within the process due to the need to adapt procedures and take additional time to ensure that LIPs are supported.[21] This also creates difficulties for lawyers facing LIPs, as they are often required to take on the extra work of preparing bundles and extending help to LIPs while maintaining their ethical obligations to their own clients.[22]

On the other, this creates significant concerns about the experiences that people have of navigating the court process, and the capacity of the court process to ensure that all are able to obtain effective and safe resolutions to their family law problems. Barriers to effective participation in the court process include: the ability to navigate court paperwork and forms; the ability to advocate for oneself in the manner expected by court procedure; the ability to understand the framework of different court hearings that comprise the court process; and to comprehend the judgments and decisions given at each stage.[23] While lawyers representing other parties can assist by helping to frame the issues to be discussed during proceedings, and inquisitorial approaches by judges can assist with the problems that LIPs face during legal tasks like advocacy and cross-examination, this assistance is inconsistent across locations, and is often contingent on the resources available.[24] Further, there is evidence that LIPs facing lawyers may leave the court process with perceptions or experiences of unfairness, if it appears that lawyers receive favourable treatment from judges, are perceived to be permitted by judges to control the course of proceedings, or have informal or social interactions with judges which are observed as exclusionary to LIPs.[25] Legal knowledge is an obvious disparity between LIPs and legal professionals, but research suggests that the most positive impact that legal representation has for lay parties engaging with the legal system is their procedural knowledge and familiarity. In other words, the problems facing LIPs should not be understood as stemming from the reality that LIPs ‘lack’ attributes necessary for engaging with the legal system, but rather that the system itself fails to accommodate and address the variety of needs and circumstances of its users. Legal advice and representation provided through legal aid plays an important role in bridging this gap for LIPs, and without them – or substantive reform to overhaul the family justice system entirely – the current arrangements for LIPs within the family court are unsustainable for other family law professionals working within the system, and risk giving rise to potentially unjust arrangements for many individuals who rely upon its processes.

1.2 Impact of COVID

The impact of LASPO described above has been exacerbated even further by the event of the COVID-19 pandemic. This can be understood as taking effect in two ways: firstly, increasing the level of legal need and the demand for free legal advice in several different areas of law which have been affected by LASPO, and secondly, as creating a backlog of court hearings which is placing even greater pressure on the court system and which will disproportionately affect LIPs who do not have access to advice or representation as a consequence of LASPO.

1.2.1 Increased legal need and demand for advice[26]

Despite providing a vital lifeline of support for particular groups, the advice sector has been subjected to an increasingly harsh funding environment under decades of long-standing austerity measures. Across England and Wales, providers have been challenged to meet increasing levels of demand following simultaneous retrenchments of legal aid and bureaucratisation of their practices. The effects of this are combined with the implications of broader austerity measures within society, such as more limited availability or punitive approaches to the provision of state welfare, as reports suggest that while the number of third sector legal aid providers has more than halved since 2013, demand for help has increased by as much as 400% in some areas of England and Wales.[27] As such, the advice sector has already been placed under significant strain. Nevertheless, they continue to provide a vital source of legal expertise and support to communities who would otherwise be unable to resolve their problems. The COVID-19 pandemic has exacerbated these existing problems to a significant degree, and posed unique challenges for advice providers.

Firstly, it has caused a significant increase in levels of legal need across several areas of law. Due to the far-reaching implications of the pandemic and the associated social distancing and lockdown measures that have had to be taken as a consequence, there is evidence of a significant increase in the amount of legal problems that people are experiencing, and by extension, an increase in levels of demand for free legal advice. An early survey suggested that 15% of the population have experienced financial problems because of these measures, 10% have experienced employment law problems, and 3% have experienced problems relating to their housing and accommodation.[28] Later, it emerged that there had been a 551% increase in the number of people starting to claim Universal Credit.[29] As a result of the economic aftershock of the pandemic, therefore, the ‘justice gap’ has increased and is continuing to increase. The justice gap refers to the gap that exists between the maximum earnings at which someone can be eligible for legal aid, and the amount that they would need to earn in order to cover the costs of legal fees through their income without sacrificing a life essential (such as food or housing).[30] While there have always been a significant proportion of the population who are caught in this gap, the consequences of the pandemic mean that an unprecedented number of these individuals are now beginning to experience legal problems for the first time. As such, many people are now faced with the choice between paying for legal protection and falling into poverty, or facing their problems without help. Recent data from the Law Centres Network indicates that, following the initial period of lockdown, the justice gap now comprises nearly half of all single childless individuals, a significant majority of single working parents, and a majority of working couples with multiple children.[31] In relation to family law specifically, there is a specific concern regarding the increase in demand for advice and assistance relating to domestic abuse. Evidence from Refuge suggests that this demand has spiked significantly since March – with an increase in calls from survivors by 50% and as much as a 400% increase in visits to their website.[32]

This increased demand for advice across several areas of law is compounded by the reduced availability and capacity of services offering free legal advice. Court schemes such as Support Through Court, as well as face-to-face advice providers have had to suspend many of their services.[33] Many have transitioned extremely effectively to remote working – offering advice over the telephone or virtually through IT platforms. However, lawyers working either privately or for advice sector organisations are facing significant challenges maintaining confidentiality, and communicating effectively with clients contending with learning disabilities, autism spectrum disorders and mental health conditions.[34] Additionally, they are attempting to adapt their processes to meet this increased level of demand all against a backdrop of financial precarity. At the point of lockdown, 76% of Law Centres in the United Kingdom had less than six month’ worth of reserve funding, leading to significant concerns about the kinds of services that the sector can offer, loss of income, practical difficulties and uncertainty in terms of future funding.[35]

Some short-term security has been made available through special one-off grants such as the Community Justice Fund, which was launched to help social welfare agencies with the immediate impact of the pandemic and begin to lay foundations for the future.[36] The Ministry of Justice offered an emergency £3million grant to help many Law Centres avoid closure as a result of the immediate cash flow problems.[37] These initiatives were welcomed by the sector and demonstrate some acknowledgement of state obligations to keep these services running and actively supporting citizens experiencing vulnerability in light of their legal problems. However, the short-term nature of these interventions still falls short of recognising that these obligations are not limited to the aftermath of the pandemic – rather, these are obligations that have been surpassed for decades during austerity, and the consequences of this have only been further exacerbated by the pandemic. The short-term nature of this funding means that organisations will still have to rely on precarious year to year funding models as this demand continues to persist after this initial period of lockdown.[38] A consistent unease among the sector is that the historical constraints of bureaucratic barriers and strict eligibility measures imposed by the Legal Aid Agency will prevent advisors from effectively responding to these changing legal needs, and severely impair their ability to support individuals in the post-COVID-19 landscape.[39] As noted in a Law Works roundtable, ‘the sector is on a knife-edge already’, and this pandemic has only amplified these existing tensions.[40]

Secondly, these services are also faced with changing demands – not only an increasing number of new clients requiring their services due to the impact of the pandemic, but also a concerning absence of those groups who have traditionally relied upon these organisations, and who struggle to engage with services when they are not provided face-to-face, due to disparities in access to technology. Unsurprisingly, unmet legal need is disproportionately experienced by those who are marginalised within society. For example, those relying on the state for welfare, those with unpredictable and insecure employment arrangements, as well as those contending with circumstances like poverty, low levels of education, domestic abuse, mental health problems, health conditions and disabilities all increase the likelihood that people will experience problems that require legal resolutions. In addition to being more likely to experience serious legal problems, these population groups are also more likely to face barriers that may prevent them from accessing assistance to resolve these problems. This is because even when advice is available for free, a basic level of resources and support is required to enable people to engage with sources of advice. Economic and physical resources are needed to invest time in advice-seeking and relevant research, source relevant forms or print paperwork.[41] Simultaneously, social and cultural resources are also needed in order for people to be able to understand the legality of their problem and where to seek help, as well as rely on others for things like childcare and moral support.

These implications raise important questions about the potentially expanding scope of unmet legal need, the specific population groups who are most likely to be unable to make use of remote advice services, and how the advice sector may continue to support these communities long-term, given the limits on their ability to engage in outreach activities due to the precarious political and funding contexts in which these organisations were already operating.

1.2.2 Backlog of hearings and further pressure on the court system

Due to the necessary suspension of face-to-face court hearings, there is significant concern about how the backlog of hearings is likely to place even further pressure on the court system. Due to concerns about the efficacy of remote hearings and uncertainty as to how long lockdown measures would last, hearings involving LIPs or cases which are complex or contested were often adjourned. However, there is suggestion that this was initially inconsistent according to court location.[42] This is likely to mean that there will be more LIPs and complex cases appearing in court when in-person hearings can resume, when there is also likely to be reduced court capacity due to ongoing social distancing requirements.[43]

In relation to family law problems, however, recent guidance has suggested a holistic approach in order to address this backlog, in which judges may decide to list family cases as either entirely remote, as ‘hybrid hearings’ in which only some individuals attend in person and some attend via video link, or as entirely in-person with social distancing measures.[44] This holistic approach is promising as it permits a flexible approach to the importance of in-person hearings based on the issues concerned in the case, such as cross-examination, the need for intermediaries or vulnerable witnesses. It is also important due to the potential consequences of delaying these hearings – for instance, in ongoing child arrangements cases there are enduring concerns about the impact of delay on the welfare of children.

However, the efficacy of taking remote or hybrid approaches to hearings does ultimately rely on the availability of technology to support both kinds of hearing if they are to be effective. In the County Court, the pandemic has exacerbated pre-existing issues with the technology, staffing and infrastructure, because the systemic lack of investment in the courts and tribunals service over the years means that the court system was poorly prepared for the sudden demand to conduct remote hearings on such a large scale.[45] Common issues identified across civil and family hearings which have taken place remotely or in a hybrid manner have included: poor connections, parties interrupting each other, difficulties with joining instructions, microphone feedback during hybrid hearings, and a lack of clarity over who has responsibility to ‘host’ hearings or manage e-bundles.[46]

In relation to private family law, there is evidence to suggest that legal aid-funded representation is even more important for people participating in remote or hybrid hearings, due to the need for online hearings to be more focused and to the challenges that come with negotiating the different requirements of conducting a hearing online, such as e-bundles, turn-taking within the court process, and ensuring that lay parties can understand proceedings, are supported to interject if they need assistance or a break, and are able to have their voices heard within hearings.[47] There are also specific issues relating to domestic abuse which need to be considered, such as the risk of alleged perpetrators viewing the backgrounds of survivors during video calls, the risk that parents may be on the call together alone waiting for their hearing to begin, and potential dangers of illicit recording of hearings. It should, however, also be noted that for some survivors of domestic abuse, remote hearings may provide a means of feeling safer during hearings, compared to having to face their ex-partner within in-person hearings.[48]

2. Views on the Post-Implementation Review (PIR) and the Challenges for Legal Aid over the Next Decade

In the PIR, the government acknowledged that they had failed to achieve some of the key aims of LASPO, such as having failed to discourage litigation by diverting people to mediation.[49] They also acknowledged that they may have failed to achieve overall value for money for the taxpayer, due to the increased costs that have resulted from LASPO. Nevertheless, the government reiterated that ‘access to a lawyer is not always the correct or the most affordable answer’.[50] This indicates that there is an unwillingness to consider the option of reinstating legal aid to pre-LASPO levels, despite extensive calls for this among non-governmental organisations and the professions.[51] However, the PIR did acknowledge that current levels of provisions are not sufficient for supporting LIPs, which is indicated by their commitment to temporarily increasing the funding available for the Litigant in Person Support Strategy, with the view of improving non-legal support and information services over the following two years.[52] They also committed to establishing an early legal advice pilot in social welfare law, although it is not yet clear how much progress has been made with this initiative.[53] This suggests that there may still be scope to work with these opportunities to establish a clear evidential need for early legal advice in particular areas of law which have been hit hardest by the LASPO changes. For example, evidence already exists which demonstrates that there is a statistical link between early legal advice and the speed with which legal problems are resolved.[54] If it can be established, therefore, that legal advice – particularly that which is given at an early stage of a legal problem – is not only essential in terms of the accessibility of justice, but is also cost-effective, then there may be an opportunity to revive at least some political commitment to protecting the status of legal aid within the justice system. The COVID-19 pandemic, in exacerbating these problems and posing several new challenges of its own, may also provide an opportunity and an impetus for reconsidering the importance of legal advice and legal aid.

The impact of LASPO has in effect been a devastating culmination of prior reforms to legal aid. However, LASPO – and especially when combined with the impact of COVID-19 – may in practice have exacerbated problems to such a degree that it may in fact pose both an opportunity and the impetus to be more creative in response to the tensions which have characterised the family justice system for decades. One potential route, which is particularly relevant in the context of COVID-19, is an increased role for technology. For instance, to date, technology has been utilised to assist LIPs after LASPO, through the provision of online information and guides – such as the many excellent resources available through AdviceNow and the Litigant in Person Support Strategy. There are also positive examples of technological innovation in other jurisdictions – in some United States jurisdictions, technology has been employed which provide broader accessibility in lots of ways, such as enabling LIPs to complete paperwork online, access ‘coaching’ support services which provide practical assistance through multiple formats and in relation to information needs which are specific to LIPs concerned, and self-help centres which may provide educational and training workshops for LIPs as well as resources like computers, printers, and spaces to do research.[55]

However, it is essential not to assume that technology provides a single solution to the crisis facing legal aid and the legal system. In reality, these innovations are only likely to be effective in England and Wales if they are combined with embedded and structured investment in the resources available to courts and advice services. Further, the use of technology to promote accessibility will only ever be partially effective in assisting people to resolve their problems, because this efficacy will always be limited by the complexity of the cases in which people are self-representing, as well as the accessibility of this support for LIPs in different circumstances.[56] Technology clearly has an important role to play, but creative solutions which employ technology as a means of increasing the accessibility of legal support must be devised in a way that is conscious of the risk that it may ultimately be co-opted as a replacement for legal services.

To propose innovative solutions, therefore, it is essential that further ‘joined-up’ evidence is collected regarding the current levels of legal need and the capacity of the advice sector to address those needs. For instance, in relation to family law, we already have baseline understandings of who court users are – we know that private family cases generally involve two parents, that most applications are from non-resident fathers, that approximately half of cases involve domestic abuse and a significant minority involve safety concerns relating to issues like substance abuse or mental health problems. Building on this, the Family Justice Observatory is currently compiling comprehensive data on who is going to the family court by linking data from the justice system with other data sources, such as that relating to health and social care.[57]

By providing a definitive picture of precisely which population groups are in need of legal advice and support, and how this relates to the impact of LASPO and COVID-19 within society more broadly, it is hoped that it may be possible to make a case for increased political commitment to legal aid funded advice and representation, which may go beyond addressing the immediate implications of this crisis, and begin tackling some of the damage to the infrastructure of legal advice which has characterised the justice system for several decades.