Written evidence from Leigh Day

 

 

Leigh Day are a human rights and personal injury firm of solicitors based in London

 

We are committed to claimant only cases ensuring that people have the same access to justice as the UK Government and large corporations.  Our principal areas of work across the firm include personal injury, industrial disease, administrative and public law, clinical negligence, employment, environment, human rights, international and product liability.

 

We hold legal aid contracts in the public law, claims against public authorities, community care, discrimination and clinical negligence categories.  Our principal areas of work within those categories include abuse, immigration, prison, data protection, discrimination, inquests, court of protection, general public law, environmental, healthcare, social care and clinical negligence matters.

 

The future of legal aid funding goes to the very heart of our ability to ensure that people, who would not otherwise have the financial means to do so, have access to justice.

 

  1. How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review

 

We rely upon the evidence that we submitted for the LASPO consultation and the post-implementation review in respect of how the changes made by LASPO have impacted upon access to justice, and, in particular, the concerns that we raised over impact of the following:

 

 

 

 

 

 

We consider that the post-implementation review has not fully or adequately addressed these concerns, although we welcome the commitments made in the legal support action plan following the post implementation review to review the means test for legal aid funding and to improve the Exceptional Case Funding process (albeit we consider that this work should be undertaken as a matter of urgency given its continuing and significant impact on access to justice), as well as the commitment to remove the mandatory requirements for the telephone gateway for debt, discrimination and special education needs.

 

We are not able to answer the question in respect of the criminal legal aid review as the firm does not conduct any criminal work.

 

  1. The role of the Legal Aid Agency

 

The Legal Aid Agency (“LAA”) plays a crucial role in ensuring access to justice for people who would not otherwise have the financial means to do so.  Therefore, the relationship between a provider and the LAA and the processes in place for the making and dealing with applications are crucial in delivering this access to justice for our clients.  Although our experience shows that there are many good examples where access to justice has been delivered for our clients, it also shows that we are having to spend an increasing and disproportionate amount of time on simply obtaining legal aid funding for our clients rather than actually progressing their cases. The main reasons for that are as follows.

 

One of the effects of the introduction and implementation of the LAA’s Costs and Case Management System (“CCMS”) has been the decline in our working relationships with the caseworkers at the LAA.  As a result:

 

 

 

 

The introduction and implementation of CCMS, and the subsequent improvements to the system, have helped to simplify the application process (although, as set out below, its set up in terms of envisaging that an applicant will be attending in person when the application is being completed does not properly take into account those who are unable to attend in person because of disability, vulnerability or detention).  However, there are still parts of CCMS which are overly complicated or confusing, such as when making applications for investigative representation where CCMS requires an applicant to answer a number of unnecessary questions which are not required for the purposes of the regulations.  This can lead to unnecessary complications and delays in applications being made.

 

Furthermore, although the processes and turnaround times for dealing with emergency applications are clear and for the most part being met, the processes and turnaround time for dealing with urgent applications are not.  This is particularly the case for applications where delegated functions cannot be used and do not meet the rigid emergency criteria, or where the scope and costs limits need amending for a deadline or a hearing.  In these cases, we are often told that emergency applications will take priority over urgent applications or that the application will not be deemed urgent until within 48 hours of the deadline or hearing.  This can lead to delays in applications being dealt with, and, in turn, to unnecessary pressures in work being carried out and jeopardy to the case and the client.

 

  1. Recruitment and retention problems among legal aid professionals

 

We are not able to answer this question based upon our own experience as our legal aid work is subsidised by other work conducted by the firm.  Nonetheless, we are aware from colleagues at other firms that are wholly or largely dependent on legal aid work that the levels of remuneration for legal aid work, coupled with the difficulties and delays in obtaining legal aid funding and then being remunerated for the same, have caused significant recruitment and retention problems.

 

  1. The impact of the court reform programme and the increasing use of technology on legal aid services and clients

 

The increasing use of technology for legal aid services is welcomed, as, for the most part, it has helped simplify and speed up the application process.  However, envisaging that an applicant will be attending in person when the application is being completed or alternatively requiring hard copy signatures, unnecessarily complicates and slows down that process.  Furthermore, it does not properly take into account those who are unable to attend in person because of disability, vulnerability or detention.  In many ways, the dispensations made by the LAA in light of COVID-19 to achieve electronic working are in themselves welcomed, and lessons should be learned going forward to continue to allow full electronic working to further simplify and speed up the application process.

 

  1. The impact of Covid-19 on legal aid services and clients

 

As set out above, the dispensations made by the LAA in light of COVID-19 to achieve electronic working are in themselves welcomed, and lessons should be learned going forward to continue to allow full electronic working to further simplify and speed up the application process.  In fact, we would go further than that and suggest that, to go hand-in-hand with allowing full electronic working, there should also be further flexibility in taking on clients outside a providers procurement areas and/or further flexibility in supervising caseworkers who are not based inside a providers procurement areas.  This further flexibility would lead to more people having access to legal aid services and/or specialist legal aid services, and would help resolve the problem of “advice deserts”.

 

  1. What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

 

The main challenge facing legal aid funding over the next decade is to ensure that those people who are in need of it are provided with access to justice.  This means that people are not denied legal aid funding because their income or capital are assessed as too high despite them not being able to access justice through any other means, because there are not sufficient providers or specialist providers to take on their case, because the provider is not able to conduct their case properly or conduct it with the equivalent means as the opponent, or because the making or dealing with applications for legal aid funding unnecessarily complicates or delays its conduct. With that in mind, the reforms needed are as follows.