Written evidence from Mary Ward Legal Centre
1.1. The Mary Ward Legal Centre (“MWLC”) is a pan-London independent legal advice centre based in Holborn. It is a registered charity and gives free legal advice to people living or working in London. The service is targeted at people on a low income.
1.2. The Legal Centre was established more than 100 years ago as the Poor Man’s Lawyer Service, a charitable precursor to the post-war legal aid scheme. It is part of the Mary Ward Settlement, which was established in the late 19th century to provide education and social services for the local community.
1.3. The Legal Centre provides specialist advice and casework in the areas of debt, housing and welfare benefits. In addition, we run a pro bono advice clinic, delivered by volunteer lawyers, in the areas of: employment; housing; tax; contract law; small claims; and family.
1.4. Our services aim to tackle poverty and disadvantage through reducing homelessness, maximising incomes, reducing debts, increasing financial capability, and improving general wellbeing.
1.5. Last year the Legal Centre helped 3,000 people resolve their legal issues. Around 40% of clients report having a disability and/or a long-term health condition. Over 60% are from black and ethnic minority backgrounds. Demand for our services is very high and far exceeds what we are able to support.
2. Executive Summary
2.1. LASPO’s cuts to legal aid have severely and detrimentally impacted both the sector and citizens’ access to justice. Funding should be reinstated for advice and representation in employment, housing, welfare benefits and debt cases.
2.2. Fee earners’ ability to deliver legal advice has been reduced by time consuming and unnecessary work related to i) technical obstacles encountered with the LAA’s case management system, and ii) challenging the LAA’s decisions.
2.3. Legal aid providers have experienced difficulties with recruiting and retaining staff. Many experienced workers left the sector in the aftermath of LASPO’s cuts. Qualified new workers have been difficult to find.
2.4. Court closures have meant that clients and lawyers must travel excessive distances to attend court. Duty solicitors’ high workload leads to a backlog of clients and a delay in listed cases being heard by a judge. Interacting with vulnerable clients over technology has caused difficulties in providing effective and appropriate advice and in being paid for completed work.
2.5. Covid-19 has increased reliance on clients being advised over technology, which has proven difficult. The pandemic and associated recession will likely lead to a surge in demand for both cases in scope for legal aid which the provider base is not equipped to handle and out of scope cases that leave citizens unprotected. The stay in possession proceedings has led to a reduction in income which will likely have longer-term financial consequences on legal aid service providers.
2.6. Our general suggested reforms include reviewing legal aid rates, broadening the scope of legal aid and reviewing the means test.
2.7. We have set out below our response in the specific areas in which the Justice Select Committee has called for evidence. Please note that we do not provide services to clients in the area of criminal law and are unable to comment on the criminal legal aid review.
3. LASPO and the post-implementation review
3.1. The cuts to legal aid brought in by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) have been devastating to the legal aid sector and have had a detrimental impact on the ability of citizens to access justice. MWLC believes that people’s rights have no meaning without the means to enforce them.
3.2. The main impact of LASPO on our services was the removal from scope of advice and representation in employment law, most welfare benefits and debt cases and much of housing law.
3.3. Demand for our services remains extremely high and the cuts to legal aid mean that we must regularly turn people away. In our response to the Justice Select Committee on the impact of LASPO in April 2014 we estimated that we had lost legal aid funding to help over 1500 people a year. This represented a loss of around £350,000 a year and a 25% staffing reduction. We are no longer able to offer casework advice in employment at all. Access to our welfare benefits service was reduced from pan-London to Camden only and from being able to help over 1000 to 300 people a year. We have since then been able to secure grant funding to expand our welfare benefits service very slightly to include a small amount of pan-London assistance but it is a drop in the ocean compared with the increasing demand for help.
3.4. There are people who are not able to get through to us to make their enquiries and waiting times for our pro bono clinics are very long. We have recently added some volunteer solicitors to provide advice in family law as demand for this service, which was previously funded by legal aid, has greatly outstripped supply. While our pro bono clinics are extremely useful to clients, a 45-minute one-off appointment with a volunteer solicitor is no substitute for properly funded casework and representation.
3.5. With respect to our welfare benefits service, our concern is that these cuts have disproportionately affected the sick and disabled. The majority of the benefit enquiries we receive continue to be about sickness and disability benefits - around 70% of the clients we help with welfare benefits issues report having a disability and/or long-term health condition. Our experience is that decision-making by the Department for Work and Pensions remains extremely poor with the result that vulnerable benefit claimants, often with complex health conditions, are denied the benefits they are entitled to. The majority of the decisions we challenge through benefit tribunal cases are overturned on appeal. The lack of legal aid funding has made it considerably more difficult to run these cases, for example because it is not possible to fund expert reports.
3.6. In respect of housing cases significant problems have been caused by the removal from scope of welfare benefits advice and damages in disrepair claims. In our experience clients who present with a rent arrears possession case have often had a welfare benefits problem which has gone unresolved and this has led to proceedings being issued. While the court often agrees to adjourn a case where there is a clear welfare benefits issue it is very difficult to refer the client for advice to resolve the issue, often leading to us undertaking work for which we will never be paid. This leads to knock on costs for the courts (where cases may be adjourned multiple times), the landlord (who misses out on rental liability which should be paid through welfare benefits entitlement) and the tenant (who faces the devastating consequence of losing their home). Furthermore, it leads to increasing pressure on already cash-strapped local authority housing and social services departments when tenants who have lost their home turn to them for assistance.
3.7. In respect of disrepair cases, LASPO introduced a new test that any claim for disrepair will be funded only where there is a “serious risk of harm to the health or safety of the individual”. This test is vague and in our experience it can be difficult to predict whether the Legal Aid Agency will agree with a provider’s assessment of the extent of the risk. This leads to providers being reluctant to take the risk of taking on some cases. In addition, LASPO restricted funding for disrepair claims solely to the “specific performance” element of the claim (i.e. obtaining an order requiring a landlord to rectify the disrepair) and excluding any claim for compensation.
3.8. This puts us in the difficult position of having to offer a partial service to clients to assist them to obtain works only, when they are highly likely to be due compensation. Where we can, we will often refer these cases to a firm who can offer a “no win no fee” or “Conditional Fee Agreement” (“CFA”). However, there is a significant problem where a client is entitled to compensation but their case is not attractive to a firm undertaking work under a CFA. For example this may be the case where:
- A client’s landlord is a private individual and there is doubt as to whether the landlord will comply with any order that is made, necessitating expensive and sometimes unpaid enforcement work.
- The client is particularly vulnerable and difficult to engage, for example because of mental health problems.
- There is any doubt as to whether the likely value of the claim will exceed the small claims threshold
- There is a risk that the landlord may pursue a counterclaim, for example for rent arrears.
3.9. The effective removal of disrepair from the scope of housing legal aid has also had a significant knock on effect on the amount of income that housing providers can earn. Disrepair is the most common area where a housing provider is likely to succeed in a claim such that they are awarded costs at market rates. Costs at market rates are typically three or four times higher than the rates payable through legal aid, because legal aid rates have not been increased for almost 30 years. Before LASPO many housing providers relied on obtaining market rates via successful disrepair claims to subsidise the very poor rates of pay from legal aid cases.
3.10. There are other problems too where LASPO has removed the ability to advise at an early stage about a client’s rights but where there is no immediate risk of homelessness or threat of repossession.
3.11. The LASPO post implementation review includes some welcome proposals including a commitment to reviewing the means test for legal aid and a somewhat vague assertion that provision of early advice will be piloted. However, in our view it does not go nearly far enough. We refer you to the reforms we propose in the final section of this submission.
4. The role of the Legal Aid Agency
4.1. Dealing with the Legal Aid Agency (“LAA”) takes up a significant amount of fee earners’ time, reducing the time which can be used for fee earning work.
4.2. Two primary reasons for this are technical obstacles encountered with CCMS (the LAA’s online case management system), and the time involved in challenging LAA decisions.
4.3. Examples of technical obstacles which involve unnecessary and time-consuming work include:
- The need to upload the same documents multiple times over the lifespan of a case. For example, you may have uploaded an expert report when applying for a cost increase, but still be asked to upload it again at a latter point in the case – for example, when applying to amend the scope to include trial.
- The need to answer questions which are irrelevant to your client’s case, or being asked the same question multiple times in one application. For example, you are asked whether a Letter of Claim has been sent, even when your client is a defendant. When applying for a civil legal aid certificate you are asked twice whether there is a hearing coming up and twice whether you have provided advice to the client under Legal Help
- The fact that CCMS can only deal with documents in a particular format – anything to be uploaded in support of an application needs to be converted to PDF.
- Limited billing functionality. For example, when submitting a bill for legal aid only costs in an inter partes case, it is necessary to input each item individually into CCMS, instead of being able simply to upload the bill prepared by the costs draftsman.
4.4. The increasing frequency with which providers must challenge LAA decisions has led to the Legal Aid Practitioners Group and others coining the term “culture of refusal” to describe dealings with the LAA. Examples of the challenges which we often have to make to LAA decisions include:
- Appealing cost reductions – for example reductions in bills and/or enhancements. We are routinely successful when appealing cost reductions, but the process to do so is extremely slow given the billing functionality, and other than applying for an ex gratia payment (which is entirely at the LAA’s discretion) it is not possible to get paid for this work.
- Appealing refusal of funding – for example, in a case regarding whether or not a person was entitled to succeed to his step-father’s tenancy, we were refused funding because there was no documentary evidence that the client resided in his step-father’s home. The evidence was the client’s statement that he had lived there. Whether he was credible or not was a matter for the judge to decide during the proceedings, and not a basis on which funding should be refused. We appealed the decision and were successful – further wasted fee earner time.
- Appealing refusal to fund an appeal – the LAA refused funding to appeal a judge’s decision not to set aside an injunction order. The LAA had misunderstood the case and believed we were appealing to the Court of Appeal, when in fact we were amending the scope for an appeal to be considered on the papers by a circuit judge/recorder. The LAA also determined that in order to be granted funding for the appeal the case had to have a wider public interest or be a case for damages. Overall their decision was incorrect, and was overturned on appeal. This was a waste of fee earners time and caused unnecessary delay.
- Refusal to increase the costs limitation of certificates – for example, the LAA determined that it would not increase costs on the basis that if our costs exceeded the limitation after enhancements were taken into account we could raise this at the billing stage with the LAA. This is not correct and we appealed their decision and a cost increase was granted. This was a waste of fee earners time.
4.5. Reforms to streamline the LAA process would better allow solicitors to dedicate their time to fee earning work.
5. Recruitment and retention problems
5.1. The problems with the Legal Aid System including those created by LASPO and the culture of refusal at the LAA have had a significant impact on recruitment and retention of staff. We have found it extremely difficult to recruit qualified supervisors for housing legal aid work and we have struggled to find adequately qualified candidates for our welfare benefits and debt team.
5.2. Many experienced workers have left the sector in the aftermath of LASPO and new workers are not being trained up. The combination of insecure employment, low wages and rising living costs mean that many enthusiastic young people who might otherwise join the legal aid sector do not see it as a viable career option.
5.3. The very low levels of payment for legal aid work mean that it is difficult for organisations to fund training contracts. This means opportunities to train in legal aid work are extremely limited despite there being a need for more new solicitors in this area. In addition, the undervaluing of, and more recently outright hostility towards, the work of legal aid lawyers by the Government leads to demoralisation amongst current social welfare lawyers and difficulty attracting new entrants to the profession. The culture of refusal at the Legal Aid Agency adds a huge amount of stress to people working in already stressful jobs and leads to people either leaving the sector or not entering it in the first place.
5.4. The removal of funding for early advice, welfare benefits and debt adds further stress because legal aid lawyers can only get involved once the full crisis has happened and only offer partial assistance – this significantly affects job satisfaction which is one of the main reasons that people go into legal aid work in the first place – we accept the lower wages and high stresses because we want to help people but the limitations imposed by LASPO often prevents us from providing the help that would really solve the problem.
5.5. In terms of solutions, we would want to see:
- A reintroduction of funding for training contracts in legal aid work. We have been lucky enough to have a trainee part funded by the Justice First Fellowship which has led to us recruiting an excellent new solicitor to our team when she qualified. The sector needs more of this if it is going to keep going – we have to train the legal aid solicitors of the future otherwise the problems of recruitment will increase).
- Reinstating legal aid funding for early advice, welfare benefit and debt so that social welfare lawyers can provide comprehensive advice to their clients.
- Addressing the culture of refusal at the Legal Aid Agency and increasing awareness of the value legal aid lawyers add to our society and to vulnerable individuals’ lives.
6. The court reform programme and increasing use of technology
6.1. As a result of court closures, our clients and lawyers must travel excessive distances to attend court. Since 2015, there has been a large reduction in the number of county courts nationwide; in the Central London area, where most of our clients live and our work is based, 4 of these were closed within the last 5 years (namely Bow, Hammersmith, Lambeth and Woolwich). This amounted to half of the county courts within Central London being closed with only Central London, Clerkenwell & Shoreditch, Mayors and City and Wandsworth remaining open presently. During lockdown, only 3 of the 14 county courts within Greater London remained open to the public.
6.2. This means that many clients, who are already of limited means and often suffer disabilities, must travel significant distances to appear to defend a possession claim or to stop a bailiff’s eviction. For example, clients who live in the Lambeth area now have to travel to Clerkenwell & Shoreditch County Court, often resulting in an hour or more’s journey across central London, navigating a number of public transport connections. Legal aid solicitors must also use a significant part of their working day travelling to and from court, which impacts on the amount of work we can do that day and how many other clients we are able to help
Duty solicitor scheme:
6.3. As a legal advice centre, we participate in the duty solicitor’s scheme at Clerkenwell & Shoreditch County Court around twice a month. Over the last few years, we have noticed how in demand the service has become at court. The court service assumes clients without representation will be able to see a duty solicitor on the day and be represented by them; unfortunately, there are often 10 or more clients wanting to see 1 duty solicitor within a 3 hour time frame. With so many cases listed (often 30-50 at each duty session, as the duty solicitor is expected to see all possession and eviction cases, despite these often being on different lists and in different courts on different floors) and only 1 duty solicitor per session, it is sometimes not possible for each client wanting to see the duty solicitor to in fact do so. The cases are often complex with a lot of background and a lot at stake, as the client can lose their home without the right advice, and so the sessions with the duty solicitor take time; this in turn leads to a backlog of clients waiting to see the duty solicitor and a delay in the listed cases being heard by a Judge.
6.4. The work of duty solicitors at court is hindered further by the lack of. Wi-Fi is often non-existent and there is no phone or computer to use, instead one must rely on personal devices.
Technology and clients:
6.5. In our experience, the existing struggles for vulnerable people to access legal services are exacerbated by an increasing reliance on technology. Much of our work is funded by legal aid and therefore our clients must show that they have a monthly disposable income under £733. Most of our clients do not have the technology to instruct or work with us “from home”; the majority have pay as you go mobiles, sometimes without the ability to take photographs of key documents or email these to us. The requirement for signatures on legal aid forms has been particularly onerous where the case is urgent and there is not enough time for a form to be sent and returned by post. Doing this remotely is very difficult and means that we do a lot of “at risk” work that we may not in fact be paid for if the clients cannot get the paperwork back to us (through no fault of their own but simply a lack of technology/understanding to do so).
6.6. Many of our clients also suffer from mental and/or physical health problems. This can often mean that they struggle to understand our advice and their next steps, including what documents we need from them and why. We have found that communicating over the phone compounds this issue. In addition, a number of our clients cannot read and have limited English, which again means they simply cannot instruct us remotely as we cannot understand one another sufficiently over the phone and/or we cannot see their paperwork.
6.7. As a small legal advice centre, we have faced challenges with remote working many of us have had to rely on having our own computers or laptops at home to work from and have had to use our personal mobiles to make calls or to use an app to call clients via.
7. The impact of Covid-19
7.1. As discussed above, our clients often experience issues that mean providing information and receiving advice can be difficult using technology.
7.2. The closure of our offices in line with the government guidance has culminated in all our face-to-face advice services being moved to telephone advice. We understand that this is the case across the provider base. Advice provision in this way has many drawbacks. Some clients are not able to attend our offices with the various documents necessary for us to open a legal aid file (proof of their means for example) or other highly relevant papers. A client may not have a private or safe space in their home to engage in a telephone appointment. The requirement for signatures on the legal aid forms has been particularly onerous as the majority of our client base does not have the facilities to print a form, sign it and scan and email it back to us, and if the case is extremely urgent there may not be time for a form to be sent and returned by post. In addition, taking instructions from vulnerable clients over the phone can be extremely difficult, particularly with the added complexities of a language barrier.
7.3. We have also seen that Covid-19 has increased levels of anxiety among services users, particularly in relation to loss of income or jobs, inability to pay rent and increased debts. Our clients are likely to have been hit hardest by the pandemic and need legal advice in areas of law that are no longer in scope for legal aid: debt; welfare benefits; employment. The Covid-19 induced recession is likely to lead to a massive surge in demand for advice, which the current provider base is not equipped to handle.
7.4. Covid-19 has also impacted income and cash flow for legal providers. The stay of possession proceedings resulted in no work being undertaken on these types of cases and no new possession work being taken on. Although MWLC was able to furlough staff to deal with the immediate ramifications to our cash-flow it is likely that there will be longer-term financial consequences to no court work for over six months. It is likely that some smaller firms may not have been able to sustain the loss in their income during this time, potentially resulting in further closures.
8. Challenges for legal aid over the next decade and reforms needed
8.1. There are various challenges legal aid providers are facing; however, our main concerns are as follows:
- Legal aid rates have not increased since 1996, therefore, there has been a declining provider base for several years. Many firms and law centres are not able to stay afloat due to the failure of the government to increase remuneration rates in line with inflation and rising operational costs.
- Research from the Law Society shows that nearly 60 per cent of the population in England and Wales live in areas with only one or no housing legal aid provider. Most housing cases involve a risk of homelessness; in addition, many cases involve urgent work such as injunctions, suspension of eviction warrants; challenging local authorities’ “gatekeeping”, i.e. unlawful refusal to accept a homeless application. The fewer providers there are the less likely it is that vulnerable people in need of assistance will be able to access necessary legal advice. People seeking housing advice are usually in low-paid jobs or in receipt of benefits and cannot travel for miles in order to seek legal assistance.
- We understand that the government is still considering introducing fixed costs. This would be devastating for what is left of the legal aid sector. The only way housing providers have managed to remain financially sustainable is because we have been able to recover costs at market rates in cases which we have successfully run. Market rate costs are usually set at around three or four times the amount of legal aid rates. The attempt to impose fixed costs would ensure that providing housing advice under a legal aid contract is no longer financially viable, even for those operating on a not for profit basis.
- The test for assessing financial eligibility for legal aid is long-overdue for reform. We understand that a means test review is currently underway and we welcome this but the timescales as we understand it are such that any new means test that is adopted will not be implemented until at least 2022. We frequently see clients in desperate situations with meritorious cases who we cannot fully assist because they are not financially eligible for legal aid or because they would have to pay such a high contribution towards any legal aid that they are effectively unable to qualify.
8.2. We submit that the following steps for reform need to be taken:
- Legal aid rates need to be reviewed as a matter of urgency to ensure that providers currently providing legal aid remain able to do, especially in light of Covid-19. The responsibility for setting legal aid rates should be passed to an independent body, in much the same way that the Independent Parliamentary Standards Authority sets the rates of pay for MPs.
- Early advice, for example in relation to welfare benefits, should be brought back into scope. This will ensure vulnerable people are able to access advice as soon as possible. This early intervention and preventative work is crucial in empowering individuals and providing them with the tools to avoid homelessness altogether. It will also allow lawyers who are assisting clients with benefit issues even though it is outside of scope to be paid for their work.
- Disrepair damage claims should be brought back into scope. This will allow providers to assist vulnerable people living in unsuitable living conditions and ensure that they are compensated for their landlord’s failure to comply with their repairing obligations. Currently, some providers are carrying out this work under a CFA, as such there is a cost risk to the client and the provider.
- We welcome the announcement in the LASPO post-implementation review that the means test will be reviewed. As we have noted above, many people who are homeless or at risk of homelessness are ineligible for legal aid because the means test has not been updated to consider rising housing costs and other costs of living. We have also found that those in receipt of Working Tax Credit and Child Tax Credit are rarely eligible for legal aid. We are of the view that certain areas of housing work should not be means tested e.g. homelessness and possession.
19 October 2020