Hammersmith and Fulham Law Centre has a 40-year history of providing advice and representation under the legal aid scheme. We have legal aid contracts in housing, immigration and asylum, public law and welfare benefits. We also hold contracts to deliver the Housing Possession Court Duty Schemes at the County Courts at Brentford and Wandsworth.
The law centre used to have 13 solicitors to advise and represent the local community but after LASPO it reduced to just five solicitors. We previously had contracts in employment and debt but these ended with LASPO. We are now starting to grow the law centre again as our services are needed more than ever – but this is now mainly through grant funding.
Legal aid work is no longer viable. The remuneration rates have not increased in 24 years but have reduced by 10%. The Client and Cost Management system is not fit for purpose and requires substantial change. The decision making at the Legal Aid Agency is generally poor. It is felt that the agency has a culture of refusal which actually prevents access to justice rather than assists to ensure people have it. The Legal Aid Practitioners Group carried out a survey of practitioner in 2019 on decision making at the LAA. There were also two public meetings organised on the culture of refusal and decision making at the LAA. At the first meeting over 200 practitioners turned up such was the feeling.
Legal aid has become too complex and there are too many schemes – a different one for each area of practice. The Legal Aid Handbook – the text to assist practitioners has now grown to be 664 pages.
Terms of reference
Legal Aid (ST)
• What are the three biggest challenges that you see to the future of legal aid as a whole? How do you see them affecting your Law Centre?
We consider the following to be the three biggest challenges to the future of legal aid as a whole:
1) Insufficient renumeration for legal aid work.
Rates of payment for legal aid work have remained stagnant since the 1990s (a year on year cut when allowing for inflation) until there was an actual cut in the 2010's. This has an impact on the sustainability of legal aid. As a Law Centre, we would not be able to operate without grant funding. Insufficient renumeration has had a dramatic impact on the number of practitioners (in the Not for Profit and private sector) who do legal laid work. There are too few legal aid lawyers to meet demand.
In asylum cases none of the limits set at present are realistic limits. Every limit is exceeded for a finished application - which highlights that it is not possible to complete a case within the limits set. In order to save a fee earners time in applying for cost extensions the limits should be raised to more realistic figures. With fixed fees we are able to make the case an escape fee case but often we find ourselves slighter lower than the escape limit.
At present Exceptional Case Funding applications are made on a pro-bono basis. Many firms do not do ECF applications for this reason and as a result leaving vulnerable clients without any legal representation. We propose that when an ECF application is granted the funding should be backdated to when the legal representative first saw the client in order to cover the initial attendance and drafting and submission of the ECF application to the LAA rather than only backdating the funding to the date of the application itself.
2) Limited scope of legal aid work
By removing key areas of legal advice from the scope of legal aid, LASPO decimated access to justice for the most vulnerable individuals in our society.
For example, most housing possession claims issued by social and private landlords are based on rent arrears. The cause of the rent arrears are often benefit issues.
As a result of the removal of welfare benefits advice from the scope of legal aid, most organisations offering specialist welfare benefits advice were forced to close. Most individuals are now unable to access specialist benefits advice. By the time the case comes before the Court, cases have often reached a critical point and there is a limit, if anything, that can be done to resolve the issue which led to rent arrears rising in the first place and the risk of eviction is increased.
The Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) published in February 2019 recognised the importance of providing legal support early, to avoid issues escalating into Court claims. Restoring legal aid for welfare benefits advice and disrepair would be a significant step towards fulfilling the Post-Implementation Review’s ambition for early intervention in legal issues.
The increase of litigants in person, for example in child contact cases both causes inequality of arms decreasing access to justice, and costs more in the long run with an increase of court time being needed.
In Immigration/asylum cases Article 8 is not currently in scope however every claim and application has an Article 8 element which we have to cover pro- bono. Article 8 as well as trafficking cases should be in scope given the volume of these cases.
3) COVID-19 and inequality
In 2019, the United Kingdom ranked as one of the most unequal nations in Europe. The Law Centre works closely with not-for-profit organisations in the locality and in the year ending December 2019, the demand for food parcels had doubled in two years, from 6,000 men, women and children in 2016-17 to 12,000 in 2018-19 it was 12,000.
The COVID-19 pandemic has already led to mass unemployment and a huge increase in claims for benefits. Employment advice and most welfare benefits advice are not in scope for legal aid and there is a huge increase in need. Combined with the impact of Brexit, the United Kingdom is likely to face the greatest economic downturn in decades and an increase in poverty, inequality and homelessness.
In this context, a significant future challenge to legal aid will be from the threat of further cuts to the legal aid budget particularly at the hands of the current Government who is openly hostile to legal work which is often funded by legal aid.
• What have you learned about the state of legal aid at your Law Centre and locality from the rapid adaptations to the pandemic?
As a Law Centre, we have found it challenging at times to provide advice and assistance to vulnerable individuals. In our view, the Legal Aid Agency’s contingency response to the COVID-19 pandemic did not reflect the necessary rapid adaptation and exploration of alternative ways of providing legal advice and assistance under a legal aid contract.
For example, the LAA’s contingency response relied heavily upon clients having a significant degree of digital literacy. This is particularly in relation to obtaining information regarding means; if a person did not have online banking it was very difficult for a vulnerable person to obtain copies of bank statements.
• Do you have good examples as to the impact of LAA itself on your work? How specifically could they improve?
In some areas we have seen some improvements by the Legal Aid Agency, for example in relation to the processing times of applications via CCMS. However, a significant proportion of caseworkers at the Legal Aid Agency continue to fail to follow the Legal Aid Agency’s own guidance in relation to the granting of legal aid. This creates unnecessary delays and increases in costs.
For example, one housing solicitor recently sought an increase to the costs limitation in case involving a claim for possession for rent arrears with a counterclaim in disrepair. The application was initially refused and then 50% allowed on appeal. As a result, the solicitor will shortly need to make an additional application for a further increase.
We are concerned that there is a culture of refusal at the Legal Aid Agency, and we believe legal aid should be administered from outside government (as was previously the case with the Law Society).
• Do you have good examples of recruitment and retention problems you have had since LASPO and how they have affected your Law Centre? (e.g. vacancies that were never filled or projects that had to be abandoned)
We have found it more difficult to recruit staff since LASPO. We have been unable to recruit a trainee solicitor in a recruitment round and a housing solicitor on 2 occasions in a recruitment round. This is due to the relatively poor renumeration we are able to offer. This in turn is caused by the poor renumeration rate paid by the LAA. Law Centres around the country have closed due to lack of funds. Private practice firms have given up legal aid work in large numbers as it is not financially viable as a business model. This will dissuade young solicitors from wanting to undertake legally aided work as a career option.
• How are you finding the use of digital means in the changing courts and tribunals? How are you finding it with clients, and how has it changed your interaction with them?
The housing team does not yet have experience of the digitization of the Courts and Tribunals.
The immigration team have started using the new online tribunal portal for appeals which seems to be working very well and the legal aid rates have been adjusted to reflect the change in online appeals.