Written evidence from the Law Centres Network

 

  1. About us: Law Centres are not-for-profit law practices specialising in social welfare law, that have been operating in the UK for 50 years. The Law Centres Network is the specialist support organisation serving 41 Law Centre offices across the country. At the specialist end of the advice spectrum, Law Centres provide services that few not-for-profits provide – legal casework, advocacy and representation – normally at a point when legal problems have escalated and become costly to resolve. 1 in 3 civil legal aid access points operated by not-for-profits is a Law Centre. Over 1 in 5 County Court duty solicitor desks are operated by Law Centres.

 

LASPO’s impact on access to justice

  1. Many of the current problems plaguing civil legal aid and access to justice have their roots in the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act 2012. Over the past seven years civil legal aid has been helping with fewer and fewer cases at too late a stage, due to its concentration on escalated legal problems. The service also helps with too few civil problems, leaving large swathes of social welfare law with no assistance and offering only partial assistance where it is available. The declining uptake of legal aid is not due to declining legal need: proxy indicators remind us that the housing crisis persists, as do benefits and workplace problems, and so we would expect legal need to be growing. Rather, the reason is that LASPO has created an ineffective system characterised by market failure.[1]
  2. Unresolved legal problems due to denial of legal aid have knock-on effects on the welfare of people and communities, affecting their homes, finances, health and prospects. Too often, legal aid is unaffordable even to its target beneficiaries, even some of those already living in poverty. This is due to overly restrictive and complex eligibility rules. Consider a couple where the woman has No Recourse to Public Funds while her partner is on income-related benefits. She, who has a legal problem, must declare all family income but then get refused legal aid while, on the same family income, he can simply be passported onto legal aid. In the absence of legal aid, these rules are forcing families in poverty to pay for legal advice that they cannot afford.[2]
  3. This decline of in the functioning of civil legal aid went largely unacknowledged in LASPO’s Post-Implementation Review, in part because the cuts to legal aid have also swept away the Legal Services Research Centre, which collected much of the evidence about it. Following the review, the two most tangible changes to civil legal aid were the end of the mandatory telephone gateway in May, over two years after it was announced; and a review of the means test for legal aid, which is still ongoing and whatever changes it might recommend are not expected to be in place before the end of 2021. Both the scale and the pace of these changes have sadly been characteristic.[3]
  4. This decline has been marked enough to be noticed internationally. In the World Justice Project’s Rule of Law Index, an annual comparative exercise, the UK’s rating has been slowly declining. Our worst-performing aspects of the rule of law are, perhaps unsurprisingly, the affordability and accessibility of civil justice and the prevention of discrimination.[4] This parlous state has certainly affected the legal aid provider community, with many struggling or giving up on legal aid work, leaving behind provision deserts’ and a workforce in crisis. We know now that we have nearly 40% fewer civil providers and 30% fewer legal aid offices compared to 2010, the year when the LASPO changes were first mooted.[5] A Law Centre caseworker says: Financial viability means that people are forced to work very long hours to earn the Law Centre enough money to stay open: burnout is an issue. Burnout can also result from the types of cases we take on. The nature of the means test is that we now only see the poorest people with the most complex cases, and there is no relief from that.”
  5. In recent months, MoJ has been working on what could be done to bolster the sustainability of civil legal aid. One assumes that this reflects a realisation, however implicit, that all is not well with the service and that the case for change is compelling. The shrinking workforce and service and the expanding legal aid deserts already raise questions that the committee should explore, primarily whether the Lord Chancellor can still claim to fulfil his duty to provide legal aid evenly and reliably. Law Centres have been contributing to the sustainability ‘deep dive’ sessions. We are keen to see legal aid and its community of practice recover as they are particularly needed at this time. Yet Covid-19 reveals the inadequacy of the LASPO system for responding to emerging need; its inflexibility of spending has denied financial support to retain providers when court closures prevented them from working; and this vulnerability of the provider base endangers legal aid itself.

 

The role of the Legal Aid Agency

  1. The Legal Aid Agency (LAA) replaced the Legal Services Commission following Sir Ian Magee’s 2010 review of ‘Legal Aid Delivery and Governance’. His recommendation, that the Ministry of Justice (MoJ) redress the balance between maintaining adequate control and giving providers space to deliver services effectively, efficiently and to encourage innovation, now raises a wry smile.[6] What LASPO did not kill with top-down prescriptiveness was chilled by LAA’s approach to contract management. Its initial priority seems to have been simply to not have its accounts qualified; while the past 3 years reflected a focus on reducing expenditure and the value of Work in Progress. These undeclared aims were not lost on practitioners. One thought that assessment of Escape Fee cases operated largely as though the point of assessment is to try find reasons for the LAA to refuse to pay for work done in good faith.
  2. LAA’s ‘culture of disbelief’, as it became known, was coupled with conduct that at times bordered on maladministration. An emblematic example is the troubled Client and Cost Management System (CCMS), which was mandated for use for all civil work in 2016, when it was clearly not ready. While some CCMS modules and functions have improved with time, it is still plagued with slow communications and service outages (for 3 weeks earlier this year). As reliance on the digital platform as an interface between the agency and its providers grew, direct contact with LAA decision makers has become increasingly elusive. Often CCMS takes longer to use than the paper forms that preceded it, and it still does not cover every activity that needs to be logged (like ECF cases appealing to the Supreme Court). If the more time that providers spend on administration means less time spent providing the service, one wonders how this way of working can be considered good value for public money. A caseworker commented: “It would be helpful if the LAA was more collaborative, that they consider whether what we are saying has merit and respond to it in that spirit rather than dismissing us out of hand despite years of experience.”
  3. In talking with legal aid practitioners, a commonly repeated claim is that they do not feel like providers and LAA are on the same side; some have referred to their work as a double struggle, against their client’s adversary and then against LAA. A Law Centre lawyer agrees: “There is a regrettable and continuing failure to work in partnership with legal aid providers, and an assumption that we are deliberately being difficult and resistant to change. We want the systems to work so that we can do our best for our clients.” This is in stark contrast with Magee’s observation that recommendations for any structural change will succeed only if there is a clear and well developed relationship characterised by trust between all parties.[7]
  4. This suspicion was not helpful when, with the onset of the pandemic, LAA sent its contract managers to liaise with providers to ascertain their situation. Understandably, many were reluctant to discuss sensitive affairs about their business, and questions that exceeded legal aid, with the same person otherwise responsible for auditing and sanctioning them for contractual infractions. It did not help that LAA was slow to make contingency arrangements and much slower still to offer what turned out to be very limited financial support to providers. A Law Centre solicitor says: Overall, we learned that the LAA did not have the capacity or agility to adjust to the ‘new normal’ as quickly and effectively as we were expected to.”
  5. Given the above, LAA’s annual report is a telling read, probably because it tells the reader very little about access to justice or the people helped.[8] The indicators against which it reports tend to be process indicators such as application approval durations, while output indicators like the number of people helped are not reported on (probably because LAA counts cases, not people). Likewise, the report accounts for spending but not for the impact of the service paid for. There is also little account of the full resource that provides legal aid, as the report covers LAA but not legal aid providers. One can read the report cover to cover and still not know that legal aid is not advertised to its target beneficiaries, meaning it is effectively a ‘secret service’. Law Centres receive grants from charitable trusts and foundations, none of which would accept so little accounting for the beneficiaries of the funds spent, impact measurement, value for money, lessons learned, or improvements proposed.

 

Recruitment and retention problems

  1. The recruitment crisis among legal aid providers is multi-faceted and affects all levels from junior positions through qualified supervisors to managers experienced in running legal aid contracts, as well as the geographic distribution of points of assistance, leading to vast areas of the country becoming legal aid ‘deserts’. Unsurprisingly, pay features prominently among the reasons for this crisis. A Law Centre manager explains, We have only been able to pay a rise of 1% per annum for the last few years. That doesn’t keep up with inflation, but what can you do when the LAA are paying us less than they did 20 years ago.”
  2. LASPO removed financial incentives to train in social welfare law. ‘Market forces’ followed in its wake: legal aid modules in many law schools were discontinued, and even the new Solicitors Qualification Examination includes no module on social welfare law. Law school graduates or newly qualified lawyers, saddled with student debt, face lean years ahead that cast doubt over a choice of legal aid work. In February, one legal recruiter found that 29% of trainees were receiving a salary below the Law Society’s recommended minimum (£22,541 in London and £19,992 elsewhere), including 42% of trainees in London, where many legal aid providers are located.[9] All this directly affects recruitment. A Law Centre director remembers, ten years ago we got 80 applications [per vacancy], now we would be lucky to get 10, if that.
  3. The shortage in ‘new blood’ risks a generational loss of knowledge, experience and skills, as longstanding lawyers approach retirement with too few junior colleagues to supervise. A caseworker at a large London Law Centre is worried: We are an ageing cohort of solicitors, largely in our 40s and 50s. We outnumber those under 35 [at our Law Centre] by at least 3:1. When we retire, there will be a third as many people left behind to do the work. Over nearly 8 years since LAPSO, recruitment and retention problems have become entrenched and hobble the development of services and organisations. The director of a large Law Centre reflects: Last year we carried out 15 rounds of recruitment and recruited 16 people… 3 stayed only a short period… It is exhausting I dread getting a resignation letter knowing how hard it is now to fill a post.” This is not tomorrow’s challenge, it is that of today.
  4. These problems have been repeatedly raised with LAA but it has done nothing to address them. It knows very little about the legal aid workforce: its records cover providers and legal aid offices but not the number of newly qualified lawyers or the number of supervisors over age 45. To date it has made no attempt to assume some responsibility for workforce development or invest in it, or to better support providers, most of whom are SMEs, to do so. In our experience, LAA has also shown inflexibility on cost-neutral measures for extending supervision that could improve coverage without compromising on quality. We need this to change.

 

Court reform and increasing use of technology

  1. The court reform programme was a great opportunity for improving the processes and services of the justice system. Yet even now, over halfway through the programme, the opportunity seems largely missed. As the National Audit Office found out, it has been delayed, overspent and consequently several outputs were already removed from its specification. This should come as no surprise, as even before its formal launch the reform programme was assessed by Boston Consulting Group for Michael Gove when Lord Chancellor as having a ‘breadth of ambition’ that was ‘unmatched anywhere in the world’ among comparable reform programmes.[10] Law Centres’ concern with the programme was not with its ‘world beating’ ambitions, but rather that it improves the accessibility of courts and tribunals and people’s experience that justice has been served. We would not be able to know how successful court reform has been until HMCTS extends its data collection and reporting on it, something it has yet to meaningfully address.[11]
  2. Probably the greatest missed opportunity of the court reform programme was not addressing the problem that the previous reform created. LASPO left many people with legal problems without advice or representation, as Litigants in Person (LiPs) in a justice system made by lawyers for lawyers. As a major project, the court reform programme had both scope and resource to go some way toward reducing the considerable amount of LiPs by weaving advice into court settings and around proceedings. The closest provision to this has been a pilot of Assisted Digital Services run by Good Things Foundation. Its recent report concedes that Digital Service users can face multiple barriers… [so] are likely to require a wider package of support… (including emotional, procedural - and sometimes legal – support]” which is “often crucial to the success of the service and even to litigants accessing it at all.[12] Still, so far it is not part of the HMCTS service specification.
  3. Another aspect of the challenge that digital services pose to access to justice became apparent to us with the onset of the pandemic and the rapid shift, especially in some tribunals, toward remote and increasingly digital channels. Through the experience of Law Centre clients, we learned to disaggregate digital exclusion, distinguishing digital literacy and capability from the much more common ‘data poverty’. Given how fundamental getting online has become, data poverty is an elementary and acute aspect of poverty and its proliferation should be cause for great concern. Through the initial lockdown it became apparent that many people in data poverty have lost the places where they could access free wi-fi: sitting outside cafes and shops, public libraries and other public spaces that were all now unavailable, leaving people cut off from vital support.
  4. From a practitioner perspective, the accelerated shift to digital channels was fraught mostly due to external factors. The action log of the Covid-19 ‘gold command’ civil and tribunal working group, of which we were members, records a litany of troubled adaptations in anything from electronic signatures, through digital document service and mark-up, to digitally-assisted hearings. By and large, practitioners were adapting readily but seeking official guidance, whereas court infrastructure at times proved difficult and process varied considerably across jurisdictions and sometimes locations. The problem-solving urgency on the public body side of the working group seemed to have waned considerably after the first month, and it was discontinued in early July.

 

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

  1. The need to pause office-based services and pivot onto remote services has markedly affected accessibility to clients. The loss of a local point of contact has led to many people in need simply not contacting us for help like they used to. Law Centres were not short of inquiries, but there was a felt shift in client demographics, from people in more entrenched disadvantage to those who have until recently had steady, skilled jobs but losing them has created hardship and a variety of related legal problems. Earlier this year, our previous evidence to the committee related Law Centres’ efforts to engage with the first group, and we are also conducting analytical work in order to try and bring them back, because their legal need will not have dissipated in the duration. The ‘lost clients’ experience is not unique to Law Centres and has also been repeatedly discussed in advice sector forums.
  2. Digital exclusion can only partly account for this phenomenon, as can the ‘data poverty’ we mentioned above; this challenge also concerns questions of trust or the ability to engage through mediated channels like telephone. For over a year, LCN has had user research capacity as part of unrelated digital development work we have been undertaking. Our user research has shown that, even among service users who are happy to use remote channels, there is a clear preference for initial contact to be made in person. This is about establishing basic acquaintance and trust in people with whom you are about to share considerable private matters; as clients have repeatedly told us, once you have met an adviser “then you know who you are dealing with.” Our user research is pointing us again and again back at the need for digital to be but one component of a blended or hybrid service, and we have been conducting follow-on work to better understand what components must be reserved for in-person contact and under what circumstances.
  3. There was no question among Law Centres that their services must continue to be available to people in need throughout the pandemic, even if remotely. In fact, pivoting to remote services has shown us how much we can do remotely and how we can further widen our capacity. However, there is agreement that remote provision is mostly the best available alternative to in-person service for the time being. A caseworker said: There needs to be ongoing face to face advice provision In terms of providing an ongoing service that meets clients’ needs, a remote response is not appropriate for those with additional needs, insecure housing, language barriers and other vulnerabilities.” Depending on the client’s situation, these considerations give rise to further concerns: Safety has been on ongoing concern: some of our clients have been unable to find a private place where it is safe for them to take part in the [video meeting] and share very personal, often traumatic details.”
  4. Protracted lockdown, great uncertainty and disruption to vital support services has clearly hit Law Centres’ most vulnerable clients: “The impact on our clients has been noticeable. Clients have found the lack of face to face contact distressing and their mental health has deteriorated, which creates an obstacle to them providing instructions, and for us to be able to progress cases.” The more vulnerable the client, the more acute the pandemic’s impact on them – and this has direct implications for the service they are provided with. An immigration solicitor explains: you cannot properly look after fragile traumatised appellants remotely. Self-harm is endemic among young people seeking sanctuary, so asking them to work on statements reliving events without the support they need is dangerous.”
  5. Law Centre caseworkers are also feeling the pressure, dealing with client trauma while working alone from home, unable to ‘leave work at the office’ and mentally distance themselves from disturbing details they have been exposed to. In a recent Legal Aid Practitioners Group survey, longer work hours and job insecurity have meant that a third of respondents reported suffering loneliness, two-thirds were unable to ‘switch off’, and 3 in 5 had trouble sleeping. Law Centres are telling us that there is also some reluctance to return to the office or to court work among staff with underlying medical conditions (or those who live with relatives who have them), who fear that they are putting themselves in harm’s way as the pandemic is resurgent. Staff welfare is a constant concern to us, and we are trying to address it through training, peer support and other activities, as well as continuing to seek out new measures.

 

The next decade of legal aid: challenges, reforms and lessons

  1. The challenges to legal aid outlined above are even more pressing than they seem. Already too many people are left to fend for themselves without needed legal assistance, and the surge in legal need driven by the effects of the pandemic will linger for years. Worst affected are disadvantaged people in legal aid ‘deserts’, who are already left behind by the very system that was meant to help them. Even those fortunate enough to access civil legal aid are provided with partial assistance due to restricted scope. The legal aid workforce is shrinking, unable to sufficiently replenish itself, demoralised by its conditions and the LAA’s culture of disbelief. However, the critical mass is still there – just – to turn around this dismal state of affairs, and legal aid lawyers are a resilient, dedicated and resourceful community.
  2. The scope of legal aid needs to be redefined to become more adequate for the legal needs of the people for whom the service is intended. This would mean reintroducing legal advice at earlier stages of legal problems, and reinstating legal aid for key social welfare law needs like preparing benefits appeals, which are a common feature of client problems given the low income threshold for legal aid. In general, the structure of civil legal aid should follow people’s legal needs and the established knowledge about them, namely that they tend to cluster across more than one area of law and should be resolved in a joined-up way. This should at least allow people with matters currently in scope to also be assisted with related matters that may not be in scope, to provide full resolution of the clustered legal problem.
  3. A similar approach should apply to the accessibility of legal aid, which should be one of its fundamental features. The service needs to be much better advertised, in conjunction with just-in-case and just-in-time legal information, to ensure that those who need it know about it and how to access it. MoJ should work with legal aid practitioners on overcoming hurdles to legal aid accessibility in circumstances of social distancing, as these are likely to persist and recur. Eligibility for legal aid should be increased and simplified, so the service is more affordable to those who need it.
  4. Legal aid lawyers are in urgent need of a pay rise, in line with their counterparts in the public sector – after all, they provide a public service, too. Future legal aid rates would need to be indexed to inflation, so the current problem of severely outdated, stagnant fees is not repeated. Ultimately, the only way to pay legal aid lawyers fairly, based on the actual work done on cases, some of which are complex and protracted, is to reintroduce hourly rates, as MoJ has done recently for immigration and asylum appeals.
  5. The administration of legal aid requires special consideration, because it involves both technical and cultural challenges. Digital systems need immediate attention as they currently make a hard job much harder for providers. Secondly, Legal aid is currently commissioned in a uniform way, as a ‘one size fits all’, and while this may be notionally attractive to LAA, it is not without its problems. We believe there is need for more flexibility: on regional provision (needs and conditions vary), on contingency arrangements (both routine and exceptional as with Covid-19), and on service development. Overall, not-for-profit providers – a small but critical part of the workforce – should be better supported: LAA should take a more proportionate approach and reintroduce not-for-profit contracts, and MoJ should follow this committee’s recent recommendation for further grants-in-aid, which are proving invaluable during a period that challenges the entire pay-per-case premise.
  6. As suggested above, MoJ must now invest in developing the legal aid workforce. It should reintroduce the part-funded trainee scheme that had been in place until 2011, to ensure that every year a cohort of new legal aid lawyers is introduced. MoJ should also invest in creating professional development opportunities and pathways for legal aid lawyers, to keep the service as an attractive career option to junior as well as experienced lawyers. Beyond investment, MoJ should also show leadership through esteem for the service and its workforce, akin to that shown for Civil Service lawyers.
  7. Over the past two years, the thrust of MoJ’s access to justice efforts was on what it termed ‘legal support’. While there is still call for such work, the pandemic has reminded us of the importance of having recourse to the more specialist part of the access to justice ecology, which often underpins the efficacy of the other parts. In trying to strengthen this ecology, we believe that MoJ should prioritise its efforts with the part of it that would be hardest and costliest to replace should they fail. That part is without a doubt legal casework and representation through legal aid.

*

19 October 2020

 

 


[1] Dr Jo Wilding demonstrated this masterfully for immigration and asylum legal aid. Jo Wilding, ‘Droughts and Deserts: a Report on the Immigration Legal Aid Market’, June 2019: https://www.jowilding.org/asylum_legal_aid.html.

[2] See Donald Hirsch for the Law Society: https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/struggling-families-disqualified-from-justice; and his more recent work on the affordability gap: https://www.lawcentres.org.uk/policy-and-media/papers-and-publications/law-for-all.

[3] We believe that another audit by the National Audit Office, revisiting its initial report of 2014, would have prompted some improvements and mitigations at an earlier point.

[4] https://worldjusticeproject.org/rule-of-law-index/country/2020/United%20Kingdom/.

[5] Taken from Legal Aid Agency management information shared with the Civil Contracts Consultative Group last month.

[6] Sir Ian Magee CB, Review of Legal Aid Delivery and Governance: https://webarchive.nationalarchives.gov.uk/‌20100402154529/http://www.justice.gov.uk/publications/docs/legal-aid-delivery.pdf, p. 76.

[7] Magee, Op. Cit., pp. 70-71.

[8] https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2019-to-2020.

[9] Cited at https://www.douglas-scott.co.uk/insights/firms-outside-london-slow-to-react-to-increases-in-trainee-solicitor‌-pay-recommendations.

[10] https://www.lawgazette.co.uk/news/moj-was-warned-about-court-reform-risks-in-2016/5068110.article.

[11] It has taken HMCTS a year to respond to the ‘Digital Justice’ report that it had invited from Dr Natalie Byrom of the Legal Education Foundation, and its recent response still lacks implementation target dates: https://www.gov.uk/government/news/hmcts-response-and-progress-update-on-dr-natalie-byrom-report.

[12] Good Things Foundation and HMCTS, HMCTS Digital Support Service: Implementation Review, September 2020, https://www.goodthingsfoundation.org/sites/default/files/research-publications/digital_support_service‌_implementation_review_evaluation_report_-_september_2020.pdf, p. 54.