Written evidence from The Legal Education Foundation
The Legal Education Foundation (TLEF) is pleased that the Justice Select Committee is conducting an inquiry into the future of legal aid. This short submission summarises some key points and principles for the future of legal aid based on our experience of working as a grant maker in this field. In the course of our submission we also reference analysis and research produced by the Foundation that is already in the public domain. If there are particular areas of interest among the Committee where we may be of help, we are very happy to be contacted to provide further information.
We are an independent grant-making foundation whose vision is of a society that fosters the principles of justice and fairness, where people understand and use law to bring about positive change and to prevent harm and where public systems and structures uphold the rule of law. We focus on the essential role of legal education in helping people and organisations to understand and use the law as a tool for change. In this work, we know that there are significant numbers of people who cannot obtain justice in relation to everyday problems, and that these unmet needs trigger or exacerbate clusters of issues that have a social and economic impact on individuals, communities and wider public policy goals. We believe the law should be readily available at the times and in the places where people need it.
In the past six years, we have distributed more than £30million to over 200 organisations in the legal field. This includes substantial funding to organisations in the legal aid sector. We operate a combination of open and proactive grant programmes. These include the Justice First Fellowship, a scheme which we established in 2013 to support the next generation of social justice lawyers. We created this programme because of our strong concern that legal aid organisations could no longer afford to fund trainees themselves and that the supply of new entrants to legal aid would therefore cease.
Working in the UK social justice legal sector has always brought challenges, but the last 10 years have seen increased stress and uncertainty. These pressures have only intensified since the start of the pandemic. As a result, we have been working closely with frontline legal aid providers such as Law Centres and other not-for-profit specialist advice agencies, sector representative bodies and stakeholders in government especially the Ministry of Justice, the judiciary, courts service and other funders to understand developments due to Covid-19 and feed this into our responses.
Working with others, we have been part of the team that established the Community Justice Fund (CJF) to help specialist social welfare legal advice organisations cope with the immediate impact of Covid-19 on their work and to lay the foundations for longer-term renewal. Wave one of the fund is now closed with a total of £11.6m distributed to 177 organisations. Work is underway to assess emerging themes and issues from our grantee cohort and to plan wave two which it is hoped will be in place in 2021. The key message from organisations is that the situation remains extremely serious and whilst interim funding has been welcome and important, significant support will be needed to meet demand into 2021. As we finalised this submission, England went back into lockdown, reinforcing the dynamic nature of the current context and the ongoing pressures this will bring. At this time, key resources, such as legal aid, have to work additionally hard.
We have also led an independent rapid review for the Civil Justice Council of changes to the civil justice system developed in response to Covid-19 (previously published so not included here in detail).
The role of the legal aid agency:
We welcome the Committee’s scrutiny of the role of the Legal Aid Agency which has such a crucial role to play. In our view, drawn from the extensive contact we have with the field, a reformed culture of leadership and accountability at the LAA is needed to ensure that it is fit for purpose in the current challenging landscape. The LAA needs to ensure fiscal accountability and also be supportive of organisations doing vital and difficult work so that they can best support people who need their services. We are concerned that, at present, the LAA fails to balance these demands, and does not reflect, learn and improve when systems do not work well. In particular, we are concerned firstly about slow, inconsistent and inaccurate decision-making by the LAA, and the need for it to hold itself to a higher standard. Secondly, we draw the Committee’s attention to the persistent problems with the LAA Client and Cost Management System (CCMS), which all providers are compelled to use, and the need for it to respond more speedily when problems emerge, make improvements, and ensure practitioners are compensated for time wasted due to system failures.
The impact of LAA systems and decision-making on access to justice is well recognised and frequently discussed within legal aid circles, but rarely attracts wider attention. These are issues which hinder the delivery of vital services to clients and cause intense difficulty and additional stress to lawyers doing demanding and difficult work. We know of organisations and private legal aid firms that have given up their legal aid contracts citing LAA bureaucracy in general, and CCMS in particular, as one of the reasons alongside cuts in fees and scope. We hear about legal aid providers being too worn out from wrestling with CCMS in their day to day practice to complain about it, which means LAA lacks accountability, and is missing a vital source of intelligence about where things are going wrong.
For all the problems LAA systems and poor decision-making cause, and the strength of feeling they evoke, there is little effective pressure on the agency to make improvements. Increased LAA accountability would bring about significant benefits to legal aid providers and so to the people they support.
It is common to hear of the LAA's 'culture of denial' - where the opinions of the agency's caseworkers count for more than experienced practitioners and are used to justify refusing funding. This happens in cases across the board, including some, like Samuels v Birmingham City Council, that have the potential to benefit thousands of people.
It is vital that the LAA learns and reflects on how better to engage with practitioners and communities to make sure that justice is served, particularly so during the current pandemic. For example, we recently wrote to the Lord Chancellor and Secretary of State for Justice to highlight the failure of the LAA to consider travel costs in the contracts for delivery of the Housing Possession Court Duty Scheme. This welcome scheme is recognised as giving a lifeline to people on the brink of eviction, by ensuring expert legal advice is available when they attend court for possession hearings (Shelter estimate some 227,000 people are two months or more in rent arrears and will be at risk of eviction). The LAA retendered for housing duty contracts in a number of geographical areas in readiness for the resumption of possession proceedings. However, as drafted, the tender document did not cover travel costs for advice providers to attend court in order to deliver legal support. We are concerned that the failure to fund reasonable travel costs as part of this tender will drive providers to attempt to deliver the duty desk scheme remotely, for economic reasons. This will be a particular problem in advice deserts, where there are no locally based housing lawyers. The best available evidence shows that remote advice provision is a poor substitute for face to face help at court, and will be particularly unsuitable for vulnerable people, many more of whom will end up homeless, as a result.
We recognise that changes to the contract must be reflected across the whole scheme, and yet the cost of covering travel disbursements for the entire housing duty scheme annually has been calculated by the LAA as between £300,000-£600,000. This sum is marginal when compared with immediate knock-on costs if individuals and families lose their homes for want of receiving effective advice and representation at court.
This is but one example of where a failure by the LAA to consider the views of external bodies, despite the appearance of engagement and consultation, leads to the development and implementation of ineffective policies, systems and contracting regimes. This not only undermines access to justice and the ability of practitioners to deliver sustainable services, but also breeds unwelcome distrust and ill-will between the LAA and practitioners.
The impact of the court reform programme and the increasing use of technology on legal aid services and clients:
We have carried out significant research into the impact of court reforms and use of technology. In particular, we would draw attention to the following reports by Dr Natalie Byrom, Research Director at TLEF:
This recent work looking at the particular impacts of Covid-19 is underpinned by longer term work on how data across the civil justice system is collected and shared. On 2 October 2019, the Foundation published ‘Digital Justice: HMCTS data strategy and delivering access to justice’ following a three month secondment by Dr Byrom into HMCTS as an expert adviser on open data. The Report set out 29 recommendations for evaluating the impact of the government’s online courts programme, and for ensuring the needs of all court users are understood and fully met in the move to digital justice. If the report is adopted in full, the UK could become a world leader in delivering digital justice for all. Twelve months later, HMCTS has finally responded, accepting the overwhelming majority of the 29 recommendations, at least in principle. Dr Byrom identified that HMCTS’ £1bn Reform Programme, arguably the most ambitious in the world, provided the catalyst to transform the way data on the operation of the justice system is collected. She clearly identified that its very success was dependent on building in the necessary digital infrastructure at the ‘front end’, as the programme was being rolled-out, rather than wastefully retro-fitting it as an after-thought. Dr Byrom highlighted a “vanishing window” to improve the quality of vital data collection, because the technology that is currently being devised and coded under the HMCTS court reform programme is being finalised without the necessary data-capturing capability built in.
We would draw the Committee’s attention to our concerns that over the last 12 months, HMCTS has made disappointingly slow progress at moving forward on any of the major recommendations made by Dr Byrom. In our view, COVID-19 cannot be a reason not to act. Rather, the impact of the pandemic on the court service has shone a spotlight on why it is more important than ever to improve the quality of data collection to enable the digital transformation of the court service.
One of the Government’s own key objectives, rightly, is to improve access to justice for all. If the recommendations in this report are not implemented, services will continue to be designed without the necessary evidence that shows that they are fair to people from different backgrounds. It will undermine the whole point of the Reform Programme to improve the judicial system, reduce costs and ensure everyone has access to justice.
The importance of taking action now cannot be overstated. We have the opportunity to do better and to make data, carefully collected, work harder, ensuring some of the most vulnerable groups in society get a fair hearing whilst being cost-efficient for taxpayers.
We have no doubt the Ministry of Justice is serious about delivering on its promises, and we stand ready to work alongside the government to continue to provide advice and support to ensure the ambitions of the Reform Programme are realised.
What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere:
We are aware that many of our grantees and partners will be submitting detailed evidence on the challenges ahead and practical ideas and suggestions for reforms. We will focus here on drawing the Committee’s attention to some broad principles which we believe are crucial to ensuring that a sustainable and effective system of social welfare advice, including public funding, is in place for the future. These comments draw on our experience that charitable funding is, effectively, currently subsidising a market that is inefficient, poorly administered and unable to meet level of demands from the public.
(i) Whilst charitable funding can be a useful complement to public funding, it has always been clear that it cannot possibly address the gaps or adequately replace a properly planned and efficiently delivered public funding model.
(ii) The public policy consequences of the status quo are grave and worsened by the direct and indirect impacts of Covid-19. There is now a rich understanding globally that resolving people’s social welfare legal problems is instrumental to achieving a range of public policy outcomes key to building back better, levelling up on health, education, and health and avoid further deepening inequalities. Without timely, affordable access to quality advice, often simple challenges can spiral into complex legal problems that are more costly to resolve in both human and economic terms.
(iii) There are members of our communities who are not be able to pay for legal advice, particularly those who are already marginalised and vulnerable to harm and who are in even more precarious situations as a result of Covid-19. There is an essential role for legal aid in a sustainable funding model for social welfare advice. This needs a long-term plan, developed with input from a wide range of stakeholders; the public who use the justice system, legal practitioners, local government and relevant central government departments, not only the Ministry of Justice.
(iv) In order to ensure a viable and effective provider base, organisations HAVE to be able to attract sufficient income to invest in IT infrastructure, staff training and wellbeing, learning, best practice and overall effective organisational management. The Foundation has invested considerable resources over recent years to support, for example, Law Centres to upgrade their IT capacity. One important issue to note is that the rapid switch to remote working necessitated by responses to Covid-19 would have been impossible without centres making this transition. However, the ability of providers to generate these sorts of resources is so constrained by current funding models. Income for services falls short of covering the full costs of those services let alone leaving room to build or maintain reserves. Data from applications to the Community Justice Fund reveals a stark picture of a fragile funding base in this respect. It also means organisations are constrained in their capacity to meet changing demand, to create potentially new services.
(v) Since our inception, TLEF has been committed to the role that evidence can play in advancing our vision. A commitment to collecting and learning from robust evidence is key to understanding the context in which we work and to designing effective interventions and structures. Through our work in this field, we have learned more about the areas of development necessary to build a robust evidence base. These include the need to:
The importance of this agenda was captured in the recent OECD report on access to justice and the Covid-19 pandemic which stressed:
“the importance of gathering real-time evidence and carrying out research on the ongoing pandemic and its related measures as it evolves... Better access to justice data can assist governments and justice systems in recognising new patterns and anticipating new vulnerabilities. It could also help develop anticipation and foresight capabilities for justice and broader public institutions over time.”
Whilst the pandemic has placed enormous and unprecedented strain on our societies, there is an opportunity to seize the moment to address long-standing weaknesses in the administration of justice. In our experience there is significant willingness among stakeholders to work together to develop better models for delivery, and to fix the administration of legal aid which at present makes it difficult for services to plan and thrive. In the midst of a pandemic, and in the recovery that will follow, this collaboration will be even more crucial to make best use of limited resources and ensure the fair functioning of a people-centred justice system.
Recruitment and retention among legal aid professionals:
As part of this longer-term strategy it is vital to consider the development of the next generation of specialists as part of wider strategies on legal aid and social welfare advice. In 2013, the Foundation established the Justice First Fellowship – a scheme to provide fully-funded training contracts, pupillages and wider development opportunities for the next generation of specialist social welfare lawyers. Fellows spend two years working in leading UK organisations, which act as hosts and enable them to learn alongside the best in the profession.
When establishing the scheme, we were conscious that it was not enough simply to be supporting Fellows to be excellent lawyers. They also needed to develop the wider skills and networks necessary to build successful and sustainable careers in this area of law. The Fellowship, therefore, is formed around three parts – legal training, a project advancing access to justice and bringing Fellows together for training on the non-legal elements and to be part of a movement of like-minded lawyers. We were also conscious that we did not want to address the training hurdle only for Fellows then to encounter a later hurdle in securing employment.
In partnership with a growing number of sponsors and host organisations, the scheme has now placed over 80 Fellows who are already meeting legal needs in communities across the UK. Of the 52 who have qualified and completed their fellowships, our analysis shows that 75% are still working as lawyers in the social justice field; and a further 15% are working as lawyers in public service including the Government Legal Service. We will continue to monitor employment, retention and progression among the cohorts and it is clear that Covid-19 and the additional pressures on resources has made it harder to sustain the outcomes to this point.
However, this kind of initiative cannot be a substitute for a more comprehensive and large-scale strategy. At this stage, government is essentially relying on charitable funding to ensure there is a pipeline of future specialists to deliver legal aid. We urge the Committee to encourage Government to commit to working with the profession to ensure a pipeline of practitioners and a sustainable retention strategy.
 Community Law Partnership had a five-year battle with the agency for funding in the Samuels case, which was only granted after the Supreme Court had given permission for the case, and was under threat of judicial review. If the LAA's view had prevailed, thousands of tenants would not now be benefitting from the additional legal protections brought about by Samuels. See more: http://www.communitylawpartnership.co.uk/news/terryann-samuels-the-long-road-to-the-supreme-court-struggles-with-the-legal-aid-agency
 https://consult.justice.gov.uk/digital-communications/housing-possession-court-duty-scheme-service/supporting_documents/hpcdsimpactassessment.pdf pp7