What a fabulous day spent with fellow lawyers and professionals at the annual Legal Aid Practitioners Group (LAPG) conference on 9 November 2023. The events that LAPG puts on are always a good opportunity to meet other professionals and share ideas, but also to gain much-needed insight into the world of legal aid and social justice. As I write this article, it has become apparent that the thoughts that I will share here are not just mine, but those of many others within our profession.

There were plenty of different segments to enjoy at the conference: housing workshops, family updates, means testing for legal aid (a look at proposed changes to the way the passported benefit mechanism would work) and, of course, an essential look at maximising costs, which is something we all need to ensure happens for our practices and organisations in the current economic climate.

Sitting in the conference were members from the Ministry of Justice working group and legal aid officials, who were able to hear first hand what the real problems are for us all, those problems that we encounter day in day out, such as the bureaucracy of the Legal Aid Agency (LAA). How many times have you seen a task pop up on your CCMS that makes no sense whatsoever? You respond and get another inadequate reply, bringing with it an inner urge to bang your head against the nearest brick wall. One thing is for sure: something must be done to cut the red tape and simplify the legal aid system.

I do agree that there must always be rules and regulations that govern legal aid, and some wonderful points were raised at the conference. How about the idea that everything is in scope for legal aid funding with a few exceptions? That’s a complete reversal of the current Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and was certainly something that raised the room. Then there were points about scrapping the tender process, and the contractual obligations, and more or less handing back control about whom we can help to us practitioners, and avoiding all the time-consuming (and unpaid) work required for placing a tender, as well as preparing your experts directory, to name just a few.

Let’s not forget, the conference was filled with passionate people who all strive for the same things: social justice and fair pay for a day’s work, neither of which could reasonably be called outlandish.

It's always good to reflect how legal aid came into being and the critical role it plays in enabling access to justice (though this statement becomes more tongue in cheek as we get to the disaster of LASPO). Let’s take a journey back to post-war Britain, when the Legal Aid and Advice Act 1949 established the first state-funded legal aid system. It appears that legal aid was more or less unlimited: it could be sought for nearly any civil or criminal matter (though not libel or defamation cases). It was administered by our Law Society. Legal advice became free for the destitute.

As we move forward through the 1950s and swinging 60s, when Beatlemania took hold of Britain, legal aid funding was modest. In the 1970s, though, legal aid expanded in scope and budget, and larger law firms entered the market, alongside Law Centres and other advice agencies. Those of you who recall how wonderful the 1980s was music-wise, with the likes of Queen at Live Aid, may also recall a disastrous government. However, legal aid continued to be provided, albeit with the first ever cuts to it in or around 1986.

The next significant change would not occur until the 1990s, when legal aid moved from the hands of The Law Society to the Legal Aid Board (LAB). A tale I regularly tell is of the simple Green Form, or GF1: a single A4 page (yes, a single page, not like the 15-page controlled work form we have today) where you would input your costs on the reverse of the form, telephone the LAB and plead for an extension in costs because you had additional work to carry out. Then franchising came into being, bringing with it a set of criteria concerned with the management and running of a practice. It is interesting to note that the whole franchise scheme was one where the LAB would monitor the legal quality, standard or even competence of the work being carried out. I should add that cost-cutting to legal aid happened during the 1990s under the Conservative government: eligibility fell in a time of government trying to control its spending.

Things changed in the late 1990s with the arrival of Labour. Tony Blair took the view that a radical shake-up was required in the legal aid system. This led to the abolition of the LAB, and a new shiny Legal Services Commission (LSC) was established. The Access to Justice Act 1999 came into force and with it the new legal aid system, which would have two separate funds, one for civil work and the other criminal work. Both of these funds were administered by the LSC. This system was doomed. Certain areas of law were out of scope – for example, business-related cases and personal injury/clinical negligence – the idea being that they could be funded through the use of conditional fee agreements (CFAs).

What we have seen since the mid-1990s is that payment rates and eligibility for legal aid have been held down, with the proportion of the population eligible for legal aid shrinking. Having read that, in 2007, only around 30 per cent of the population were eligible for legal aid, private firms began abandoning it altogether. In 2010, the country was in a state of economic crisis and a coalition government was formed between the Liberal Democrats and the Conservatives. We encountered a programme of government cuts and austerity, and one budget that took a significant hit was legal aid. It was considered that fees should be cut, particularly in civil and family, and areas of law removed from scope.

In 2013, a new age for legal aid funding came into being under LASPO. While this Act carries on with some old franchise functions, it does have within it the exclusion of certain work. This is 'nicely' set out at the very start. One area that took a dramatic hit was damages claims arising in disrepair cases. Legal aid for such cases was removed; instead, they would need to be funded under a CFA (if your client could, first, find an adviser and, second, pay for the insurance). In addition, clients often prefer to have their case dealt with by one practice, therefore clients were not coming forward and able to challenge their landlords.

Another area hit was welfare benefit cases, which were removed from scope overnight. Those of us who have the privilege of helping clients with housing cases know all too well that, in numerous cases, the client faces a possession claim due to rent arrears following a benefit problem.

The reality of LASPO has been fewer people being able to access justice, as a result of legal aid practitioners deciding that they can no longer sustain their businesses, fewer junior social welfare lawyers, and the consequent legal aid deserts whereby even those who do have a provider may have to travel a long distance for face-to-face advice.

What can be seen from the above is that, from its conception through to the mid-1980s, legal aid was regarded as a good thing, a critical service for the public. Since then, it has slowly been eroded by successive governments: the Conservatives up to 1997, Labour from 1997 to 2010, the Conservative-Liberal Democrat coalition from 2010 to 2015, and the Conservatives, now holding on until the next general election.

All the governments that have contributed to the erosion of legal aid have, in turn, restricted access to justice for many who need it – that is not justice at all. What we need is a government that puts legal aid funding at the centre of its priorities. Amid this doom and gloom, there is hope that our current lord chancellor, himself a barrister, knows at first hand the plight of his colleagues – perhaps he can act as a voice for us all to call for much-needed and long overdue change.

I have given a short history lesson on legal aid, but I want to add more about the impact that LASPO has had specifically within housing, an area with which I am extremely familiar. We are experiencing significant demand for housing advice every single day, and the sad reality for clients is that either they are not financially eligible or they simply cannot be seen due to a lack of capacity. The Law Society published a heat map in March 2023 showing the stark reality that 25.3m people (42 per cent of the population of England and Wales) do not have access to a housing legal aid provider in their local authority area, a figure that has grown by five per cent since 2019. In addition, only 33 per cent of the population have access to more than one provider in their local authority area. These figures are alarming but not surprising. What does this mean? Well, in short, a lack of capacity, resulting in people being denied access to justice in a timely manner when possession claims are at an all-time high.

The government, in response to the continuing problems with housing law advice, introduced the Housing Loss Prevention Advice Service (HLPAS), a service where if a tenant receives a notice seeking possession, they can contact a provider that holds a contract for this scheme, which will be able to take on the case and provide early advice and support before representing the tenant in court. This includes welfare benefits and debt advice in addition to housing. HLPAS went live on 1 August 2023 and is currently due to run for a year pending the outcome of the new legal aid tenders. Yet, having spoken to other providers, take-up of contracts under this scheme seems rather low. Could it be that it involves more bureaucratic nonsense from the LAA, meaning more administrative time spent completing and uploading the reporting spreadsheet? Is it because providers have no capacity to take on the work’? Is it a mix of both? Or is there some other reason that I have not yet thought about?

Whichever party forms the next government, one thing is clear: it needs to invest in legal aid, raise fees, increase opportunities for the next generation of social welfare lawyers, and support the work that social welfare lawyers and advisers do – it is they who hold up the pillars of justice.