With the LASPO review kicking into gear, stakeholders banded together last month to discuss the problems that the Act has caused or exacerbated and to propose workable solutions. James Sandbach reports.
Legal Action readers will have read a fair amount about the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) that the Ministry of Justice (MoJ) is now undertaking. The review formally got underway last year when the MoJ submitted a
post-legislative memorandum to the Justice Select Committee (Cm 9486, October 2017), revisiting the original objectives of the legislation and offering a preliminary assessment of how LASPO has worked. Earlier this year (8 March 2018), the MoJ published
terms of reference for the review, alongside a process for engaging with stakeholders through four consultative groups of representative bodies, on crime, family, civil and advice sector issues.
Not content with the breadth and depth of discussion and contributors through the stakeholder groups, a wider conference of stakeholders came together at Freshfields Bruckhaus Deringer on 15 June to discuss key issues pertinent to the review. The conference, organised by the Legal Aid Practitioners Group and LawWorks with the support of other organisations including the Law Centres Network, the Advice Services Alliance, LAG, Matrix, Doughty Street Chambers and Law for Life, brought together over 90 stakeholders concerned with the future of legal aid. To its credit, the MoJ’s post-implementation review team engaged positively, sending at least eight staff, including senior managers responsible for the review, and attending all workshops at the conference throughout the day.
The review is expected to report to ministers by the end of the year with its analysis and recommendations, and submissions can be sent to the government until the end of September. While a full-scale reversal may not be on the cards, at least policy officials are listening. The deepening loss of supply and withdrawal of legal support is already laid out in figures 1, 6 and 8 of the post-legislative memorandum (pages 39, 46 and 48 respectively). The conference set itself the task of developing solutions to the ongoing crisis.
Early advice and problem clusters
A key theme from the morning session was how easily people’s problems can snowball, multiply and cluster, engaging both the legal system and other public bodies in costly resolution, rather than exploring options to help people enforce their rights at an earlier stage. Two workshops looked at issues concerning early advice and problem clusters, highlighting that different client groups have different needs. The issue of how clients are ‘triaged’ in the system was identified as something that comes up time and again; the view in the room was that advice at the triage stage should involve a knowledge of legal process and some expertise in relevant areas of law, understanding that presenting issues (that clients may not understand to be ‘legal’) are likely to be connected to multiple legal, social and economic problems. Moreover, some clients may not access advice services directly but instead turn to trusted intermediaries, or head to their local library, local authority or even GP surgery. The discussions highlighted the importance of considering the client’s journey on an end-to-end basis, especially when considering how best to provide a holistic service to those who may not even realise they have a legal problem.
The legal aid system as it stands is poorly structured for delivering early, preventative advice, partly because it fails to make appropriate connection and penetration with other public services or with support through the voluntary sector.
The legal aid system as it stands is poorly structured for delivering early, preventative advice, partly because it fails to make appropriate connection and penetration with other public services or with support through the voluntary sector. Whether it’s the government’s strategy on homelessness prevention, mental health services, or recent Home Office anti-trafficking initiatives, there is insufficient emphasis on the role of early legal advice.
A particular relationship was noted between the clustering together of legal problems and mental health issues, and it was hoped that emerging evidence (eg, through
Professor Hazel Genn’s work and others) about the health dividend from early legal advice could be noted by policy-makers. Others remarked that using the exceptional case funding (ECF) scheme and getting through the telephone gateway and other aspects of the Legal Aid Agency’s (LAA’s) bureaucracy take far too long, when more timely interventions are needed. Given the failures in the system (including procurement problems for duty schemes etc), people were not surprised that take-up of legal aid generally is declining while, at the same time, need is growing.
While there was some backing for assisted digital solutions, it was emphasised that ‘support’ must be delivered by people with an understanding of the issues who are skilled in helping the digitally excluded, and that multi-channel approaches would still be needed for the range of clients with different understandings and capabilities. For the early advice piece of the jigsaw, practitioners suggested that the best way to use their expertise would be by having three-hour sessions to help clients work through all of their options and identify which would be most useful. Finally, part of the sector’s early advice agenda should be more action by government to address the drivers of demand and ensure public bodies embrace a ‘right first time’ culture and abandon ‘gate-keeping’ practices.
1‘Gate-keeping’ refers to the rationing at the front gate of public services, eg, local authority housing.Vulnerability and access barriers
In parallel sessions, it was noted that it is the most vulnerable people who face the greatest access barriers. Users of, and those in need of, legal aid include people fleeing domestic abuse, people with learning disabilities, older people, people with mental health needs, women, BAME groups, asylum-seekers and refugees, and Travellers. For groups with particular vulnerabilities and/or protected characteristics, it was discussed whether and how a case could be made for loosening the eligibility requirements and evidence thresholds within the existing system, and reducing the bureaucratic and gateway barriers. However, the main issue for vulnerable people needing help in more specialist areas of law, such as immigration and community care, was determined to be the lack of publicly funded providers with sufficient geographical spread, a perennial problem in ‘advice desert’ areas such as Cornwall. There was a strong view in favour of ‘mandatory minimum requirements’ for ensuring coverage of providers.
The access barriers faced by children and young people were also discussed. In addition to the disproportionate effect that LASPO has had on vulnerable young people’s and children’s access to justice, there is also a public legal education (PLE) challenge to be considered as regards the extent to which young people regard the law as a tool that can assist and protect them. It was suggested that a holistic approach to children’s and young people’s legal needs is required, frontloading and targeting PLE and early advice at life stages in which those people are most at risk, such as when leaving the care system.
Areas of scope and practice
Drilling down further into the problem clusters, the next set of workshops looked at different practice areas covering different clusters, namely:
•the social welfare law cluster – housing, welfare benefits, debt and employment;
•the health law cluster – community care, mental health and mental capacity;
•the citizenship law cluster – immigration, asylum support and statelessness;
•the public/administrative law cluster – actions against the state, public law, judicial review, inquests and prison law; and
•the (public and private) family law cluster – children, relationship breakdown, social services/Cafcass, mediation and dispute resolution.
A recurrent theme in each group was whether the scope of legal aid could be redrawn to take in linked problem clusters rather than stand-alone legal areas and address some of the unhelpful demarcations (eg, immigration and asylum issues) that currently exist. In all of the clusters, there is a recurrent theme of people facing potential destitution, which itself makes a strong case for some targeted restoration of legal support with welfare rights/appeals and debt remedies, and housing and employment security: if people have adequate income and shelter, it is easier to sort out other problems. Different delivery pathways should be looked at to ensure legal advice interventions are well targeted, for example, having welfare rights lawyers in Jobcentre Plus offices or GP surgeries.
Another recurrent theme in each group was the behaviour of public bodies (such as gate-keeping, touched on above) and whether the LASPO post-implementation review should recommend that other government departments contribute to the legal advice budget on a ‘polluter pays’ basis (eg, through a costs regime), or if models of co-commissioning (eg, with the Money Advice Service) should also be explored. Each group also thought there was scope to reduce the complexity of tribunal appeal and court procedures. Meanwhile, the family cluster group, while recognising that early advice linked to mediation should be strengthened, also looked at the importance of reforming the family justice system on an end-to-end basis and working out a journey with children’s best interests at its heart.
Delivery and operational challenges
The afternoon sessions divided into groups looking at how the LAA’s systems operate, supplier base issues, and delivery mechanisms, and how each of these issues could be reimagined in the future. The telephone gateway, CCMS, ECF procedures and sustaining suppliers on fixed fees are all major issues for practitioners.
Also noted was the structural problem emerging about how to support the next generation of legal aid practitioners. This can be seen in, for example, the decline in the number of criminal duty solicitors and recent procurement issues with the 2018 civil tenders. A common theme for each group was that lessening or loosening the bureaucracy involved in legal aid practice would help, and other models could be looked at, drawing, for example, on the experience of how the Justice First Fellowships have operated. Technology-based solutions were explored too, with a consensus emerging that the MoJ could do a great deal more to join up the court reform programme with legal aid and PLE.
Rounding up
The final session tried to bring all these strands together and solicit a range of solutions from the day’s contributions. For the MoJ team, what was missing was sufficient consistency of systematised data collection and robust data analysis from across the sector to enable them to make a strong business case to ministers, for example, over the costs and benefits of early advice. However, attendees were able to respond with similar observations about the MoJ’s, the LAA’s and HM Courts and Tribunals Service’s data collection and analysis, reminding the team that it is government, rather than the private and voluntary sectors, that has the capacity to do the ‘big data’ work. Furthermore, it can draw on existing legal need analysis undertaken by Professor Pascoe Pleasence and colleagues.
Overall, though, everyone got a lot out of the day, with further ideas to explore, from ‘polluter pays’ to new delivery approaches investing in early advice capacity, and to encourage the review team to go back to first principles and redesign the system to provide solutions for, and assistance on, resolving people’s legal problems.