Justice in free fall: a report on the decline of civil legal aid in England and Wales
Lucy Logan Green and James Sandbach report on the dire consequences of the civil legal aid cuts for access to justice and associated knock-on costs in other public services, and provide six recommendations to government to halt the crisis.
While the LASPO reforms have undoubtedly been effective in their goal of reducing the cost of legal aid in England and Wales, there has been a blatant disregard for the wider societal costs and consequences of these reforms.
Following the appearance of the new justice secretary, Liz Truss, before the House of Commons Justice Committee in September 2016, in which she declared one of her key priorities to be ‘looking at the overall justice system and making sure it works for everyone’ (Oral evidence: the work of the Secretary of State, HC 620, 7 September 2016), LAG has compiled this research report urging the Ministry of Justice (MoJ) to reconsider aspects of recent legal aid changes. Our research examines: the drastic reductions to expenditure and case volumes in civil legal aid, which have left some of the poorest and most vulnerable members of society unable to access justice; the impact that this has had on the courts; and, finally, the effect that the legal aid cuts have had on the advice agencies that serve on the frontline of our legal system.
Cuts to legal aid introduced in April 2013 through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have had a significant effect on the number of cases eligible for civil legal aid. LASPO has not only affected the way that legal aid is administered in England and Wales, it has also cast doubt on the government’s commitment to access to justice for all. More than three years after LASPO was introduced, legal aid practitioners and clients are still being squeezed by the cuts. So-called relief measures in the form of exceptional case funding (ECF), mediation and the telephone gateway have still not filled the vacuum left by the removal of vast areas of law from scope. In this report, LAG has examined reports released by the MoJ and the relevant audit bodies and select committees, which show that cuts to legal aid of approximately £600 million have left a large proportion of the public unable to access justice.
While the LASPO reforms have undoubtedly been effective in their goal of reducing the cost of legal aid in England and Wales, there has been a blatant disregard for the wider societal costs and consequences of these reforms. The rise in the number of litigants in person, the increase in the number of tenancy evictions and undefended landlord possession claims in the county courts, an accelerating trend of debt and benefit-related destitution and the growth of domestic abuse with negative consequences for family breakdown and children’s welfare all result in additional costs falling on the justice system and other public bodies, such as social services and local authority housing options and homelessness teams. Meanwhile, the unmet need for information, support, advice and representation in relation to civil law matters remains a growing problem not only for the courts and government, but also for the capacity of society to operate under the rule of law with citizens unable to access social entitlements and seek redress through the justice system.
Our analysis demonstrates that the civil legal aid system is in free fall. Yet there is no evidence that the need for advice and representation will disappear. Almost a decade of research surveys undertaken by the Legal Services Commission’s (LSC) research arm established baseline figures that approximately one-third of the population experience justiciable civil legal problems; around 10 per cent ‘lump it’ and take no action at all; and around 46 per cent handle such problems alone without accessing any formal or informal support or legal help (see Pleasence et al, English and Welsh civil and social justice panel survey: wave 1
, LSC, 2011). More recent research commissioned by the Legal Services Board (LSB) suggests that the baseline figure may be closer to one in two people, with 18 per cent doing nothing and 46 per cent of issues handled alone or with the help of friends or family. The most commonly cited reason for not seeking formal legal advice is cost and affordability (see Research summary May 2016: individual consumer legal needs
, LSB). Even allowing for the slight differences of survey methods, the data trends point towards a growing need for a more effective and responsive civil legal aid system to address the access to justice gap.
Civil legal aid after LASPO
The changes to civil legal aid that came in under LASPO particularly altered the public’s access to legal aid in social welfare law cases. Debt cases were almost entirely removed from scope, except where there is an immediate risk to the home; there was a 100 per cent reduction in the availability of legal aid for employment law cases; private family law was entirely removed from scope except in cases where there is evidence of domestic violence or child abuse; housing matters, except homelessness assistance and cases where the home is at immediate risk, were also removed; non-asylum immigration cases were entirely removed; and welfare benefits cases were also entirely removed apart from appeals on a point of law in the Upper Tribunal.
Furthermore, the National Audit Office (NAO) has suggested that MoJ spending reduction forecasts did not take into account the impact of declining supply, due to the closure of solicitors’ firms and advice centres following LASPO, noting that the ‘number of providers conducting work and the number of cases varies widely across the country and in 14 local authority areas no face-to-face civil legal aid work was started in 2013–14’ (Implementing reforms to civil legal aid
, HC 784, November 2014, page 7, para 12). The closure of private solicitors’ firms has placed a significant pressure on advice centres and Citizens Advice to handle the increasingly displaced demand while funding remains sparse.
Civil legal help
Legal help workload is currently operating at approximately one-quarter of pre-LASPO levels, and is continuing to drop. Figures released by the MoJ demonstrate how policymakers’ assumptions that the immediate disruptive effects of implementing LASPO would be followed by a ‘steady state’ have been wide of the mark. Funding dropped by 15 per cent over just one year from 2014/15 to 2015/16, and in April to June 2016 legal help new matter starts were seven per cent lower than in the same period of 2015 (see figure 1; see also Legal aid statistics in England and Wales April to June 2016
, MoJ Statistics Bulletin, September 2016).
The removal of vast areas of social welfare law from scope, despite an increasing unmet need, has left a growing number of people unable to access assistance. The telephone gateway – established to administer over-thephone advice on social welfare law issues – is overburdened and unable to meet the demand for assistance in matters related to debt, special educational needs and discrimination. In 2015/16, the Legal Aid Agency (LAA) received 165,000 civil legal aid operator cases. Of these, only 17,900 cases were taken up by specialist providers as matter starts; this amounts to just 10.8 per cent of callers (see Legal aid statistics in England and Wales January to March 2016
, MoJ Statistics Bulletin, June 2016).
According to the MoJ’s Legal aid statistics in England and Wales, the volume of legally aided housing cases halved between July to September 2012 and July to September 2013. The trend then fluctuated for around 18 months but since 2014 it has been falling, and in April to June 2016 there was an 18 per cent decrease compared with the same quarter the previous year (see figure 2). Workload figures in this category of law are driven by legal help, which comprised more than three-quarters of overall housing legal aid volume in April to June 2016 (page 29).
Figure 2 Workload in housing law, Apr–Jun 2013 to Apr–Jun 2016(Legal aid statistics in England and Wales April to June 2016, page 30, figure 20)
Following the changes to scope and eligibility, mediation was intended to ‘plug the gap’ created by the cuts in private family law proceedings. The MoJ, in its own words, intended to continue families’ access to legal support and resolution through mediation, which it described as ‘a key mitigating factor in the decision to remove legal aid from private family law proceedings’ (Impact of changes to civil legal aid, page 53, para 139). Dame Ursula Brennan, the MoJ’s most senior civil servant at the time, told the Public Accounts Committee that the MoJ ‘didn’t have evidence’ that the availability of publicly funded mediation would deter people from going to court (Public Accounts Committee. Oral evidence: Implementing reforms to civil legal aid, HC 808, December 2014). The changes appear to have been introduced with little to no thought of their ‘real-world’ implications. Many people who previously would have received funding under private family law legal aid faced proceedings without any legal help or representation.
Thus, a year after the introduction of LASPO, in April 2014, Sir Simon Hughes, then Minister of State for Justice and Civil Liberties, announced that the government was to create ‘the legislative requirement that anyone considering applying to court for an order about their children or finances is now legally obliged to attend a MIAM [mediation information and assessment meeting] first’ (Simon Hughes’s speech at the Family Mediation Association Annual Conference 2014). This initiative, brought in under section 10 of the Children and Families Act 2014, intended to draw more people into mediation, following the extremely low volume of cases immediately post-LASPO. However, the additional 9,000 cases each year that the MoJ predicted would be covered by MIAMs is still a long way off more than two years after it was introduced.
Three years after the implementation of LASPO and two years after the legal obligation to attend MIAMs was imposed, mediation starts had still only reached 60 per cent of pre-LASPO levels (see figure 3). One of the MoJ’s ‘key’ provisions ensuring the continuing availability of help to families requiring legal assistance has not only not exceeded pre-LASPO levels, as was intended, but is still operating significantly below pre-LASPO levels. This is creating a new problem for the MoJ, which is facing increasing numbers of litigants in person.
Figure 3 Family mediation assessments, starts and agreements, Jan–Mar 2013 to Jan–Mar 2016 (Legal aid statistics in England and Wales January to March 2016, page 28, figure 16)
Exceptional case funding
ECF was introduced under section 10 of LASPO as a ‘safety net’ to protect those who would not qualify for legal aid under the new rules but whose human rights would be breached under the Human Rights Act 1998 or an enforceable EU right relating to the provision of legal services if funding was not made available. ECF experienced an alarmingly low take-up when it was first introduced under LASPO. Nine months after its introduction in 2013, it had received only 1,151 applications (of which a mere 35 had been approved, with 68 still awaiting assessment – Legal aid exceptional case funding application and determination statistics: 1 April to 31 December 2013
, MoJ ad hoc statistical release, March 2014, page 1) compared with the 5,000–7,000 annual applications that had been predicted by the government. In April 2013 to September 2014, only 151 of 2,090 ECF applications were granted (just 7.2 per cent) (Impact of changes to civil legal aid
, page 14, para 31).
In Impact of changes to civil legal aid (see above), the Justice Committee reported that part of the reason for the staggeringly low take-up of ECF was the quality of decision-making, and concerns about this were twofold: ‘the approach, knowledge and abilities of the caseworkers at the Legal Aid Agency themselves’ (page 15, para 34); and, more significantly, criticisms of the formal guidance given to caseworkers identified the lack of a specialised team to deal with ECF applications as the reason why the LAA requires lawyers to complete an arduous 14-page application for ECF, describing in detail the legal merits of a case. This can take lawyers three to four hours to complete, not including the hours of instructions and correspondence that they will take from the client themselves in order to start the application process. As the committee reported: ‘Lawyers are only paid for completing exceptional cases funding applications if the application is successful. The low rate of successful applications, we heard, therefore has a depressing effect on the numbers of applications made’ (page 18, para 42).
In other words, the LAA has created a self-censoring and self-perpetuating system, where the amount of time it takes to complete an application stunts the volume of work that a lawyer can complete, and where only cases that lawyers feel sure will succeed are submitted for ECF. While the number of ECF applications has gradually been rising since April 2014 (see figure 4), the number of cases being funded remains low, considering the overall reduction of scope in large areas of civil legal aid. ECF is by no means a mitigating panacea for the cuts to legal aid.
Figure 4 Volume of ECF applications received, new or review, Apr–Jun 2013 to Jan–Mar 2016 (Legal aid statistics in England and Wales January to March 2016, page 37, figure 24)
One of the less commented on aspects of the government’s civil legal aid reforms has been the bureaucracy involved in their implementation and the related administrative expenditure borne by the MoJ, which could be better directed towards funding and delivering services and solutions for clients. While the LAA’s budget has been cut by 25 per cent since LASPO, administration costs in 2015/16 have increased to over £100m (see table 2; see also Legal Aid Agency annual report and accounts 2015–16, HC 520, July 2016); this is around a fifth of the amount currently allocated to civil and family legal aid and more than the LAA’s entire expenditure on civil legal help.
Meanwhile, the LAA’s services, especially the client and cost management system (CCMS) and the civil legal aid telephone gateway, have become increasingly dysfunctional. CCMS is the much-delayed compulsory portal for applying for legal aid, which has been beset by well-documented technical failures, and functionality and performance issues (see, for example, March 2016 Legal Action
6). Practising solicitors have complained that the complex online 13-page application form and procedure takes an inordinate amount of time to complete and submit, and that the system remains unreliable, especially for matters requiring urgent processing.
However, CCMS is far from being the only processing and systems failure that is restricting access to civil legal aid. In order to obtain face-to-face advice for debt, education and discrimination matters, clients must first pass through the civil legal aid telephone gateway system. There is growing evidence that service users experience considerable difficulty in navigating and proceeding beyond the operator service. The NAO’s report (see above) noted that the LAA had expected 16,466 debt cases to start in 2013/14, while in reality only 2,434 were started; this was 85 per cent fewer debt cases processed than expected.
Another contentious gateway issue has been the evidential requirements expected from applicants seeking family legal aid on account of domestic violence. Research by Rights of Women published in January 2016
demonstrated that nearly 40 per cent of women affected by domestic violence were unable to surmount these bureaucratic hurdles, although there has recently been some modifying of the strict regulations.
When considered together with the operational problems of the exceptional funding scheme mentioned above, and the rationing of increasingly limited matter starts in areas of social welfare law (see table 1, opposite), the conclusion we draw is that the greater the complexity of the scope rules, gate-keeping procedures, and eligibility and evidence tests that the LAA has had to apply, the more costly and dysfunctional the administration of the civil legal aid system has become.
Social welfare law: legal help/controlled legal representation matters started (Legal aid statistics England and Wales tables: April to June 2016
, table 5.1)
Net operating costs of LAA operations for year ended 31 March 2016 (Legal Aid Agency annual report and accounts 2015–16
, HC 520, July 2016, page 65)
Net operating costs for the year
* Legal Help expenditure includes £319k of staff costs (2015: £357k)
** Crime Lower expenditure includes £5,163k of staff costs (2015: £4,796k)
Knock-on costs and litigants in person
Determining the number of people who have been affected by LASPO is extremely challenging. In the Justice Committee’s report on the impact of changes to civil legal aid (see above), the authors comment on the difficulty in deciphering the ‘true figure[s]’ (page 36, para 92). What is clear, however, is that the MoJ’s efforts to target legal aid ‘at those who most need it have suffered from … [being] aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive. There have therefore been a number of knock-on costs, with costs potentially merely being shifted from the legal aid budget to other public services, such as the courts or local authorities’ (page 4).
For example, the cuts to civil legal aid have directly led to an increase in litigants in person, following the removal of means-tested legal aid from family law and other areas. The NAO 2014 report (see above) estimated that this increase cost the MoJ £3.4 million in 2013/14 (page 14, para 1.19). However, the overall cost is likely to be much higher. This is because litigants in person are often not able to represent themselves effectively, directly impacting on the efficient running of the courts system and the use of judicial time.
The NAO report stated that since the introduction of LASPO, there had been a ‘30 per cent year-on-year increase in family court cases in which neither party had legal representation’ (page 6, para 6). Parliamentary debates and questions have since revealed that in the first quarter of 2015, 76 per cent of private family law cases had at least one unrepresented party (Hansard HC Debates col 486WH, 19 January 2016
). The NAO estimated that these cases cost HM Courts & Tribunals Service an additional £3 million per year, alongside direct costs to the MoJ of approximately £400,000 (page 6, para 6). Furthermore, in a 2014 survey by the Bureau of Investigative Journalism, 62 per cent of magistrates said that litigants in person negatively impact the court’s work most or all of the time.
While the costs to the courts are the visible manifestation of the problem of litigants in person, it is not this tangible disruption that is of greatest concern. Steve Matthews, then chair of the Magistrates’ Association’s Family Court Committee, stated in 2014 that: ‘Savings in legal aid costs on family cases disadvantages those people unable to afford lawyers and risks injustice for children.’1See Maeve McClenaghan, ‘Family courts: self-representation hinders justice say magistrates’, Rough justice, June 2014.
This undermines the very core of our justice system, which should strive to protect the most vulnerable members of society. Research by The Children’s Society has shown that local authorities are ill-equipped to deal with children’s problems in the absence of legal support, and even children who are still entitled to legal aid, such as those seeking protection from persecution or who are known to have been trafficked, may be unable to get the legal support they need due to a lack of free services in their area (Cut off from justice: the impact of excluding separated migrant children from legal aid
, June 2015).
Advice agencies and law firms after LASPO
The impact of LASPO both on advice agencies and high-street law firms has been profound. The Law Society explained in evidence to the Justice Committee (see above) that although the number of legal aid contracts was not significantly reduced by LASPO, the scope cuts ‘have resulted in the downsizing of departments reliant on legal aid work and consequent redundancies. Some firms have closed and others have survived by shifting their focus to privately funded work’ (Impact of changes to civil legal aid, page 30, para 75).
More recently, the Law Society has mapped the shortage in legal aid advice for housing
, which means that people on low incomes facing homelessness and eviction are struggling to get the local face-to-face advice they desperately need and are entitled to by law. In the last quarter of 2015/16, 17 per cent fewer people got legal aid help for a housing matter than in the same period the previous year. However, the most startling revelation is that there are some areas of the country, such as Suffolk and Shropshire, with no housing legal aid supplier operating at all (see also September 2016 Legal Action
The original impact assessment undertaken by the MoJ to accompany the LASPO proposals estimated that non-profit legal advice agencies would lose 77 per cent of their legal aid income compared with a 25 per cent reduction for solicitors’ firms. This has proven to be broadly accurate and is pushing the non-profit sector into decline. More recent research shows that the number of not for profit (NFP) advice providers has declined by over 50 per cent in 10 years, and that 54 per cent of those surveyed were forced to make major changes to their services due to the civil legal aid cuts (Survey of not for profit legal advice providers in England and Wales
, MoJ, 2015).
However, lack of legal aid has not meant that advice agencies have experienced any less demand for their services. The Low Commission, analysing all the risks faced and sources of funding available for the NFP sector, stated that ‘frontline agencies are increasingly “running out of road”. We are concerned that the current shifting funding patterns are incompatible with sustainable services, equality of access to the best possible advice [and] quality assurance …’ (Getting it right in social welfare law
, March 2015, page vi).
Just one year after the introduction of LASPO, nine Law Centres had been forced to close, amounting to a sixth of the Law Centres Network’s (LCN) membership. Citizens Advice Bureaux experienced a similar phenomenon, losing 350 specialist advisers as a result of the cuts. Twenty years ago, the Citizens Advice network ran 721 CABx (now called ‘local citizens advice’), operating from multiple access points. By 2015, this number had been reduced by more than half, to 338, with only 21 local citizens advice offering specialist civil legal aid advice. These closures and service reductions inevitably hit the most disadvantaged people disproportionately, because they are more likely to have multiple problems and are more reliant on specialist help. Citizens Advice has estimated that it now sees 120,000 fewer people per year as a result of LASPO (see Getting it right in social welfare law, pages 20 and 49).
Wider economic implications
Law Centres, Citizens Advice and other advice agency work saves vital public funds. The work that these organisations carry out ‘to avoid people becoming homeless reduces the costs associated with debt and temporary accommodation, as well as generating savings to the NHS by limiting costs associated with stress, anxiety and ill-health’ (Picking up the pieces: annual review 2014/15
, LCN, page 5). LCN estimates that it makes net direct and indirect savings to the public purse of over £426 million a year. Citizens Advice, too, publishes an annual impact analysis using the Treasury’s model to show the fiscal value of preventative work, but it also warns that its specialist casework capability is being undermined by the legal aid cuts (see, for example, Helping people find a way forward: a snapshot of our impact in 2015/16
Hugh Stickland, chief economist at Citizens Advice, estimates that the Citizens Advice service is worth at least £750 million to society, plus another £300 million or so in terms of debts written off and rescheduled, making it worth 5:1 in terms of the cost-benefit ratio (Oral evidence: Implementing reforms to civil legal aid, see above). MoJ policy-makers should not ignore these figures. Frontline services such as Law Centres and Citizens Advice should be encouraged in their pursuit of early intervention, as their holistic approach to their clients’ problems ultimately saves the government a large amount of money in other areas. The Justice Committee perhaps put the early intervention argument best when it said that it is better to have ‘a fence at the top of the cliff [rather than] an ambulance at the bottom’ (Impact of changes to civil legal aid, page 60).
However, it is practitioners at the coalface who see the false economies first hand. Too often the lack of any early intervention funding not only ties their hands, but makes it impossible to either identify clients for whom a ‘stitch in time’ might work, or deliver the outcomes that can help to avoid litigation. As one housing solicitor has said
It’s impossible to separate the cuts to legal aid from the cuts to the benefits system. The bedroom tax and Atos disability reassessments all feed into problems we deal with, such as homelessness. Because we can’t do benefits work any more, it’s harder for us to nip problems in the bud We’re forced to take action at a much later stage, which will ultimately cost the government a lot more.
The justice secretary’s declaration that we should have a ‘justice system [that] works for everyone’ is being directly undermined by her department’s funding cuts, which are continuing to reduce the public’s access to civil legal advice and assistance. Furthermore, given the restrictive and bureaucratic operation of the post-LASPO legal aid system, it cannot be said that the MoJ is delivering value for money either for taxpayers or the justice system. The system focuses on tackling crises rather than resolving the underlying issues and operates overly rigid gate-keeping policies.
Some of the manifest flaws within the justice system are well recognised by the MoJ – delays and other communication and case-management inefficiencies are highlighted as key problems in its recent consultation on Transforming our justice system: summary of reforms and consultation
(Cm 9321, September 2016), which articulates the principle of a justice system that is ‘just, proportionate and accessible’ as meaning ‘affordable, intelligible and available for use by all’ (foreword, page 3). To achieve this vision, the government is investing over £700 million in courts and tribunals and over £270 million in the criminal justice system, with a particular focus on technology and digitisation. However, neither the MoJ’s vision statement nor the consultation mentions the crisis engulfing civil legal aid – an essential channel through which the poorest and most vulnerable access the civil justice system (see also page 7
of this issue).
Given the restrictive and bureaucratic operation of the post-LASPO legal aid system, it cannot be said that the MoJ is delivering value for money either for taxpayers or the justice system.
We believe that in parallel to the necessary work to improve the court system, the MoJ should review the legal aid system with a view to making changes to improve proportionality, accessibility, intelligibility and availability in line with its vision, as some of the investment targeted at court reform might be better used for improving access to civil justice through publicly funded legal help and support. The crucial starting point for the review process is that the MoJ needs to listen more carefully to its stakeholders, as many may agree with then Public Accounts Committee chair Margaret Hodge MP’s conclusion from its 2014 review
(see above) that the MoJ ‘is out of touch with reality and has shown no understanding of the wider cost of its reforms’. Disregard for both the bureaucratic and wider societal costs of legal aid reforms enacted in the previous parliament can only further undermine access to justice for the public, especially for the poor and vulnerable. The civil legal aid system is in free fall, but it is not too late to address the problem.
•Immediate commencement of the post-implementation review of the LASPO reforms, to be commissioned independently from the MoJ, looking at whether the reforms and the current structure have targeted legal aid for those who need it the most, and set against three clear criteria for change and improvement:
•Just: decisions and outcomes must be fair, and supported by processes that are modern, transparent and consistent, with like cases treated alike.
•Proportionate: the cost, speed, complexity, and degree of adversarial protection make sense and are appropriate to the nature and value of the dispute at issue.
•Accessible: the system ensures that legal services are affordable, intelligible and available for use by all, convenient for those who cannot easily attend in person, and supportive of those not comfortable with the law or technology (see Transforming our justice system, page 3, above).
•The existing underspend in civil legal aid from the past three years should be reinvested in an innovation and early intervention fund, which could be distributed on the basis of grant funding bids (for example, for second-tier specialist support, online tools, and public legal education projects).
•The MoJ should set a target for reducing spend on bureaucracy and reinvesting this in frontline services and contracts; this could be achieved by greater delegation of powers and decision-making to provider bodies, more discretion operating at central level at the LAA, and simpler systems.
•Immediate action should be taken to address the low approval rates for exceptional funding through improving the guidance to decision-makers, reducing the bureaucracy of the application process and including the making of ECF applications within the remunerative activity under legal aid contracts.
•As recommended by the Justice Committee (see above), the MoJ needs to respond to low take-up of civil legal aid with a public information campaign about what problems legal aid is available for and how to seek help; this could be linked to a wider public legal education campaign involving a range of stakeholders.
•Immediate action should be taken over the emergence of housing legal aid deserts and the increasing needs in this area of advice, by making arrangements to ensure there is contracted provision in all procurement areas and introducing greater flexibility and tolerances within housing legal aid work to enable providers to take on cases with less immediate risk of repossession or homelessness.