Even the government’s sleight of hand can’t hide true impact of LASPO cuts
A close read of two recent Ministry of Justice reports lays bare the damaging effect that legal aid cuts have had on access to justice, despite government attempts to suggest otherwise.
On first reading, Survey of Not for Profit Legal Advice Providers in England and Wales doesn’t look like such bad news: it shows a sector demonstrating remarkable resilience, given everything that it has been through with the loss of social welfare legal aid contracts. A closer look at the data, though, suggests otherwise. Another report, The Varying Paths to Justice, looks at how and why people try to resolve their civil, administrative and family justice problems. The government likes to think publicly funded lawyers are not necessarily the answer, while ADR, mediation and self-help options, non-legal aid generalist advice and information from Citizens Advice and others, and private services can all offer more positive outcomes than legal aid. However, anyone reading this report will find such assumptions tested to the limit.
The NfP agencies survey was based on responses from 718 organisations (from a total of 1,462 identified providers, which seems impressive until you find, buried away on p7, that there were an estimated 3,226 of them in 2005). The majority offered specialist advice, with 22 per cent providing a wider range of general advice services. The survey confirmed that the areas in which advice provision was most commonly offered by responding organisations – welfare benefits, debt and housing – are areas that have largely or partly been removed from legal aid scope. It describes the client base over the past two years as ‘broadly stable’, with 29 per cent reporting an increase in client numbers of more than 10 per cent, and 14 per cent reporting a similar size decrease; this would seem consistent within an expectation of a slight post-LASPO shift in demand for advice from legal aid private practice to the NfP sector. More significantly, though, just over half of the responding organisations reported that there were some client or problem types they had been unable to help in the current financial year. Of these, 62 per cent reported that this was due to lack of resources, 49 per cent said problems fell outside their remit, and 47 per cent did not have the appropriate expertise.
The data on funding is harder to make sense of as it seems to put something of a gloss on the post-LASPO situation. Organisations’ total income ranged between £100,000 and £1m, though closer reading suggests the majority were at the lower end. Most surprisingly, though, while there was a decrease in the average median income for legal advice provision over the past two years, at the individual organisational level, almost a quarter of organisations reported a 20 per cent or more increase in total organisational funding between 2012/13 and 2014/15, while a similar proportion experienced a 20 per cent or more fall. This may be accounted for on the basis of winners and losers from Advice Services Transition Funding.
Just over half the agencies reported there were some client or problem types they had been unable to help in the current financial year.
In the report’s ‘operational capacity’ findings, 39 per cent of organisations reported that the numbers of paid staff had stayed about the same since April 2013, 32 per cent reported an increase and 29 per cent reported a decrease. Questions about the capacities in which these staff were working were not asked. However, just over half the respondents said changes to legal aid policy had required them to make major changes since 2013, such as partnership and consortium arrangements, and channel shifting. This activity has been specifically supported by ASTF and it would be interesting to see what the data would say if the same survey were carried out next year, now that this funding is not being renewed.
Moving on to The Varying Paths to Justice, it will be rather harder for policy-makers to gloss over the findings as awareness, information, advice and advocacy are all shown by the research to play a direct role in citizens’ capacity to resolve legal problems. The research was based on a large-scale qualitative study, comprising interviews with participants who had experienced a civil, administrative or family justice problem or domestic abuse in the previous 18 months. Key findings include:
•Across all problem types, ‘procedural knowledge’ was central in influencing participants’ resolution pathways; those who were unaware of available advice and support services or unable to access relevant information to understand their options struggled to find a resolution to their problem, and tended to ‘let the matter drop’.
•Difficulties in accessing procedural information were a ‘critical barrier’ to resolving justice problems; respondents needed to seek the advice of a solicitor or visit a CAB.
•In particular, participants with welfare problems required support to resolve them, especially face-to-face advice.
•In family law, professional advice enabled participants to make a more informed choice of pathway.
•The importance of good-quality advocacy and representation was ‘evident across many problem types’. Independent advocacy offered vital support to participants in court- or tribunal-based processes.
The findings challenge much of the logic behind LASPO that publicly funded specialist legal advice and advocacy are luxuries, or that citizens can navigate through the system without such support, and that alternative pathways can be opened up. With ‘procedural knowledge’ and ‘capability’, ‘comprehension’ and ‘skills’ all identified as hugely important and determinant issues in citizens’ capacities to navigate the system towards resolution, it is worth reflecting that one of the first cuts to the justice budget made by ministers back in 2010 was funding for public legal education. It is certainly welcome to see this report conclude that: ‘Advocacy and representation were important for problems resolved in court, and third-sector organisations which provide this assistance should be maintained and supported.’ ■