Authors:Carol Storer
Last updated:2023-09-18
Swift changes could make a big difference, at little extra cost
A return to 2011 rates, reinstatement of grants for legal aid trainees, and restored funding for social welfare work. Carol Storer sets out the main points of LAPG’s ‘manifesto for legal aid’
The Legal Aid Practitioners Group has published a manifesto urging the next government to deal with the damaging impact of civil and criminal legal cuts, and rebuild a sustainable quality system. The civil cuts introduced by the Legal Aid Sentencing and Punishment of Offenders (LAPSO) Act 2012, removing whole areas of law from scope, have prevented thousands of vulnerable people accessing even the most basic legal advice and led to a catastrophic reduction in the number of providers, creating advice deserts across the country.
Meanwhile, the criminal justice system faces a crisis, following devastating funding cuts and plans to reform contacting arrangements, currently the subject of legal challenge.
The result is societal inequality at an unacceptable level, that has further marginalised already vulnerable groups. The intended savings have not materialised, but led to increased knock-on costs across the public sector.
Our manifesto is intended to be a starting point for dialogue to provide suggestions where swift change could make a big difference, achieving considerable savings and enhanced justice, without significant expense.
Top of the list is an immediate review of the impact of LASPO, and reinstating of funding for housing, debt and welfare benefits cases, as suggested by the Low Commission, as well as for prison law, together with a root and branch review of the delivery of legal aid.
Particular attention should be given to how the system works for clients with additional disadvantages, such as children, those with physical and mental disabilities, carers, victims of trafficking or domestic abuse, and the homeless.
LAPG calls for other recommendations of the Low Commission to be implemented, too, including a national strategy for advice and legal support, and the establishment of a 10-year, £50m government fund to develop provision, with matched funding from other sources, including the private sector.
Eligibility changes have resulted in a sharp drop in the percentage of the population who can access legal aid. This has disproportionately affected disadvantaged groups. We urge the government to remove the capital test for those in receipt of means-tested benefits, restore the equity disregard for a client’s main dwelling, and remove children’s savings from the capital calculation.
The exceptional funding scheme in section 10 of LASPO was intended to allow legal aid for cases otherwise out of scope, where denying it would violate a claimant’s fundamental rights. It was expected that large numbers of applications would be granted but the scheme, declared unlawful by the High Court, has not operated as the safeguard that parliament promised. Government should now amend the scheme to ensure appropriate cases are funded. Work done preparing applications needs to be paid for, and the system needs to be made simpler, with a fast track for mentally incapacitated clients and urgent cases.
LAPG’s manifesto at a glance
Review the impact of LASPO and reinstate legal aid in some areas
Reverse fee cuts to restore 2011 rates
Create an independent organisation to set and review fee rates
Amend exceptional funding scheme
Halt plans to curb access to judicial review
Abolish the mandatory telephone gateway
Scrap the residence test
Remove injustice from means test
Review criminal justice system
The government should waste no further public money and abandon its appeal against a separate court’s ruling that the 12-month residence test is unlawful and discriminatory, and scrap it. If implemented it will deny help to many vulnerable people, such as trafficking victims, disabled adults and those who cannot satisfy the onerous evidential requirements.
The mandatory telephone gateway, established as the only way to access advice for special educational needs, debt and discrimination cases, should be ditched in favour of a scheme that enables both telephone and face-to-face advice to meet clients’ needs.
An independent organisation should gather evidence of costs drivers and where costs can be saved without compromising justice. It should set and review civil and criminal legal aid fees, based on proper evidence of what a quality service costs, restoring fees to 2011 rates.
The costly, bureaucratic and complex legal aid administration should be simplified and consideration given to scrapping the Legal Aid Agency’s client and cost management system (CCMS) – the digital method for processing civil cases, which remains unfit for purpose despite costing more than £30m to develop. Unless the defects can be remedied, it would be foolhardy to proceed with a scheme that will result in system meltdown.
An independent review should be carried out into the operation of the criminal justice system, taking into account all costs and cost drivers, including the police, prosecution, defence and court service.
The government failed to take adequate action to ensure that those still entitled to legal aid know it is available. LAPG adds its voice to the call for a national information campaign, correcting the misleading impression that legal aid has been completely abolished.
Committed, innovative and properly resourced legal aid practitioners not only add value to our society but in providing timely assistance, save the government significant sums of money that would otherwise have to be spent once problems have escalated.
To ensure that talented people from all backgrounds continue to come into this area of practice, we call on the LAA to reinstate training contract grants.
If there is to be a quality civil and criminal justice system in future years, it is the next generation who will provide this, supported by the organisations with the expertise and skills to train them. Both elements are necessary to the justice system to survive for the next generation and beyond.