“Even if people know legal aid is available, the number of organisations able to advise and represent them is falling.”
Marc Bloomfield
In the July/August 2017 issue of Legal Action I looked at the pressures that have led to private practice and not-for-profit organisations (NfPs) pulling out of legal aid work, referring to practitioners who had put on record either that they were ceasing legal aid work or doing less of it. In this article, I will look at the documented evidence about the reduction in numbers.
Declining number of providers
The starting point is always the most recent quarterly statistics from the Ministry of Justice (MoJ) and the Legal Aid Agency (LAA). Their statistics bulletin, Legal aid statistics in England and Wales January to March 2017 (29 June 2017), sets out information on both civil and criminal cases, and on legal aid providers.
There is a chapter on legal aid providers that is basically a tale of declining numbers of suppliers, both civil and criminal (see the graph on page 46 of the bulletin). Is the market consolidating in a way that brings down overheads? Some larger firms are taking over smaller ones but that does not seem to be a general pattern. Some organisations have contracts but do no certified cases. There is more detail in the accompanying spreadsheets. According to table 9.1 of Legal aid statistics England and Wales tables January to March 2017, there were 6,879 crime providers in 2011/12, with a peak the next year of 7,215, but only 5,679 in 2016/17. The number of civil providers was at its highest in the last six years in 2013/14 at 4,278 but had fallen to 2,902 in 2016/17. Do note that some providers do both civil and criminal work so you do not add these two figures together to find out how many organisations are delivering legal aid work.
Table 9.2 shows the decline in providers in each region, eg, in Yorkshire and Humberside the number of firms doing civil legal aid work fell from 304 in 2011/12 to 252 in 2016/17, and the number of NfPs fell from 35 to 21 in the same period. Page 50 of the main bulletin has geographical information showing declines in the number of solicitors firms (figure 36) and NfPs (figure 37) doing civil legal aid work: with one exception (an extra NfP in the south), all regions saw a decline in the numbers of providers over the past year. If you take a longer period, more than half of all publicly-funded NfP legal advice centres closed between 2005 and 2015, a drop from 3,226 to 1,462 (Survey of not for profit legal advice providers in England and Wales, MoJ, 17 December 2015, pages 7 and 8), and their numbers continue to fall (see table 9.1 of the legal aid statistics).
Research into effect
Legal aid has always been rationed by the availability of providers to take on work. Are we now at a tipping point where too many quality lawyers feel that legal aid work is not viable? Numbers applying for legal aid contracts reassure the LAA that this is not the case.
What provision is needed? How big is the gap between need and getting advice/representation? Worryingly, research projects and analysis seem to have dried up. Face-to-face advice and representation is needed, and while the government may point to telephone advice lines and online resources to cover apparently unmet need, the concern with this is that you can only monitor those who actually make it to the service.
In 2010, Pascoe Pleasence et al’s Civil justice in England and Wales 2009: report of the 2006–9 English and Welsh civil and social justice survey was published by the Legal Services Commission, followed, in 2013, by Nigel Balmer’s English and Welsh civil and social justice panel survey: wave 2. In May 2016, the Legal Services Board and the Law Society published Online survey of individuals’ handling of legal issues in England and Wales 2015. It stated:
Respondents experiencing issues related to welfare benefits, mental health, homelessness, landlords, and consumer respondents were less likely to know of service providers. Around a fifth of respondents had never previously used any form of legal services provision. Almost half of all respondents in the survey sample did not know that legal aid was available for issues of domestic violence (47%) – including 34% of those who had experienced a domestic abuse issue – and more than half (54%) did not know it was available for mediation in cases of relationship breakdown (page 4).
The Law Society also looked at housing advice deserts, finding that, as at August 2016, some areas had no legal aid housing advice providers. LAG picked up on this in Justice in free fall: a report on the decline of civil legal aid in England and Wales (published in the December 2016/January 2017 issue of Legal Action) and highlighted further serious problems resulting from civil legal aid cuts.
It is relatively straightforward to know that you need a lawyer in a criminal case and there are at least rotas that make it possible to find one at the police station and the magistrates’ court. In civil cases, though, there seems to be a perfect storm: cuts to legal aid so that many people are outside scope; difficulty in proving financial eligibility; and a lack of awareness of entitlement to legal aid on the part of those who are so entitled. Even if people do know legal aid is available, they may find it difficult to consult a lawyer and the number of organisations able to advise and represent them is falling. Many skilled practitioners are leaving or retiring. We hope the LASPO review, the Justice Committee and the Bach Commission (on which I am a commissioner) will provide some solutions to what is a profoundly unsettling situation.

About the author(s)

Description: Carol Storer - author
Carol Storer was interim director of LAG from March 2019 to March 2021. She was director of the Legal Aid Practitioners Group for 10 years until...