Latest civil legal aid statistics show increase in expenditure, but seemingly via a narrow band of cases
Figures released by the Ministry of Justice (MoJ) on 28 June 2018 show a slight increase in expenditure on civil legal aid over the past two years (Legal aid statistics England and Wales tables January to March 2018). This growth can be attributed to an increase in public law children cases. There are continuing reductions, though, in the number of cases in other areas of law covered by the legal aid scheme.
Government statisticians have produced expenditure figures adjusted for inflation, which give a more accurate impression of legal aid spending over time. Figure 1, below, shows expenditure for civil legal aid since the financial year 2005/06. Expenditure peaked at £1.15bn in 2010/11 and fell away sharply after the introduction of the cuts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in April 2013.
Some areas of law were completely cut from the scope of legal aid by LASPO; for example, the number of legal help cases1Legal help cases involve giving initial advice and assistance to clients.
in employment law has fallen from a peak of 31,309 in 2009/10 to none last year (see table 5.2 of the MoJ tables). Legal help for welfare benefits only remains in scope for a limited number of appeals in the Upper Tribunal and has fallen from 136,825 in 2009/10 to 478 in 2017/18.
Despite housing remaining in scope for legal aid, there has been a continuing decline in the number of cases (see figure 2, below). In 2009/10, the then Legal Services Commission funded 132,137 housing cases. In 2017/18, 34,139 cases were funded, a decline of over 70 per cent. The number of immigration cases has fallen by over two-thirds in the same period, from 128,726 (2009/10) to 39,097 (2017/18).
Family law cases on the rise
Civil legal aid expenditure has always been dominated by family law. Ten years ago (2008/09), a total of £698m was spent on completed full representation certificates. Out of this, £617m was spent on family law (88 per cent of the total expenditure). In 2017/18, a total of £601m was spent, of which £546m went on family cases (91 per cent of the total).
As figure 1 (above) shows, spending has grown overall in the past two years. This has mainly been driven by increases in special Children Act proceedings, which include care orders, supervision orders and emergency protection orders. Legal aid in special Children Act cases is not conditional on means and merits tests for the children subject to the orders or their parents. Over the past decade, the number of these cases has more than doubled from 28,858 in 2006/07 to 60,751 in 2017/18 (see figure 3 below and table 6.1 of the MoJ tables). In 2017/18, the number of cases did drop, but the overall trend seems to be upward.
Sir James Munby, president of the Family Division, has spoken about his concerns over the increase in the number of care cases and the knock-on impact on legal aid (View from the president’s chambers
, no 15, September 2016). It is believed that multiple factors are at the root of what he described as a ‘looming crisis’. A better understanding of the effect of rising child poverty would be a useful starting point to try to get to the roots of this.2Professor Judith Harwin and Dr Bachar Alrouh, ‘New entrants and repeat children: continuity and change in care demand over time’,  Family Law 47(4), 407–11.
The overall rise in spending that care proceedings seem to have caused must not be used by policy-makers as an excuse not to tackle the lack of take-up of other areas of civil legal aid. The MoJ’s figures reveal that since the implementation of LASPO the number of civil legal aid providers has dropped from 4,279 (2013/14) to 2,824 (2017/18); over the past year there was a five per cent decline in suppliers. Civil legal aid services are withering on the vine. This needs to be addressed by the government if the public are going to be able to get help with legal problems still covered by the legal aid scheme.