Public services for vulnerable adults and children are under increasing financial pressure. The Local Government Association (LGA) estimates that there will be a shortfall of at least £2.6bn in the current financial year (2019/20) in cash for such services (Provisional local government finance settlement 2019/20 – on the day briefing
, LGA, 13 December 2018). According to the British Medical Association, the NHS will need £22.9bn by 2022/23, in addition to what has been allocated, if it is to keep pace with comparable health services around the world (Working in a system that is under pressure
, BMA, March 2018).
Cash-strapped public authorities, therefore, are under more pressure to restrict access to services through stricter gatekeeping, which leads to injustice. LAG’s research into the availability of legal aid services to assist vulnerable people trying to enforce their legal rights paints a picture of a legal safety net with yawning gaps (see ‘Justice in free fall’, December 2016/January 2017 Legal Action
Community care law was not included in the cuts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). People who need help accessing local authority and/or NHS services related to disability or illness can get help, provided they meet the means and merits test for legal aid. Court of Protection cases and disputes over services, such as allegations of neglect, are also covered by the scheme. What remains in scope under LASPO, though, does not match up to the reality of the specialist community care law services available across the country.
Last year, the Legal Aid Agency (LAA) completed the main bid round for civil legal aid contracts including those for community care law. One year on, the latest data from the LAA
shows that 144 solicitor and not-for-profit offices hold such contracts. Only 52 towns and cities are covered by a community care law provider.1See this spreadsheet.
This means there are large gaps in provision across the country. These gaps include, for example, Watford (estimated population of around 97,000 in mid-2017
)2Estimates of the population for the UK, England and Wales, Scotland and Northern Ireland, Office for National Statistics, 28 June 2018; unless otherwise indicated, populations estimates are from this data set.
and Hemel Hempstead (estimated population of around 102,000 in mid-2017
), which are the nearest large towns to justice secretary David Gauke MP’s constituency of South West Hertfordshire.
Travel the 20 or so miles from Gauke’s constituency to the capital and you reach a relative feast of providers. There are 64 community care law providers within London. This means nearly half of the providers across England and Wales are serving London with its estimated population (mid-2017) of nearly 9m. I do not know if this ratio of providers to the population is enough to cover demand (I rather suspect it is not), as no effective modelling of this has been undertaken by the government. The relative availability of community care legal aid services in London is, I’d argue, down to the historic pattern of supply rather than any deliberate bias on behalf of the LAA. It supports the central thesis that there is demand for community care law advice, but it is simply not being met by the available legal aid services.
An analysis of the latest statistics for legal aid cases
from the Ministry of Justice (MoJ) shows that 61 of the suppliers in London opened new cases in Q4 of the 2018 financial year. In contrast, the figures for north-west England, which includes the large conurbations of Greater Manchester and Merseyside, and (as of mid-2017) had an estimated population of nearly 7.3m, show only 11 suppliers opened cases in the last quarter; in the North East (population 2.6m), there were five; and, most shockingly, in Wales (population of around 3.1m), only two suppliers opened a case.
The number of legal help cases (ie, those involving initial advice) dropped by around two-thirds post-LASPO and is reflected in the regional breakdown of new cases. This reinforces the argument about the need for more early advice services in social welfare law generally, which the government has responded to by announcing an early advice pilot study as part of the strategy it published in conjunction with the LASPO post-legislative review (see Legal support: the way ahead
, CP 40, MoJ, February 2019, page 23).
Looking at the quarterly figures for legal aid cases, there is a smidgeon of room for optimism. Legal aid civil representation cases in community care law, in contrast to other areas of social welfare law such as housing, have grown in number since the LASPO cuts were introduced in April 2013. It must be emphasised that we are talking about small numbers of cases and so statistically significant trends are hard to discern, but the numbers of these cases have grown from around 270 a quarter by the end of 2012/13 to over 400 by the end of 2018 (407 in July to September and 481 in October to December). I believe that this is due to an active cadre of specialist community care lawyers taking up cases on behalf of vulnerable clients. This is leading to the sorts of developments in the law that will be covered at LAG’s 2019 Community Care Law Conference
Legal aid has contributed significantly to the construction of a formidable edifice of jurisprudence in community care law, which balances the rights of some of society’s most vulnerable people with those of the institutions, in the main paid for by the state, that provide services to assist them. As the above figures demonstrate, though, I’d argue that this amounts to no more than a beautiful, but unobtainable façade of legal rights for most of the population, as there are not the lawyers available who can assist in enforcing them. Policymakers need to commit to a large increase in the availability of services to address this.