A survey from the Legal Aid Practitioners Group puts Legal Aid Agency decision-making in the spotlight
Speak to almost any legal aid lawyer and the first thing you notice is how committed they are to their work, their clients and ‘the cause’. For many, the cause is giving a voice to the voiceless. Some just want to help vulnerable people. Others are driven by the desire to ensure the state is held to account or that a lack of means doesn’t prevent individuals from challenging unlawful decisions by public bodies.
Whatever motivates legal aid lawyers, they go to extraordinary lengths to help their clients and put up with a lot in their working lives as a result. They tolerate uneconomic fees and everything that comes with that. They ignore the sections of the media that deliberately misreport legal aid stories and malign the lawyers involved. What those outside legal aid tend not to understand is that it often involves working without the certainty of public funding. It is also heavily regulated, audited and bureaucratic, with every action and decision by practitioners scrutinised by the Legal Aid Agency (LAA).
In the face of all of those factors, it is remarkable that so many lawyers remain so committed to legal aid. But that tolerance is wearing very thin. Many firms and organisations have been forced out of legal aid (or entirely out of practice) by ‘reforms’, but those who remain are fed up. And so a group of very experienced, fed-up lawyers approached the Legal Aid Practitioners Group (LAPG) last year and asked us to survey our members to gauge the levels of fed-up-ness and, in particular, how much of the collective disgruntlement is down to the LAA’s approach. Many believe that this approach, coined a ‘culture of refusal’ in the Guardian
, is a deliberate attempt by the LAA to limit spending on civil legal aid. Some have even told us they believe it is indicative of a government strategy to force legal aid lawyers out of business.
The survey was designed to get a better understanding of practitioners’ experiences of interacting with the LAA through the different stages of the application and billing processes. We were not focusing on the client and cost management system
,1The LAA’s online portal for legal aid applications and billing.
but rather the interaction between legal aid providers and LAA decision-makers. This included applying for legal aid, amendments to certificates once granted, appeal processes, escape fee cases and the exceptional case funding (ECF) scheme. We provided respondents with ample space to give specific examples.
We had hoped for 100–200 responses; however, we received 540, which yielded over 2,500 examples of problematic LAA decision-making. With so much data to make sense of, we reached out to City firm Herbert Smith Freehills for help. Its project management team used their technical wizardry to help us categorise the responses against 32 ‘issues’, which we have grouped together under six broad themes: means; merits; delay; communication; inconsistency; and failure to apply the correct rules.
The survey has reinforced the view of the experienced, fed-up lawyers:
•86 per cent of respondents had experienced problems in obtaining or amending a legal aid certificate;
•the same percentage had experienced delays when applying for legal aid;
•over half had experienced difficulties with applications for emergency legal aid;
•55 per cent had difficulty with claims for costs and escape fee assessment;
•half had experienced difficulties with ECF;
•74 per cent had problems when appealing decisions, with 61 per cent working at risk while challenging decisions;
•95 per cent spent unpaid time on appeals, with 57 per cent saying that this deterred them from challenging decisions;
•87 per cent said that appeals processes were not fair or transparent; and
•64 per cent either disagreed or strongly disagreed that LAA decision-making had improved in the past 12 months.
The responses provide examples of a litany of LAA errors, second-guessing of expert solicitors and barristers, unexplained adverse decisions, opaque appeals processes, and the creation of delay and risk that undermines the duties that lawyers have to their clients and to the court. For balance, we have to say that the LAA routinely reports very high attainment against its own key performance indicators. The survey results, though, suggest that many practitioners have very negative experiences of interacting with the LAA, and that this impacts on the sustainability of their practices and on whether those in need have genuine, realisable access to justice.
Public meetings in October 2019 and February 2020, organised by Garden Court Chambers, have also captured a mood of disquiet and discontent amongst practitioners. Legal Sector Workers United
is calling for direct action. Campaigners are calling for scrutiny from the Commons Justice Committee or the Public Accounts Committee. There is talk of a super-complaint and seeking intervention from the Parliamentary and Health Service Ombudsman. And, of course, litigation may also be on the cards in relation to specific aspects of the legal aid scheme. At LAPG, we will be using existing channels to convince the LAA that practitioners have had enough and that its systems must improve. The LAA may not agree that there is a ‘culture of refusal’, but while practitioners hold this view, there is never going to be the constructive working relationship required on both sides to make the legal aid system function for the clients who need it.
We will publish the survey results soon, so that they can be used as a resource by representative bodies and campaigners. At the same time, we will be meeting with the LAA, looking closely at the feedback and examples provided, and mapping them against its processes to work out where and how things are going wrong. Our initial priorities are first-instance decision-making on merits and the delays that cause so many issues for providers and clients. Over time, we will be looking at all six of the main themes. Getting decisions right, in a timely manner, and with fair and transparent appeal processes in place, has to be a priority for any public service.