I have written recently that the government’s review of the legal aid means test – the process of determining whether a client is financially eligible to receive legal aid – is one of the few positive, practical outcomes of the Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, Ministry of Justice (MoJ), February 2019). The MoJ is nearing the end of an extensive engagement process and will soon launch a public consultation to obtain feedback on a wide array of potential changes to how the Legal Aid Agency (LAA) assesses financial eligibility.

From what we have seen, those changes are likely to increase the proportion of the population eligible to receive legal aid, reduce the bureaucratic burden on clients and providers, and resolve many of the system’s current iniquities. There have been encouraging signs throughout the engagement process. Civil servants are open to new ideas and cognisant that the current system is onerous, at times illogical and fails to promote client access. They are aware that there is a yawning chasm between those who can afford to pay privately for advice and those deemed poor enough to receive legal aid. But – and this is a very big but – will amending the means test actually increase the number of clients receiving, rather than just theoretically eligible for, legal aid?

Looking at the broader context for the legal aid system, I would say no. Whether or not a client gets help depends on the willingness and capacity of lawyers to take on their case. While improving the mechanics of the means test will reduce administrative overheads (and in some respects the risk of compliance failure), it will not address the fundamental weaknesses in the scheme: unviable fees and counterintuitive restrictions on scope.

This continues the trend of the past decade: since the introduction of LASPO, 586 providers have left civil legal aid, taking 1,135 offices with them. That’s a staggering reduction in capacity and access.

There is also the issue of ‘dormant contracts’, which distort the figures. The LAA is sufficiently concerned about this problem that it is investigating why a significant number of providers hold contracts but open no, or very few, cases. This creates the illusion of supply in some areas, with organisations listed as open and available to the public but not accepting new instructions.

And where firms and not-for-profit providers do want to increase the amount of legal aid work they do, or enter the market, they are locked out by the LAA’s approach to tendering. Civil legal aid contracts were last offered out in September 2018. Current contracts will not be retendered until 2023. There have been, and will continue to be, ad hoc tender processes, but they tend to react to providers withdrawing rather than proactively encouraging take-up by new providers or the expansion of existing services. Providers can take on new staff or increase legal help matter starts connected to existing contracts – but why would they?

Moreover, what will the picture look like when the full financial impact of the pandemic works its way through the system? How many providers have clung on while they can benefit from government measures such as the furlough scheme? How many have already reduced staffing levels or transitioned into another type of work but are yet to formally terminate their contracts? With the volumes of possession cases still well below pre-pandemic levels,1Mortgage and landlord possession statistics: January to March 2021, MoJ, 13 May 2021. we are bracing for the full impact on housing providers, as just one example of a provider base under the most extreme financial pressure.

Further, notwithstanding the immediate disruptive effect of lockdowns from March 2020, civil case starts and completions remain dramatically lower than pre-LASPO levels, indicating that providers have no incentive to increase their legal aid work in the current environment. Applications for certificated work in 2019/20 (ie, before the pandemic) were running at a shade over 60 per cent and legal help work at just 25 per cent of pre-LASPO (2012/13) levels. Even in categories not significantly affected by scope changes, case starts and completions have declined and not recovered.2Legal aid statistics England and Wales tables Jan to Mar 2021, MoJ, 24 June 2021, table 1.2.

There is some hope that the Independent Review of Criminal Legal Aid will address fundamental structural weaknesses. Not so in civil, with an informal, under-resourced internal review of civil sustainability yet to take shape within the MoJ. If that review does crystallise and receive Treasury support, the process will take years to bear fruit. How many providers will still be left standing by then? And how many thousands of newly financially eligible clients will have failed to find a lawyer in that time?

It is a simple question of economics – the MoJ is (quite rightly) increasing demand, but is singularly failing to increase supply. It must accelerate measures to improve the sustainability of civil legal aid – fees are central to that equation. If it doesn’t, it risks turning a potentially positive review of the means test into another time-consuming, expensive but ultimately fruitless exercise.