Authors:Sue James
Last updated:2023-09-27
Legal aid: fighting for the future – From the Supreme Court to the foodbank
Marc Bloomfield
Description: Legal aid sign
In April 2023, it will be ten years since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force. Sue James reports from Hammersmith and Fulham, in a new series on the state of legal aid across England and Wales, and the fight for its survival.
In 2018, Jon Robins, an independent journalist, and Dr Daniel Newman, from Cardiff University, travelled across England and Wales documenting the stories that would form the basis of their book Justice in a time of austerity: stories from a system in crisis.1Bristol University Press, 2021. The book starts with a quote from the then lord chancellor, Kenneth Clarke, introducing the Legal Aid, Sentencing and Punishment of Offenders Bill in the House of Commons in 2010: ‘I genuinely believe access to justice is the hallmark of a civilised society.’2As quoted in Jon Robins, ‘Access to justice is a fine concept. What does it mean in view of cuts to legal aid?’, Guardian, 6 October 2011.
If Kenneth Clarke is right, then England and Wales is no longer a civilised society because what LASPO (as we call the Act) has done over the past 10 years is to deny thousands of people access to justice. I am not going to quote the figures here, as we tend to gloss over numbers, they become meaningless, dehumanised, when they are so large, but look at the table below, pulled from the government’s own figures.3Source: ‘Legal aid statistics: July to September 2022’, Ministry of Justice/Legal Aid Agency, 15 December 2022, Table 1.2. Just look at the enormous drop in new civil legal help cases in 2013 when LASPO came into force – those are the people whose right to justice ended overnight.
Description: New civil legal help cases 2009-22 bar chart
You can already see from the table that civil legal help cases were falling before the implementation of LASPO. It was a pernicious decision by the government to cut legal help for those most in need in our society. So, what of the recently announced Review of Civil Legal Aid (RoCLA)? We know how well the Bellamy review into criminal legal aid went: a government failure to follow the recommendations and striking barristers. And that was an independent review – unlike the current civil one.
I attended the first Stakeholder Advisory Group meeting of the RoCLA on 2 February. It lasted an hour, and I counted 43 people on the call, questioning how meaningful the review will be. And we all already know what the problem is: a shortage of legal aid lawyers, rates of legal aid remuneration that have not increased for 26 years, a tendering process that delays new entrants, a culture of refusal at the Legal Aid Agency, and outdated supervisor forms making it difficult to recruit – and that is just for the legal aid sector. For our clients: eligibility criteria that exclude the majority of the population, siloed provision, advice deserts across the country, and lack of early advice pushing people into crisis before they can get help.
LAG wants to do more than sit back and wait for a civil legal aid review that will tell us what we already know and will almost certainly, seeing what happened with the Bellamy review, fail to implement the recommendations. We need a radical change in the way legal aid is delivered, which needs to be influenced by those who the service is for – our clients. Mirroring some of the work that Robins and Newman have done, we will be travelling across England and Wales, returning to some of the places that they visited, and telling stories from the front line. I start with Hammersmith.
A Supreme Court case ‘too important to not have representation’
Hammersmith and Fulham Law Centre was my second home for more than 15 years, where I worked, first, as a housing solicitor, and then as its director. I have chosen it as the start of this series, not just because I think it’s a wonderful place, but because that is where Simon Mullings now works and the book, Justice in a time of austerity, starts with him.
In 2018, when Robins met Simon, he was housing duty solicitor at Stratford Housing Centre; now he splits his time as duty adviser between Brentford and Wandsworth County Courts. I ask him what has changed since the Stratford days:
So, more evictions. Less opportunities for us to keep people in their homes, and that’s even in the public sector where judges have discretion, because landlords are fighting quite hard. Local authorities, not so much, because they ultimately know it comes back to them in homeless applications. But with the RSLs it doesn’t come back to them, so they don’t care, they will push for outright possession orders all of the time.
Simon thinks that this behaviour is a policy that is more about ‘tidying up their books’ than actually gaining possession, ‘but when they are tidying up their books, they are tidying people up, away from their homes and into life crisis’. That possession proceedings have become an accounting exercise for social landlords rings true, as it was something that was communicated to me by an income officer of a large social landlord recently, when I spent the day observing in the county court.
Simon has been a housing caseworker for more than 25 years. He became joint chair of the Housing Law Practitioners’ Association two years ago, and although he tried to pass on the baton this year, he tells me no one else would accept and he was persuaded to stay on for a further term. There is no doubt he has done a brilliant job of representing housing practitioners and, in turn, making things better for their clients. He has just appeared pro bono in the case of Rakusen v Jepsen and others [2023] UKSC 9, 1 March 2023 (and see page 44 of this issue), a Supreme Court case that he tells me ‘was too important to not have representation’.
Description: Rakusen v Jepsen legal teams (l_r) Tom Morris_ Tim Baldwin_ Ed Fitzpatrick_ Simon...
Rakusen v Jepsen legal teams. (L–r): Tom Morris, Tim Baldwin, Ed Fitzpatrick, Simon Mullings and Poppy Bourke (photo: Monidipa Fouzder)
I meet Simon at court where we discuss the case over lunch. He tells me that the great thing about working in a Law Centre is being able to be involved in the case (although he agreed to take it on at his old firm, Edwards Duthie Shamash). The case concerned a rent repayment order, which is not a mainstream housing case, and the issue was who was responsible for paying it. The tenant’s landlord had long since disappeared and the case was taken against the owner, the superior landlord. Much of the discussion from the judges was around the definition of landlord in the Housing and Planning Act 2016, as ‘superior landlord’ isn’t defined.
The judges held that the superior landlord could not be held responsible and, as a consequence, Simon lost the case; but highlighting this issue by defending the case affords an opportunity to consider an amendment in the Renters Reform Bill, that may not otherwise have been thought about. Unless the law is changed it will leave a huge gap in protection for tenants, enabling rogue landlords to set up holding companies that rent to tenants, and then disappear. But Simon feels the law is too complex and that is also a problem:
You know, it’s just too complicated – too complicated for good faith landlords to understand, too complicated for tenants to understand. People moan about lawyers being involved in these cases. Well, we are lawyers saying ‘Yes, it’s too complicated, simplify it for goodness’ sake. Simplify it!’
Foodbanks: from crisis service to long-term support
Description: Packing food at Hammersmith and Fulham Foodbank
Packing food at the foodbank (photo: Hammersmith and Fulham Foodbank)
Moving now from the Supreme Court to the foodbank, I ask Phil Storey, CEO of Hammersmith and Fulham Foodbank, what changes he has seen since Robins visited in 2018. At the time, Hammersmith and Fulham Law Centre was running a weekly drop-in advice clinic for people who were using the foodbank and the solicitor at the time, Sophie Earnshaw, was interviewed by Robins. Phil tells me that he is angry that foodbanks exist, that they are getting busier, and moving away from being a crisis service to supporting people longer term:
From 20 years as a benefits adviser, I had always believed income maximisation was the answer. From the unclaimed benefits to the poor-quality decision-making in disability benefits, to the complexity of a system designed to confuse, deter, delay and dissuade. Amongst all this, the reward of getting people what they are entitled to was an end, a result, a step back to stability. The current situation that foodbanks and everyone fighting for the rights of people face, is the impossible reality that after achieving full entitlement, many people cannot afford to feed themselves, maintain their gas and electricity supply and have the dignity of being able to buy the basic essentials to maintain an acceptable standard of living.
Sara Taylor, solicitor and CEO of Hammersmith and Fulham Law Centre, feels that the levels of deprivation are deeper than ever, and the number of people in poverty is growing:
We are seeing a huge increase in people who cannot manage to make ends meet anymore. We have always worked with people who live in poverty, but this is something else, both in the level of deprivation – it’s deeper than ever – and in the breadth – the sheer number of people affected.
The change for Sara is the amount of people who are experiencing in-work poverty, caused by high rents, inflation and wage stagnation. She predicts that there will be a huge surge in homelessness over the coming months and years. I ask her how that makes her feel. She tells me, ‘The current political, economic and social climate in the UK only makes me more determined than ever to do all we can to fight injustice.’ Phil feels the same, ‘We will keep fighting to make this amazing, innovative, supportive London borough the model of best practice. However, at the moment, that is nowhere near enough. We will tell the stories of those who talk to us and make their voice heard.’
Along with the fighting spirit from Sara and Phil is also the impact on well-being. Phil tells me that seeing the desperation of those who rely on the foodbank to survive is soul-destroying and can impact on the well-being of volunteers and staff. Phil has also seen a decrease in the amount of food donated as the cost of living bites:
December is always the month that foodbanks go crazy. Massive demand, a huge amount of festive-inspired collections and donations. A chance for us to give gifts and Christmas goody bags to bring a bit of cheer, regardless of your circumstances. We fed 1,500 people in December, that’s 15,000 meals kindly donated by our local community. A huge effort, we got through it. But in January we fed over 2,000 – that wasn’t supposed to happen, donations have dropped, Christmas is over. What do we do now?
There is no doubt that the situation for those seeking advice has become much worse – a mix of LASPO, Brexit, inflation and post-COVID, as well as austerity and, particularly, austerity justice. The crisis for our clients is impacting on the lawyers and advisers on the front line. Simon tells me:
Look, one of the biggest stressors for people who are housing solicitors working in Law Centres and other legal aid settings, is the amount of work we have to turn away. We are not here to turn away work, we are here to help people, but we simply do not have the resources. The demand is huge. People say, ‘Are you busy?’ and you can’t even answer the question, because the demand for what you do is so enormous and your head is full of all the people you have to turn away. It is the worst thing about the job.
I would like to say that the RoCLA gives us an opportunity for change, but I can’t. It is too late, will take too long and, given the response to the Bellamy review, any recommendations are unlikely to be acted on. In the meantime, legal aid firms will disappear, Law Centres will struggle, and people will fail to get the help they need. Legal aid is too important to be left to the current government to decide on its fate. Simon agrees:
The thing is, people ask, ‘Can we afford legal aid for everything?’ This is what I say: ‘Can you afford not to?’ Because the cost to society of people losing their homes, of people not being educated properly if they have special educational needs, not getting the community care they need, not getting the benefits they need to sustain their home and bring up their families in the way that we would all want to see – can you afford that not to happen? Legal aid sits across all the pillars of the welfare state. Welfare has to be sufficient in order to be a proper safety net and legal aid is part of that.
Next month we will be reporting from Manchester. If you would like to contribute to the series, then please let us know at:
1     Bristol University Press, 2021. »
2     As quoted in Jon Robins, ‘Access to justice is a fine concept. What does it mean in view of cuts to legal aid?’, Guardian, 6 October 2011. »
3     Source: ‘Legal aid statistics: July to September 2022’, Ministry of Justice/Legal Aid Agency, 15 December 2022, Table 1.2. »