Steve Hynes discusses the main points in the report of the post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Much hope was invested in the post-implementation review (PIR) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) but the final report (Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
, CP 37, Ministry of Justice (MoJ), 7 February 2019)1Unless otherwise specified, page and paragraph numbers refer to this document.
and action plan (Legal support: the way ahead
, CP 40, MoJ, 7 February 2019) have been met with widespread disappointment from legal aid practitioners and others concerned about access to justice policy (see pages 3
of this issue). The main impact of LASPO on access to justice was the cutting of large areas of civil legal aid from scope. This article dives into the detail of the PIR report on this important issue.
Measuring the impact
I’m conscious that, by considering a couple of methodological questions this early in the article, I’ll lead some readers to scroll down, fearful that they might lose the will to live, but this stuff matters so please bear with me.
As part of the legislative process, the government published impact assessments
on the likely effects of the proposed cuts to the scope of civil legal aid. It based these on figures from 2009/10 for the number of legal aid cases. The PIR report argues that to measure the impact of LASPO, it is ‘fair and accurate’ to use figures from 2012/13 as a baseline (paras 121–124, page 24).
I’d argue that civil legal aid became a blighted service from the publication of Proposals for the reform of legal aid in England and Wales
(Cm 7967/Consultation Paper CP12/10, MoJ) on 15 November 2010, which outlined the proposed cuts to scope, and it is therefore misleading to move the baseline for measuring its impact. LAG has previously argued that there was a decline in the number of legal aid cases after 2009/10 due to changes such as greater restrictions on matter starts and the failure of the government to encourage the take-up of legal aid services (Civil legal aid – the secret legal service (2)
, LAG, May 2014).
The fall in the number of cases between 2009/10 and 2012/13 was counterintuitive to the available evidence on the demand for services. For example, the number of legal help welfare benefit cases dropped from 143,865 in 2009/10 to 88,618 in 2012/13 despite an increasing number of cases presenting before the First-tier Tribunal (Social Security and Child Support) (Civil legal aid – the secret legal service (2), page 1). Citizens Advice was also reporting an increasing number of enquiries in 2012/13 (Civil legal aid – the secret legal service (2), page 2).
There is a gaping hole in the analysis of LASPO’s impact that the PIR report ignores. It assumes that meeting demand for legal aid services is simply a matter of having enough firms spread across the country to take up the matter starts available for new cases (para 822, page 196). Following the loss of the Legal Services Research Centre on 1 April 2013, due to the subsuming of the administration of legal aid into the MoJ under LASPO, there has been no large-scale research conducted on the demand for legal advice. By not having this, the MoJ is acting like the captain of a warship scanning the horizon for the enemy through the wrong end of a telescope: the scale of the problem looks much smaller and more distant than it actually is.
Changing the baseline on measuring the impact of LASPO means that the civil servants have had to revise the projected costs savings for the scope cuts (para 147, page 31 and para 151, page 32) but, overall, the impact of the lead-up to LASPO and the scope cuts introduced from April 2013 has been to reduce legal aid expenditure by around £400m, if the original baseline of 2009/10 is used.
Cost-cutting, as part of the coalition government's austerity measures, has been the main driver of legal aid policy since Kenneth Clarke took office as justice secretary on 12 May 2010, though he had little grasp of the detail of what this would entail (Austerity justice
, LAG, November 2012, page 76). The following sections summarise the PIR report’s findings and recommendations on the main areas of scope, by case volume, which were cut.
Private family law
This covers cases to do with matrimonial/relationship disputes between couples. With expenditure in 2012/13 of around £190m on legal help and representation (para 598, page 139), it was the largest area of scope on which the LASPO axe fell. It was also perhaps the biggest policy failure for the government.
This quotation is one of the best examples of civil servant understatement I’ve ever come across and provided, for me (sad person that I am), one of the PIR report’s best laugh-out-loud moments:
The aim to promote the use of mediation, instead of adversarial and unnecessary litigation, does not appear to have been met. It certainly has not been met with regard to publicly funded mediation services (para 609, page 142).
Mediation information and assessment meetings (MIAMs) are the first stage in the mediation process for couples who are breaking up. The one and only positive aim of LASPO was to increase these, to deter people from using the courts to settle their matrimonial disputes. Extra cash (£15m) was earmarked to fund these, but as figure 87 of the PIR report (page 143; see below) illustrates, the number of publicly funded MIAM referrals plummeted after LASPO.
Figure 87: volume of publicly funded MIAMs by referral routes 2010–11 to 2016–17
Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), page 143. © Crown copyright, 2019.
The PIR report suggests that the low uptake in mediation has been caused by the lack of legal aid resulting in individuals bypassing alternative dispute resolution and instead going straight to court (para 613, page 143). While the report acknowledges that there has been an increase in litigants in person (LIPs) before the courts due to the scope cuts in family law, it does not accept that the solution is to increase access to lawyers, as it argues this ‘is not always the correct or most affordable answer’ (para 654, page 153). The MoJ seems to be suggesting that a combination of its digital-led reforms to the court system and an increase in cash for services aimed at LIPs is the solution.
One of the most controversial issues resulting from the LASPO changes was the introduction of the regulations around qualifying for legal aid for private law family matters in cases involving domestic abuse (Civil Legal Aid (Procedure) Regulations 2012 SI No 3098). Continuous pressure from campaigners has led to the government making significant revisions to the evidence requirements on four occasions to ensure victims could obtain legal aid. These have led to an increase in the number of grants of legal aid in domestic violence and child abuse cases (para 644 and figure 93, page 150).
There is concern about the lack of awareness about eligibility for legal aid in such cases (para 649, page 152) and the government is committed to addressing this (see page 3 of this issue).
Social welfare law
The PIR report groups housing, welfare benefits, debt and employment together in the social welfare law category, as many respondents to the review said that their clients often experienced interrelated problems in these categories of law (para 364, page 83). As with other areas of law, the review concedes that the reductions in expenditure have exceeded the original projections; for example, civil representation in housing cases has fallen by 36 per cent from 2012/13 to 2017/18 as against the 11 per cent that was predicted (para 391 and figure 44, page 88; see below). Legal help volumes also fell more than anticipated (para 389 and figure 42, page 87).
Figure 44: housing volumes (civil representation granted certificates) 2008–09 to 2017–18
Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), page 88. © Crown copyright, 2019.
Due to a greater than expected decline in case volumes for debt, legal help fell by over 99 per cent as against the estimate of 74 per cent (para 397, page 90). The failings of the mandatory telephone gateway are acknowledged in the PIR report (see below) and this forms a large part of the explanation for the underspend in debt advice.
For employment (paras 404 and 406, pages 93-94) and welfare benefits, the predicted reductions were largely in line with projections (para 403, page 92, though note the small volume of civil representation certificates unexpectedly fell), as all bar a few higher-level appeal cases were cut from scope for welfare benefits, and in employment law all cases were cut (though a new category of discrimination law was established as this remained in scope, but see below).
With a few exceptions, non-asylum cases were removed from scope. The impact assessment estimated a cut of 53,000 legal help cases and with some caveats the PIR report concludes that the reduction in cases and expenditure was broadly in line with predictions: spending on legal help for non-asylum cases declined by 80 per cent against an estimate of 89 per cent (para 263 and figure 21, pages 58-59; see below). However, civil representation for both asylum and non-asylum declined by £7m rather than the predicted £1m. There has been an increase greater than the MoJ expected in exceptional case funding for non-asylum work.
Figure 21: immigration volumes (legal help matter starts, and claims) to 2017–18
Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), page 59. © Crown copyright, 2019.
The telephone gateway: debt, discrimination and education
One of the biggest areas of debate as the LASPO Bill progressed through the legislative process was the mandatory telephone gateway, which the government wanted to introduce for all of the areas of civil law remaining in scope (Austerity justice, page 118). Campaigners successfully fought off a move to include community care cases in the service, but debt, discrimination and education law were included. To access legal aid in these areas of law, the public must go through the gateway.
The Legal Aid Agency has had problems with the tendering process for the work (see ‘Civil legal advice education and discrimination tenders abandoned
’, March 2018 Legal Action
4), and volumes of gateway work are much lower than anticipated. The volume figures were based on face-to-face legal help advice, which the government replaced with the gateway service. The MoJ expected that the figures for the gateway service would match those of the face-to-face services that were lost, but they did not. The PIR report suggests that the referral process to face-to-face advice ‘may require further consideration’ (para 525, page 122) and that the shortage of suppliers to provide the service ‘raises concerns about the long-term viability of the mandatory element for these areas of law’ (para 527, page 123).
Overall, the changes to scope have realised budget reductions of £90m in civil cases and £160m in family compared with impact assessment estimates of £105m and £130m (para 16, page 7). This is a total net increase of six per cent against the predicted savings, which I have argued is based on shifting of the statistical goalposts.
The coalition government’s original intention was to enshrine what was in scope in primary legislation. The LASPO Bill was amended though to allow for areas of law to be added back into scope (Austerity justice, page 116), so the damaging cuts described in this article can be remedied. All it takes is political will and the cash to do so.
This is the first of a two-part article on the LASPO review, the second of which, covering civil and criminal fee changes, the sustainability of the market, and the abolition of the Legal Services Commission and its replacement with the Legal Aid Agency, will feature in the April 2019 issue of Legal Action.