Law Society reports on civil legal aid sustainability and publishes new advice desert maps
On 27 September 2021, The Law Society published five maps
showing the shortage of legal aid providers across England and Wales in the following practice areas:
•immigration and asylum; and
Heat map of housing legal aid providers, July 2021, The Law Society.
•administration and governance of the legal aid system – the complexity of contracts and processes that add costs and inefficiencies;
•fees paid to providers – how these have changed over time, the impact and whether this is justifiable;
•practice area-specific issues for housing, family law, immigration, education – strong demand and declining supply; and
•not-for-profit (NfP) organisations– how their role has shrunk with cuts to legal aid provision.
The findings (published in Civil legal aid: a review of its sustainability and the challenges to its viability, The Law Society, September 2021) highlight the decline in the number of civil legal aid providers since legal aid reforms were introduced in 2010. This has, in turn, impacted on the ability of those on low incomes to access free legal advice. The cuts in scope to social welfare work following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have been particularly dramatic for the NfP sector, with a drop in provider offices from 483 in 2012/13 to 197 in 2020/21.
It is clear from the findings that provision is not meeting demand. There are just 13 law firms nationally that do education legal aid work, to support almost 8,000 appeals to the First-tier Tribunal (Special Educational Needs and Disability) each year. The number of family law legal aid offices has fallen from 2,401 in 2011/12 to just 1,125 in 2020/21. The overall picture of housing advice provision has been a year-on-year decline from 2013 to date with no reduction in need.
Heat map of education legal aid providers, July 2021, The Law Society.
Unlike the housing and family categories, the research revealed that there had not been a substantial decline in the number of immigration and asylum providers. This, though, was due in part to the fact that prior to LASPO, the majority of casework was asylum cases, which remained in scope. The report warns, however, that ‘[a]lthough the number of providers is an indicator of sustainability, it is not the sole factor for determining the sustainability of advice provision. There is concern that the current legal aid fees structure militates against the quality of service provision’ (page 19).
The Law Society first called for an independent review into the sustainability of the civil legal aid system in 2017. In the current report, it gives eight recommendations to help the government structure any review and ongoing improvements to the legal aid system:
1review the process via which solicitor firms gain entry to the civil legal aid market, alongside the fees paid for various types of work;
2map out the complex system of contracts and assess how this can be a barrier to entry for providers seeking to offer different types of legal aid;
3produce and maintain an evidence base to show the scale of legal needs of those eligible for civil legal aid;
4the Ministry of Justice and the Legal Aid Agency (LAA) should work with other government departments to understand the full impact on public sector costs associated with changes to the civil legal aid system (including regular cost-benefit analysis);
5simplify the audit process for legal aid providers;
6publish key performance metrics for the online CCMS (client and cost management system) on the LAA website;
7review and simplify fee structures so that they reflect the cost base and risk profile faced by providers, including a system to uprate fees by inflation; and
8collect data on litigants in person (LiPs) to enable separate analysis of cases with active LiPs.