Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Justice Contents

5  Sustainability and 'advice deserts' - the legal aid market

73. In our 2012 report on the legal aid reform proposals we expressed concern at the limited evidence the Government had on the likely impact of the reforms on providers of publicly-funded legal services:

    …we think that, for several reasons, there could be significant under-supply of providers in some areas of the country, or indeed some 'advice deserts'…The Government's own impact assessment notes that there is "much uncertainty" about the impact on providers and we urge the Government to conduct a more thorough assessment of the likely effect on geographical provision of each category of civil and family law before deciding whether to implement the proposals.[114]

In its response to our report the Government accepted that the legal aid changes were likely to result in a reduction in the number of legal aid providers but committed itself to ensuring that there were "robust mechanisms in place to identify any developing market shortfall" and responding "promptly, effectively and appropriately, should this materialise in any form".[115] The Government assured us that the Ministry of Justice would continue "to assess the sustainability of the legal aid market throughout the procurement process."[116] The Government did not respond to our concerns over the geographical provision of legal aid.

74. There has been a reduction in legal aid providers since the introduction of the legal aid reforms. The Legal Aid Agency's annual report stated that there were 1,435 civil legal aid providers in March 2014, down from 1,899 in March 2013.[117] Our evidence shows, however, that the number of providers is a comparatively meaningless measure in assessing the state of the market given the complexities of the ways in which legal aid providers have responded to the legal aid, and other, reforms.

The impact of the legal aid reforms on the for-profit sector

75. The Law Society told us:

    Whilst the overall number of legal aid contracts may not have significantly reduced, the scope cuts will have resulted in the downsizing of departments reliant on legal aid work and consequent redundancies. Some firms have closed and others have survived by shifting their focus to privately funded work.[118]

They added that legal aid practitioners were "very demoralised by the LASPO scope and fee cuts and the further cuts that are being implemented by the Transforming Legal Aid proposals affecting both civil and criminal legal aid."[119] The Family Justice Council told us that "family law firms/departments are downsizing due to lack of work with consequent redundancies and permanent loss of provision."[120] The Civil Justice Council observed that there was an inevitable impact on access to pro bono legal services, and consequently access to justice: "the very practitioners who have seen their rates and work reduced are the ones with the expertise for whom demand is strongest."[121]

76. The Civil Justice Council was of the view that "we understand some of those with contracts are not using these to the full, as the contract is hard to run, and time spent interviewing potential clients who turn out not to be in scope is not funded."[122] The observation that even solicitors with legal aid contracts may be reluctant or unable to take on eligible work was reflected by evidence from witnesses representing not for profit providers that finding a solicitor able and willing to take legal aid cases is becoming more difficult. For example, Greenwich Housing Rights reported a particular difficulty in finding solicitors for social welfare litigants with appropriate cases,[123] Rights of Women for domestic violence victims needing assistance in family law proceedings[124] and the Immigration Law Practitioners' Association expressed concern over problems accessing specialist immigration advice.[125]

77. The Law Society told us that the culmination of all the changes meant "the future sustainability of legal aid practice is in significant doubt."[126] The Civil Justice Council agreed that the sustainability of the market in publicly-funded legal services was in question. The Family Justice Council agreed: "Given the outcome of LASPO and the implementation of 'Transforming Legal Aid', there must be serious doubt as to the survival of service providers in the private sector."[127] Matthew Coats, Director of the Legal Aid Agency, disagreed, assuring us "We regularly review market capacity to assure ourselves about coverage and sustainability."[128]

The not-for-profit sector

78. We were told of a number of advice centres which had closed down following the reforms including nine law centres (one in six of the Law Centres Network members)[129] and 10 run by Shelter.[130] Julie Bishop, of the Law Centres Network, said the centres that closed were the ones whose primary funding stream was legal aid "it was 80% or more of their income. They were well-run centres but they simply did not have local authority or any other support."[131] As with for-profit providers, however, the relatively limited number of centres which have closed altogether hides the fact the centres that survive have had to significantly reduce their capacity to assist those seeking advice, as Julie Bishop explained: "We are now targeting specific groups of clients, rather than having an open door service. There have been major savings by reducing staff and dropping the number of trainees."[132] Shelter told us it had reduced its housing work by 40 per cent and its debt work by 60 per cent.[133] Conditions on funding also mean law centres have to alter the way they work, Paula Twigg described the situation for the Mary Ward Legal Centre in Camden:

    we only have funding from Camden council now because we lost our legal aid contract. We are a pan London provider and we were able to help round about 1,200 people a year to resolve the welfare benefits legal issue. Now we can only help about 300 people a year…our Camden funding is restricted to help people who live, work or study in Camden. We are turning one in four people away who present from other boroughs…[134]

Gillian Guy of Citizens Advice Bureau said the CAB had lost 350 specialist advisors. This was despite the fact the CAB has a variety of funding streams meaning it is less dependent on legal aid than other not-for-profit advisors.[135]

79. Several witnesses expressed concern over the future of other funding streams for the-not-for-profit sector. Ms Bishop told us that local authority funding for law centres had been "critical" but the cuts in central government funding for local government would inevitably have an impact in future.[136] The Low Commission, which carried out an inquiry into social welfare funding, found that local authority funding cuts were likely to see financial support fall from around £220million in 2010-11 to £180million, or less, by 2015-16.[137]

80. Witnesses observed that demand for services was going up, partly as a result of the legal aid reforms but also because of other reasons such as changes in the benefits system and immigration rules, pressure on housing and rising use of zero hours contracts.[138] The NAO report found that 70 per cent of not-for-profit providers could meet half or less of the demand for legal assistance from people not eligible for legal aid.[139] The Citizens Advice Bureau told us it saw an increase of 62 per cent in the number of page visits from April 2013 to March 2014.[140] The Law Centres Network said "our offices have experienced a surge in enquiries after help in the areas now out of scope, primarily family, immigration and employment". As an example, "Hackney Community Law Centre…in winter 2013 reported a 400% increase in people looking for help with welfare benefits, a 200% increase in people looking for immigration help and a 500% increase in calls to their telephone advice line."[141]

Matter start allocation

81. Matter starts are the number of cases a legal aid provider may take on under its legal aid contract. Witnesses raised a number of concerns over the operation of matter starts and the consequent impact on access to justice. The Housing Law Practitioners Association said that matter starts were running out "within a few months"[142] but the Legal Aid Agency usually refused to allocate more, meaning providers could not help any more clients. Sara Stephens of the Housing Law Practitioners Association explained that the system presented a problem for the MoJ's objective of targeting legal aid at the most serious cases:

    The idea that a finite amount of people can get assistance is a problem and does go against the supposed aims of LASPO, which is to help the most serious and vulnerable clients—the most serious cases—because it effectively means that the first, say, 100 people through the door get the help and anyone who arrives after that does not.[143]

Ms Stephens acknowledged this was a long-standing problem with the system of matter starts but was of the view it had been significantly exacerbated by the reduction in the number of matter starts allocated to providers under LASPO.[144]

82. The cumulative effect of all the issues was, the Housing Law Practitioners Association suggested, that there were now "advice deserts" for some areas of law in some parts of the country.[145] This conclusion may be supported by the National Audit Office's finding that in 14 local authorities no face-to-face civil legal aid work was started in 2013-14 and that legal aid providers in a further 39 local authorities started fewer than 49 pieces of legal aid work per 100,000 people.[146] The reasons for the level of variation are unknown.[147] What is clear to us is that the Ministry of Justice does not know why that variation is occurring, and is certainly in no position to deny the existence of advice deserts.

Conclusions on the legal aid market

83. In its recent report on the changes, Implementing Reforms to Civil Legal Aid, the National Audit Office said:

    The Ministry reduced fees for providers without a robust understanding of how this would affect the market, and its monitoring has been limited. Many providers told us they were struggling to provide services for the fees paid, despite using a range of approaches to reduce costs. The Ministry wanted to stimulate the development of innovative solutions to providing services at a lower cost. It has monitored whether providers are in financial distress. However it has not monitored the extent to which providers are choosing not to undertake civil legal aid work. There is no requirement to perform a minimum level of work to remain a provider.

84. The NAO concluded "The Ministry needs to improve its understanding of the impact of the reforms on the ability of providers to meet demand for services. Without this, implementation of the reforms to civil legal aid cannot be said to have delivered better overall value for money for the taxpayer."[148]

85. Mr Coats noted that the re-tender for legal aid contracts attracted more bidders than for the previous tender.[149] The National Audit Office raised concerns, however, over the number of firms failing the Legal Aid Agency quality assurance tests. Based on unpublished data collated by the Legal Aid Agency: "In 2013-14, 32% of targeted firms and 23% of firms selected at random failed the review." The NAO went on to observe, however, that "this is a reduction on 2012-13 when 41% of non-targeted and 28% of targeted firms failed."[150] In our view it is difficult to draw any clear conclusions from these figures.

86. The Minister told us he believed there were "enough providers."[151] He dismissed the concerns about the sufficiency and sustainability of the market in these terms:

    We have had to take tough decisions whereby we have had to reduce scope. We have had to reduce fees. If you are talking to solicitors and you have to look them in the eye and say, "We are going to give you fee cuts," clearly there is going to be disagreement. Our view is that we are in a tough climate with austerity measures. Many individuals and businesses are suffering, and the legal profession should not be immune from the measures that we are taking.[152]

87. We were not impressed by the Minister's response to our concerns about the impact of the legal aid reforms on providers of publicly-funded legal services. We share the concerns of the National Audit Office, concerns we raised in our report in 2011, that the legal aid reforms were carried out without adequate evidence of the likely impact on the sufficiency and sustainability of the legal aid market.

88. The National Audit Office found that fourteen local authority areas saw no face to face civil legal aid work at all in 2013-14, and very small numbers of cases were started in a further 39 local authority areas. We are deeply concerned that this may indicate the existence of a substantial number of 'advice deserts.'

89. We urged the Government in 2011 to carry out research into the geographical distribution of legal aid providers to ensure sufficient provision to protect access to justice. Not only did the Ministry of Justice fail to heed our warning, it has also failed to monitor the impact of the legal aid reforms on the geographical provision of providers. We do not know for certain if there are advice deserts in England and Wales, and nor does the Ministry of Justice. This work needs to be carried out immediately because once capacity and expertise are lost the Ministry of Justice will find it difficult, and potentially expensive, to restore them. In some areas it may already be too late.

114   Ibid, para 156 Back

115   Justice Committee Government's proposed reform of legal aid Third report of Session 2010-11, HC681 Back

116   Government Response to Justice Committee's Third Report of Session 2010-11: the Government's proposed reform of legal aid, June 2011, para. 78. Back

117   Legal Aid Agency, Annual Report and Accounts 2013-14, p19. Back

118   The Law Society for England and Wales (LAS0039) Back

119   IbidBack

120   Family Justice Council (LAS0082) Back

121   Civil Justice Council (LAS0080) Back

122   IbidBack

123   Greenwich Housing Rights (LAS0027) Back

124   Rights of Women (LAS0081) Back

125   Q 160 Back

126   IbidBack

127   Family Justice Council (LAS0082) Back

128   Q 291  Back

129   Law Centres Network (LAS0057) Back

130   Shelter (LAS0066) Back

131   Q 11 Back

132   Q 119 Back

133   Shelter (LAS0066) Back

134   Q 186 Back

135   Q 11 Back

136   IbidBack

137   Low Commission Report of the Low Commission on the future of advice and legal support: Tackling the Advice Deficit a strategy for access to advice and legal support on social welfare law in England and Wales, January 2014, para. 1.15 (Low Commission Report). Back

138   Southwark Law Centre (LAS0061), Law Centres Network (LAS0057). Back

139   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014. Back

140   Citizens Advice (LAS0040) Back

141   Law Centres Network (LAS0057) Back

142   Housing Law Practitioners Association (LAS0052) Back

143   Q 119  Back

144   Ibid.  Back

145   Housing Law Practitioners Association (LAS0052)  Back

146   Implementing reforms to civil legal aid, NAO, HC 784, Session 14-15, November 2014, para. 3.23 The highest figure of matter starts was in Camden in London, where providers based in the area started 4,283 pieces of legal aid work for every 100,000 people who lived there. Back

147   Ibid, para. 3.24 Back

148   IbidBack

149   Q295 Back

150   Implementing reforms to civil legal aid, NAO, HC 784, Session 2014-15, November 2014, para. 3.12. Back

151   Q 290 Back

152   Q 291 Back

previous page contents next page

© Parliamentary copyright 2015
Prepared 12 March 2015