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
Ibid. Back
120
Family Justice Council (LAS0082) Back
121
Civil Justice Council (LAS0080) Back
122
Ibid. Back
123
Greenwich Housing Rights (LAS0027) Back
124
Rights of Women (LAS0081) Back
125
Q 160 Back
126
Ibid. Back
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
Ibid. Back
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
Ibid. Back
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
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