The Future of Legal Aid Contents

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3Civil legal aid

81.The civil legal aid system in England and Wales is in a difficult place. The sector is still, nearly a decade after the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, adjusting to the dramatic reduction in the level of civil legal aid provision that took effect in April 2013. The civil legal aid system, which was established to help those who needed to enforce their legal rights but did not have the means to pay for advice or representation, is now able to help a much smaller proportion of the population than it once could.143 This has resulted in significant savings to the legal aid budget, but witnesses told us that reform and investment to secure access to justice in a number of areas is required.

Table 5: Annual spending on civil legal aid

82.The 34% decrease in civil legal aid expenditure between 2009–10 and 2019–20 is in part due to the decrease in the number of legal help cases supported by legal aid. Legal help is when a solicitor provides legal advice and negotiates with the other party. The table below shows how the number of legal help cases has changed since 2009–10.

Table 6: Legal help and controlled legal representation matters started, England and Wales; annual and quarterly total volume

Legal aid also supports legal representation, which covers the work done by a solicitor to prepare a case and for a barrister to provide representation in court. The number of legal aid certificates granted for civil representation decreased from 168,414 in 2009/10 to 115,797 in 2019–20.144 As with criminal legal aid, a key question is whether the current system strikes the right balance between early legal advice and legal representation. In 2010, Citizens Advice published a report which claimed that every £1 spent on early advice saved between £2.34 - £8.80, depending on the type of legal issue.145 It is arguable that, despite the savings achieved since 2010, the removal of early advice in a number of areas has rendered the civil legal aid system less effective and efficient.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)

83.The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) radically reduced the provision of civil legal aid in England and Wales. Part 1 of LASPO, which made changes to the scope of civil legal aid and the eligibility criteria, took effect on 1 April 2013. Our predecessor Committee published a report on the changes to civil legal aid in March 2015.146 That report concluded that LASPO had only delivered on one of its four aims: to make significant savings on the cost of the scheme.147 The Committee stated that LASPO had failed to:

• discourage unnecessary and adversarial litigation at public expense;
• target legal aid to those who need it most; and
• deliver better overall value for money for the taxpayer.148

The report also concluded that “the faulty implementation of the legal aid changes” had harmed access to justice for some litigants.149

84.The report also raised concerns over the following issues relating to impact of LASPO on civil legal aid:

• Improving the public awareness of civil legal aid and particular services on offer;150
• The fact that the number of exceptional case funding applications granted was far below the Ministry of Justice’s estimate;151
• The ability of victims of domestic violence to access legal aid;152
• The sustainability of publicly-funded legal services and the lack of data on the ‘advice desert’;153
• The rise in the number of litigants in person—particularly in private family law cases;154
• The fall in the number of mediations for separating couples; and
• The cost of only being able to help people that have reached crisis point rather than offering early advice due to the limits on the scope of civil legal aid.155

85.In February 2019, the Government published its Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which outlined the effect of the changes to civil legal aid.156 The report noted that “there has been a decrease in both the volume of and spend on civil legal aid cases since the implementation of LASPO”.157 The report pointed out that LASPO “has undoubtedly played a key part in this, but other factors (such as wider changes in society and the justice system in particular) are also involved”.158 The reported that the changes to the scope of private family law is estimated to have saved £160m.159

86.In relation to the four core objectives of LASPO, the report made the following conclusions:

• On overall spending, the report concluded that LASPO had been a “key driver (amongst others), in the reduction in legal aid expenditure, which has fallen by over 20% since April 2013”.160
• On discouraging unnecessary and adversarial litigation at public expense, the report noted that there had been “mixed success”.161
• On targeting legal aid at those who need it most, the report stated that “it is impossible to say with certainty if the LASPO changes achieved this objective” and “ it is clear that in some areas improvements could be made to ensure legal aid is accessible to people in most need, when they most need it”.162
• On delivering better overall value for money for the taxpayer, the report concluded “that the evidence indicates that the range of changes have achieved greater overall value for money for the taxpayer”.163 It also noted that to determine the value for money of LASPO, the Ministry of Justice “must obtain a better understanding of this purported cost transference to other Government departments”.164
• The report highlighted that stakeholders had raised the issue of the sustainability of legal aid and that the Government’s view was that “the data available suggests that current provision is sufficient”.165 The Government conceded in the report that “more research is required to consider the long-term future for how legal aid services are delivered”.166

87.The report identified six broad themes from the concerns raised by stakeholders:

• That limitations on the scope of legal aid limit the availability of early advice which means that problems escalate before they can be addressed;
• Many people who need legal aid cannot access it;
• Exceptional case funding does not work;
• The fees are inadequate;
• There has been a rise in the number of litigants in person; and
• There are advice deserts where people cannot access advice.167

It is frustrating, and yet unsurprising, that many of the concerns raised over the operation of the civil legal aid system by our predecessor Committee in 2015, and by Government’s post-implementation review in 2019, have been highlighted in evidence to this inquiry on the future of legal aid in 2021.

Early advice and scope

88.A number of witnesses to the Committee emphasised that the limited scope of civil and family legal aid means that individuals with legal problems are not able to access advice early enough to stop their problems escalating. The Chair of the Bar Council, Derek Sweeting QC also told us that for civil matters, early legal advice is “absolutely key” as it can stop problems escalating and if they do escalate, they can be better informed as to what to focus on.168

Box 3: Scope

Scope, in this context, means the type of legal problem or case for which legal aid is generally available. When a matter is in scope, civil and family legal aid meets the cost of legal services (subject to means and merits tests). Prior to LASPO, the scope of civil and family legal aid was governed by the Access to Justice Act 1999. A matter was within scope unless specifically excluded by the Act.12 Under LASPO this approach was reversed: now only those matters specifically listed in the 2012 Act are in scope. The types of legal problems still in scope are set out in Schedule 1 of LASPO.

Source: House of Commons Library, Legal Aid: the review of LASPO Part 1, Number 43720, 7 May 2020

89.Our inquiry into Court Capacity has highlighted that a number of civil jurisdictions have faced problems caused by the growing number of outstanding cases. Richard Miller, head of the Justice Team at the Law Society, stressed that early advice can solve matters and stop them getting to courts in the first place.169 Miller also argued, in line with a number of witnesses, that early advice means that when cases do enter the system they could be disposed of more efficiently. Ian Townley, Director and Head of Costs at Broudie Jackson Canter, explained that often a client would seek advice just before their court date, which means that the client gets sent to a hearing “to tell the judge that they are trying to get legal aid, and the judge will vacate that hearing and re-list another one”.170 The Government should take a whole justice system approach to the reform of the civil legal aid framework. The provision of early advice can help to make the courts work more effectively.

Social welfare law

90.‘Social welfare law’ includes issues relating to housing, debt, welfare benefits and employment. LASPO removed most of these areas from the scope of legal aid and specified limited areas where public support remained available.

Box 4: Changes to scope of social welfare law by LASPO

LASPO removed most housing cases from the scope of legal aid. It kept within scope those cases where there is a risk of homelessness, repossession or eviction, as well as housing disrepair that poses a risk of serious harm to an individual. LASPO removed most areas of debt law from the scope of the scheme. Legal aid remains available—via the civil legal aid telephone gateway—for three main areas: proceedings where, as a result of mortgage arrears, the client’s home is at immediate risk of possession; proceedings regarding orders for the sale of the home; bankruptcy proceedings initiated by creditors where the potential bankrupt estate includes the home of the potential bankrupt or his/her family. LASPO removed all welfare benefit proceedings from the scope of legal aid for advice and assistance, except for: Legal Help for appeals to the Upper Tribunal and Higher Courts, when the case involves a point of law; civil representation for appeals relating to council tax reduction schemes, which replaced council tax benefit under the Welfare Reform Act 2012. LASPO removed all employment cases from scope, except those concerning discrimination and victims of trafficking and modern slavery.

Source: House of Commons Library, Legal Aid: the review of LASPO Part 1, Briefing Paper no 43720, 7 May 2020

91.The Bar Council’s evidence advocates the re-introduction of legal aid for social welfare issues:

Someone might be evicted from their home for not paying their rent, due to their benefits having been wrongly stopped. Restoring legal aid for early advice on benefits matters would mean that the eviction stage would never be reached. Legal aid intervention at an early stage is cheaper than only having legal aid when the matter has escalated to crisis point and the matter is more expensive to put right.171

A number of witnesses stressed that LASPO’s approach to scope created barriers between linked and overlapping areas of law. Broudie Jackson Canter, a law firm based in the North-West, argued that the scope of civil legal aid now means that “the piecemeal system seems to have created a scenario where advice cannot be given under Legal Aid until a catastrophic failure is immediate”.172 The Housing Law Providers Association’s evidence made a similar point, and highlighted the results of a survey of its members which found that: 93.6% of providers stated that LASPO had had a mostly negative affect on the scope of the work that their organisation has traditionally done for clients.173 Their evidence added that the majority of the responders explained that two issues were responsible: firstly, the removal from the scope of legal aid funding of most early advice, particularly in respect of welfare benefits, and secondly, the restrictions which have now been placed on providers’ ability to pursue disrepair claims on behalf of their clients.174

92.Simon Mullings, Co-Chair of Housing Law Practitioners Association, told us that removing welfare benefits advice from the scope of legal aid was a “false economy”.175 He also stressed that it was having an impact on the sustainability of the profession as many providers would do the work on a pro-bono basis which is very difficult to do on an ongoing basis.176 Simon Mullings argued this was part of the reason that the number of suppliers had decreased from over 360 in 2010 to 260 in 2020.177 He also emphasised that in his experience “the absence of early legal advice leads to negative outcomes for vulnerable people”.178 Part of the problem, he said, is that housing law is extremely complex, and this limits the effectiveness of other forms early advice and support for those with housing problems. He explained that in housing law cases “you pretty much have to wait for a notice of possession to be granted before we can work with tenants”.179 Jo Underwood, Head of Strategic Litigation at Shelter, described the current approach to housing law as a “crisis-driven” approach whereby legal aid is “generally only available for your case at a point where it is unavoidable that you have to get to court”.180

93.Simon Mullings was positive about the operation of the possession duty scheme, describing it as a “real boon” as it covers virtually every county court in the jurisdiction, but stressed that any equivalent for debt and welfare meant that there big gaps in the system.181 The Government should consider whether the model of the possession duty scheme should be used in other areas of the civil justice system where there are significant numbers of litigants in person. Non-means tested advice at court on the day of hearing could provide an economical way of offering some legal support to vulnerable litigants. We commend the Government and the Legal Aid Agency on their work on the duty scheme, but ask that they learn the lesson that schemes which are “assertive and flexible”, as Simon Mullings described the possession duty scheme, are what is needed.

94.Chris Minnoch, Chief Executive Officer, Legal Aid Practitioners Group, made the point that early advice will not provide a complete solution in all cases.182 He argued that the problem is that the current approach to advice is not strategic enough. He cautioned that a focus on making improvements that were “cost neutral” would not provide the strategic approach that is needed, as shifting funding to early advice from representation, for example, would fix one part at the expense of another.183 Chris Minnoch also stressed that the restricted scope of social welfare law means that housing providers, for example, cannot provide the wraparound support that could resolve the underlying problems that an individual is facing.184

Family law

95.LASPO removed private family law from the scope of legal aid with five main exceptions:

• Proceedings in the domestic violence category (e.g. non-molestation and occupation orders);
• Proceedings involving children, financial provision and other family proceedings where domestic violence and/or child abuse could be evidenced against a set of evidence requirements set out in regulations (the ‘domestic violence evidence gateway’);
• Proceedings in which a judge makes a child party to proceedings;
• Proceedings in connection with orders to prevent international child abduction;185 and
• Proceedings to secure the return of an abducted child, or proceedings involving various cross-border issues under EU and international law.186

Dr Mavis Maclean, senior research fellow at the University of Oxford, told us that even though these exceptions were designed to protect children, in practice, many private family law cases, which are out of scope as they don’t fall within one of the exceptions, affect children.187 Maclean argued that a considerable number of highly conflicted private law disputes, may put children at risk, and in such “cross over” cases “it is hard to see the justification for any distinction in legal aid eligibility”.188 The changes to scope had a significant impact on the number of legal aided family cases.

Table 7: Value of completed legal aid cases at the Family court

Source: MoJ, Legal aid statistics, October to December 2020, tables 5.3, 6.5 and 6.7; HM Treasury, GDP deflators at market prices, and money GDP March 2021 (Quarterly National Accounts)

96.In relation to the timing of advice, Dr Mavis Maclean’s evidence points out that research into legal needs has indicated that early legal advice from legal practitioners helps to resolve family issues more quickly.189 Resolution, an organisation that represents family lawyers and family justice professionals, sets out in its evidence that its members “wish to see more people early on and divert them from court if at all possible”.190 Elsepth Thomson, from Resolution, explained in a roundtable discussion that early advice enable lawyers to explain the process and to provide a “reality check” on what might be achieved by going to court.191 Elsepth Thomson also argued that current framework does not enable a focus on the most-deserving cases.192

97.In limiting the availability of legal aid for private family law, the Government hoped that separating couples would use mediation instead of the courts. Instead, as Professor Anne Barlow and Dr Jan Ewing, both from the University of Exeter, set out in their evidence, LASPO had “the unintended consequence of significantly reducing family mediation starts and increasing the number of cases issued in court”.193 The legal aid statistics shows that in 2011–12 there were 15,357 mediation starts, and in 2019–20 there 7,562.194 Professor Anne Barlow and Dr Jan Ewing argue that legal advice before and alongside mediation would increase the numbers using mediation and the numbers that would settle in mediation.195 National Family Mediation’s written evidence states that they do not support enabling individuals to access early legal advice through legal aid.196 They argue that separating couples require expert input but not necessarily ‘legal’ input.197 Anne Barlow, argued that in practice legal advice and counselling can work well together at an early stage to set things off in a positive way.198

98.On 26 March 2021 the Government launched the Family Mediation Voucher Scheme that provides a contribution of up to £500 towards the mediation costs for eligible cases, supporting people in resolving their family law disputes outside of court where appropriate.199 The vouchers are not means tested but only cases involving a child are eligible. The scheme is worth £1 million, meaning that 2000 families will benefit. The Committee welcomes the introduction of the Family Mediation Voucher Scheme. It is a positive step and recognises that more needs to be done to help separating parents. We believe that if early legal advice was available alongside mediation, this would result in an increase in the numbers using mediation successfully.

The future of early advice

99.There are positive signs that the Government recognises the value of early legal advice. However, the measures taken so far, including the Legal Support Action Plan, only appear to scratch the surface of the problem. It is clear from the evidence that we have received that there are significant numbers of people in England and Wales with legal problems who would benefit from early legal advice but cannot afford to pay for it themselves. The evidence received on both social welfare law and private family show that the current legal aid framework provides barriers that inhibits early legal advice for those that need it. There is both a moral and an economic case for improving this situation. As Lord Wolfson said in his evidence on 26 March: “I fully accept that a system which means that people cannot vindicate their legal rights is a legal aid system that is not working”.200 Without early legal advice, individuals in complex areas of civil law, such as housing and family law, cannot find out what their rights are, let alone vindicate them. But even in purely economic terms, the focus of the current system is strategic and does not enable talented and committed legal aid lawyers to provide the support that their clients need. The rules on scope do not permit legal aid resources to be focused on where they are most needed, neither in terms of the most vulnerable cases nor in terms of those could most easily be resolved by timely advice. However, we also recognise that returning to old pre-LASPO approach is not the way forward either. We suggest that the civil legal aid system needs an updated version of the Green Form scheme, which was introduced in 1973, that would allow individuals to understand their rights and be directed to the services that are most appropriate for their situation. One suggestion we have received is that the Government could develop and pilot an ambitious and economically viable early advice scheme, that enables individuals to access timely legal and expert advice. Rather than being constrained by issues of scope, such a scheme should be strategically targeted at those who would most benefit from early advice.

100.An early advice scheme would not solve many of the problems facing those in the civil justice system who cannot afford legal representation. The limits on scope will still mean that many cannot access the representation and advocacy that they need. Nevertheless, given the existing legal framework, a significant expansion in the provision of early advice would at least give those unable to access legal aid a clearer sense of their legal position. An early advice scheme, making the best use of technology, could make sure that more of those entitled to legal aid are able to access it. Nimrod Ben-Cnaan, Head of Policy and Profile, Law Centres Network, explained to us that legal aid has “become a secret service”.201 It could also help to triage individuals to direct them to the best form of dispute resolution for their situation.202

101.A possible model for such a scheme would be Resolution’s “family law credit” as proposed their 2015 Manifesto for Family Law. The credit would enable someone that meets criteria for legal aid for family mediation to have “an initial meeting with a family lawyer to help them gather evidence they need in order to access legal aid, or to discuss their options”.203 As Resolution point out help at this stage would mean that, even if they end up representing themselves, they would still be able to benefit from a discussion that set out their options. In our view, a modern version of the green form scheme should, as Nimrod Ben-Cnaan set out, enable lawyers to respond “to the presenting problems rather than trying to fit a problem into a pre-defined list of services that you are allowed to give”.204

Litigants in person

102.One of the main cross-cutting issues covered in both the future of legal aid and court capacity inquiries has been the growing number of litigants in person in the courts in England and Wales. Overall in the Family court in 2020, 47% of parties in cases which had at least one hearing at the Family court had legal representation.205 This figure has been gradually declining since 2011, when 62% of parties had legal representation.206 Respondents were the least likely to have representation, with 34% unrepresented in 2020, compared with 19% of applicants.207

Impact on court capacity

103.Kevin Sadler Acting Chief Executive, HM Courts and Tribunals Service told us on 26 March that non-legally aided cases take about the same amount of court time as legally aided cases. Kevin Sadler explained “while individual cases might take longer, in the quantum the work we have done suggested that it does not take any longer for a private law family case without legal aid, or rather without representation, as it were, compared to a case with representation”.208 A number of witnesses suggested that the practical impact of litigants in person on the courts is significant. Elspeth Thomson, from Resolution, outlined that litigants in person often are not able to put a bundle together, which leaves judges trawling through attachments which takes up time.209 Elspeth Thomson also explained that hearings often take longer because the arguments aren’t as focused, or as relevant, as they would be if they were presented by lawyers.210 Thomson emphasised that the cases involving litigants in person often concern serious matters.211 Professor Anne Barlow, from the University of Exeter, stressed that one of things that can most help the court is for legal advice to help a litigant in person narrow down the issues as much as possible.212 Jess Mant, lecturer in law from Cardiff University, explained that litigants in person are often vulnerable and find themselves in court as it is their last resort.213 Jess Mant argued that the growing number of litigants in person has had “an effect on, basically, how the entire court system operates”.214 A number of witnesses also stressed that private family law cases often feature one side with representation and one without and makes it difficult for the judge to ensure that proceedings are fair.215 Jo Underwood pointed out that in housing law, often the landlord has advantages both in terms of technology and legal representation over the tenants.216

104.Jess Mant identified three possible solutions to the growing numbers of litigants in person: more training and support for litigants in person, to rely on non-legal support (non-legal advice and McKenzie friends for example), or to reform court processes to make them more inquisitorial.217 On 5 August 2020 the Ministry of Justice’s panel report, Assessing risk of harm to children and parents in private law children cases, argued that to protect children in private family law cases, the court should shift from an adversarial approach to an investigative problem-solving approach.218 The report argues that an approach which “take an investigative, problem-solving approach based on open enquiry into what is happening for the child and their family” would be “beneficial all private law children’s cases, even those without safeguarding concerns”.219 Dr Mavis Maclean cautioned against the implications of a shift to a more inquisitorial system:

Two people have a different view of the situation and have the right to say so in what is known as the adversarial system. They can do it much more efficiently if they have someone to help them who knows what is relevant and how to put it forward. If you take that right away by giving that control to the judge, that is a massive step to take. You cannot do it without totally retraining your judiciary. You cannot do it without providing the judiciary with an investigative staff. We have Cafcass (Children and Family Court Advisory and Support Service), but it is already totally overstretched. Having sat with them for a while I think that they do extraordinarily good work, but there is no way they can take over the entire inquisitorial process. To my mind, it would be the worst possible thing to do because, to achieve anything, you would have to spend a fortune.220

Jacky Tiotto, Chief Executive Officer, Cafcass, told us that the litigants in person without any early advice contribute to delays and pressures within the courts:

We are going to have to rethink the legal advice available to families in proceedings. Litigants in person do struggle with the system. They struggle to understand what they need to do and they struggle sometimes with the reports we write and the recommendations we make. I think that takes resource out of the system, ironically, and we need to put it back. It is a combination of investment and rethinking how early you support families.221

Jacky Tiotto also explained that removing legal aid creates more demand on Cafcass’ services.222 We note what Kevin Sadler told the Committee. The weight of evidence, however, is that inaction on the rising number of litigants in person is not an option. Many of the policy responses to the issue involve increasing the resources of the courts or other agencies involved in the system. With the impact of the pandemic likely to lead to greater number of litigants in person in the family courts and in tribunals, we urge the Government to consider providing more accessible and effective forms of support.

Data

105.Nimrod Ben-Cnaan outlined that one of the main barriers to improving the situation for litigants in person was that there is not enough data on their experience in the justice system.223 Dr Mavis Maclean told us that “we need know more about litigants in person” and pointed to research in Australia that showed that a high proportion suffered from mental health conditions.224 Dr Natalie Byrom told the Committee that since 2010 the Ministry of Justice had been resisting calls to collect better data on litigants in person and in particular that the department had failed to model the effect that they have on the court system.225 Dr Byrom suggested that this failure made it harder to make the case to the Treasury for more funding for legal representation. Kevin Sadler wrote to the Chair after the session on 26 March with data comparing the number of weeks taken to dispose of family cases where both sides are represented and where both sides are unrepresented.226 The letter explained that “the most recent figures for 2020 suggest that the duration of cases where neither party was represented and those were both were represented was the same”. He also noted that “in previous years, the duration has tended to be longer for those cases where both applicant and respondent are legally represented”. We are grateful to Kevin Sadler for drawing these figures to our attention, however, they do not disprove the point made to us that cases take longer in terms of the amount of court time taken in each hearing. Further, they do not challenge the qualitative analysis put forward by a number of witnesses, and detailed above, which suggests that litigants in person represent a challenge for court capacity in a number of ways. Moreover, comparing cases in this way is, we would suggest, a rather simplistic way of analysing the impact of legal advice. We continue to be disappointed with the Ministry of Justice’s approach to gathering data on access to justice. From the evidence we heard, the data they hold may not adequately reflect the impact of litigants in person on court time and throughput. We remain concerned that the inability to produce high-quality data on the impact of legal advice on access to justice means that the chances of the Treasury granting additional funding for legal advice and representation are slim.

The legal support action plan

106.The Government’s legal support action plan, launched in February 2019, aimed to take a number of steps to improve legal support including: “effective signposting”, telephone support and support for litigants in person. On 20 January 2021, Alex Chalk, the Minister then responsible for legal aid, wrote to the Committee to provide an update on the allocation of Legal Support for Litigants in Person (LSLIP) grant funding.227 The letter sets out that the £3.1 million has been fully allocated “to not-for-profit organisations at local, regional and national levels to enhance support to litigants in person, with the aim of understanding more about how they can, collectively, support people”.228 The Minister explained that local and regional streams of the LSLIP programme are now underway and that “eight further projects have been identified, whereby £2 million is going towards helping some of the most vulnerable people to address their legal problems”.229

107.The Government has since 2014 supported the Litigant in Person Support Strategy (LiPSS), which is a collaboration between a number of organisations that provide support to litigants. LiPSS submitted evidence to the Court Capacity inquiry.230 Their evidence points out that the increase in the number of litigants in person has “slowed down proceedings, increased costs, and risked inadvertent influence over the outcome of a hearing due to ineffectual advocacy and lack of procedural knowledge”.231 Their evidence details the particular issues facing litigants in person during the pandemic and the effect of the greater reliance on remote hearings. It also emphasises that preparedness and awareness of what to expect at a hearing are vital to navigating the court system.232 LIPSS praise the guidance an information provided by HMCTS on Gov.uk and highlights the Advicenow platform that organisation within LIPSS have been updating to help litigants throughout the pandemic.233 However, LIPSS also raise concerns over the signposting in remote hearings and guidance.234 On 24 June 2021, Lord Wolfson wrote to us to set out that it had developed an online signposting pilot intervention for those with housing disrepair problems.235 We welcome steps to support litigants in person. We encourage the Government to consider whether the scale of these projects and grants should be increased.

108.The Law Society’s written evidence to us argues that the Government’s Action Plan workstreams, on early legal advice have lacked clarity and have not developed quickly enough.236 Nimrod Ben-Cnaan described them as “underpowered for the scale of need created by LASPO”.237 Nimrod Ben-Cnaan argued that the court reform programme needs to do more to help litigants in person. Once you get beyond the issue of digital access to the court, which the reform programme is addressing, the issue of legal capability will remain. The challenge of the growing number of litigants in person and their impact on court capacity the Government strengthens the case for the introduction of an early legal advice scheme as recommended above.238 The removal of civil legal aid has not diminished the number of cases coming before the courts, and such a scheme would enable the Government to reinvest the savings generated by LASPO in such a way that could create savings through greater efficiencies in the court system and elsewhere. We recognise that the Government is making progress in improving legal support and information for litigants in person, but we caution the Government that such measures should not be seen as an alternative to tailored legal advice. We are aware that in areas such as benefits, non-legally qualified specialist advisors can provide appropriate assistance However, as long as our system is characterised by complex legal frameworks and an adversarial justice system, the availability of individualised legal advice and support will remain necessary.

The means Test

109.The Government is currently reviewing the means test for both civil and criminal law. On 27 May 2021, the Lord Chancellor wrote to us to explain that the means test review would be published in the Autumn rather than in the Spring as previously stated.239

110.The letter notes that in December 2020 the Government changed to the means test for civil cases through the Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020. Those regulations removed the limit on the amount of mortgage or other secured charge which must be deducted when calculating an individual’s financial interest in land for the purposes of capital. This deduction was previously limited to a maximum of £100,000. The regulations were prompted by a judicial review challenge by the Public Law Project, brought on behalf of a victim of domestic abuse who was not able to access legal aid for a family law case because she did not pass the capital part of the means test.240 The £100,000 cap had been in place since 1994 and had not been increased since. We welcome the decision to remove the £100,000 cap. However, we regret that it was ever necessary for a victim of domestic violence to have litigate to obtain legal aid because of the Government’s failure to ensure that the means test is regularly updated.

111.The Post-implementation review of LASPO stated that the changes to the means test had achieved significant savings. The application of the capital means test was said to have saved an estimated £9m per year.241 The review also stated that legal aid was now more targeted at those most in need.242 Evidence submitted to the review suggested that vulnerable people are no longer accessing legal aid (or are being delayed in their access) due to having to pass another aspect of the eligibility test.243

Box 5: The means test for civil and family and the summary of the Post-Implementation Review

The means test, for civil and family matters, has three different facets (although this does not mean that an applicant will be subject to all three): gross income; disposable income; disposable capital. If any of the tests are failed, funding is refused.

Source: House of Commons Library, Legal Aid: the review of LASPO Part 1, Briefing Paper no 43720, 7 May 2020 p22

112.The evidence received by the Committee suggests that the means test for civil legal aid needs to be overhauled. Broudie Jackson Canter’s written evidence outlined that the current means test results in scenarios such as:

• Example 1: if you are a pensioner on Guaranteed State Pension Credit but own your own home mortgage free there is a very real possibility that you will not qualify for Legal Help. If the value of the property is over £208,000 then they would be ineligible.
• Example 2: If you are in a couple on basic state pension with income of over £1,163 per month then after the partner deduction of £184.46 you are out scope for Legal Help.244

Ian Townley, Director and Head of Costs at Broudie Jackson Canter, told us that there has not been “any review of the eligibility limits since 2009”.245 He recognised that Government was in the process of reviewing the means test but said that in the meantime “there are an awful lot of people who should be eligible for legal aid but, because the limits have not been uprated, will not be”.246 Jo Underwood expressed concern that the test means that clients who are homeless and destitute are struggling to establish their eligibility. She argued that the test needs a “complete overhaul and substantial uprating”.247 Nimrod Ben-Cnaan stressed that without regular uprating, the test is effectively excluding more and more people.248 He added that reform of the test should ensure that it “never fall behind inflation and the current cost of living for too long”.249 According to the House of Commons Library, in 2016 the estimated percentage of the population eligible for civil legal aid was 25%; by contrast it was 50% in 2000 and 79% in 1979.250

113.Beyond the thresholds themselves, Ian Townley explained that there are problems with the complexity of the means test and the way it is administered:

We have two layers of legal aid. We have our legal help as the initial layer, and then we have the legal aid certificates. In all the legal help work, the decision making is delegated to individual providers. I can regularly spend an hour with a colleague trying to calculate whether somebody is eligible for legal aid and whether the information they are able to provide us is sufficient to meet the requirements of the Legal Aid Agency, and that can be on a housing case that we have not even started where we will recover a total of £157. We have an incredibly complicated scheme that puts a lot of onus on the provider, but we do not actually get paid for doing the work, so it is very difficult to do that[…] I feel we do everything we can to prove someone’s eligibility. I genuinely feel we probably turn down more people who are eligible but unable to prove it than miss people who are ineligible and let them into the system. That is one of the battles that we have on a daily basis.251

Jo Underwood, head of litigation at Shelter, also argued that test should be simplified.252 Chris Minnoch, Chief Executive Officer, Legal Aid Practitioners Group argued that “everything is wrong with the legal aid means test”. He cited the providers have to do significant amount of auditing which is “completely disproportionate to the remuneration levels”.253 Chris Minnoch complemented the Ministry of Justice for their work on the means test review but cautioned that it will not “restore the legal aid means test to the point at which it truly captures the percentage of the population who cannot afford to pay for legal advice, which is almost everybody when you think about the cost of legal services”.254 He noted that improving the means test would not necessarily make civil legal aid more accessible. That would require steps to tackle “the fundamental structural weaknesses in civil legal aid”.255 The current legal aid means test is another example of the lack of ineffectiveness of the legal aid system. As with the approach to scope, it does not grant the Government any ability to take a strategic approach to legal aid and target help to those who need it most.

114.We welcome the Government’s decision to review the means test for both civil and criminal legal aid. There is a strong consensus among witnesses that any revised means test for civil legal aid should be simpler, for example by using passporting, should be set at an objectively defined poverty line and should be regularly uprated. The vast majority of taxpayers are not eligible for civil legal aid, and for those that are, it is often difficult to access.

Exceptional Case Funding

115.The Government’s Legal Support Action Plan, published in 2019, set out plans to simplify Exceptional Case Funding.256 The Action Plan also committed to improve Exceptional Case Funding’s timeliness and pledge to consider introducing an emergency procedure for urgent matters. Despite these pledges, the evidence on Exceptional Case Funding indicates that there are still significant problems.

Box 6: Exceptional Case Funding

LASPO also introduced a revised Exceptional Case Funding (ECF) scheme. Its purpose is to provide legal aid for cases that do not fall within the scope of civil and family legal aid but where: failure to do so would be a breach of the individual’s Convention rights (within the meaning of the Human Rights Act 1998); failure to do so would be a breach of any rights of the individual to the provision of legal services that are enforceable EU rights; or, it is appropriate to provide legal aid, having regard to any risk that failure to do so would be a breach of such rights. ECF may also be available for advocacy at an inquest into the death of a member of an individual’s family, provided the Director of Legal Aid Casework has made a wider public interest determination in relation to the individual and the inquest. Those applying for legal aid via ECF are still subject to means and merits tests.

Source: House of Commons Library, Legal Aid: the review of LASPO Part 1, Briefing Paper no 43720, 7 May 2020 p.18

116.The Public Law Project’s report, Improving Exceptional Case Funding: Providers’ Perspectives, published in January 2020, surveyed legal aid lawyers on the scheme and reported that:

• 77% of respondents disagreed that ECF is effective in ensuring that people can access legal aid when it is needed (61% ‘strongly disagreed’)
• 64% of respondents made between 0–5 applications in the last year (20% made none)
• Nearly 50% of respondents have only made between 1 and 5 applications since the scheme was introduced
• 39% of respondents said they do not make ECF applications on behalf of their clients.257

The report points out that even through applications have increased, the 2018/19 saw 3018 applications (there were 1516 in the first year), this continues to be short of the 5000 to 7000 that the Government had initially anticipated.258 Further, a relatively small proportion of applications are made by individuals as opposed to legal aid providers; there were 560 applications by individuals in 2018/19. The Public Law Project’s written evidence submits that the changes made since 2019 are “not sufficient to ensure that legal aid providers are able to use the ECF scheme”.259

117.Bail for Immigration Detainees’ written evidence explains that it has set up a project that makes ECF applications for individuals.260 Bail for Immigration Detainees’ describe the process as cumbersome and complex. In their experience the process requires the input of lawyers and this means that the work has to be conducted with the risk that they will have received no payment if the application is unsuccessful. As a consequence, they submit that it is not financially viable for some firms to make applications. This point was repeated by a number of submissions, particularly from immigration law practitioners and organisations that work with immigrants.261 The Immigration Law Practitioners’ Association point out that the low application rate should be seen in the context of the high grant rate, which was 87% for the period April to June 2020, and 83% for the preceding quarter.262 The Public Law Project’s written evidence suggest that areas of law where grant rates are particularly high should be brought within scope, as they were for unaccompanied and separated children. The Public Law Project argue that “the existence of common types of case that are outside of the scope of legal aid, but extremely likely to be granted ECF, results in the inefficient allocation of resources to the processing of applications that could otherwise form part of the Legal Aid budget”.263

118.The Exceptional Case Funding system should be reformed. The Public Law Project proposed the following reforms:

• The process should be accessible to direct applicants;
• the evidence required should be simplified;
• contactable caseworkers should be assigned;
• the scheme should be financially viable for providers and providers should have increased powers to determine eligible cases;
• Where grant rates are high in a particular area of law, that should trigger a review of whether to bring the matter within the scope of Legal Aid.264

We recognise the strength of Richard Miller’s suggestion that judges should be empowered to make a direction that an individual needs representation and that it should be binding on the Legal Aid Agency to provide exceptional case funding in that case.265 Such an approach could increase access to justice for the most vulnerable litigants and improve the efficiency and effectiveness of court proceedings.

Sustainability

119.The Government’s review of the sustainability of civil legal aid is an internal Ministry of Justice review rather than an independent review. There has been no formal public consultation and there is no independent chair or panel. The Lord Chancellor told us in October 2020 that alongside the legal aid means test review the Government is “looking into the sustainability of the civil legal aid system and will consider the delivery and contractual model for civil legal aid within this work”.266 A number of witnesses praised the Ministry of Justice’s approach to the review. Nimrod Ben-Cnaan told us that officials have been “looking at the totality of legal aid” in order to prepare for proposals to be made in the spending review.267

120.The evidence received for this inquiry indicates that the sustainability issues in civil legal aid need urgent attention. The Law Society’s evidence highlights that between the commencement of the current legal aid contract in September 2018 and September 2020 the number of firms and organisations that provide housing law advice has reduced by 26 from 286 to 260.268 The Legal Aid Practitioners Group’s evidence argues that the biggest challenges for the future of legal aid are “the ever diminishing size and viability of the provider base coupled with an inability by those firms and organisations still within the sector to recruit and retain staff”.269 The parallels with the situation in criminal legal aid are striking. The Legal Aid Practitioners Group outline that the appeal of choosing a career in legal aid is “wholly outweighed by any common sense approach to having a viable career”.270 The Law Centres Network’s evidence states that there are now 40% fewer civil providers and 30% fewer legal aid offices compared to 2010. In the view of the Legal Aid Practitioners Group, without significant investment and reform “it is unlikely that we will have a functioning legal aid sector at all by the end of the next decade”.271 Civil legal aid, like criminal legal aid, needs the Government to take decisive action to change the approach set by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 at the start of the last decade. Without such a step, the sector will continue to struggle to attract new recruits.

Recruitment and retention

121.A number of submissions highlighted problems of recruitment and retention. In terms of recruitment, the level of student debt, combined with the impact of LASPO provide little incentive to choose a career in publicly funded work. According one Law Centre Director: “ten years ago we got 80 applications [per vacancy], now we would be lucky to get 10, if that”.272 The net result is that as in criminal defence, those working in civil legal aid are an ageing cohort of solicitors.273 In relation to retention, one of the main problems is that the firms that remain are stretched thin and face stressful working conditions for solicitors and barristers.274

122.A number of witnesses point out that the level of fees makes the work unsustainable. Dr Jo Wilding points out that in immigration law, even some non-legal aid providers secure exceptional case funding, they are often unable to find a lawyer to take on the case because of the fee levels and capacity shortages.275 Broudie Jackson Canter’s evidence highlights the growth in the gap in fees between private and publicly funded work:

Thirty years ago there was a large gap between the rates of remuneration for Legal Aid and non-Legal Aid lawyers. However the pay was such that committed people could make a lifestyle decision and decide to stay in the Legal Aid sector. Today that choice is becoming almost non-existent. The reality is increasingly that Legal Aid lawyers cannot live on the salaries that firms can afford to pay.276

The Housing Law Providers Association point out that the Solicitors’ guideline average hourly rates produced by HMCTS are £251.67 in London, £174.67 nationally (grade 2) and yet the hourly rate for a County Court claim at legal aid rates is £63.277 Ian Townley told us that the remuneration aspect in terms of sustainability is key as his own firm struggles to retain staff. Further, he explained that his firm has gone from 90% legal aid work to around 35% to 40%. Chris Minnoch added that more data was needed on the providers of civil legal aid beyond the number of organisations and the number of contacts. In particular, it is important to know, he stressed how much publicly funded work firms are doing as a proportion of their overall work. The APPG is currently conducting a survey of legal aid providers, which will undoubtedly improve this situation. The Government should collect and publish more detailed data on the providers of civil legal aid, in particular it should capture how much publicly funded work each provider is doing each year.

The Bar Council’s report on civil legal aid, published in January 2021, indicates that senior practitioners in civil legal aid are now earning less than they were at the start of their careers.278 They outline that many are choosing to stop doing publicly funded work or compensate by taking on more cases. Their report outlines that “legal aid barristers are finding that in order to support their practice they are having to work all-nighters, weekends and 60 or 70 hour working weeks”. The report summarises the main concerns of practitioners at the Bar in terms of sustainability at the junior end as: the ability to recruit and retain the strongest candidates for publicly funded work, the impact on social mobility at the Bar and burnout.279

Advice deserts

123.The Law Society work on “Legal aid deserts”, which highlights the lack of providers in a number of areas of civil legal aid, was reinforced by several submissions. In particular, several pointed out that in certain areas of the country there are shortages of providers of legal aid advice on housing law, community care and immigration law. The research undertaken by Dr Jo Wilding, a postdoctoral researcher at the University of Brighton working on the immigration legal aid market, was cited by a number of submissions.280 In her written evidence, she emphasised that the issues of sustainability can be traced back to the Carter reforms in 2007, which introduced fixed fees for a range of civil legal aid work.281 She emphasised that for housing and immigration cases the fixed fee does not take reflect the complexity of the cases that are not within scope (as shorter cases are not out of scope). This has had a major impact on the market, according to her research, as providers focus on the cases that attract hourly rates meaning those funded by fixed fee cases struggle to access good quality lawyers. In terms of recruitment, Dr Wilding cites a number of examples, including Wiltshire, Devon and Cornwall where providers are unable to do immigration legal aid work because of an inability to recruit and attract applicants. In her view, these areas will not be able to recover through market-based procurement and instead “targeted government intervention in the form of grant funding” alongside other measures to improve sustainability is needed.282

124.The Refugee Council’s evidence states that these gaps in service provision are a major concern as they mean that individuals that need and are eligible for legal aid are not able to get the advice they require at an early stage and have to desperately search for a suitable provider.283 They explain that when asylum seekers are dispersed to areas of the country with no providers in proximity this effectively restricts their access to justice.284

125.Access Social Care, a charity that provides free advice to those with social care needs, highlight that only 20% of local authorities have a legal aid community care lawyer.285 Community care lawyers enable individuals that are entitled to publicly funded care are able to challenges the decisions of public authorities. They argue that the shortage is not a product of a drop in the need for legal assistance but a product of the legal aid framework. They point out that the figures on non-family civil legal cases show a sharp drop in cases from 488, 329 in 2009–10 to 39,488 in 2019–20 (table 8 below puts this figure in context). Access to Social Care emphasise that in their experience legal aid firms are unwilling to take cases that were unlikely to progress beyond the legal help stage and were told that “casework for individuals is becoming impossible”.286 They point out that their legal team has an extremely high success rate. The lack of provision means that in community care public bodies are not being held to account, and they argue that “the rights and corresponding duties to provide social care might as well not exist”.287 Access Social Care argue that the fixed fee system does not work, a point echoed by many of submission from immigration specialists. They argue the fee scheme creates perverse quality incentives such as to delegate Legal Help work to inexperienced caseworkers and makes it hard to recruit.

Table 8: Legal help and controlled legal representation matters started

126.Sustainability issues for civil legal aid providers are sufficiently serious to justify a complete overhaul of the system. A number of witnesses have highlighted that a combination of number of fundamental problems rather than one or two specific issues contribute to the unsustainability of civil legal aid. Furthermore, this lack of sustainability is having a knock-on effect on the ability of those entitled to legal aid to access lawyers to provide advice and representation. We welcome the fact that the Government is undertaking a review to look at these issues in the round. That said, the success of that review will depend on whether it is able to put forward the radical solutions needed to make civil legal aid sustainable again. We received evidence to suggest that an internal review may not be adequate to that task. If that proves to be so, an independent review may be required, along the lines of the Independent Criminal Legal Aid Review, to acquire the evidence base needed for far-reaching changes.

127.The basis for the radical change required in civil legal aid requires the Government to establish the level of need for civil legal aid services in England and Wales. Once that is established, the Government needs to ensure that suppliers of legal aid services have the capacity to meet that need. We agree with a number of witnesses that the current model of predominantly funding services by funding individual cases, often via fixed fees, will not enable providers to meet the need or demand for legal aid services. As Richard Miller told us “it is a bit strange that we have a system where the Legal Aid Agency makes decisions on each individual case, leading to extensive bureaucracy, which of course has a cost in itself”.288 Instead, a more flexible and proactive approach is required. The Government should fund more training opportunities for legal aid lawyers to ensure that there those willing to pursue a career in publicly funded work are able to. The Government should provide more direct grants to organisations who can be relied upon to provide a high-quality and economical viable service. The Government should set up and run more duty schemes to help the vulnerable litigants within the justice system who have not been able to secure the services of a lawyer. The Government should ensure that fees for publicly funded work are regularly uprated in line with inflation.

128.However, it is not a question of simply raising fees, but rather making better use of the resources available. We believe that the best way of ensuring value of money is to focus on expanding the capacity of those providers who are able to offer a high-quality service to the public at a relatively low cost when compared to the private sector. By doing this, we can reduce backlogs and help people solve legal problems more quickly. In certain areas of civil law, in particular immigration, community care and housing, we are concerned that the impact of Covid-19 will lead to a growing need for legal aid work, but that there will not be sufficient providers able to help. In those areas, we recognise that unless the civil legal aid review produces very speedy results, it is likely that individuals will be prevented from pursuing meritorious claims. The Lord Chancellor should consider using his powers under section 2 of LASPO to make direct grants to organisations to fulfil the statutory duty to ensure that legal aid is made available.

Technology

129.The reliance on digital means of communication since the start of the covid-19 pandemic has changed the way that individuals access legal aid and how legal aid lawyers represent their clients. A number submissions to the committee highlighted the limitations of technology when it comes to casework and advocacy. However, it is also true that technology could be used to expand the capacity of providers and to make civil legal aid services more accessible. Our inquiry into court capacity has focused on the effect of remote hearings; the focus of this inquiry is how technology can affect the relationship between clients and legal aid providers.

130.Shelter’s evidence argues that a “multi-channel strategy” is needed.289 They point out that digital services can be particularly helpful for informing people about their rights at an early stage but for the most vulnerable and for those at risk of losing their home, tailored advice, casework and legal representation are necessary. Jo Underwood, Head of Strategic Litigation, Shelter, also stressed that there can be benefits for clients with childcare needs or who are disabled, in being able to have a conference over video.290

131.One of the major difficulties in using technology to expand the capacity of legal aid providers to help their clients is that both have faced challenges in accessing the digital facilities that would be required. Justice Collaborations told us that many in the asylum and migration system have limited access to wifi or digital services.291 Law Works’ evidence highlight the level of digital exclusion and highlight that ONS data shows that “over 4 million people in the UK have never used the internet and at least a further six million adults lack basic digital skills, such as being able to complete online forms or locate relevant websites”.292 The Young Legal Aid Lawyers state that “digital or telephone advice will exclude some of the most vulnerable”.293 The Mary Ward Legal Centre explain that most of their clients do not have the technology to instruct them from home and that even if they have smart phones they do not always have sufficient credit or data to send over key documents or to send over signed forms.294

132.Justice Collaborations told us that the charitable sector was in a weak position to switch to remote working and digital services when the pandemic hit.295 Roger Smith, visiting professor at London South Bank University and a former director of JUSTICE, set out that while many providers of advice, such as Law Centres, were able to move to working remotely but many have struggled with their IT needs and have not been able to innovate in the way that they deliver services.296 He stresses that for the smallest community-based operations, upgrading their technological capacity will add significant financial pressures. For example, he points out that in the long-term, many may need to upgrade to commercial-level standard case management systems. He emphasises that providers will need to collaborate to share the best solutions for these technological challenges. He also argued that it is crucial for technology to be blended with traditional methods of helping people.297 The Joint Council for the Welfare of Immigrants argues that the Government should help smaller providers and Not-for-Profits upgrade their IT infrastructure as this could lead to longer terms savings elsewhere.298

133.The Divorce Surgery, an Alternative Business Structure, argue that technology should be used to gather evidence through secure client portals that asks clients questions and enables them to upload the relevant material.299 The Employment Legal Advice Network point out that it is a problem that there is no resource that enable vulnerable clients to exchange documents and that solutions for this issue should be a priority.300

134.JUSTICE’s written evidence makes the case for an Online Advice Platform. They argue that the court reform programme provides the opportunity for an integrated specialist advice platform through an online advice portal.301 They suggest that an Online Advice Platform could be a prominent part of HMCTS Online, thereby highlighting lay users what services are available. They point out that one main benefits of such a service is that it could help to remove geographical boundaries.302 A point also made by Simon Mullings, from the Housing Law Providers Association, who saw it as part of the solution to legal advice deserts.303 The portal could accommodate a range of different practitioners with expertise in the relevant area of the law, including legal aid-funded providers. JUSTICE stressed that the proposed platform should not detract from the provision of face-to-face advice, which in their view remains the best option in most circumstances.

135.The Legal Service Board’s evidence outlines that their research shows that prior to pandemic legal aid clients are more likely to access services face-to-face than other users of legal services.304 Their survey found that 68% of legal aid users received the service face-to-face in comparison to 41% of the overall sample.305 As a result, they stressed that “the opportunities afforded by technological innovation need to be balanced against the risks posed to consumers and the risks of digital exclusion”.306 They also note that “culture” appears to be the biggest impediment to technological innovation for legal aid providers but they that could be at the “forefront of this cultural change within the sector”.307

136.Derek Sweeting QC, Chair of the Bar Council, told us that us that digital exclusion should not be used as an excuse for not innovating in the delivery of legal services:

Being able to deliver some initial legal advice at the very least, or advice during the course of a case, or case progression of documents, through that sort of platform is certainly something we should be looking at. Simplifying our procedures so that that can be done sensibly is the sort of concomitant activity that we need to think about going out of the pandemic.308

137.Online legal services should not be seen as a replacement for traditional face-to-face services, especially when such a high proportion of those who qualify for legal aid do not always have reliable access to digital technology. That said, we agree with a number of submissions that have suggested that there is a significant opportunity to use technology to both expand the capacity of providers and to extend the reach of legal aid providers to more people. The Government should support legal aid providers to upgrade their digital infrastructures. This should include helping smaller providers and Not-for-Profits procure the necessary hardware and case management software that could help them expand their capacity. The Government should also establish an Online Platform for Legal Advice, as suggested by JUSTICE, that is given prominence by HMCTS online that directs people to advice provided by legal aid providers. Expanding the availability and accessibility of online advice by legal aid providers, particularly at an early stage, could serve to both enhance existing face-to-face services and extend the reach of providers.