The Future of Legal Aid Contents

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4Legal Aid Agency

138.The Legal Aid Agency (LAA) was created by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and was established in 2013. It is an executive agency of the Ministry of Justice. The Legal Aid Agency replaced the Legal Services Commission as the body responsible for the administration of legal aid payments. The Legal Aid Agency’s role is to commission and administer legal aid services in England and Wales. The Legal Aid Agency’s Business Plan for 2019/20309 states that its strategic objectives are to:

(1) Provide simple, timely and reliable access to legal aid

(2) Build strong relationships across Government and the justice system

(3) Secure value for money for the taxpayer in all that we do

(4) Achieve our full potential through being fair, proud and supportive.310

The evidence received by the Committee indicates that a number of legal aid providers and organisations believe that the Legal Aid Agency is not meeting all of these strategic objectives.

The Legal Aid Agency’s response to the Covid-19 pandemic

139.A number of witnesses and submissions praised the way the Legal Agency had responded to the Covid-19 pandemic. Garden Court Chambers’ submission welcomed the decision to allow barristers to claim payments on account of the work undertaken every three months rather than on an annual basis.311 Richard Miller, head of the Justice Team at the Law Society, told us of the positive steps taken by the Legal Aid Agency to help providers during the pandemic:

Early on, we had extensive discussions with them about changes that were needed. Those were changes to deal with the fact that so much was happening remotely, and to ensure that lawyers were paid properly—for example, when dealing with a police interview remotely rather than being physically present in the police station. They made changes to their contracts enforcement, allowing for offices not being open for remote supervision. A whole host of changes were brought in to enable firms to continue working in pandemic conditions.312

He also noted the cash-flow support provided by the LAA but noted that there still a number of financial pressures resulting from the pandemic which would generate the need for further measures. Simon Mullings of the Housing Law Providers Association told us that the Agency has been more responsive than it had been in “the normal run of legal advice and assistance and legal representation”.313

140.Jane Harbottle, Chief Executive of the Legal Aid Agency, gave evidence to us on 24 March 2021. She outlined the work done by the Agency since the start of the pandemic:

I give credit to my staff, who have shown immense resilience in ensuring that bills were paid as quickly as possible to help the profession, and that applications were processed as quickly as possible. As an agency, we reacted and listened to the concerns of the profession. Personally, I held lots of meetings with providers and stakeholders, as did members of my team, certainly in the early days. We very quickly implemented about 40 contingency measures across the agency—those that were within our gift to give. Some of those included financial support. By financial support, I mean changes in the way we allowed providers to bill out some work and some changes in the way that they could claim hardship on particular cases. We did that as quickly as we possibly could.314

We commend the Legal Aid Agency for its work supporting legal aid providers since the start of the pandemic. The approach taken by the Agency and its staff shows that it can be flexible and proactive if the circumstances allow. We recommend that the Agency continues with this approach in the future. We would also suggest that the Agency considers whether any of the changes made to deal with the pandemic should be made permanent.

The Legal Aid Agency’s relationship with legal aid providers

141.Richard Miller, head of the Justice Team at the Law Society, told us that legal aid should be a partnership between the Legal Aid Agency and the profession. However, he noted, that in England and Wales, the Legal Aid Agency is seen as the voice of the Government against the profession.315 Derek Sweeting, the Chair of the Bar Council, told us that there is a perception within the professions that there is a “culture of refusal” at the Agency, where the slightest slip leads to application for legal aid being refused.316

142.Emma Fenn, a barrister at Garden Court Chambers, told us that the relationship with the agency is confrontational rather than co-operative. Jo Underwood, Head of Litigation Services, explained that in her experience, the Agency’s emphasis is “on trying to find why someone would not be eligible even when their case concerns the fact that they are homeless and destitute and do not have a roof over their head”.317 She explained that the Agency is seen as an opponent in attempting to start a case and that “it is often a huge battle to get the legal aid certificate in time to get to court”.318 Ian Townley of Broudie Jackson Canter told us that this process can lead to delays and wasted court time.319 He, in common with a number of witnesses, expressed sympathy for the staff at the Agency and acknowledged that the complexity of the framework, rather than the staff’s approach, is responsible. He added “anyone now left doing legal aid has a pretty good relationship with most of the people in the Legal Aid Agency”.320 Ian Townley noted that Agency operates under a requirement to keep to a less than 1% error rate, and when that is combined with the complexity of the rules, it puts the Agency in a difficult position. He argued that Agency has competing priorities: “speedy access to legal aid, but don’t spend a penny over what you should”.321 A number of witnesses cited the qualification of the Agency’s accounts by the National Audit Office in 2013 as being responsible for their stringent approach to applications.322 Ian Townley explained that this leads to a process of initial refusal and appeals, which means that when legal aid is eventually granted, it has cost the provider time and money.

143.The Legal Aid Practitioners Group’s (LAPG) evidence contains results of a 2019 survey of its members on the work of the Legal Aid Agency.323 It found that 86% of those surveyed had recent experience, within twelve months, of incorrect refusals of substantive certificates.324 They explain that these refusals mean that legal aid providers have to decide whether to appeal and risk not being paid. They argue that the LAA’s culture of refusal is leading to sustainability issues as the perception of a culture of refusal is one of the reasons that providers drop-out of the legal aid market.325 Their evidence notes that the results of the survey led to positive engagement with the Agency and a number of changes being made. Chris Minnoch, Chief Executive of LAPG, told us on 23 February that the Agency “is changing for the better”.326

144.Guy Beringer CBE QC’s, Chair of the Legal Education Foundation, evidence to us (submitted in a personal capacity), Chair of the Legal Education Foundation, argues that the Agency’s approach is inefficient:

The current system appears to presume that providers cannot be trusted to apply the rules on eligibility and cannot be trusted to maximise the number of good outcomes achieved from the resources available. Providers are accordingly micro-managed at every stage of the process, resulting in government processing 400,000 applications and 1 million bills. There is no net value to the public purse in doing this.327

The Law Society’s written evidence makes a similar point arguing that the Agency’s processes are onerous, bureaucratic and time consuming and the net result is that “time is presently spent by practitioners on form filling that could be better spent assisting clients”.328

145.A number of submissions suggested that the Legal Aid Agency should change its approach to auditing. The Bar Council’s evidence suggests ‘dip sampling’, where the LAA ask for detailed evidence in a sample of cases to check that solicitors and barristers are properly claiming the legal aid fee for the case, rather than requiring to see detailed evidence for every claim, as a possible solution.329

146.Dr Jo Wilding’s written evidence argued that the Agency current approach to auditing is poorly focused and creates costs that are disproportionate. In particular, she argues that the disproportionate effect of their approach is particularly acute for high-quality providers as there is “ no earned autonomy (in the form of reduced audit activity) for providers receiving the highest marks on peer review”.330 She also pointed out that the current system means that “higher level of work you do, the more time you spend on unpaid admin and dealing with audit activity and assessment activity”.331 Dr Wilding highlights that the Agency’s approach is problematic because it contributes to the high transactions costs of legal aid providers. She told us that the current approach generates unpaid administration costs which eliminates any money that could be made on the substantive work on the file. Dr Jo Wilding suggested moving to a system of earned autonomy where “you get less audit activity when you have shown yourself to be a reputable provider”, which would enable the Agency to assess the level of risk presented by each individual provider and then tailor the amount of audit activity.332

147.Hollie Collinge, Solicitor Advocate, Kelly’s Solicitors, Brighton, told the Committee on 9 February that the Legal Aid Agency imposed a significant burden on smaller firms and suggested that earned autonomy could be beneficial:

We file review each other’s work within the firm, and that is on top of quite heavy scrutiny of our bills by the agency. If I may say so, they are often inaccurately assessed. They go to and fro for unbelievable reasons. I think it would make sense to look at the work that is generated by the Legal Aid Agency to audit files, when firms are operating on the smallest of margins and there could be some earned leeway after a long period of very good practice. I think it would help, and it would save funding as well.333

148.A connected issue is that the existing system does not focus enough on the quality of the work provided. Transform Justice’s evidence explains that peer reviews occur relatively infrequently and only examine case files, which provide an incomplete picture.334 They argue that the Agency should focus more on the quality of service and ensuring that small firms are not overburdened. Guy Beringer’s evidence argues that a focus on quality should mean that the Agency focus on expanding the capacity of good providers by enable them to “invest in infrastructure (IT and case management), knowledge management, staff training and best practice”.335 The Joint Council on the Welfare of Immigrants said that in their experience the Agency’s priority was on minor contractual breaches rather than on the quality of advice by providers.336

149.Jane Harbottle, Chief Executive of the Legal Aid Agency, when asked about the idea of system of “earned autonomy” for providers with a good record, rejected the idea:

[a]n important role of the agency, alongside access to commissioning services, is stewardship of the legal aid fund and taxpayers’ money. So far, over the course of the last two years that I can speak to, the focus has been to improve processes and reduce bureaucracy for all our providers, and not necessarily a subset of providers. I would not necessarily be keen to introduce a two-tier legal aid system, because I am not sure that would be helpful for providers, for the agency or for clients trying to navigate the system.337

Jane Harbottle then explained what is being done to reduce the burden of the Agency’s auditing:

Increasingly, we have adopted a more risk-based approach, and we adopt a risk-based approach now across most of our processes in the agency itself. For a lot of firms, it will now mean perhaps one contract visit per year. It is only if, using data, we can see issues with regard to eligibility or significant claiming issues that we would endorse or commission further reviews of that particular provider. In fact, in the last year, our audit activities reduced by around 16%. In short, we want to improve the relationship and improve the experience for all of our providers, not necessarily a subset of them.338

150.We welcome the Legal Aid Agency’s work to respond to legal aid providers concerns in relation to the “culture of refusal”. We also recognise their commitment to ensure that taxpayers’ money is managed properly. We acknowledge that the staff and leadership at the Legal Aid Agency have limited scope to alter the fundamental dynamics that determine their role within the broader legal aid system. Nevertheless, we believe that the evidence submitted indicates that the Government and the Ministry of Justice need to revaluate the Legal Aid Agency’s priorities. By asking the Agency to prioritise the “error rate” over other considerations, particularly access to justice and the sustainability of providers, the Government risks missing the wood for the trees. The Government’s work on the sustainability of both criminal and civil legal aid should consider how to empower the Legal Aid Agency to take a more flexible and proactive approach to funding legal aid. The Government should ensure that providers are not required to conduct disproportionate amounts of unpaid work to apply for funding.

151.The Government should consider creating a system of earned autonomy that places more trust in the decision making of providers with strong records of high-quality decision making. The Agency’s processes should have some incentives for providers to work towards gradually reducing the burden of administrative requirements. Given the difficulties facing legal aid providers, placing greater trust in their ability to decide on eligibility would expand their capacity which would be beneficial for access to justice.

152.A number of submissions suggested that the Legal Aid Agency should, as well as changing its approach to funding, change in a number of other ways. The Public Law Project recommend that the Legal Aid Agency be given the mandate and resources to monitor the level of unmet legal need.339 The Legal Service Board’s evidence states that “3.6 million people have an unmet legal need involving a dispute each year”.340 Dr Vicky Kemp’s evidence to the Committee emphasises that the Legal Services Commission, unlike the Legal Aid Agency, had “the Legal Services Research Centre (LSRC), an internationally recognised and influential leader in the field of access to justice research” within it.341 At present, the responsibility for legal aid policy and research lies within the Ministry of Justice. The Bar Council’s written evidence expressed frustration over the boundary of responsibility between the Legal Aid Agency and the Ministry of Justice.342 They imply that the division between operational matters, which the Agency is responsible for, and policy, which is the responsibility of the Ministry of Justice are “inter-related and it is frustrating to raise an issue in one forum only to be told it needs to be raised in a different forum”.343

153.It was also suggested that the Legal Aid Agency should reinstate its trainee scheme, which according to Nimrod Ben-Cnaan would mean that there would be a “fixed cohort of new legal aid lawyers coming into the system every year”.344 Chris Minnoch, Chief Executive of Legal Aid Practitioners Group, told us that it would make a real difference if the Agency could provide help to firms specific and direct and help to bring in trainees, and suggested the Legal Education Foundation’s Justice First Fellowship scheme could provide a potential model.345 The Government should consider enabling the Legal Aid Agency to provide specific support to legal aid providers to bring in trainees. This support should be targeted to areas where there is a particular shortage of specialist advice.

154.Chris Minnoch also told the Committee that the digital interface used for billing and application between civil legal aid providers and the Agency is “not fit for purpose”.346 The Joint Council for the Welfare of Immigrants set out that the online application process is cumbersome and prone to outages and errors.347 Some praised the shift to using online billing processes prompted by Covid-19 but asked that the agency consider a move towards fully automated billing of Legal Help files. Resolution raised concerns over the Government’s proposal to transfer the assessment of all civil legal aid bills to the Legal Aid Agency.348 Resolution told us they could see the benefits of a simplified and faster system of payment, but they “remain concerned about the training of staff who are taking over a role previously undertaken by judges who had been involved in the cases they were assessing and were aware of the work that had to be done”.349 The Government’s consultation closed on 10 May 2021.

155.The Legal Aid Agency’s future role will be determined by the outcome of the Government’s work on the sustainability of criminal and civil legal aid. At present, the Agency bares the brunt of previous Governments’ focus on efficiency and savings, and the result is an untenable dynamic between legal aid providers and the body that funds legal aid. If the Government were to accept the recommendations we have made on how to approach criminal and civil legal aid it will be necessary to address the Legal Agency Aid’s priorities, its institutional capacity and how it uses its resources. The Government should consider whether the Legal Aid Agency should expand its data collection and publication in order to better inform the development of legal aid policy.