Category: BACH COMMISSION

The Bach report: (9) Cost implications and potential savings

On By Henry BrookeIn BACH COMMISSIONLeave a comment

This is the seventh in the new series of blogs which will start with a relevant extract from the Bach  Commission’s Final Report.  On this occasion it will be followed by  the more detailed treatment which the Commission’s Secretariat gave to the topic in Appendix 7  to the Report. Continue reading “The Bach report: (9) Cost implications and potential savings” →

The Bach Report: (6) The effect of the cuts on Legal Aid Providers

On By Henry BrookeIn BACH COMMISSIONLeave a comment

This is the fourth in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix Five to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

 

EXTRACT FROM THE REPORT

In person advice

In addition to online and telephone services, there are a number of organisations that provide advice in physical locations within communities. These include Citizens Advice , whose offices are situated around the UK, and law centres and legal advice practices, which have been closing at an alarming rate in recent years. Ministry of Justice research shows that the number of all not-for-profit legal advice centres fell from around 3,226 in 2005 to 1,462 by 2015. And, as we wrote in our interim report:

“More than half of the 700 who responded to the Ministry of Justice survey reported that they had client groups who they were unable to help due to lack of resources, expertise, or because they fell outside the centre’s remit.” [1]

These centres, along with other advice organisations, provide a vital service – from free information through to expert advice and representation funded by legal aid. In the context of today’s low levels of legal capability the commission is concerned by the loss of a physical place which members of the public can visit for free, initial support. For those people who do not use the internet or telephone helplines to solve their legal problems, these serve as vital signposting sites.

APPENDIX 5

CHAPTER 1 (extract)

Number of legal aid providers

Legal Help & Controlled

Legal Representation

2012-13

 2016-17

Reduction
Community Care

166

 118

48
Debt

466

 29

437
Education

33

 4

29
Employment

223

 3

220
Family

2,383

 1,399

994
Housing

646

 427

219
Immigration

240

 237

3
Mental Health

203

 178

25
Other

659

 212

447
Welfare Benefits

436

 60

376
Totals

5,455

 2,667

2,798
Civil Representation 2011-12

2016-17

 Reduction
Community Care

104

 89 15
Debt

125

40

85
Discrimination

0

 2

+2
Education

28

 13

15
Employment

27

 1

26
Family

2,816

 2,026

790
Housing

681

 449

232
Immigration

167

 93

74
Mental Health

105

 108

+3
Other

1,033

 658

375
Welfare Benefits

19

 2

17
Totals 5105 3481

1634

 

In September 2017 the Ministry of Justice published statistics that showed a decline in legal providers across all regions of the country – with Wales showing the largest drop of 29%. The figures were also high in the south-west (28%), the north-west (27%) and Merseyside (24%).

The smallest fall was 13%, in London.[2]

 

CHAPTER 13: The Effect of the Cuts on Legal Aid Providers

The reduction in the numbers of legal aid providers post-LASPO:

 

Number of Legal Aid

Providers’ Offices

 Crime Civil

2012-13

 7,015

4,173

2016-17

5,671

2,092

 

 

Number of offices of legal aid solicitors’ firms (civil)

 Legal Help

Civil Representation

2012-13

 2,732

3,315

2016-17

 1,751

2,350

 

 

Number of offices of legal aid not for profit agencies (civil)

 Legal Help

Civil Representation

2012-13

 483

145

2016-17

 253

145

 

These statistics demonstrate the way the number of solicitors’ offices providing civil legal aid services has decreased dramatically during the four years since LASPO was introduced. In contrast, although the number of not for profit agencies offering legal aid help has nearly halved during the same period, the numbers providing civil representation services in the courts have remained unchanged.

The number of offices handling legal aid criminal work has gone down by 20%.

There has been no increase in civil legal aid fees, even to allow for inflation, since the 1990s. In 2010 there was a general all-round reduction of 10%, and in April 2013 the LASPO changes came into effect, taking large areas of civil legal aid work out of scope altogether. It is therefore not surprising that many firms have given up civil legal aid altogether, and others have moved much of their capacity towards acting for privately funded clients. Two very large legal aid firms[3] have disappeared completely, and another[4] told the Commission that the funding cuts represented a huge loss to their practice as a major regional provider. They said that massive hidden costs involved their individual fee-earners undertaking huge volumes of pro bono work just so that their clients could be in a position to apply for legal aid.

The practical effect of LASPO

Adam Tear, a solicitor who had the experience of working in a firm that was very rapidly increasing in size as it bought up failing practices throughout the country[5], said that only the most efficient firms would be able to continue carrying out business lawfully, and even then they would only be making a small profit. This would never encourage external investment, and without significant investment when there is a downturn, the firms will simply fall over and cease to be effective. Currently larger firms were picking up the work, but this is expensive in cash terms, not to mention the human costs involved when a client, who may be a very vulnerable person, has to instruct a new solicitor and start building a relationship of trust all over again.

The Legal Aid Practitioners’ Group (LAPG) spoke, quite bluntly, of the lack of sustainability in civil legal aid work which had been caused by inflexible fee regimes, the LASPO cuts, too much bureaucracy, and the shortcomings of the CCMS system used by the LAA.   For criminal legal aid, the cuts had made it difficult for practices to survive, far less to be sustainable over the next ten years. Although the introduction of fixed fees was originally said to be fair on a “swings and roundabouts” approach, the fact that only complex cases remained in scope while large swathes of simpler work had been taken out of scope, made this practice unfair in the absence of any compensating increase in fees.

The Liverpool Law Society said that fewer private firms were available to provide publicly funded services. It mentioned one long established legal aid firm which had ceased to do legal aid work,[6] and said that others no longer saw legal aid work as viable, and all too often it was not.

The Mary Ward Legal Centre said that because so many firms and individual solicitors were withdrawing from legal aid practice, there had been a huge increase in demand from the remaining organisations, which were already thinly stretched. They had to turn people away even if they had a good case and qualified for legal aid, because they had no capacity to help.

Rights of Women, for its part, referred to the 20% drop in the number of civil legal aid providers between April-June 2012 and January-March 2015. It said that one of the reasons why many firms had stopped or reduced the legal aid work they took on was that the fixed fees they received were so low that the work was not financially viable for them as a business. The knock-on effect of this was that even women who were eligible for legal aid were finding it increasingly difficult to find a solicitor to represent them. 70% of respondents to a 2015 survey[7] said it was difficult (40.7%) or very difficult (34.3%) to find a legal aid solicitor in their area. 33% of respondents were having to travel between 5 and 15 miles to find a legal aid solicitor, and 23% had to travel more than 15 miles.

Both Southall Black Sisters (SBS) and the Coram Children’s Legal Centre described the unwillingness of many legal aid firms to take on asylum clients due to lack of capacity and the high probability that their client would be dispersed elsewhere in Great Britain. SBS wrote:

A particularly difficult and distressing outcome for our users who claim asylum is the fact that even when their case is taken on by a legal aid solicitor, they find themselves having to seek a new legal aid solicitor when they are dispersed to another area. As we understand it, the LAA will not cover the costs of a solicitor travelling to their client beyond a limited distance. The client is therefore expected to find a solicitor and build trust all over again with a new solicitor in her new location. The reality is that the client not only struggles to find any legal aid solicitors in their new area, but even if she does, she is forced to re-tell her story and in doing so is often re-traumatised.

In its March 2015 report[8] the House of Commons Justice Committee devoted Chapter 5 to the question of sustainability and “advice deserts” in the legal aid market and concluded:

The National Audit Office found that 14 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”.

We urged the Government in 2011 to carry out research into the geographical distribution of legal aid providers to ensure sufficient provision to prevent access to justice. Not only did the Ministry of Justice failed to heed our warning, it has also failed to monitor the impact of 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.

In its response[9] the Government expressed general satisfaction about the availability of civil legal aid across the country, but concluded:

“The Ministry of Justice recognises it could do more and will continue to investigate geographical variations in the take up of legal aid. To support this, three pieces of research have been commissioned and are due to report later in 2015[10]. Once the conclusions from the reports are available, the department and the Legal Aid Agency will compare this to the provision of services by area and implement any appropriate action.”

The situation has deteriorated still further in the two years since the Justice Committee’s report was published.

On the criminal side of things, in addition to the reduction in the number of criminal legal aid firms the average age of the solicitors practising in the criminal legal aid firms that remain in business is uncomfortably high, on account of the difficulties of attracting new entrants to a way of life which involves working long hours in unsatisfactory working conditions for inadequate reward. These issues are more fully explored in Chapters 11 and 14.

 

 

 

 

 

[1]The Bach Commission. (2016) The crisis in the justice system in England and Wales. Accessed September 2017: http://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf

[2] Accessed September 2017: https://www.theguardian.com/law/2017/sep/19/number-of-legal-aid-providers-falls-20-in-five-years-figures-show

[3] Blakemores (the largest civil firm outside London in 2014) and Blavo & Co (the second largest civil firm in 2015). The Solicitors’ Regulation Authority intervened in the latter practice to protect its clients, saying there were grounds to suspect the firm’s principal solicitor of fraud.

[4] Ben Hoare Bell.

[5] Duncan Lewis. Founded in 1998, it now has 22 offices in London and 32 in cities outside London.

[6] Yaffe Jackson Ostrin.

[7] Rights of Women. (2015) Evidencing domestic violence nearly 3 years on. Accessed September 2017:

http://rightsofwomen.org.uk/wp-content/uploads/2014/09/Evidencing-domestic-violence-V.pdf

[8] House of Commons Justice Committee. (2015), Impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015. See fn 83 above.

[9] The Government’s response to the Justice Committee’s Eighth Report of Session 2014-15 (2015) p 12. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444939/response-to-justice-committee.pdf

[10] See, for instance, Survey of Legal Advice Providers in England and Wales, Ashley Ames et al, Ministry of Justice Analytical Series, 2015. Accessed September 2017:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/485636/not-for-profit-la-providers-survey.pdf