In June 2017 the Law Society produced a report assessing four years on since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2014. Here are some useful quotes from that very good report:-
A lack of early legal advice can cause relatively minor problems to escalate, creating health, social and financial problems and put pressure on public services. To use an example, in housing law legal aid is still available to defend possession proceedings – but only where loss of a home is imminent. Free, and early, legal advice could address the issue before getting to this stage (p3).
The government stated that under [LASPOA], legal aid would be targeted at those most in need. In reality, the government’s reforms have resulted in vulnerable groups finding themselves excluded from free legal advice. Often, this is because the level of need arises from the nature of the client, rather than the category of law involved. Those now excluded include children, those with mental health issues, and people with low levels of literacy and numeracy. As a result of changes to the means test, there are now many people on low incomes who find that they are not financially eligible for legal aid or cannot afford to pay the required contributions (p6).
Until LASPO was introduced in 2013, the maximum gross income cap for financial eligibility for civil legal aid, and all thresholds and allowances within the system, were regularly up-rated to take inflation into account. Since 2013 there has been no such increase. This means that the income cap (which is currently £2,657.00 a month for a family which includes up to four dependant children) has reduced in real terms, as have all the fixed allowances for expenditure which the means test takes into account.
This has created a barrier to legal aid for those on ever-more-modest incomes, who are caught in a trap where they do not financially qualify for legal aid but still cannot afford to pay privately for legal advice and representation. Those who do still qualify for legal aid find they have to pay higher contributions in real terms than they would have done, with an increased risk that such contributions are unaffordable, so that the offer of legal aid has to be turned down.
Before LASPO, anyone who received means-tested welfare benefits would automatically qualify for legal aid in financial terms. LASPO introduced a new capital means test which is more stringent than the capital eligibility rules for means-tested benefit. Anyone with more than £8,000 in capital will not be eligible for legal aid despite the fact that the upper limit for benefits is double that, at £16,000. As a result, many people on very low incomes but with a small amount of capital cannot obtain legal aid (pp10-11).
Data from the Legal Aid Agency shows a number of areas in the country have little or no provision of legal aid advice – otherwise known as legal aid deserts (p12).
The volume of legally-aided housing cases halved between July to September 2012 and July to September 2013. With changes to scope, some reduction in case volume was to be expected, at least in the short term. However, the dramatic drop in cases has continued, with the last quarter of 2015-2016 seeing a 17% decrease compared to the same quarter in the previous year (p13).
A particular concern is that legal aid services are provided by small businesses and charities which need to be economically viable to survive. The fees paid for legal aid have not been increased in line with inflation since 1998-1999, which equates to a 34% real-terms reduction. As part of LASPO the MoJ reduced the fees paid to legal aid providers by 10%, without carrying out a study of the sustainability of the market on those reduced fee levels (p14).
A report by the Public Law Project expressed serious concerns about the operation of the Mandatory Gateway. The report points out that two out of the three Gateway categories account for the largest decreases in the number of Legal Help matter starts, there being a 50% fall in debt matters and a 58% fall in calls about discrimination. According to the research, referrals to face-to-face advice are a fraction of the expected numbers, just 0.2% (compared to a projected 10%) for discrimination and 0% (compared to a projected 10%) for those with special educational needs (p18).
ECF [Exceptional Cases Funding] applications are difficult and time consuming. Solicitors only receive payment if the application is successful…
Section 10 (3) of LASPO provides for…ECF…for categories of law which are no longer in scope for legal aid and where failure to provide legal services would be in breach of an individual’s Convention rights (within the meaning of the Human Rights Act) or other enforceable EU rights relating to provision of legal services. There is strong evidence that the ECF scheme is not fulfilling this requirement.
During the Parliamentary debates on LASPO, the government estimated that there would be 5,000-7,000 applicants a year, of which 53-74% would be granted.
The reality has been that the application volumes are far lower than predicted, peaking at 1,516 in 2013/14. Only half the applications resulted in a grant of legal aid, which much lower rates of success in previous years (pp20-21).
Soaring numbers of litigants in person create a substantial burden on the courts, and a lack of early advice can result in minor problems escalating quickly, particularly in relation to debt, housing and health.
Without a holistic approach to justice, this will result in further costs to taxpayers and increased pressure on already hard-pressed public services (p24).
One of the recommendations made in the report is as follows:-
Solicitors should be entitled to a fixed fee for completing the ECF application form on behalf of clients that reflects the amount of work required to complete an application adequately. This fee should be payable whether the application is granted or not, subject to LAA discretion via contract management to take action in the event that a firm consistently submits applications that are wholly without merit (p23).
Judges have estimated that hearings involving litigants in person take around 50% longer on average and have reported that more cases are going to court hearings that would have been ‘filtered out’ with accurate advice on their legal merits (p25).
There is a growing body of independent evidence that social welfare law problems can cause adverse impact on health, with a knock-on cost for the health service. Early access to legal advice can improve health outcomes and can consequently reduce the cost of public health care provision, and the burden to the taxpayer (p28).
Although housing remains an area of law for which legal aid is still available, there are some housing law issues that were taken out of scope, and are no longer covered by legal aid. These are areas which have the potential to affect other public services, as well as add to the increasing numbers of [litigants in person].
Legal aid is still available to defend possession proceedings but only at the point where loss of the home is imminent and the landlord is seeking an order for possession. Legal aid is not available to deal with issues such as rent and mortgage arrears that may ultimately result in possession proceedings. Some disputes could be resolved more quickly and cheaply if legal aid were available for early advice rather than having to wait for possession proceedings to be issued (p27).
We have been clear throughout this report that LASPO has had a negative impact across a variety of areas, restricting access to justice and creating additional pressures on the justice system and the wider state. This is not sustainable over the long term, and we fear that without concerted efforts from the government, these problems will worsen.
The government’s review of LASPO is an ideal opportunity for a reassessment of the system, and to identify and change what is not currently working (p30).
The full report can be found at:- http://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/.
Unfortunately, at the date of writing this piece, the Government has still not formally announced the review of LASPOA. This is most regrettable.