The blindspots of legal aid reform

 By jmtimages

Yesterday the government published its response to the Reform of Legal Aid in England and Wales. It announced a series of heavy cuts meaning that legal aid will no longer be available for many cases in family law, immigration, housing and debt cases.

The cuts are being justified with the claim that England has one of the most expensive legal aid systems in the world. But this doesn’t necessarily mean that cutting legal aid is the right thing to do. Instead we need to ask the obvious question: why are there more and more people that need legal aid?

There are three key reasons why demand for legal aid is increasing.

Firstly, the financial crisis and the recession has meant more people being made redundant, more people in debt and more people at risk of losing their home. Recent BIS research found that over 12% of households in their sample were in financial difficulties. These people will no longer be eligible for legal aid unless they are immediate risk of losing their home.

Secondly, the failings of public services and private services. Legal Aid offers people help in dealing with central and local government, the NHS, banks and other service providers. When these systems aren’t working properly, people need somewhere to go for advice. For example, the introduction of a new medical test (run by French owned company Atos) for Employment and Support Allowance led to over 240,000 appeals over 40% of which were successful.

Finally, there have been changes to the funding of legal aid itself. The previous government started to reform legal aid around market principles. Now  providers are paid a (low) fixed fee for each case, pushing them to get clients out of the door as quickly as possible, instead of looking for long term solutions. As we’ve written before, this can lead to a ‘revolving door’ problem where people cycle around the legal aid system but providers are unable to get to grips with people’s real problems.

nef has been working with Advice UK and the DSC to look at ways that advice agencies can tackle these issues, and we’ve just published a report that makes some suggestions. There are no quick fixes: the solution goes beyond legal aid providers but also includes generalist advice providers, like the CAB and independent advice agencies. They are often people’s first port of call when they experience a problem and any meaningful strategy to tackle the demand for legal aid must include them.

A better solution also needs to move beyond fixed fee driven legal aid case work. Providers, who are often in a unique position to understand the drivers of demand for legal aid, must be able to tackle the causes. This includes policy work and campaigns around housing and debt to switch off the demand caused by failures in other public services. If they are only given a fixed fee for each case they close, there is little space for them to take on cases where people have more complex issues or tackle the causes of demand.

The legal aid reforms are problematic on their own terms. The budget is being cut in the face of unprecedented demand for legal aid. But their impacts will be amplified because other support services are disappearing. In the current system if someone has a debt issue they can get general of specialist advice to prevent the issue escalating further. With the new reforms, there may be nowhere for them to go.

It doesn’t take much to see this could end up being more costly, as a small debt problem can often escalate and end up as an eviction risk in the future, which would be eligible for legal aid. Quite aside from the buildup of worry and stress this can cause people, it can lead to knock on costs for health services and ultimately be a more difficult case to resolve by the time it does get to a legal aid solicitor.

We’ve already seen a worrying glimpse of the future. Last year saw the closure one of the largest, and best regarded providers of advice for asylum seekers. Today, visitors to their old site (www.refugee-migrant-justice.org.uk)  are automatically redirected to a private company of no win no fee personal injury ‘experts’.