Civil Legal Aid Review
A sign of hope or the last nail in the coffin?
On 30 January the Government announced a review of the civil legal aid system. Hardly before time. Most of the specialist legal advice we provide is under a legal aid contract which we’ve held since 2001. As we have commented previously, the fees, never generous, were cut by 10% in 2011 and have been frozen ever since.
This has made services increasingly difficult to deliver since the fees don’t even cover salaries these days resulting in periodic crises in our cashflow which threaten the viability of the whole organisation. Our Housing Advice Centre continues with the help of generous grants from charitable trusts, plus a windfall every few months when landlords have been ordered by the courts to pay our costs and eventually (usually after much kicking and screaming) they do so.
The Housing Advice Centre was further imperilled by The Legal Aid, Sentencing and Punishment of Offenders Act (commonly known as LASPO) which came into force nearly ten years’ ago. This removed some areas of law from legal aid. Consequently, there is no legal aid help for private renters’ problems such as tenancy deposit disputes, properties managed by illegally operating agents or compensation if tenants’ health is ruined by their housing conditions and forces them out of their homes as a result.
So will the review’s findings make life easier for our housing advisers or could it be the last straw?
There is some cause for hope in that the Terms of Reference for the Review state, “The Review will reflect on previous reviews of the legal aid sector and previous attempts at reform and will ensure that lessons learnt from these experiences are reflected within its policy thinking,” Could this mean that the Government recognises that LASPO wreaked the havoc that almost all legal aid advisers forecast it would and that it is largely responsible for the rapid decline in the number of voluntary sector and private law firms still providing help under legal aid?
We learn that the ultimate (and laudable) Objective for legal aid is to provide advice and representation to those who most need it, in line with the Lord Chancellor’s legal duty to ensure that legal aid is made available. What surprised us is that the Government now realises that, to achieve this, legal aid should encourage the early resolution of disputes, “providing swift access to justice through early legal advice”. This really does look as though the scales have fallen from the Government’s eyes, since one of the most damaging aspects of the LASPO changes was to remove early intervention from the scope of legal aid which currently is restricted, almost exclusively, to advice when events have reached crisis point, making them harder and more expensive to resolve. For example, legal aid currently only allows us to advise clients living in poor conditions once those conditions are evidenced as having a serious effect on their health.
Another late awakening is the need to address the declining number of organisations providing legal aid, since this is causing the Lord Chancellor to breach his duty regarding the provision of legal aid. Despite this current, pressing problem, the Review will not include a look at current contracts. It seems that the ‘anecdotal’ evidence of both legal aid providers and the Legal Aid Agency (that the decline is due to the inadequate fees and the LASPO restraints), is inadequate. The Review will therefore spend months accumulating quantitative data to identify the causes of the decline.
The review will also look at legal aid provision in other countries. This could be a very informative exercise, provided that account is taken of the overall differences in the legal/court structures.
Last but not least, the review will include an economical analysis. Unfortunately, it appears that this will be restricted to legal aid systems themselves and will not include an assessment of their broader impact. So, for example, a look at the cost of housing advice and representation under legal aid, will not analyse how defending possession proceedings impacts on the cost of homelessness; or how improving living conditions can reduce costs in the health service.
What does the review mean for current contracts? The terms of the review are clear in that it will not be looking at current contracts, but are these to be extended until the outcome of the Review and new contracts on different terms are offered? And will there be enough legal aid providers remaining by the end of the Review to take on and expand a new system?