Why a review of Legal Aid reforms can’t come soon enough for us

Unusually for a speech on justice, Michael Gove’s first words on Legal Aid made front-page news last week. More likely due to interest in the speaker rather than the subject, but headlines nonetheless.

Beyond the Justice Secretary’s talk of a two-tier system and the “responsibility on government to make sure that those in the greatest hardship – at times of real need – are provided with the resources to secure access to justice”, (‘greatest hardship’ and ‘real need’ remaining undefined), we also got confirmation that the Government would launch a review of the 2012 Legal Aid legislation, (otherwise known as the LASPO Act), next year.

Last week’s speech coincided with the publication of the latest MoJ Legal Aid statistics, which highlight how desperately we need that review. It is two years since the LASPO changes were introduced and, overall, we see a worrying – if predictable – picture of a continued drop in Civil Legal Aid. Provision of Legal Aid is now one-third of what it was before the reforms.

This hardly comes as a surprise – if you take key areas of advice ‘out of scope’ for Legal Aid it is no wonder that that the amount of Legal Aid provision drops. But it is not as simple as that. Implemented in April 2013, LASPO made changes to the scope of Legal Aid for housing issues, but some areas remain in scope. These include cases where there is a serious case of disrepair, possession proceedings and for anti-social behaviour cases in the county court.

Yet despite this, the number of housing cases paid through Legal Aid was 12% lower in the first quarter of 2015 than at the same time a year ago. This is a cause for huge concern. One explanation for this drop could be a genuine reduction in demand. However we know that the number of landlord possessions is rising steeply. The ending of a tenancy by a private landlord is now the leading cause of homelessness.

Workload in housing law, April – March 2012/13 to April 2014 – March 2014/15 to Jan – Mar 2015

Vicky's Legal Aid graph

Source: MoJ, Legal Aid statistics in England and Wales Jan-Mar 2015

Housing isn’t the only area of Civil Legal Aid to see falls in the last year. Even in the limited circumstances in which it is still available, Legal Aid for debt advice has fallen by 44% year on year and for welfare benefits by 38%. Early advice on debt and housing benefit problems can prevent families ever getting to the brink of homelessness.

What might be behind this? As it becomes harder to access Legal Aid funding, it becomes harder for providers to run a viable organisation providing these services.

There is a rapidly shrinking provision of advice under Civil Legal Aid and ‘advice deserts’ are spreading. The statistics show us that there were 36% fewer not-for-profit provider locations and 8% fewer private firm locations than the previous year. Continuing reductions in Legal Aid has been a significant factor in the closing of nine Shelter offices.

One-third fewer applications for Legal Aid for judicial review were granted than in the same period the previous year, reflecting a tightening of eligibility criteria and an increasing reluctance of Legal Aid providers to pursue such remedies when payment is uncertain.

Other reforms to Legal Aid seem also to be driving this trend.

The MoJ’s new electronic Client and Cost Management System (CCMS) has created further uncertainty for providers. It has hit so many glitches since it was first piloted in 2012 that making it compulsory roll-out has been further delayed to February 2016.

Meanwhile, concerns grow about the impact of the mandatory ‘Telephone Gateway’ for access to justice. As part of the LASPO Act, the Government not only made changes to the scope of Legal Aid, but to the way it is delivered. Other than in very limited circumstances, people seeking Legal Aid first have to be assessed via a ‘Telephone Gateway’ rather than going straight to a Legal Aid advisor. The gateway is being piloted on debt, discrimination and special educational needs issues but the Coalition Government made it clear that they intended to roll it out to other areas in the future.

There is even more worrying news for people in need of legal advice with housing issues. Exceptional Case Funding (ECF) – Legal Aid’s ultimate safety net – is also proving hard to access. Out of 323 ECF applications, fewer than 1 in 5 were granted. Of these, only 40 were non-inquest cases and only one housing case was granted ECF in the first three months of 2015, out of ten applications. This is despite a June 2014 Court judgment that stated that the level required to access ECF was set too high, with the result that the threshold was lowered.

From the start, Shelter has been concerned that the Government failed to adequately assess the likely impacts of such fundamental reform to our justice system. Most importantly, these cuts affect people who rely on Legal Aid to get redress for unlawful housing decisions. But they also affect the wider advice sector, the Courts when both parties have to represent themselves and the public purse when families end up homelessness. These concerns have been amplified by the National Audit Office, the Justice Committee (twice) and the Public Accounts Committee. All are now being played out in towns across the country, as people are no longer entitled to Legal Aid to seek redress for some housing issues and ‘advice deserts’ grow, making it increasingly difficult for people to get legal advice even on issues that remain in scope of the Legal Aid scheme.

So we strongly support the new Lord Chancellor’s commitment to a review of the 2012 changes.  We need to see a strong commitment from the MoJ to really get under the skin of Civil Legal Aid, to better understand the range of impacts and wider costs of their reforms. People have to be able to enforce their rights to a decent home: right now too few can do that. Next year’s review cannot come soon enough.

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