Business as usual? Why we must do more than slow the decline in Legal Aid

Another quarter, another set of Ministry of Justice statistics on legal aid. What can they tell us that we didn’t learn last time?

Legal Aid is the funding that allows people on low incomes to get legal advice for free. Advice which helps people enforce their rights to a decent home. The latest set of statistics, reporting on April – June 2015, does little but confirm the grim reality of the impact of changes to Legal Aid (following LASPO 2012) on people with acute need for housing advice.

The steep drop in legally-aidable advice that we saw immediately following the introduction of the reforms in April 2013 has slowed, but a dismal picture of ‘business as usual’ is now beginning to emerge.

As we have reported before, the number of legal cases funded by Legal Aid, on issues such as community care, debt, employment, housing and welfare rights, dropped like a stone when most were taken out of scope following LASPO.  Although it has begun to level out, the number of cases has fallen still further in the last year, down from 53,000 in 2013/14 to 48,000 in 2014/15. This advice takes two forms – ‘legal help’ which provides initial advice and support and takes the lion’s share of civil legal aid, and ‘civil representation’ through which people can be represented in Court. Legal help appears to be settling at just one-third of the pre-LASPO level, civil representation at two-thirds.

This confirms our fears that LASPO has driven a coach and horses through publicly-funded advice available for issues including debt, welfare benefits and disrepair – all precursors to homelessness. But Legal Aid is still available for serious cases of disrepair, possession proceedings and homelessness. The number of legally-aided housing cases such as these halved immediately following LASPO; in the last quarter there has been only a very slight rise (of 2%) compared to the same time the previous year.

There is some very limited good news about Exceptional Case Funding – Legal Aid’s ultimate safety net. 348 applications for ECF were made between April and June 2015, 29 per cent higher than in the same period last year, of which more than a third (overall) were successful – the highest number and proportion of grants since the scheme began. The June 2014 Court judgment – which found that the level required to access ECF was set too high and resulted in the threshold being lowered – seems finally to be having an impact. However, none of the twelve housing applications made were successful and only 1 of the 2 welfare benefit cases was granted funding.  It would be interesting to know more about why so few welfare benefit applications were made.

This is simply not good enough. Far too few people are getting the access to justice that they need to stay in their homes. Shelter has always argued that prevention is better than cure. Giving households access to advice and representation before their problem becomes a crisis, before their debt, welfare benefits or disrepair issue spirals into eviction or homelessness – is better, quicker and cheaper for the family and the state alike.  But the changes to Legal Aid mean that getting advice early on is almost impossible.

Even for advice issues still ‘in scope’ for Legal Aid, actually getting hold of that advice is becoming harder.  The MoJ stats show that there has been a 20 per cent drop in the number of advice issues handled by law firms and charities providing civil legal aid between April and June 2013 and the same quarter this year, and a 13 per cent fall in the last year. The resulting ‘advice deserts’ will only be made worse by uncertainties about what the next round of procurement for Legal Aid contracts will look like, ongoing IT concerns and the MoJ’s need to find savings of between 25 and 40 per cent following the Chancellor’s Summer Budget announcements.

The Government is required by statute to review LASPO within the first five years of the legislation coming into force, due anytime between April 2016 and 2018.  As we have said before, this cannot come soon enough. Labour has announced that they will launch an ‘immediate’ review of their own, chaired by Lord Bach, the former Shadow Attorney General, promising to “provide an opportunity to look at wider impacts and develop new policy proposals for making legal aid fit for purpose.”

Whatever pressures the MoJ is under to find savings for next month’s Comprehensive Spending Review, Legal Aid must not be subjected to further cuts – either in scope or access. Not only would it pre-empt the findings of any review, but it is difficult to see what cuts they could make without falling foul of the European Court of Human Rights. Even more importantly, the existing low level of provision of legal aid must not become ‘business as usual’ – to do so risks fundamentally undermining access to justice for a generation.