Legal aid: the need to re-grow from the desert

While the UK legal sector’s turnover has increased by 45% in the last decade, the legal aid side of the profession is in deep crisis. In October 2024, the Lord Chancellor settled a judicial review claim by Duncan Lewis Solicitors, once the biggest provider of immigration and asylum legal aid in England and Wales, by agreeing to make proposals on legal aid fee changes by the end of November. The headline increase was announced on 29 November 2024, although there is limited detail at the time of writing and, so far, the fee rises only apply to immigration and housing legal aid.

The core argument was that the Lord Chancellor was failing to comply with the duty in Section 1 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 to secure the availability of legal aid. A similar argument made by the Law Society was (narrowly) unsuccessful earlier in 2024, in relation to criminal legal aid for police station duty contracts. Solicitors operating in other areas of civil law have followed suit, sending pre-action letters to the Lord Chancellor with evidence of the failure to secure the availability of legal aid for other matters, which remain within the scope of legal aid. 

The evidence makes that failure undeniable: loss of legal aid provider offices, geographical patchiness of access, many ‘dormant’ contracts where providers are not able to do any legal aid work, and a collapse in provision for some areas of law. I will briefly discuss some of that evidence, highlight ways in which the cuts to legal aid have shifted costs to other public services, and conclude with some possible solutions to the access to justice crisis.

Evidence of a crisis

Asylum is the area of law which most readily enables us to estimate unmet need, as we can compare the number of new asylum applications with the number of new matters opened in the immigration and asylum category. There are some caveats: one person may have more than one matter, for example if the Home Office withdraws the asylum decision, but subsequently refuses asylum again; not every matter start opened will be for a new asylum application or appeal; and the Legal Aid Agency now counts an application and an appeal for the same person as two separate matter starts, making it more difficult to compare need and provision. Nevertheless, even the minimum deficit between asylum need and provision is at least 57% for the year ending 31 August 2024; an increase on the minimum deficits of 51% in 2022-23 and 40% in 2021-22. The position at the appeal stage is particularly dire, with some large firms now turning away all appeals work, even for clients they represented at the application stage.

For other areas of law, it is harder to quantify the need and, therefore, the deficit in provision, but the published reports from the Review of Civil Legal Aid show that providers are turning away an average of 26 apparently eligible cases in the month of their response, with London-based providers turning away an average of 47 eligible cases in the month, and not-for-profits across England and Wales turning away an average of 39 eligible cases (Survey of civil legal aid providers in England and Wales, January 2024).

For welfare benefits, it is especially difficult to quantify eligible legal aid need, since very little remains in the scope of legal aid and not all cases would necessarily meet the merits test for legal aid to appeal to the Upper Tribunal. However, the collapse in Legal Help provision figures from 2014-15 to 2023-24 strongly suggests that eligible need is not being met. There is no apparent reason why there should be almost 90% fewer eligible cases in 2023-24 than there was a decade earlier. The only realistic explanation for the fall is that legal aid providers are simply unable to take on welfare benefits cases, due to a combination of low fees and very limited scope, which makes it unviable to continue employing a welfare benefits specialist. It is not an area of law which could realistically be cross-subsidised with privately paying clients.

Table 1. Legal Help case starts in the welfare benefits category, 2014-15 to 2023-24.

For most areas of law which are in scope of Legal Help, there is a fixed fee, which applies to all cases unless and until the lawyer undertakes three times the amount of work funded by the fixed fee. Above that level, they ‘escape’ the fixed fee and receive hourly rates, although there remains a risk that the Legal Aid Agency disallows payment for some elements of the work done, which might even take the total back down below the escape threshold. In regard to welfare benefits, though, the escape threshold has been removed and the fee is fixed at £208 no matter how many hours the lawyer works, despite the fact that legal aid does not even become available until the Upper Tribunal stage, which is likely to mean that the work required is more complex and technical.

Shifted costs

In the meantime, MPs’ caseworkers receive a huge number of queries, many of them relating to a legal need, especially social welfare legal need, but the former MP Karen Buck pointed out to a Legal Aid Practitioners’ Group meeting that this is rarely framed as a crisis of access to justice. Some MPs have taken on additional casework staff to try to manage the situation. My research indicates some of the other knock-on costs of the cuts to the scope of legal aid: for example, a lack of lawful immigration status often means a lack of access to employment or social security benefits, no right to rent accommodation and no access to healthcare. 

Yet, the local authority might have a duty to the individual or household under the Care Act or Children Act, or they may come into contact with rough sleeping services. There are no move-on options for exiting that support without the person receiving immigration legal advice, but non-asylum immigration is now outside the scope of legal aid. That leaves the local authority funding not only the accommodation and support but also the legal advice, because the Ministry of Justice has withdrawn from that space. 

For rough sleepers, funding for immigration advice has come from the then Department of Levelling Up, Housing and Communities (now the Ministry of Housing, Communities and Local Government), which implicitly acknowledged that it could not meet the pledge to end rough sleeping by 2025 (or at all) without allowing funds to be used for immigration advice. Knock-on costs to health, and even the legal aid budget itself, arise from the removal of most housing disrepair claims, which commonly used to win costs from the negligent landlord instead of being funded from the legal aid fund, while the shortage of community care legal aid provision (despite remaining in scope) leaves people in hospital because there is no social care package in place for them to be discharged to. 

But there is no systemic analysis of the knock-on costs of the legal aid cuts, a point which the National Audit Office and Public Accounts Committee both picked up on, and which points to the need for systemic solutions to the access to justice challenges. 

Possible solutions

From the provider side, the only solution appears to be judicial review challenges to the Lord Chancellor or the Legal Aid Agency, backed by robust data evidencing the gaps in access. Despite the moral arguments for legal aid, it is still the economic one which holds the most sway in government. The official announcement of the fee increase for immigration and housing law, on 29 November 2024, was trialled a few days earlier in The Times newspaper by a ‘government source’, explaining that increasing legal aid fees was a necessary step to clear the asylum backlog, thereby saving millions in asylum support costs. In other words, the announcement was pre-spun as a spend-to-save solution, despite being required to fulfil both a statutory duty and the terms of a consent order in regard to the settlement of the Duncan Lewis judicial review.

Fee increases are definitely and immediately necessary, but they are not enough on their own. First, there needs to be a review mechanism to update fees more frequently than every quarter-century or so, without the need for a series of judicial review applications and a two-plus-year review. It needs to ensure that legal aid is kept on a sustainable fee level, whatever funding model applies. That might be more politically palatable, too, than an announcement of a much larger increase once every quarter century or so. 

Second, there needs to be policy-level research into need. The body that administers legal aid also has to have a duty to assure itself that eligible need is being met. A duty previously existed, for the Legal Services Commission, but the Legal Aid Agency, which replaced it in 2013, has no such mandate. It collects a certain amount of data on provision, but does not compare that with need, much less consider the costs shifted to other public bodies. Third, alongside researching unmet need in relation to issues within scope of legal aid, the government should be monitoring other need, including need which currently falls outside the scope of legal aid, but is not being met by other legal services. 

There needs to be a clearer understanding about capacity and the absence of magic wands. Legal aid lawyers have become deskilled in areas of law which were taken out of scope of the LASPO. Social security offers an example: when the Ministry of Justice decided to expand the scope of early(ish) advice with the Housing Loss Prevention Service, relatively few providers felt able to bid, since they were no longer up to date on welfare benefit issues that they might now need to advise on.

Even for areas of law that are still in scope, there is a serious recruitment crisis in England and Wales. Organisations have ‘rolling’ or open-ended adverts, especially for supervising lawyers, and have their legal aid contracts suspended if they cannot recruit a supervisor who meets the experience requirements. Many are unable to recruit qualified staff at a lower level and have to ‘grow their own’ by training caseworkers, but training is expensive and trained caseworkers are valuable to other organisations, and it is a huge loss if a qualified person leaves. Scottish legal aid firms share this difficulty, finding their trained lawyers leave for much better paid positions, complete with pensions, in government departments. So, money is certainly part of the answer, but the longer the crisis lasts, the more difficult it will get to repopulate the profession.

Lessons from elsewhere? 

Scotland has a separate justice system and, with it, a separate legal aid regime. One of the main drivers of provider loss in England and Wales is the overzealous auditing by the Legal Aid Agency which results in providers being refused payment for large amounts of work, payments being clawed back, contract sanctions being given for minor errors (of little or no financial value) and providers forced to self-review numerous files. I have written about this in more detail elsewhere, but examples include a small organisation being forced to pay back all profit costs for work done on unaccompanied children’s cases because the caseworker’s valid DBS certificate was at her home rather than the office, and the sole caseworker in an organisation having to self-review all the files where an interpreter was used, because of an ‘error’ whereby the provider paid the interpreter’s minimum charge of one hour for an interview lasting 55 minutes, despite this being cheaper than the alternative per-minute rate of another interpreting agency, and then being required to repay a single-figure sum.

This auditing regime came about because the Legal Services Commission (the predecessor of the Legal Aid Agency) had its accounts qualified for four successive years by the National Audit Office (NAO) and was instructed to maintain a maximum 1% error rate. Yet all of this expensive and resource intensive auditing has no bearing on substantive quality. It does not look at whether the lawyer gave correct advice or provided good quality representation. It is costly, counter-productive, and almost certainly not what the NAO actually intended to unleash. 

Scotland does not have this dysfunctional relationship between the auditor, the Legal Aid Board and the lawyers. Although every civil file billed is individually examined, and there are significant disputes over the ‘abatement’ of bills, there is no separate auditing process (other than a peer review) and the Scottish Legal Aid Board does not exist under the same constant pressure of an auditor, although their accounts are audited in the normal way for a public body. Meanwhile, English and Welsh legal aid lawyers look with envy at the outline of the Netherlands’ ‘high trust’ model in the International Comparisons report from the Review of Civil Legal Aid. This is essentially an earned autonomy model where legal aid lawyers have more delegated functions and less surveillance if they are trusted providers.

Scotland’s Legal Aid Board does monitor need and provision, unlike its England and Wales counterpart, and it identified areas of law which were seriously underprovided in certain areas of the country. To address this, it set up direct provision via four Civil Legal Assistance Offices, and also grant funds to some organisations to undertake casework which is not being done by private firms. We do not necessarily want or need direct state provision in England and Wales, but we do need a mixed model that recognises the different situations of not-for-profits and private firms, which acknowledges the need for a training pipeline which does not place all of the costs of training new legal aid lawyers onto small businesses and charities, and allows for the possibility of increasing provision in underserved areas or when need increases.

That might include grant funding provision in underserved areas of the country, for example by funding the creation of a new Law Centre, whether standalone or as part of a combined Citizens Advice and Law Centre, and financing the recruitment and training of new staff. The existing legislation allows the Lord Chancellor to take actions of that sort: Section 1(4) of the LASPO Act permits her to ‘do anything which is calculated to facilitate, or is incidental or conducive to’ the s1(1) duty to ‘secure that legal aid is made available in accordance with’ Part 1 of the Act. Section 2(2) goes on to specify that: ‘The Lord Chancellor may, in particular, make arrangements by—(a) making grants or loans to enable persons to provide services or facilitate the provision of services, (b) making grants or loans to individuals to enable them to obtain services, and (c) establishing and maintaining a body to provide services or facilitate the provision of services.’

It is clear that ‘the market’ is not going to provide in areas where there is already little or no provision. There is nobody to set up those services without support, nobody to train the new social welfare lawyers and no money to employ them. That means those new social welfare legal centres (or Law Centres) need to also serve as academies that will train more new lawyers and caseworkers than they need for their own futures, as support for the wider sector, because it is clear that ‘the market’ cannot do that either.

It's time to move away from the idea of a free market providing for the legal needs of poor people, think systemically about what legal aid is for and is capable of, and create the public service that we need for the 21st century.

Dr Jo Wilding is a Senior Lecturer in Law at the University of Sussex, Principal Investigator on the Social Welfare and Immigration Legal Aid Mapping project, and an associate tenant at Garden Court Chambers. She researches legal aid and access to legal advice.