Opinion: where next for family legal aid?

Low fees mean that family legal aid firms cannot afford to expand and there is evidence that their numbers may be shrinking faster than anyone realised, says David Emmerson.

The Carter Reform proposals put forward in 2006 heralded the most radical reform of legal aid provision in this country since legal aid was created in 1948. A part of those reforms was implemented in crime and family last October. The aim of the reforms is fundamentally to restrict costs, particularly in crime and child care law where average case costs had been increasing at a significant rate. However the reformers, in their drive to cut costs will inevitably cut access.

The reforms introduced fixed fees for family cases and, in particular, fixed fees for the conduct of court based child care work. Many childcare law experts predict financial ruin for child care lawyers and more worryingly, disaster for the children they represent.

The Commission claim that the reforms will not lead to a reduction in access. Lord Carter in his analysis took the view that there were far too many firms undertaking legal aid work and that the scheme could be operated far more efficiently if it was undertaken by larger firms, with increased volumes, enjoying the benefits of economies of scale. There is contradictory research as to whether or not this claim is sound. Certainly there is relatively little evidence either from the Commission or within the profession itself that firms are able to expand. Many perhaps would like to, but having sat down with their accountants and bank manager to discuss the funding required to increase premises capacity, carry salary costs and develop IT have found that the figures just do not add up. Those few firms who have expanded have been limited to modest organic growth.

The Commission claim that 96 per cent of the population live within five miles of a family legal aid firm. The key element here however is the capacity of those firms to take on work and not their proximity and it is the belief that within the profession that members of the public are finding it increasingly difficult to find family legal aid lawyers able to take on their cases. The Commission also revealed that there are now only some 2,735 family legal aid firms in the country, down from over 5,000 a few years ago. However, the Commission also note that almost a third of these firms in fact undertake less than 1 per cent of the work. An interpretation of these figures is that there are more and more firms heading away from family legal aid. Therefore the picture for the future is very worrying indeed with perhaps there being less than 1,000 firms doing any reasonable amount of legal aid family work. Indeed, family legal aid firms themselves are finding it increasing difficult to find legal aid lawyers, particularly younger people who might seek to make their career out of childcare law.

Fixed fees was supposed to bring economies to firms in the way cases are run yet bureaucracy continues to be a major hurdle to efficiency for both practitioners and the Commission alike.

There is no doubt that bureaucracy has increased both in the conduct of individual cases but also in simply managing a contract with the Commission. Further family fixed fees viability has already been affected in divorce cases by the sudden introduction by the Ministry of Justice of means tested remission of fees. Whereas previously such cases were passported the process adds 30 minutes in total to the work done on each case.

It was however a relief to hear last month that the Law Society and the LSC had settled the High Court action and a clear benefit of the agreement is this period of stability before any further reforms are introduced.

This time should be used constructively by the profession, the Commission and the government to analyse carefully the impact of the reforms on profitability and access to justice.