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The UK government has announced changes to legal aid access in England and Wales, updating means test thresholds to account for inflation. These thresholds are the maximum amount of capital or income that a person can have to be eligible for legal assistance at public expense.
Under these changes, the government estimates that over 2 million more people will be eligible for civil legal aid each year. Eligibility, though, is not the same as access. The reality is that fewer and fewer people have access to civil legal aid advice and representation, because provision is collapsing.
Civil legal aid covers issues like housing, mental health, community care, immigration and asylum, and family law. The scope of these was much reduced by austerity measures in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
I obtained legal aid provision figures from the Ministry of Justice’s Legal Aid Agency, via a freedom of information request, covering the 12 months from September 2021 to August 2022 (the last full year available). The numbers, combined with publicly available data, paint a picture of a collapsing sector.
There was a 20% reduction in the number of housing legal aid providers in the 18 months to March 2023. The same period saw a 21% loss of legal aid providers for mental health, and a 27% loss in welfare benefits. In immigration and asylum, over 30% of the providers given contracts in September 2018 had stopped doing legal aid work by March 2023.
Providers (private law firms or charities) are given contracts by the Legal Aid Agency to provide legal aid in specific areas of law – but they cannot be compelled to take on cases.
In fact, the current situation is worse than even these figures suggest, because 30% of the housing provider offices (129) did not undertake any new legal aid cases in the year to 31 August 2022. Nine of the 131 geographical “procurement areas” in England and Wales saw no new housing cases opened in that year.
Often, this is because they are unable to recruit any qualified lawyers on the salaries available, or because they cannot afford to take on legal aid cases. Others take on very small numbers of cases because they are at capacity, given the number of lawyers they can afford.
In welfare benefits, a staggering 71% of offices did not report any new legal aid cases in the year, though this is largely because legal aid is now only available for Upper Tribunal and higher court appeal cases.
Even in community care, which was much less affected by the LASPO cuts, 41% of the 127 contracted offices undertook no new legal aid matters in the year, and 17% of offices stopped doing legal aid work in the 18 months to March 2023. Only ten new matters were reported in the north-east of England, and 12 in the south-east (excluding London).
Demand outstripping supply
Importantly, these figures do not indicate a lack of demand for the services of legal aid providers. In asylum, the last year saw at least 25,000 more applicants for legal aid than providers had capacity to take on. This is at least a 45% deficit, and only includes main applicants (not their dependants).
A housing lawyer described having so much demand at her firm that they have to allocate a senior solicitor to triage the most desperate cases, turning away the rest.
There is a clear regional inequality to provision of legal aid. For example, the Legal Aid Agency failed to find any providers at all for 11 areas to deliver its new, court-based early advice scheme to prevent housing loss.
Legal aid providers report difficulties recruiting across all areas of law, given the loss of lawyers and the overall low fees. Civil legal aid fees have not increased at all since fixed fees were introduced for most work in 2007, and have fallen significantly in real terms.
There is also a huge amount of unpaid admin and bureaucracy imposed by the Legal Aid Agency. There are serious delays in payment to providers because most work is paid for at the end of the case. But lawyers often cannot close and bill their cases because of slow processing by government departments and the courts.
An unworkable policy
Even after the means test changes, in England and Wales the new limits to qualify for legal aid are £7,000 in capital (such as savings and other financial assets) and gross income of no more than £946 a month (£11,352 per year), with additional allowances for dependants. A person might also qualify for legal aid, but have to pay a contribution, if they have a disposable (rather than gross) income of up to £946 per month.
There is no regular review mechanism to update these limits in line with inflation. Critics point out that this consultation, launched in March 2022, was already out of date by the time the response was published in May 2023.
There is greater eligibility in Scotland. The threshold for capital is £13,017 and the disposable income threshold for full legal aid is £3,521 per year. Clients with disposable incomes of up to £26,239 remain eligible to pay legal aid rates rather than private rates, though they may have to contribute more as their income goes up.
The UK’s legal aid capacity crisis has been a long time building, but it has come to a head with cost of living concerns – and is likely to become even sharper with the government’s plans to remove asylum seekers to Rwanda. Civil servants have reportedly warned the government that it will have to increase legal aid fees for asylum work, otherwise it will be impossible for people to access legal advice before being removed.
If the UK government fails to ensure the viability and availability of legal aid, there will be no more lawyers to provide advice and representation for millions of newly-eligible (and desperately needy) people. This is what happens when legal aid is cut too far. The system survives for a period of time on goodwill, and then it collapses.
Jo Wilding receives funding from the ESRC for the research on which this article is based.
