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House of Commons Justice Committee finds a rigid system of fixed fees and low pay is leaving legal aid firms struggling

Summary:

Report highlights impact of legal aid 'advice deserts' on immigration and asylum law

Date of Publication:
02 August 2021

House of Commons Justice Committee finds a rigid system of fixed fees and low pay is leaving legal aid firms struggling

02 August 2021
EIN

A report published last week by the House of Commons Justice Committee takes an important look at the future of the legal aid system.

ParliamentThe 88-page report can be downloaded here.

Section 3 of the Committee's report (from page 34) covers civil legal aid, including immigration and asylum.

More than 80 written submission were made to the Committee, and a number of these will be of interest to readers of EIN. These include submissions by the Immigration Law Practitioners' Association (available here), the Joint Council for the Welfare of Immigrants (available here), the Refugee Council (available here), Bail for Immigration Detainees (available here), the No Accommodation Network (available here) and Dr Jo Wilding of the University of Brighton and Garden Court Chambers (available here).

Overall, the Committee finds that a rigid system of fixed fees and low pay is leaving firms specialising in legal aid struggling.

On civil legal aid, the Committee found: "Civil legal aid was radically overhauled by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The current civil legal aid framework means that providers are not supported to provide early legal advice, which many witnesses stressed was crucial to preventing an individual's problems escalating. There is a real need for a more flexible scheme that allows anyone with a legal problem, who cannot afford a lawyer, to access early legal advice. Such a scheme would enable more people to get access to justice but it would also have a positive effect on court proceedings, as litigants in person would be more informed and better equipped to deal with the process. The legal aid means test and the exceptional case funding system should both be simplified and reformed. Civil legal aid providers are facing major sustainability challenges. The rates of pay make recruitment and retention difficult with the result that in many areas there are advice deserts."

The Committee noted in its report that the existence of legal aid 'advice deserts', with a lack of providers in some areas of the country, is a particular concern for immigration law.

In its evidence to the Justice Committee, the Refugee Council highlighted that that when asylum seekers are dispersed to areas of the country with no providers in proximity this effectively restricts their access to justice.

The Refugee Council explained: "Whilst access to legal advice is theoretically available to people seeking asylum for the first instance decision, the limited number of specialist legal representatives in the right locations … has an impact on the case further down the line; there are many cases which, if sufficient good quality legal advice had been available in the early stages of the claim, appeals and fresh claims would not be necessary. Furthermore, in the absence of sufficient provision of good quality legal representatives with legal aid contracts people desperately search for any advice and may be exploited by practitioners who charge fees for work that has an adverse effect on their claim. Through our destitution service, we have worked with numerous clients who didn't have access to quality legal advice, had their credibility contested because of insufficient advice and poor legal assistance. It was only when we stepped in and referred them to a good quality representative, that they were granted protection status. We are concerned that people who should be protected by the asylum system have to spend years and in some cases decades seeking justice and that despite the availability of legal aid, it is still very difficult for them to seek asylum in the UK."

The Committee's report further noted: "The research undertaken by Dr Jo Wilding, a postdoctoral researcher at the University of Brighton working on the immigration legal aid market, was cited by a number of submissions. In her written evidence, she emphasised that the issues of sustainability can be traced back to the Carter reforms in 2007, which introduced fixed fees for a range of civil legal aid work. She emphasised that for housing and immigration cases the fixed fee does not take reflect the complexity of the cases that are not within scope (as shorter cases are not out of scope). This has had a major impact on the market, according to her research, as providers focus on the cases that attract hourly rates meaning those funded by fixed fee cases struggle to access good quality lawyers. In terms of recruitment, Dr Wilding cites a number of examples, including Wiltshire, Devon and Cornwall where providers are unable to do immigration legal aid work because of an inability to recruit and attract applicants. In her view, these areas will not be able to recover through market-based procurement and instead 'targeted government intervention in the form of grant funding' alongside other measures to improve sustainability is needed."

Bob Neill, the Chair of Committee, said the cuts to legal aid in recent years have "hollowed out key parts of the justice system" and left legal aid firms struggling to keep going. Neill said this puts the fairness of the justice system at risk.

"The legal aid system is there to ensure that everyone has access to justice. If the most vulnerable in society are being left to navigate the justice system on their own then fairness is lost and the system has failed," he said.

The Justice Committee found there is a strong case for fundamental changes to the civil legal aid system. "It should be made more flexible, so that a greater number of organisations can be provided direct support and to ensure that there is a consistent pipeline of legal aid lawyers that are able to help the most vulnerable in society", the report recommended.

The Law Society welcomed the Justice Committee's report and said it had shone a light on the problems that are blighting the legal aid system.

I. Stephanie Boyce, the Law Society's president, said: "Legal aid deserts must be ended. Civil and criminal practitioners should be paid properly for their expert work which is crucial to providing access to justice and the rule of law."

Boyce added: "The committee rightly highlights the value of early advice and we agree with the recommendation that the government should take a 'whole justice system approach' to reform of civil legal aid.

"We think there could be merit in the call for a 'complete overhaul' of the civil legal aid system but would want to consider this more carefully.

"We strongly endorse the committee's call for caution in relying on limited support for litigants in person, and other potential alternatives to the tailored legal advice which is required in our adversarial justice system."