Report identifies multiple problems in both availability and quality of services
Important new research by Jo Wilding finds market failure in immigration and asylum legal aid
13 June 2019
Jo Wilding, a barrister at Garden Court who is currently on sabbatical at the University of Brighton, yesterday published important new research on the immigration legal aid market.
You can download her 56-page report here. The report was funded by the Joseph Rowntree Charitable Trust.
Wilding explains in the report: "This was a study of the supply-side of the immigration and asylum legal aid market, with a particular focus on quality of services, financial viability for practitioners and organisations, access for clients, and the effective matching of demand and supply. The research was carried out over a three-year period from January 2016–December 2018. This report is intended to share the key insights from the research with relevance to legal aid policy and practice. In particular, it attempts to give a more robust and detailed understanding of demand and supply in immigration legal aid provision than has previously been available, and to explain how practitioners and organisations attempt to balance quality and financial viability."
One of Wilding's key findings is that the fixed fees for most asylum work are inadequate and pay for less work than is needed to do the job properly at each stage of the case, meaning high-quality providers lose money on the cases they do.
"It is impossible to reconcile quality, financial viability and client access on the standard fee. High-quality providers reconcile quality and financial viability by reducing access for clients or by prioritising work which is paid at hourly rates," the report states.
Wilding is concerned to find that poor-quality providers are protected in the market and can maintain or increase their market share, while high-quality providers reduce their market share.
"On one level, it's hard to criticise any business or worker for only doing as much work as they're paid for – but some of these are life and death cases and doing an inadequate job means the client might be treated as a liar and refused asylum," she says.
Wilding is also concerned by widespread advice deserts and droughts, finding: "Demand and supply in immigration legal aid have been misunderstood at policy level. This has caused not only advice deserts, where there are no legal aid providers at all, but also advice droughts, where there appears to be a supply but clients cannot access advice or representation."
She explained: "There are large areas of England and Wales where there are no providers at all, or only one provider, meaning clients have no choice of provider. Even when they have a choice, they have no meaningful information to base a choice on, and if they later realise the provider is poor, the legal aid rules don't allow them to switch to another provider. That means the current legal aid system protects the poor-quality providers from market forces, while forcing out the good ones."
The problem is exacerbated by the fact that, even in areas where there are multiple providers, there may be no capacity.
Writing on the Justice Gap to accompany the release of the report, Wilding said: "The 2018 contracts have moved away from the previous restrictions on new matter starts, and no provider should now be unable to take on a client because it has run out of matter starts. But they may still find themselves unable to open any new cases: in Manchester, which had several providers at the relevant time, a barrister explained that clients were unable to find representatives, to the point that the Tribunal had to adjourn cases. When I contacted providers in Manchester, they explained that they still had matter starts available, but no capacity. Demand far outstripped functional supply so that there was no meaningful access to representation, even where the map would have suggested an ample supply. These are the advice droughts."
Overall, Wilding finds that there is a market failure in immigration and asylum legal aid, in terms of maintaining both availability and quality of services.
"System-wide thinking and action are needed to resolve these problems. Previous strategy has been to reduce cost in fragments of the system in a way that reduces access to justice. We need to reduce demand without reducing access to justice, in ways that support existence of a high-quality supply side of the market," she concludes.