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NAO finds more needs to be done to ensure legal aid is available to all who are eligible


Law Society says new National Audit Office report "lays bare the dire state of legal aid"

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The National Audit Office (NAO) published an important report last week examining the Government's management of legal aid.

Image credit: UK GovernmentThe 58-page report covers all aspects of legal aid, including immigration law, and it can be downloaded here.

It considers how the Ministry of Justice (MoJ) is meeting its objectives over a decade on from the reforms and major cuts to the provision of legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Overall, the NAO finds that spending on legal aid has fallen significantly, but the MoJ lacks a full understanding of how costs may have been shifted elsewhere within government and so cannot demonstrate how much its reforms represent a spending reduction for the public purse. The MoJ also does not know whether everyone eligible for legal aid can access it. More needs to be done to ensure legal aid is available to all those who are eligible.

The report states: "MoJ has set providing swift access to justice as one of its primary objectives. Theoretical eligibility for legal aid is not enough to achieve this objective if there are an insufficient number of providers willing or able to provide it. MoJ must ensure that access to legal aid, a core element of access to justice, is supported by a sustainable and resilient legal aid market, where capacity meets demand. It is concerning that MoJ continues to lack an understanding of whether those eligible for legal aid can access it, particularly given available data, which suggest that access to legal aid may be worsening. Also concerning is its reactive approach to market sustainability issues. MoJ must take a more proactive approach and routinely seek early identification of emerging market sustainability issues, to ensure legal aid is available to all those who are eligible. Until then, it cannot demonstrate that it is meeting its core objectives and so securing value for money."

With regard to immigration law, the report notes that LASPO removed legal aid from all immigration cases except for asylum cases and a limited number of non-asylum cases such as immigration detention and applications for leave to remain where the individual is a victim of trafficking or domestic violence.

Among the NAO's recommendations is that the MoJ should focus on areas of stakeholder concerns including the impact of reductions in immigration advice on local authorities. Reductions in immigration legal aid under LASPO have transferred some costs to local authorities.

The report gives the following example showing how local authorities are being impacted by the lack of immigration advice: "A person who is subject to immigration control (as defined by the Immigration and Asylum Act 1999) is unable to claim most benefits, tax credits or housing assistance. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 reduced the scope of immigration cases covered by legal aid, meaning these individuals cannot access legal advice to help them change their immigration status. However, a local authority may still have a statutory duty to accommodate and support them. In 2021-22, there were 72 local councils using a national database for councils to record details of households with no recourse to public funds that were provided with accommodation and/or financial support by social services. Analysis of the 72 local councils' data found that collectively in 2021-22 they had provided accommodation and financial support to 3,423 households with no access to public funds, at a cost of £64 million. Respondents to a National Audit Office consultation reported that local authorities also pay for legal advice to help families or individuals change their immigration status so that they no longer have to support them. Academic research published in May 2023 found that at least 54 local authorities in England and Wales are funding or commissioning immigration legal advice in some form."

The NAO says the Government needs to establish the financial and other impacts on local authorities as a result of the cuts to immigration legal aid.

Concerns are also expressed by the NAO over the routine use of exceptional case funding for immigration cases.

The report notes: "In 2022-23, immigration cases accounted for two-thirds of applications for exceptional case funding, with an approval rate of 87%. This approval rate is significantly higher than the average for other categories of law at 46%. The most common type of immigration application is for legal help, such as for leave to remain where an absence of legal aid would breach the applicant's rights under Article 8 of the European Convention on Human Rights. […] The high approval rate for immigration applications suggests that these cases are routinely being funded via legal aid. This raises concerns about access to justice, as the exceptional case funding route is more difficult to access."

Immigration law gets several more mention in the report, including on future sustainability risks. The NAO comments: "In response to the Illegal Migration Act 2023, MoJ has committed to a fee increase of 15% for the specific areas of law covered by the Act to attract providers. Due to a shortage of qualified staff in the sector, MoJ expects that providers will deprioritise other immigration work to meet demand, contributing to existing capacity pressures. The number of immigration providers decreased from 208 in October 2018 to 147 in August 2023 (a decline of 29%) before partially recovering to 180 in October 2023. This was due to LAA's retendering of civil contracts in 2023, though it remains to be seen whether firm numbers will stabilise or continue to decline."

In response to the NAO's report, the Law Society issued a statement saying the report "lays bare the dire state of legal aid".

Richard Atkinson, the vice president of the Law Society, said the landmark report shines a light on the stringent and successive government cuts to legal aid alongside stagnant fees paid for expert advice provided by the remaining charities and small firms.

"The MoJ must ensure that access to legal aid – which is itself a core element of access to justice – is supported by a sustainable and resilient legal aid market … Our justice system can no longer be ignored and we urge the government to properly invest in our justice system so the public can have confidence in it," Atkinson added.

Dr Jo Wilding of the University of Sussex, who has written extensively on the lack of legal aid for immigration and asylum cases, said on X (formerly Twitter): "Thorough job by NAO on this legal aid review, noting shortages of advice, geographical advice deserts, providers unable to afford to do legal aid work, and [MoJ] failing to research unmet need (and citing my research). This combined with the PA Consulting report on the state of the civil legal aid sector and the Law Society's judicial review win on criminal legal aid in January make it very clear that the legal aid scheme has gone badly wrong and needs urgent funding and change."