Will Bordell
by Will Bordell

This article was originally published by The Justice Gap.

A leading judicial oversight body has made ‘the economic case’ for increased public funding for early legal advice, voicing concerns about the survival of providers in the legal aid sector. In a report published just before Christmas, the Civil Justice Council was responding to the government’s call for submissions as part of a wider review of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.

‘Whilst financial pressures are understood,’ the CJC said, ‘access to justice is of course a constitutional right.’ It went on to suggest that cuts to legal aid for social welfare cases, for example, ‘can store up further problems and costs to the taxpayer’. The CJC is an independent body chaired by Sir Terence Etherton, the current Master of the Rolls.

The report expressed concerns about sustainability of providers of legal aid advice, who are ‘being squeezed from all directions’ even as ‘citizen demand for support is increasing’. Funding cuts have caused many Law Centres and similar agencies to close, creating legal advice deserts in some parts of the UK. According to the CJC, investing in early legal advice ‘would help make legal aid provision more viable for practitioners’ as well as more useful to people seeking advice.

A recent Law Society review discovered that almost one-third of areas in England and Wales had no more than one legal aid provider, and the CJC is further concerned by demographic change, commenting that ‘many experts in this field will be retiring in the next five years’. ‘There is a real risk’, the report suggests, ‘of advice deserts expanding rapidly outside all but the largest conurbations.’

Pro bono services are trying to pick up the slack but are ‘in danger of being overwhelmed’. ‘Those in the frontline report turning away the majority of those seeking help,’ the report continues, ‘which begs the question of what is happening to these people.’

The report argued in particular that the removal of early advice provisions from the scope of legal aid funding has had negative consequences. With housing benefit issues and debt advice now out of scope, rent arrears cases have been further complicated.

In combination with the fact that two months’ worth of rent arrears gives many landlords mandatory grounds for possession, people can lose their homes before they have had the chance to get legal advice or bring a claim. Legal aid work in this area, the report added, could allow people to ‘remove or reduce the arrears to provide a defence to the claim’.

Calling for more ‘creative’ usage of exceptional case funding, the CJC argued that the scheme could be used to ‘finance test cases that affect many claimants/defendants’ or support ‘families affected by major public incidents’. The exceptional case funding scheme was set up to help people whose human rights or EU rights would be breached without legal aid. Whilst the government anticipated that the scheme would fund 6,500 cases per year, only 1,420 cases received a grant in 2017/18.

After missing its deadline at the end of 2018, the Ministry of Justice has said that its review of LASPO will be published in early 2019.