MoJ: Policy reform and funding increases needed
The Ministry of Justice is at risk of not meeting its statutory duty for civil legal aid to deliver access to justice, according to research it commissioned.
It said the market may already not be fulfilling current demand and its sustainability would only worsen without “policy reform and targeted funding increases”.
PA Consulting continued: “Given that the effects of policy measures often take time to appear, and replacing experienced staff who are likely to leave the profession also takes time, there is an urgent need to address the challenges that the sector is facing.”
The study was published on Friday as the Ministry of Justice announced 10% fee increases for housing, debt, immigration and asylum work – the areas of practice most under pressure, according to PA – and possible increases next year for the other areas where legal aid is available.
While this was the first increase since 1996, it only largely undoes the 10% cut made after LASPO was implemented in 2013.
PA Consulting was asked to review the market as part of the MoJ’s review of civil legal aid’s economic analysis.
The company gathered evidence from a literature review, data analysis, workshops and “wide-reaching” stakeholder discussions, including two barrister roundtables, and a survey of civil legal aid providers.
The results of the last of these were published earlier this year, showing that 45% of providers reported making a profit from the work and 33% a loss, with 22% breaking even.
The new 198-page report said that, without government intervention, “we expect demand for civil legal aid to moderately increase over the next 5-10 years, with supply continuing to contract”.
It went on: “The pain points and disincentives in the market relating to the availability of skills/talent, fees and profitability are likely to all drive a continued contraction in provider numbers and offices.
“This is likely to make it more challenging for end users to access civil legal aid services, which may compromise the Ministry of Justice’s statutory duty for civil legal aid to deliver access to justice.”
Without action, PA said, providers would become “even more burdened”, and more members of the public would experience challenges accessing civil legal aid services.
“It could also feasibly see variations in geographic coverage of legal aid providers widening, making challenges accessing civil legal aid more acute in certain areas.
“Our analysis suggests that the civil legal aid market may only become sustainable in the long-term with substantial interventions on the underlying problems providers are experiencing – uprating fee levels to more closely align with costs, a commercial and regulatory framework that allows higher profitability to be achieved by providers and a sustained focus on bolstering the workforce.”
The main way the market has adjusted to maintain provision was through higher caseloads – with caseloads increasing in seven of 11 categories of law since 2010-11 – which was unlikely to be sustainable given that half of providers reported very high or overwhelming demand, the report said.
The number of civil legal aid providers has fallen by around 40% since 2011-12.
Alongside fee levels, “which are unlikely to be covering provider costs in most categories of law”, the report said policy development should examine increasing the opportunity to recover costs at inter partes rates, fee structures and the coverage of fees, with providers reporting a sizeable proportion of their civil legal aid work is unbillable.
The MoJ needed to “shape a market and work-environment that is more conducive to building a high-quality civil legal aid workforce”, given that it was progressively becoming a less attractive career option compared with other legal services, “despite the motivation of tackling disadvantage and extending access to justice that applies to many prospective and current practitioners”.
PA also urged the MoJ to reduce the disincentives in the system. “Administrative burdens are considered to be high by practitioners, with complex arrangements to satisfy in order to get paid, such as the 288 different fee types and rates applicable across civil legal aid.
“This is exacerbated by reported frustrations in interacting with [Legal Aid Agency’s] IT systems and decision-making.”
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