By Dr Sarah Moore, Lecturer in Sociology (Department of Social and Policy Sciences, University of Bath).
The Law School blog has the pleasure of welcoming this guest post by Dr Sarah Moore, who was one of the participants in the recent book launch of Advising in Austerity. Reflections on challenging times for advice agencies (Policy Press, 2017). Dr Moore is also the co-author of Legal aid in crisis. Assessing the impact of reform (Policy Press, 2017) and offers here her insightful views on the need to boost the activities and funding of the legal advice sector.
Anyone familiar with legal aid reform will know that the Legal Aid and Sentencing of Offenders Act 2012 (LASPO) has dramatically altered the meaning and nature of legal aid. It has meant, amongst other things, a significant reduction in funding, largely achieved by taking a large number of areas of civil law out of scope, including private family law cases, and almost all cases involving social welfare, housing, medical negligence, immigration, debt, and employment.
The most strenuous critics of LASPO have pointed out that the recent funding cuts restrict people’s access to justice. In answering to these problems, LASPO incorporated a set of exceptions. Those who could provide evidence that they had been victims of domestic violence, for example, were to be given access to legal aid to pursue family law cases. And an Exceptional Case Funding caveat was incorporated in the Act for those who could successfully make a case that their human rights would be breached without publicly-funded legal assistance. Both have been woefully inadequate.
Research led by Rights of Women indicates that, even after the government relaxed the rules on domestic violence evidence and legal aid eligibility, a significant proportion of female victims (38% in their 2014 survey) did not have the mandatory evidence to receive publically-funded support. And the Exceptional Case Funding (ECF) scheme has been a disaster by anyone’s standards. In the first year post-LASPO, the Legal Aid Agency received only 1,520 applications for ECF. According to the Public Accounts Committee, only 69 were granted funding. That is far, far fewer than the Ministry of Justice and Legal Aid Agency had predicted in the post-LASPO period. Applications have picked up in the last year, as has the acceptance rate, but the fact remains that this safety net is sorely under-used.
Assessing the impact of LASPO
In assessing the impact of LASPO, academics and policy-makers have tended to focus on the impact of reform on the courtroom and litigation. There is certainly much to talk about here. Funding for civil representation and litigation now stands at about two-thirds of its pre-LASPO level, and this has led, amongst other things, to a steep rise in people representing themselves in the courtroom, so-called litigants in person.
All this has been well-documented, not least of all by Trinder et al’s (2014) excellent review of the difficulties faced by litigants in person in family law courts. What has received less attention is the steep decrease in funding for legal advice, with government funding for this form of support now at around one third of its pre-LASPO level. That is a staggeringly sharp decline in a four year period, one that even took the Legal Aid Agency and Ministry of Justice by surprise. This cut to funding has led to a radical change in the landscape of legal advice by prompting the closure of Law Centres, solicitors’ firms where legal aid was previously bread-and-butter work, and, of course, organisations in the advice sector.
The role of the advice sector post-LASPO
What does all this mean for the advice sector, and how might we start to think about the distinctive value of these organisations in a post-LASPO world? For one thing, the steep decline in state funding for legal advice has had the dual-effect of decreasing advice agencies’ budgets and increasing the unmet need for sources of support. And, as mentioned earlier, legal advice has been particularly hit by the cuts, making need for this support especially acute. It is therefore no surprise that, post-LASPO, the advice sector has played a crucial role in plugging the gap in legal support, even whilst it has undergone its own funding struggles.
The value of the advice sector post-LASPO also lies in its role in signposting people to exceptional case funding and, where capacity allows, supporting people in making applications. If LASPO’s exceptions and special provisions are to work, there needs to be support for people to make an application — people, it bears repeating, who are particularly vulnerable and ill-equipped for legal dispute. This lack of support is the principle reason for the failure of the Exceptional Case Funding caveat, and, as a set of organisations that tend already to have contact with the most vulnerable members of our society, the advice sector is potentially key to improving the take-up of this funding and thereby providing access to justice.
Lastly, the advice sector has a valuable role to play in improving public knowledge about eligibility rules for legal aid. Year on year post-LASPO, there has been a drop in casework for civil legal aid work. That downward spiral is not due to a decline in need. It reflects, amongst other things, the public’s understandable confusion about eligibility, and the presumption that legal aid no longer exists — that, at least, is the explanation offered by the House of Commons Justice Committee. And, again, as the advice sector necessarily plays a key role here in informing the public about what is available.
Advice as access to justice
The advice sector can play a really important role, then, in mitigating the effect of LASPO and making real its promise to offer a safety net. It can only do that with proper funding and support, and that requires a major shift in public debate so that the role of advice in ensuring access to justice is recognised. Herein lies a major challenge for the advice sector. Advising people on legal matters (or matters that have a legal dimension) is crucial work; it is also poorly-understood (in academic and policy terms) and relatively neglected in mainstream media coverage of legal aid cuts. This is despite the fact that public need for advice is growing as we enter a seventh year of ‘austerity’.
As we restrict people’s access to state services and welfare, people’s legal needs become more multifaceted and interwoven with social and psychological problems, as the accounts in Advising in Austerity (Kirwan, 2017) so neatly illustrate. The young woman seeking advice on an illegal eviction may also be managing a cut to her benefits, her employment may have become more erratic, and the public services in her local area may have deteriorated. This is what austerity means ‘in the round’, and it is just such a holistic conception of need that the advice sector is well-able to attend to, with its distinctive ability to provide advice on legal matters and information about broader social services. And, of course, in doing this important work, advice agencies do more than simply fill an information gap; they help explain official rules and decisions, often to people who are especially prone to feeling like they’ve been left behind and let down by social authorities. This, too, is what access to justice looks like. Making this case is all the more important in a post-LASPO era.