What is the true impact of the virtual eradication of legal aid?

Article
Amanda Hamilton, CEO of National Association of Licensed Paralegals
Amanda Hamilton

In April 2013 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. This statute introduced funding cuts to legal aid, resulting in fewer consumers of legal services being able to gain access to advice and assistance.

The coalition government’s motivation behind introducing this was, amongst other reasons, to reduce the government spending on legal funding. It also wanted to discourage unnecessary litigation and to target only those consumers who are the most vulnerable.

However, ten years’ on, the fallout could be described as nothing short of catastrophic not least from an access to justice viewpoint, but also in respect of the consequential knock-on effect to the court and justice system generally.

Before LASPO was introduced, a consumer of legal services could access funding for most types of legal disputes. There has always been an element of ‘means’ testing as well as ‘merits’ of the case, but mostly, the majority of consumers were potentially eligible to access legal aid to some extent or other, on the understanding that some, if not all of the funding would be repaid over time.

In civil cases, since LASPO, there is no access to legal aid for:

  • Welfare benefit appeals
  • Debts (unless a debtor is being evicted from their home)
  • Housing (unless someone is being evicted, is homeless, there is serious disrepair, or because of action by the council as a result of anti-social behaviour)
  • Employment (unless discrimination)
  • Private Family Law issues (unless there is an element of domestic violence or child abuse)
  • Consumer or anything related to contract law
  • Clinical negligence
  • Claims in negligence for personal injury
  • Defamation
  • Small claims
  • The majority of cases heard in tribunals (unless it’s a Mental Health Tribunal or Immigration Appeal Tribunals)

Looking at this very long list there appears to be very few cases that would be eligible for funding. While the exceptions may assist those that appear to be most vulnerable, where does that leave consumers who do not fall under that ‘vulnerable’ category?

What are the current options for a non-vulnerable consumer?

The fees of solicitors are generally outside the financial scope for most consumers. With hourly rates being charged at anywhere between £250 – £600 plus an hour, these fees can only be affordable by those who are lucky enough to be in the top 1% of income earners in the country. Barristers’ fees on a direct access basis are only slightly better, usually charged at between £200 – £400 per hour but still outside the reach of most consumers.

There are a number of pro-bono organisations and law centres that can offer free legal advice and assistance but quite often, apart from Citizens’ Advice, few consumers know where to look for such help: for example, there is a website called Legal Choices which imparts information about the different legal professionals and where to find assistance.  Many Solicitors and Barristers also offer a percentage of their services on pro-bono basis.

Therefore, a person who, through no fault of their own, is being sued by another has to defend themselves or (in some cases) their property and is forced either to pay the high fees that lawyers charge, or cow-tow to their very rich opponent’s demands. How can this be construed as fair?

Other possible alternatives for a consumer include a CFA (conditional fee arrangement) with a solicitor who may be willing to take on a case on a ‘no win, no fee’ basis but even then, a solicitor has to be convinced that there is more than a 50% chance of winning the case. Also, ‘ATE’ (After the Event) Insurance which enables an individual to pursue a claim for personal injury and be assured that such an insurance policy offers financial protection should they have to pay their opponent’s and their own legal costs.

Since LASPO, consumers have had to rely heavily on free assistance from either pro-bono organisations or individual legal professionals offering pro-bono work (the numbers of which have grown heavily over the last 10 years). The latter puts a huge strain on the profession and surely must become unsustainable in the long term.

If a consumer is forced to go to court, another way they can do so at minimal cost is by representing themselves as a litigant in person (LIP). Statistics indicate that since LASPO was introduced, numbers of LIPs have increased and the percentage of consumers represented has decreased from 58% (in 2012/13) to 36% (in 2017/18).

The result of an increase in LIPs in civil cases means that the court has to spend more time ensuring that the proper information is imparted to a LIP so that she/he is not put at a disadvantage. There is also the ‘human rights’ aspect of being unable to afford representation against an opponent who can afford it. The knock-on effect is that court listings have been affected so badly that massive delays have become the norm rather than the exception.

LASPO has caused a huge gap in the accessibility of justice for most consumers. However, the growth of the Paralegal Sector means that this gap is being filled by Paralegal Professionals who can provide access to justice at a reasonable cost. Paralegals are trained and educated to perform legal tasks. They can, if they are NALP Members, gain a Licence to Practice after fulfilling the requisite criteria, which means they can offer legal services to consumers as paralegal practitioners. The only proviso to the work they can offer consumers is not to step over the boundary into offering reserved activities. These are reserved only for solicitors and barristers and details of such activities can be found online. Paralegal Practitioners may charge anywhere between £30-£80 per hour which is more within the range of most peoples’ pockets.

Has the reduction in legal funding actually discouraged unnecessary litigation?

A 2018 report about the impact of LASPO, found that the legislation has had the reverse effect of what it was supposed to have achieved, by preventing necessary litigation rather than discourage unnecessary litigation.

In response to the report into LASPO, the Chair of the Bar Council in 2018 was quoted as saying ‘LASPO has not just failed: it has caused untold damage to our justice system and access to justice’. There lies the truth. And yet no changes have been made.

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Amanda Hamilton, CEO of National Association of Licensed Paralegals
Amanda Hamilton

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