Lime Legal

Mind over matters

Published 10 March 2024

Housing lawyers are up in arms about legal aid contracts – but other changes could have just as big an impact, argues Simon Pugh

ROOF readers will be aware of the debate about the Legal Services Commission’s proposals for retendering legal aid contracts. Housing lawyers are rightly concerned about the effect the proposals are likely to have on their organisations and clients.

But retendering is not the only issue that will have an impact. A major worry is the shortage of matter starts. As might be expected in a recession, demand for legal advice, particularly in social welfare, is rapidly increasing.

But suppliers of legal aid are limited in the numbers of matters they can start in a year. Many are over-using their allocation and risk running out before year end in March. The Legal Services Commission is looking to redistribute matters from those under-using their allocation to those over-running, but the process is slow and will not necessarily match availability of matters to local need.

Reports suggest that providers who have run out of matters have been refused increases, and others have had their allocation reduced to lower than sustainable levels. The fundamental problem seems to be that demand is higher – and increasing faster – than was predicted when this year’s legal help budget was set, and as a result there aren’t enough matter starts to go round.

Late last year, the Ministry of Justice released two consultations, Legal Aid Funding Reforms and Refocusing on Priority Cases. Both contain a wide range of proposals covering civil and criminal work, some of which will have a big impact on housing practitioners.

The key non-criminal proposal in the Funding Reforms paper is to cap payments to expert witnesses by prescribing a range of fixed fees or maximum hourly rates for different specialisms. In many cases, the rates proposed are substantially below those routinely charged by experts.

Whether and when this reform will be introduced is uncertain. In recent years, the Legal Services Commission has tried and failed several times to deal with spiralling expert costs, and this time the consultation received a large number of responses. The ministry’s decision has been delayed.

Shelter’s view is that, in principle, experts should not be exempt from cost control, particularly at a time of tight budgets, but that a good expert witness can be crucial to winning a case, and the proposals risk diminishing the already small pool of experts willing to do legal aid work.

The Refocusing proposals have proved particularly controversial and no decision has been made on whether to implement them. The consultation paper suggests that the total cost savings from the proposals would be relatively small, but the tone is worrying.

Of particular concern are the removal of the right to legal aid from clients without a right of residence, and removing the power for lawyers to grant emergency legal aid in judicial review cases. Although both proposals have exceptions for housing work, the terms of the exceptions are not clearly defined and do not appear to cover all housing cases, just those involving homelessness.

Therefore, the first would create a whole class of people who can no longer enforce their legal and human rights, which is a very dangerous step to take. The second would create delay – instead of lawyers being able to self-grant legal aid in an emergency, they would have to apply to the Legal Services Commission – and risk leaving vulnerable people longer in bad or dangerous housing.

The legal press has focused on the substance and the damaging effects the proposals would have. Less remarked, but equally concerning, is the quality of policy making revealed by the consultation paper. It is poorly drafted, the evidence base for the proposals is thin, in places non-existent, and the commentary in the impact assessment in places flatly contradicts the substantive proposals.

The ministry has said that responses to the consultation have ‘raised issues which require further consideration’ and has therefore delayed its response, but it would have been better to have published properly considered proposals in the first place.

This is a matter that Sir Ian Magee may wish to consider as part of his legal aid review into policy, accountability and effective management of legal aid, including the future relationship between the Legal Services Commission and the ministry.

The most welcome part of his review is consideration of separation of the civil and criminal legal aid budgets, a long overdue reform that would have prevented expanding criminal expenditure swallowing an ever-increasing proportion of the overall legal aid budget, squeezing civil and particularly social welfare spending in
the process.

When his report will be made public is not yet clear, but it is just one of the things that will make the next few months an interesting time for legal aid.

Simon Pugh is head of legal services at Shelter and co-author with Vicky Ling of Making Legal Aid Work (Legal Action Group).