Coram Children's Legal Centre's Marianne Lagrue summarises government proposals to raise fee rates for civil legal aid in housing and immigration cases and what it means for children's social workers
There has historically been a strong legal framework for the protection and support of children and young people in England and Wales. The legal aid system, introduced in 1949, was based on the belief that every person should have equal protection under the law, regardless of financial position or status. However, in the past few decades we have seen significant attacks to the legal aid system, and it has become increasingly difficult for children and young people to receive legal advice and representation on several legal issues.
One group of children and young people who have particularly struggled to make their right to legal advice and representation a reality is asylum seekers, including unaccompanied asylum-seeking children in care. Despite having an entitlement to legally aided representation, as many as half of all asylum seekers were unable to find a legal aid firm which had the capacity to represent them in their initial asylum claim or appeal last year. This has put children's services departments under enormous pressure. Social workers and personal advisers have been forced to support children and young people whose lack of representation made them extremely vulnerable to miscarriages of justice and whose lack of information and help was a compounding factor in existing trauma. Children's services’ budgets were also having to be used to pay private firms to represent children to avoid those miscarriages of justice, when the legal advice and representation should by matter of entitlement have been free at the point of access.
Review of Civil Legal Aid
The Ministry of Justice was repeatedly informed of this crisis in the legal aid market, including through the extensive evidence provided in response to the Review of Civil Legal Aid, begun under the previous Conservative government. Much of this review is ongoing, with many questions about the future of legal aid still to be answered.
Across most areas of civil legal aid, fees have remained the same since 1996 – a real-terms cut of 48%. For many years, civil legal aid providers have done their best to meet the needs of traumatised and vulnerable people in an environment of rising costs, high demand and an ever-shrinking pool of providers. This was leading to many charities, organisations and businesses being unable to deliver the UK's civil legal aid system despite being staffed by legal professionals deeply committed to the principle of access to justice for all. Legal aid availability is crucial for children to realise their rights – it allows them to get legal advice for free in vital areas such as asylum, immigration, care and housing.
However, moderate change is now on the horizon. Last November, the Lord Chancellor announced a long overdue increase to civil legal aid rates in the areas of immigration and asylum and housing law. This was on the basis that while a comprehensive approach to the civil legal aid system is certainly needed across all areas of law, there needed to be an increase in fees to alleviate pressures on the civil legal aid system. They have proposed increasing “preparation and attendance” fees to a minimum hourly rate of £65.35 (£69.30 in London). The level of fee increase varies, but across the field of immigration and asylum it equates to roughly a 30% increase on previous levels.
While the increase in civil legal aid rates is welcome and may have a tangible impact on legal aid availability, it is not yet clear when the changes will come into effect. There are still significant problems within the legal aid system that need to be tackled. For example, over the past decade many providers have closed their doors, and the ever-lower numbers of legal aid providers have meant that there are many fewer new specialists in this area of law than there were 10 years ago.
Consultation on civil legal aid fees
In January, the government launched a consultation on civil legal aid fee increases for housing (housing and debt) and immigration (immigration and asylum) work. They acknowledged the wider issues affecting the future of the legal aid system, including recruitment and retention, administrative burdens on providers, and users awareness of civil legal aid. Although the consultation is aimed primarily at legal aid providers and the wider legal sector, a social work perspective demonstrating the negative impact the market crisis has had on children in the care of children's services is also deeply necessary.
For social workers supporting children, young people and families, the easy availability of quality legal advice and representation is crucial to resolving issues in several areas, whether for immigration applications, community care law or housing issues. We have seen particular problems with finding an immigration adviser for asylum appeals and for children with an immigration, as opposed to an asylum, case. We would encourage social workers and other professionals to highlight the issues they have obtaining legal advice and representation for those that they support, so that this fee increase can be part of a meaningful programme of change leading to a legal aid system which makes children's access to justice a reality.
