Legal Update: Legal aid changes

The system of legal aid, introduced in 1949 through The Legal Aid and Advice Act, is an extension of the welfare state which aims to ensure that those with insubstantial means and resources can still receive legal advice and/or representation. This is predicated on the notion that every person should have equal protection under the law, regardless of financial position or status, and be able to seek legal redress and hold decision-makers accountable.

Coram Children's Legal Centre's (CCLC) Legal Practice conducts specialist and complex casework for children, young people and their carers, generally funded through legal aid, in the areas of family, education, community care and immigration and asylum law.

Effect of LASPO

Over the past decade, CCLC has witnessed the devastating impact on access to justice for children, young people and their carers since the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) was introduced in April 2013. A CCLC report published in 2018, Rights without Remedies: Legal Aid and Access to Justice for Children, estimated that at least 6,000 child claimants a year were left without access to free legal advice and representation in many areas of civil law. Some estimates were as high as 15,000 or more, since official figures did not count children within families. The report concluded that over the first five years since LASPO, the removal of most of family, immigration and education law from the scope of legal aid caused thousands of miscarriages of justice that led to the breakup of families, the costly and often unlawful exclusion of children from education, and widespread destitution and exploitation among migrant families.

LASPO significantly altered the civil legal aid landscape and CCLC felt the immediate impact with the increased demand in CCLC's grant-funded early advice services, The Migrant Children's Project advice line and the Child Law Advice Service (CLAS). The volume of calls to CLAS almost doubled in the year following the introduction of LASPO. Although CLAS has increased its capacity by 240 per cent since 2012, through the use of volunteers, provision has not been able to keep up with the scale of the increased demand. In addition to its London- and Colchester-based teams, CCLC has expanded with an office in Leeds but attempts to fill the legal aid gaps, such as pro bono and grant-funded work, are only ever going to be piecemeal and a form of firefighting when compared to a properly funded legal aid system.

Review of civil legal aid

There have been some recent positive decisions with the reintroduction of legal aid for immigration and nationality law for unaccompanied and separated children in care in 2020, an issue which CCLC had spent several years campaigning for. However, the civil legal aid system is still in urgent need of reform. The government recently announced that it will be undertaking a review of civil legal aid. The review will consider the civil legal aid system in its entirety; from how services are procured, how well the current system works for users and how civil legal aid impacts the wider justice system. There are several issues with the current system that require serious consideration:

The Law Society has highlighted the problem of legal aid “advice deserts” for housing and community care, highlighting that more than 37 million people in England and Wales live in a local authority area without a single community care legal aid provider and 78 per cent of local authorities do not have a single community care legal aid provider.

There are concerns about the reduction in legal aid providers. There were 49 providers in 2012 for education matters. This had reduced to 24 when the justice committee reviewed the matter in 2014. There are now only two education legal aid providers, one of which is CCLC.

A rigid system of fixed fees and low pay means that firms specialising in legal aid are struggling. Legal aid rates of pay have made relatively small areas of law, such as education law, financially unviable unless this legal aid work is heavily subsidised by private practice or charitable funding. There are no guarantees that such a business model is sustainable.

We continue to see significant gaps in provision in areas impacting significantly on children's lives. Legal aid covers preparation for education appeals in the SEND Tribunals but does not fund representation at the hearings themselves, while school exclusion is outside the scope of legal aid. There is no legal aid for children to be independently represented in pre-proceedings matters where the local authority is considering commencing care proceedings. Care leavers are not automatically entitled to legal aid for immigration applications and other immigration cases concerning children such as family reunion remain outside of scope.

We welcome the upcoming government review of civil legal aid as well as changes making legal aid for kinship carers more readily available. But based on the government's response to the recommendations contained in the criminal legal aid review, we are doubtful that it will lead to any meaningful improvements.

• childlawadvice.org.uk