Legal aid – The stats demonstrate the problem

This week the Institute for Fiscal Studies published detail about the effects of LASPO 2012 (Legal Aid, Sentencing and Punishment of Offenders Act 2012) on the supply of legal aid.  For those of you with practices and/or readers of this blog, the depressing results will be familiar; but, when you see the data in its full glory, your heart will sink.  The report – Changes in the Provision of Civil Legal Aid in England and Wales – is written by Tom Burrows and Magdalena Dominguez.  They report that between 2013-17 Wales had the second largest drop off in legal aid by volume of cases and expenditure (-45% and -38.3% respectively).  We need to ask ourselves what is the point of making progressive law when it is unenforceable due to the lack of providers, let alone providers of housing advice.  The authors record (and this seemed new and interesting) that the number of providers was in decline before LASPO, but LASPO hastened the decline.  The IFS provide the headline figures.

More fine-grained evidence comes from an excellent paper in the most recent issue of the Journal of Law and Society* by Jo Wilding and Chris Emberson, “A geography of access to justice: mapping social welfare legal aid need and provision in England and Wales” (the full reference is (2026) 53(2) JLS 187-210).  This important paper is available open access (ie for free).  If you are interested in legal aid generally, housing legal aid, or mapping techniques, you should read it.  They combine geographic information system tools and interviews to map out access to legal aid providers.  Their broad finding is that, “lack of provision does not reflect lack of need, supporting the argument that market-structured legal aid provision alone is not (capable of) adapting to meet legal aid need and requires supplementing with a mixed model”.  Among their areas of interest, they have drilled down into housing legal aid (excluding homelessness and disrepair – because the former doesn’t necessarily show up in “housing” and the latter are often outside scope) and are concerned with legal aid shortages but focusing on the spatiality of providers.  One of their findings on housing legal aid is that: “There are few provider offices that are not surrounded by areas in the most deprived 20 per cent on the [index of multiple deprivation], which suggests that there would be little, if any, spare capacity for those in need who are more distant”.  Unless you are within their area, a provider is unlikely to have any spare capacity; even if you are in area, they may not be able to provide legal advice to you.  They note an issue over dormant and precarity of legal aid providers where there is only one specialist in an office, for example.  They draw a distinction between legal help (including duty desk advice) which has grown in absolute numbers, partly as a result of Welsh government funding to Shelter Cymru.  They opened all but seven of the 1470 legal help matters in 2022/23:

“Though there were criticisms from interviewees that this funding goes overwhelmingly to Shelter Cymru and Citizens Advice Cymru, starving other organizations of funding, it appears to have enabled an amount, and a geographical consistency, of Legal Help provision in Wales that is far above that in much of England.”

I’m going to quote the authors’ finding on civil representation extensively now because this is shocking:

“However, when we switch the map to show Civil Representation provision, almost all of Wales turns to grey, denoting zero cases in the year. The only part of Wales that has any Civil Representation provision is Neath Port Talbot and Swansea, with 47 cases. To put this into context, Civil Representation provision is needed to defend any housing possession case beyond the day of an initial hearing, to put in any counterclaim for rent arrears to be offset against disrepair in the accommodation, and to refute allegations of anti-social behaviour. Unless a notice seeking possession is dismissed as defective in court, the most that is usually achievable without defence or counterclaim is a suspended possession order.

“It may of course be that higher-level work for all of Wales is done from that single provider office, but this figure of 47 cases looks inadequate to meet all higher-level housing legal representation need in Wales. It appears that the Single Advice Fund is very effective at making lower-level representation available, and certainly at making that service more holistic, with legal caseworkers able to make internal referrals for debt and welfare benefits advice. However, it also appears to leave Wales with a severe shortage of specialist representation for higher courts, which our interviewees suggested is because almost all workers undertaking housing legal aid cases in Wales are non-lawyers.93 One interviewee listed several private firms that have surrendered housing legal aid contracts or closed their Welsh provider offices altogether, leaving the vast majority of Wales without qualified housing legal aid lawyers.94

“Yet according to another interviewee (in England), ‘[m]ost cases there will be a defence, so again that generates a lot of work and again we can’t take all of it on’.”

What we know is that housing problems are generally “clustered”.  They are not simply housing problems, but often involve welfare benefits, family, asylum and immigration, and debt advice.  This kind of provision is lacking.

Legal geographers ask the question, “where is law?”; and, in so doing, raise its spatiality.  If we might answer that question more literally, the data is telling us that there is law at crisis point but only rarely otherwise.  This must be one of the most pressing and under-recognised issues of this moment, and particularly in Wales.

* I should declare an interest as my job is part-funded by this Journal and I am on its editorial board.