Access to community care law
Lainey Gough considers the challenges in access to justice for vulnerable people
When demand for specialist legal advice is soaring, but there is a dramatic fall in the number of cases taken on, you know you have a problem. This is the very real and immediate challenge facing us in the community care sector.
In June, Access Social Care released its second annual State of the Nation report on social care in England and it is safe to say that it didn’t make for easy reading.
The report, which pulled together more than 74,000 pieces of data nationwide from ASC as well as Royal Mencap Society, Age UK, Carers UK, RNIB and Independent Age, reveals a desperate picture of the English social care system, with the massive and unsustainable rise in advice demand far outstripping available resources.
What’s the problem?
Shockingly, there was a 229 per cent increase in the number of calls into helplines about social care needs assessment enquiries 2021-22, compared to 2019-20, with the number of enquiries about existing social care and support rising by 43 per cent in the same period.
With regards to the legal picture, things were no better. The report showed that there was an 88 per cent increase in enquiries needing specialist legal advice in the year 2021/22, compared to 2019/20 – but at the same time, the numbers of cases which are being taken on by lawyers is falling sharply
There has been a 77 per cent drop in the number of cases – matter starts – in community care since 2010. This is certainly not due to the reduction in need – far from it – but clear and shocking evidence that the current legal aid system is not fit for purpose.
Community care is the area of legal aid practice for adults and children with disabilities, which advises on their rights to care and support when they cannot afford to pay for that advice themselves.
Helplines, while useful for providing advice and support, cannot fill the gap of providing specialist legal advice. There is a critical need for more ommunity care practitioners, but the stark reality is, this complex and vital area of law is a dying specialism.
The legal aid lacuna
Legal aid rates are low, which is particularly problematic for community care casework where cases often require significant amounts of work using Legal Help, which pays at the lowest rate of the various legal aid schemes.
Broadly speaking, Legal Help is paid as a fixed fee of £266, which funds 5.5 hours of work at £48.24 per hour outside London, or £52.65 per hour in London. If a case costs more than three times the fixed fee, costed at these hourly rates (which equates to around 16.5 hours work), it is said to escape the fixed fee and can then be paid at hourly rates in full. But, as one practitioner in our Community Care Legal Pathways report commented: ‘The fixed-fee funding system works against solicitors being prepared to take on the significant number of cases that could be resolved with approximately ten hours work.’
A fixed-fee scheme can only work financially if the fee has been set in a way which reflects the true cost of completing the Legal Help stages of work, and we do not believe this is the case.
Compounding the issue even further is the reality that most civil legal aid pay rates have not been increased since 1996 – and, in fact, were reduced by 10 per cent in October 2011.
So, in order for organisations with a legal aid contract to try and continue doing this work, they are having to restrict the number and type of new legal aid cases they take on, as a way of maintaining some level of service rather than jeopardise the financial running of their practice.
This is only serving to compound the problems for people with social care needs. Without expert legal advice, many people simply do not know their rights or how to fight for them. This means there is less incentive for public bodies to make better first instance decisions, or right any wrongs or gaps in service which come to light later on.
A brain drain
The problem in community care law isn’t just with the payment system but a chronic lack of lawyers in, or coming into, this sector. Awareness of community care law at student level is extremely low, with many law students simply not aware of this as an area of specialism.
After qualification, there are more barriers to working in this field. Legal aid practice generally is poorly remunerated. Younger practitioners increasingly find themselves making a choice between buying a home and starting a family and remaining in legal aid community care practice.
Burnout is a particular problem. Supporting clients in crisis who are so dependent on public services can be extremely stressful. The need to do so whilst working within the confines of legal aid and meeting high volume targets only adds to practitioner stress.
It is becoming increasingly difficult to retain and recruit experienced staff as supervisors, both because of the shortage of new practitioners coming into community care, and difficulties meeting the onerous supervisor standards, which have led to surreal circumstances where highly qualified lawyers are unable to mentor others.
Recommendations
All these factors have combined to create a perfect storm within the sector and urgent steps must be taken to fix this broken system. There needs to be a radical review of the way the legal aid scheme operates in a community care context. The underlying financial sustainability issues must be addressed to ensure that this area of practice survives and meets the very pressing need for specialist legal help for this client group.
There needs to be a greater awareness of community care as a rewarding and valuable career option within higher education, and greater support given to those working in this challenging sector.
We recommend that a strategic plan is developed to raise awareness of community care as a specialism in consultation with key stakeholders such as the Law Society, universities, student representative bodies, the Legal Aid Practitioners Group and Young Legal Aid Lawyers. This could include developing a social justice module for undergraduate and postgraduate law degrees, incorporating community care case studies into human rights and administrative law modules, and identifying how professional bodies could showcase practitioners in this area of law.
Currently, vital services are overstretched, and people are going without the necessary social care they so desperately need. With the impending cost of living crisis, an aging population and Local Authority budget cuts, the situation is only going to get worse. Something needs to change to bring about a social care system that is properly financed and readily available to those who need it, and it needs to happen fast, before the most vulnerable in our society are left to fend for themselves.
Lainey Gough is director of Operations and Impact at Access Social Care: http://www.accesscharity.org.uk
