The inevitable family legal aid exodus

On 16 January 2013 the Law Society, Ministry of Justice and Legal Services Board jointly published a highly detailed and comprehensive baseline survey of 2,007 firms in England and Wales, representing almost one fifth ?of all firms.

At over 100 pages the survey is one ?of the largest of its kind. It covered a ?huge range of issues but I want to pull ?out those relevant to family legal aid and reflect on what this might mean for future practice and the delivery of family legal ?aid services.

As we all know, the forthcoming changes to legal aid through the LASPO Act will soon lead to a substantial reduction in the scope and eligibility of legal aid with private family law being the hardest hit. Together with the negative impacts of the ongoing recession and the structural changes within the market, many traditional practices face a turbulent future full of disruption and challenge.

Turnover and productivity down

But what do these statistics tell us? About ?a third (31 per cent) of all the firms surveyed undertook some form of legal aid practice in the years 2010-2011. There was a roughly equal divide between civil and criminal with about a quarter of firms undertaking both.

Only 17 per cent of new firms were doing legal aid compared to 35 per cent of established firms, although this could also be related to the lack of legal aid tender opportunities at the time.

Most legal aid practices were located in the north of England with legal aid firms less likely to be in London.

Of the firms undertaking legal aid, ?more than half had 50 per cent or more legal aid clients with over a quarter having in excess of 90 per cent of clients who were legally aided.

40 per cent of those firms with a very high proportion of legally aided clients reported more than 10 per cent reduction in turnover in the last 12 months. According to the survey, they also had 19 per cent lower productivity when compared with other firms.

80 per cent of the legal aid firms stated that they had faced a variety of problems over the last year compared to 48 per cent of other firms.

Withdrawal intentions

Looking to the future, 31 per cent of legal aid firms were considering withdrawing from one or more areas of legal aid in the next three years with the most significant being family law where the figure was a massive 45 per cent.

The lower the proportion of legal aid work undertaken in the firm, the more likely they were to consider withdrawal, with civil legal aid firms more likely to consider this than criminal.

Of those firms holding family law contracts, almost a third of those considering withdrawal had already started to do so and, interestingly, the figure was similar in relation to public as well as private family law. A further ?50-60 per cent were going to start the process in 2013.

So what can we understand from this information about the future of family legal aid services?

It is clear that legal aid practices have been under considerable pressure and that legal aid may not be an attractive area for new firms (or new entrants into the legal services market).

There are significant numbers of firms who are taking active steps to leave family legal aid (from public and private family law in equal measures) and many more who plan to do so this year. This is particularly apparent where family legal aid represents a small proportion of the firm's work.

You may be forgiven at this point for saying you know this already.

Supplier base consolidation

As true as that may be, I believe this new research is important. We now have a hugely authoritative body of benchmarking evidence which comprehensively underpins that which the representative bodies and legal aid practitioners have been saying for a very long time: the enactment of LASPO is likely to have significant and far-reaching consequences for the supply of family law legal aid in England and Wales.

The intention is to repeat this baseline survey to enable monitoring of changes in practice. Let us hope that the next one paints a rosier picture for the future of the legal aid services market.

My prediction is that there will not be any significant meddling with the 2013 contracts which will run their course until 2016. Post the next election, the government of the day will want to further radically overhaul the supply of civil and family legal aid. By that time, there will have been considerable consolidation of the supplier base with many firms merging or leaving family legal aid provision.

My hope is that those businesses remaining in legal aid will be funded to continue to deliver high quality services to the most vulnerable. In addition, I hope there will be a flourishing of innovative, diverse and accessible services.
While these will never amount to a replacement of legal aid, they should enable many members of the public who currently do not access legal advice and assistance to do so.

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