Following PLP’s pre-action letter to the Lord Chancellor in September, the Lord Chancellor has told PLP that part of the solution to the shortage of legal advice in the South West is to encourage use of remote advice from a list of providers who have indicated they have capacity.  

Will this solve the problem? Can you share your insight on how this is working ? 

We are meeting with the Lord Chancellor on Monday 13 November where we will have the opportunity to communicate any insight and concerns you can share with us about this proposal. 

How can you help?

Please send any comments or reflections by Friday 10 November 2023 to Emma Vincent Miller at e.vincentmiller@publiclawproject.org.uk. Responses from organisations in the South West are particularly welcome!  

Background: Why did PLP initiate a challenge over the availability of legal aid? 

On 8 September 2023 PLP sent a pre-action letter to the Lord Chancellor, challenging his failure to make legal aid available for immigration and asylum issues.  

You can read more about the pre-action letter and our evidence about the crisis in the immigration legal aid sector here, including the research report, An Ocean of Unmet Need. 

Lord Chancellor’s reply denies ‘failure’ and offers ‘remote providers list’ 

In the Lord Chancellor’s response to PLP’s pre-action letter, he disagrees that he has failed to comply with his duty to make immigration and asylum legal aid available.   

While the Lord Chancellor does acknowledge that there is a shortage of legal aid advice in some areas, particularly the South West, he says he is taking steps to address this. He says the solution lies in matching unmet demand in the South West with excess supply elsewhere, via remote advice.   

To that end, the MoJ has published a ‘remote providers list’ on gov.uk, comprising immigration and asylum legal aid providers from elsewhere in England and Wales who have said they have capacity to take on clients in the South West who have been unable to secure advice locally.   

Other than the South West, the Lord Chancellor has not pointed to any other parts of the UK that he considers to have unmet demand.   

PLP: A ‘remote providers list’ is unlikely to solve the problem   

PLP wrote back to the Lord Chancellor on 2 November 2023 and explained why the remote providers list is unlikely to solve the problems raised in our pre-action letter.  

Drawing on research and insight from legal aid providers, we said in our reply:   

• Given the crisis in immigration legal aid is a nationwide problem, there is unlikely to be supply elsewhere to plug the gaps in the South West. 
• A remote providers list has been tried before – albeit it was not published on gov.uk – and it did not solve the problems in the South West.  
• We asked how this time would be different. We also asked how the process would be monitored, to see whether it was working.  
• Remote advice provision is not a universal solution and is unsuitable for those who need face-to-face advice due to their vulnerabilities or the nature of their case.   
• We raised concerns on behalf of immigration providers in the South West that the remote providers list could have a counterproductive effect. For example, out of area providers could ‘cherry pick’ the most profitable cases, making things even more difficult for local providers.
• We queried why South West providers were not consulted on the list proposal and indeed any alternative options, such as providing additional renumeration.   

How you can help 

We are meeting with the Ministry of Justice about these issues on Monday 13 November 2023.   

If you have any concerns you would like us to raise, we would like to hear from you. You may be able to supplement or expand on the points we have already raised based on your experiences. Response from organisations in the South West are particularly welcome. 

Please send any comments, concerns or reflections by Friday 10 November 2023 to Emma Vincent Miller at e.vincentmiller@publiclawproject.org.uk  

We thank you hugely for your time and support.   

Read our correspondence with the Lord Chancellor so far: 

• PLP’s pre-action letter of 8 September
• Government response of 24 October
• PLP’s response of 2 November

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This response does not address fundamental and on-going sustainability issues in legal aid. Some of the changes outlined in the response are welcome, but the long implementation period, lack of regular review, and failure to tackle sustainability mean that access justice – for too many people – will remain out of reach.

Income test

It’s good news that the Ministry of Justice (MoJ) is making the income test more realistic: the income thresholds are being raised; the ‘single person housing cap’ is being removed; and debt payments will be capable of being deducted in the income test. Another welcome change in this area is that the disregard for backdated benefits payments will be mandatory (if received within 24 months) rather than discretionary.

The MoJ has listened to evidence about ensuring the additional costs faced by lone parents are taken into account. However, in light of high inflation, the MoJ needs to make sure these thresholds are not left to lag behind. They have committed to reviewing in ‘no later than 5 years’ but it is concerning that there is no concrete commitment to actually uprating the thresholds if it is necessary to do so.

Universal Credit passporting

It is regretful that the MoJ has not taken on board the significant criticism of their Universal Credit (UC) passporting proposals. 88% of respondents disagreed that the MoJ should remove benefit passporting for those earning more than £500 per month on UC. A requirement to means assess clients going forward will increase significant administrative burdens already placed on the dwindling pool of legal aid lawyers. The MoJ could have agreed to pay providers to carry out this additional work, and it is unfortunate that they have not.

Trapped capital

The MoJ’s trapped capital proposals are a positive development in that they have done away with the idea of introducing a system which would have burdened people – many of them women with children – with a charge on their home in return for accessing legal aid. The idea was that when their property came to be sold, the Legal Aid Agency would have been able to claw back money from the individual, potentially years after the conclusion of the legal matter. It is good news that the MoJ has listened to concerns raised by consultees and are proceeding with an amended version of this proposal which could have a positive impact.

“Investment” of £25 million

The introduction to the consultation response claims that a £25 million investment will increase eligibility for legal aid in civil and criminal matters.

This claim should, however, be treated with caution; it is based on the assumption that legal aid providers will take more cases, which may not happen if they have no capacity and if legal aid rates remain too low for them to expand their practices. The additional funding would mainly come from legal help cases, which providers in many areas of law widely consider loss making.

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The declaration came through a judicial review brought by PLP on behalf of our client who was made homeless last year when he returned home from staying with a friend to find that his landlord had changed the locks. 

As a result of the legal challenge, the Council agreed to:  

• Pursue a prosecution against our client’s former landlord  
• Resource itself to investigate unlawful evictions  
• Develop policy to follow when a tenant is unlawfully evicted 

After our client found himself homeless, his advisor at the Speakeasy  Law Centre asked the Council to investigate and consider prosecuting the landlord, but the Council did not do so as it had no specialism in the housing team to do so. 

During judicial review proceedings, Cardiff Council disclosed that it had not used its powers of prosecution under the Protection from Eviction Act 1977 in the last 10 years. 

Matthew Court, PLP’s lawyer in the case told Rebecca Wilks at Voice.Wales: 

“Cardiff Council has a power under Section 6 of the Protection from Eviction Act 1977 to bring proceedings against people that have committed offences under that Act. 

“Our case was that they hadn’t even considered exercising this power, that they just basically told the client to go elsewhere – go to Shelter Cymru, or go to the police – and that was unlawful. 

“If the council had considered the situation at all, and decided that, on the facts, they weren’t going to prosecute on this occasion – that would potentially be lawful. 

“But they weren’t even considering the circumstances of the client’s case – or anybody’s case. 

“I’d hope this outcome has a significant impact because the council now has the resources to consider prosecutions, and they’ve also produced a policy on what the council should do when faced with unlawful evictions, so that housing officers know what steps they should take. 

“Hopefully this will act as a deterrent – it’s a huge deterrent if a landlord knows that the local authority could potentially take them to court if they illegally evict or harass a tenant.” 

The client was represented by Owain Rhys James of Civitas Chambers, and supporting evidence for the case was provided thanks to Shelter Cymru and the Speakeasy Law Centre. 

Find out more about our work in Wales

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