BY DR JO WILDING
Latest figures reveal that for the first time there was a net decline in the number of immigration and asylum legal aid providers in the September 2024 commencement of new contracts, despite the gulf between need and provision continuing to grow. Dr Jo Wilding, Researcher and Senior Lecturer in Law at the University of Sussex, unpicks the figures and explains why the current legal aid contract structure is no longer fit for purpose and should be demarketised as a matter of urgency.
The Deficit
The deficit between asylum legal aid provision and need in England and Wales continues to grow. At least 54,555 people, or 57% of main applicants (excluding dependants) claiming asylum or appealing a refusal in the First-tier Tribunal are now unable to access a legal aid representative. As shown in the table below, this deficit has grown every year since 2020 (when I began calculating it).
| Year | Deficit (number) | Deficit (percentage) |
| 2020-21 | 6,245 | 17% |
| 2021-22 | 25,000 | 40% |
| 2022-23 | 37,450 | 51% |
| 2023-24 | 54,555 | 57% |
I calculate the deficit by comparing the number of ‘matter starts’ reported in the year by all immigration and asylum providers in England and Wales with the number of instances of clearly eligible need, subtracting those accommodated in Scotland and Northern Ireland. In the past, a matter start would cover both the application and the appeal, converting from Legal Help to Controlled Legal Representation without the need for a new matter to be opened. Since 1 April 2023, these are two separate matter starts. That means that although the number of matter starts appears to have increased quite significantly (by 17%), from 35,646 in the year ending August 2023 to 41,682 in the year ending March 2024, the change in the method of counting accounts for this apparent increase.
The total provision in the year ending March 2024 was 41,682 Legal Help (which appears to also include Controlled Legal Representation) matter starts.
There were:
- 75,658 asylum applications by main applicants in the year ending June 2024 (of whom 91.8% or 69,545
are accommodated in England and Wales), and - 29,172 asylum appeals received at the First Tier Tribunal in 2023-24 (of whom we can assume 91.8%
or 26,780 are accommodated in England and Wales).
Accordingly, there were 96,235 total instances of eligible asylum need (for asylum applications and appeals only, not settlement etc.) in England and Wales.
Therefore, legal aid provision in England and Wales was 43% of the total legal aid need in asylum applications and appeals, and the deficit was at least 57%.
The Fall in Providers
Ever since the Carter review of legal aid and the ‘market-based’ reforms which began in 2006, there has been a ‘boom and bust’ cycle in immigration and asylum legal aid: provider office numbers increase at each new round of contracts and then immediately begin to fall quite significantly. Each time, this has enabled the Legal Aid Agency (or its predecessors) to argue that the terms of the contract must be satisfactory because organisations continue to bid for work each time there is a tender.
Not this year. In the September 2024 commencement of new contracts, for the first time, there has been no increase in overall immigration and asylum office numbers at the time of a new contract. There was a net decline rather than an increase in the Directory of legal aid providers between August 2024 (prior to the new contracts) and October 2024 (after the new contracts), from 226 to 222 offices.
There were 50 new provider offices, but 54 offices closed or exited the legal aid category, making a net loss of four. Another two offices relocated from one Access Point to another. The loss column includes some offices which still hold a contract but the contract is suspended because they have no supervising caseworker – or indeed no casework staff at all – highlighting the severe recruitment and retention crisis which is affecting the entire sector.
There was a ‘mini-tender’ a year earlier, which allowed new organisations to bid for contracts which became operational in September. That yielded a net gain of 41 offices but that has been largely lost in just a year, with the current total only ten more than before the 2023 round.
That also means there is a lot of churn as potentially more experienced firms are replaced by inexperienced ones, many of whom intend to start small or indeed to remain small. I’ve talked to several of the new contract holders from the 2023 and 2024 rounds and, aside from recruitment difficulties, several of them are small one or two person organisations who wanted contracts to be able to take on low volumes of cases of very specific types. Others are support organisations which took on contracts in desperation after being unable to refer their clients to legal aid lawyers. Several relied on external supervision to be able to take up their contracts. Other organisations (we don’t yet know how many) have been denied a contract because of a delay in obtaining the Specialist Quality Mark accreditation.
It also means that some local areas have experienced very significant change, either losing provision or apparently gaining several new offices. The real effects of this will not be fully clear until a year’s time when the first 12 months of matter start data becomes available. As an example, one firm opened a second office in a new area in the 2023 contract round. I noted then that the firm did not appear to have any additional staff on the register and its existing staff remained registered at the original office. By the October 2024 spreadsheet, the original office was gone from the spreadsheet, indicating that they had in reality shifted their operations to the new office, rather than increasing capacity to cover two areas. This has left the city of their original office without any legal aid provision.
In total, the 222 offices in October 2024 represented 156 organisations. The 50 new offices represent 38 organisations, of which 27 are either new organisations or returners – firms which previously had contracts but had them suspended at the time of the previous spreadsheet. The other 23 new offices are additional offices of existing provider organisations.
Practitioners have expressed concern about the reality of some of these new offices. One organisation, for example, has apparently opened several new offices, mostly in areas of advice shortage and mostly in serviced office buildings of the kind where members can rent office space by the hour or the day. The Law Society, IAAS and OISC registers indicate that some of these firms have roughly one-third as many qualified staff as they have contracts (and some of those staff are associates). The implication is that they intend to have only the most skeletal presence in most or all of the new areas – despite having a total matter start allocation in the multiple thousands! We have, of course, seen this before, when firms held contracts for similarly transient offices in multiple areas, most of which opened few or no legal aid matters, and subsequently closed. Perhaps even more frightening is the possibility that such a firm would actually intend to open that many matters starts with so few staff!
The timing of contract tenders also serves to exclude organisations which want to do legal aid work. In an area in which there was only one small provider for the entire Access Point, another firm twice requested a contract in the years between the 2018 and 2023 tenders and was refused on the basis that they should wait for the next tender. The firm had a supervising solicitor in place and already had contracts in other categories. It finally obtained a contract in the 2023 tender, but by then it had lost its supervisor to another organisation (in a different area) which did have a legal aid contract. It was then unable to recruit a replacement supervisor and had to rely on supervision from another office, meaning it could undertake far less legal aid work.
The Solution
The latest contract round, like its predecessors, demonstrates why the current contract structure is so unsuited for legal aid. These are not genuine and functional contract tenders where firms bid competitively for an amount of work, but rather a gatekeeping process where firms are awarded contracts for levels of work far greater than most can realistically expect to take on – or indeed less than they expect to take on, but with an automatic right to an increase in the number of cases they are permitted to open and then to request additional numbers. In other words, the matter start allocation is entirely meaningless.
The timing of tenders forces organisations to bid before they are ready, so as not to miss the opportunity, and then scramble to get all requirements into place by what is essentially an arbitrary date. Some cannot meet the requirements in time, meaning all their work, and that of Legal Aid Agency staff, is wasted. Others are unable to enter the legal aid scheme when they are ready, meaning they either waste time waiting when they could be doing legal aid work, or they lose the staff who could do legal aid work, and are unable to replace them once they do have a contract.
The simple and cost-effective solution to this is to demarketise the sector: abandon the contract tenders and replace them with a registration scheme allowing any organisation which meets the criteria to register when ready to begin doing legal aid work. The Legal Aid Agency (or other body) would still retain control via the quality standards to join the register, and it would save the vast energy and resource that goes into organisations’ bids and the LAA’s processing of those bids. It would mean that new organisations could begin doing legal aid work when they were ready instead of waiting for a future tender or having to try to rush their preparations in case there is no further opportunity for another half a decade. Scotland provides an example of a registration scheme which appears to function very well. We have, in the last few days, seen the Legal Aid Agency reopen the 2024 tender and it is to be hoped that this is a step towards allowing new legal aid providers to start at any time.
In that environment, there would be no need for matter start allocations at all. These were created at a time when the scope of legal aid was broader and the intention was to ration legal aid to control costs. Post-Carter, they were supposed to ensure that all bidders knew how large a market share they could expect. Post-LASPO, these were no longer live issues: rationing was achieved with the scope and funding cuts and market share is hardly an issue when there is a massive deficit in capacity across the whole sector. The Legal Aid Agency continues to argue that it has to tender for an amount of work which is described by quantity, but a move away from a contract system towards a registration system would remove any such need.
Demarketising is urgent, alongside the legal aid rate review which the Lord Chancellor committed to carrying out when settling the Duncan Lewis judicial review challenge in September 2024. It should include:
- streamlining of the accreditation requirements, to bring them closer to those which apply to
other areas of law; - reducing and rationalising the administrative and auditing burden in partnership with the
National Audit Office; - ideally abandoning the fixed fee – either in favour of simple hourly rates or implementing a graded
fixed fee with payment increments which are not double or triple the initial fee; and - moving to monthly or other regular payment instead of payment in arrears on closure of cases, in
circumstances where legal aid lawyers have no control over case duration.
All these changes would bring benefits across the civil legal aid sector, and most would be rapidly cost-saving.
Dr Jo Wilding is Senior Lecturer in Law at the University of Sussex where her research specialism is legal aid and access to legal advice, particularly in immigration and asylum. She has undertaken research commissioned or funded by, among others, the Welsh Government, Refugee Action, the Community Justice Fund, the Greater London Authority, and Joseph Rowntree Charitable Trust. She was previously a barrister at Garden Court Chambers where she worked on cases for unaccompanied children, unlawful detention and victims of human trafficking.
ILPA invites members and other leading experts to contribute articles to its monthly blog. The views expressed in all blog posts are the authors’ own and are not necessarily those of ILPA.
- Document Date
- Wednesday November 6, 2024