Yesterday, Dr Jo Wilding launched her new report Droughts and Deserts. A report on the immigration legal aid market.

The report, based on her PhD research, looks at the economics of the current immigration legal aid market in England and Wales.

Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act in 2012, legal aid has been largely restricted to asylum claims. Most non-asylum based immigration matters are not eligible for free legal representation in England and Wales. Read more about this in the Right to Remain Toolkit.

The report argues that:

the existing systems of funding, contracting and auditing, which perversely protect the market position of poorer-quality providers, create advice deserts and droughts, and drive up demand and cost in the asylum and legal aid systems.

Advice “deserts” are where there are no legal aid providers at all; droughts are where there appears to be supply, but there is actually a supply crisis (for example due to lack of capacity). The map above shows just how stark this situation is. The grey areas are where there are no legal aid immigration/asylum lawyers at all; the red areas are where there is one provider.

Since the implementation of LAPSO, one fifth of law centres have closed in England and Wales. Refugee Action research shows that 56% of legal aid providers have ceased operating since 2005 (when severe cuts to legal aid first came in), with the proportion of not-for-profit providers falling by an even higher proportion (64%).

Market failure

The report says that there is a market failure in immigration and asylum legal aid, as demonstrated by the lack of availability geographically (see map) and also because it cannot ensure adequate quality of advice and representation.

A major cause for concern from the supply perspective (the practitioners providing legal aid advice) is the standard fee scheme.

The standard fee regime operates, in market terms, on the basis that while some cases will cost more than the fee given by the Legal Aid Agency to the provider (in terms of labour time and extra costs such as travel, interpreters etc), enough simple cases will cost less to allow things to balance out.

The research shows that this simply is not the case.

The barristers interviewed for the research said the simplest cases cost around 1.5 times the standard fee paid for doing them. Costs for solicitors were frequently between two and three times the standard fee.

It’s also worth noting that increased costs in a case are often not in the control of the client or provider. Poor decision-making and delays increase the amount of work and time required – a factor called “failure demand” in the report.

The report says, “High-quality lawyers lost money on every standard fee case they did”, meaning the balancing never happened. Other providers capped their work at the standard fee rate (not a practice used by the high-quality lawyers interviewed in the research) and other tactics such as using lower-waged, lower-skilled staff to complete the work, gives a false impression externally that the standard fee regime is workable. When considered against quality of provision, however, the reality is quite different.

Dr Wilding highlights that when considering a three-part relationship of a working market of legal aid provision – financial viability, quality of work, and access for potential clients – its only possible for practitioners to manage two of the three. Providers that have tried to provide a high quality of work for a high volume of clients have gone out of business. Providers that wish to provide high quality work and remain afloat have had to limit their client in-take. Providers behaving in an “economically rational” way (in this context) and not limiting access to potential clients are extremely unlikely to be providing high-quality advice and representation.

Quality of advice and remedies

At Right to Remain, our focus is on the “demand” side of the market – the people seeking the right to remain and needing free legal representation in order to do so successfully.

With such high demand, major issues in supply because of the restrictive legal aid contracts, cuts to fees paid to providers, and the financial precarity in a failing market, quality of advice is one of the first casualties.

The dramatic rate of closure of legal aid firms and restrictions on changing legal representative for the same legal issue mean that it isn’t easy for people in need of advice to switch lawyers if they are not happy with the representation they are receiving.

It is possible to change representative if an official complaint has been made about the service provided by your current lawyer, but this is far from straightforward and is a tactic rarely used by those that have cause to complain. The Office of the Immigration Services Commissioner report that there has been a significant drop in complaints over the last few years, with little evidence this is as a result of improved quality of advice!

Firstly, many people do not know they are able to make a complaint or how to do so (this information is included in the “client care” letter provided to clients but in English, at an early stage of the process, and along with quite a lot of other information).

Secondly, even if people do know they can make a complaint, many are fearful of the consequences of doing so.

Thirdly, and perhaps of most relevance to our work, making a complaint requires the knowledge that your representation has been substandard.

As the 2016 report from the Solicitors Regulation Authority noted:

Legal services is an example of a sector where the gap in knowledge between the provider and consumer is at its most profound. This gap in knowledge makes it difficult for consumers to understand the legal process or service they are accessing, make an informed choice about legal representation, identify what constitutes a good standard of service, and to seek redress if they consider the service they received to be of poor quality.

This is why it’s so important that people have a better understanding of what the legal process involves, what actions they need to take in their own case, what they can expect from a lawyer, and when situations require a legal solution or a different type of response. That’s what the Right to Remain Toolkit is all about.