COVID 19 and Legal Aid: the benefits of Anglo-American comparison

Global epidemics make cross-national comparisons of public policy easier. At its most brutal, the relative body count invites a comparative analysis of public health policy. The legal system of each jurisdiction has had to respond to what are essentially identical problems. So, you can learn quite a lot from attempts to account for the impact of Covid 19 on legal aid providers and low income … [people] seeking legal aid’ to quote from a recent US Legal Services Corporation report. It is very similar in subject matter to a report of the House of Commons Justice Committee on the impact of Covid 19 on the legal professions in England and Wales to which the government has just responded. 

These reviews are both narrower and broader than each other. The Justice Committee study purports to cover the impact of Covid 19 on the whole profession – though it rapidly focuses on those providing legal aid. It is concerned specifically with the impact on diversity and social mobility at the Bar, new entrants to the profession and High Street practitioners dependent on legal aid – the three big issues for the professional bodies. The US study looks at the impact only on LSC grantees, overwhelmingly non for profit organisations, but also on their clients and their problems directly affected, as they are, by Covid 19.

The failure to analyse the need created by Covid 19 is a glaring omission from the domestic report. The LSC reports the following as the top six areas affected by Covid 19:

1. ‘Evictions including but not limited to illegal lockouts, utility  shutoffs, and foreclosures. 

2. Income Maintenance…: including but not limited to issues with stimulus checks, access to unemployment benefits, and navigating furloughs 

3. Domestic Violence… : including but not limited to Emergency Orders of Protection,  virtual hearings, and accessing Domestic Violence shelters.

4. General Family Law Issues… including but not limited to failure to return children  after visitation, emergency guardianship, and representation of foster children.

5. Consumer Debt… : including but not limited to credit card debt, student loans, auto loans, and mortgage forbearance’

This US list is not that different from that obtainable in the UK from CitizensAdvice data on use of its website. If we amalgamate categories we get 

  1. Employment 
  2. Family 
  3. Housing 
  4. Benefits 
  5. Debt. 

By a quirk of history, CitizensAdvice – though it provides initial information and triage on legal problems – is not funded by the Department of Justice and historically regarded as completely separate from legally aided provision. So, no one asked it for information to go in the Justice Committee report. And the Justice Committee has no information on the type of cases that lawyers are actually handling because the Ministry of Justice cannot provide that in any detail or any reliable data on what cases are being taken in courts and tribunals. Except at the most basic level, it has chosen to remain largely a data desert. 

We should stay with this point for a moment. Our Justice Department spent the 1990s and subsequent decade slowly labouring to an evidence-based approach to legal aid provision. Previously, this had been largely left to the legal profession to decide contained only by tram lines of financial eligibility and remuneration. This laissez-faire attitude began to be shaken by developments such as Professor Hazel Genn’s groundbreaking research on Paths for Justice; the recognition of the  link between social need and legal action; and then the regular investigation of the issue by a research facility established by the Legal Services Commission. Professor Genn’s methodology – and the policy consequences of putting resources into early resolution – span out around the world. All that went out of the window back home in the cuts of the 2010s.

The Legal Services Corporation is, of course, in a very different position from the Justice Committee. It is a central provider of funds. It is in a position to ask its grantees to report on Covid 19’s additional demands and they are orientated to reply. Their top five are effectively more of the same:

  1. ‘a large volume of eviction cases and  a backlog of proceedings once courts fully reopen and any eviction moratoriums are lifted. 
  2. Foreclosures: Grantees are predicting a sustained increase in foreclosures for the next several years based on similar patterns after the 2008 financial crisis. 
  3. Unemployment assistance and appeals: Many state unemployment offices are backlogged with requests and this is likely to get worse as unemployment continues to rise in many areas. Clients will continue to seek guidance in these processes. 
  4. Consumer debt: As recently unemployed clients attempt to make rent/mortgage payments and keep food on the table, many will accrue significant consumer debt with high interest rates.
  5. Income maintenance: As mass unemployment continues to rise, grantees will be asked to assist with newly eligible clients seeking social safety nets to cover basic food and shelter costs.’ 

The striking absence from this list is an increase in family cases which is surely likely on both sides of the Atlantic. 

Frustratingly, our Ministry of Justice could have made a better case for itself because – to its credit – it has actually been willing to come up with some additional cash that implies an expression of value for the work of the not for profit sector in meeting needs which it is unwilling or unable to articulate directly: Thus, the Ministry of Justice reports:

  • ‘the Government secured £5.4m in emergency grant funding to not-for-profit providers to ensure the people in the communities they serve can continue to access the help they need.
  • We are also continuing to work with our delivery partners – the Access to Justice Foundation and the Law Centres Network – and practitioners from across the not-for-profit advice sector to ensure people across England and Wales are effectively supported to access justice, as part of our wider work on legal support.
  • More broadly, we also continue to move forward with our £3.1m Legal Support for Litigants in Person (LSLIP) programme, a two-year grant funding pot also being delivered in partnership with the Access to Justice Foundation. The new programme is designed to provide services at local, regional and national levels with the aim of understanding more about how they can combine to help vulnerable litigants in person. To date, more than £500,000 of grants have been awarded to a number of charities to provide the new national-level services:
  • Support Through Court (STC) and RCJ Advice – who are piloting a new remote support initiative, as well as adding new referral routes to STC’s existing telephone helpline.
  • LawWorks – who will scale up their Free Legal Answers (FLA) website, which enables people on low incomes and not eligible for legal aid to access free, initial legal advice provided by registered pro bono solicitors.
  • Law for Life – who will add new resources to their Advicenow website to assist people to deal with a range of legal problems, as well as creating new guidance to help individuals appear in virtual courts effectively.’

This is a not unimpressive list and these grants have thrown a lifeline to the organisations listed. But, comparison with the US report draws out the lesson that the English and Welsh response to Covid 19 and access to justice is methodologically upside down. The analytical process should be:

  1. What additional needs as a result of Covid 19 do people have for advice and assistance?
  2. How can this best be met through the network of not for profits and private practitioners? 
  3. What additional funding are we willing to allocate?

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