ICAR 'Focus On' July 2010: Justice at Risk: the harsh realities of legal aid reform

6 July 2010

ICAR intern Grace Dolan examines recent changes to the way that legal aid for asylum clients is funded in the light of ICAR's recent 'Justice at Risk' research

The recent announcement that national refugee charity, Refugee and Migrant Justice (RMJ), has gone into administration, has shocked many. The UK's leading not-for-profit provider of legal representation for asylum claimants represents 10,000 asylum seekers and employs 350 staff across the country. But RMJ are by no means the first agency providing legal aid to asylum clients to have faced this hammer blow to their well respected services, nor will they be the last.

Reformation of the legal aid funding system by the Legal Services Commission (LSC), which commissions agencies like RMJ to provide publicly funded asylum advice, has had devastating consequences for people seeking asylum in the UK. Unless the LSC and Ministry of Justice, which failed to intervene to save RMJ, seriously review the funding and payments systems for asylum solicitors, this trend is set to continue and some of the most vulnerable people in the UK will bear the brunt.       

The most controversial part of the LSC's new funding regime, and perhaps the harshest in terms of its effect on the provision of quality legal representation for asylum seekers, is the introduction of the Graduated Fixed Fee Scheme (GFS). This pays solicitors a fixed fee for asylum cases regardless of time spent on them unless the case is exceptionally long. In the past representatives were paid by the hour.  The introduction of the GFS has seen many high quality legal aid firms incurring unsustainable financial losses. They have found the fee for legal help under GFS is simply not sufficient to provide good quality legal advice, as revealed in recent research carried out by ICAR. The research found that caseworkers who are intent on providing good representation are effectively working for free once they reach the fixed fee threshold.

ICAR's research, funded by the Barings Foundation, examines the effect of the fixed fee scheme on legal aid providers and seeks to measure the real cost of providing good quality representation.  It finds that the scheme is having a real and lasting negative effect on providers of legal advice who want to perform high quality practice. Those who are trying the hardest for their clients are earning the least amount of money.

Quality work takes time to provide where developing a relationship of trust between the client and the provider is key to a fair and just outcome. But clients are reportedly being dropped by unscrupulous solicitors as soon as necessary fees are recouped from the LSC.  While other firms are simply refusing to compromise on quality and continue to provide the same high standards as they did previously. Consequentially they are making enormous financial loss and face the possibility of being forced out of asylum representation altogether.

One provider of legal advice interviewed for the research commented, ‘the day I have to stick to the GFS is the day I stop doing the work because I can't do poor work. I would rather do ten cases pro-bono and do a good job and try and recover some other way than work with this scheme in its harsh realities'  

The people to suffer here are the asylum seekers whose claims are being represented by the organisations like RMJ and the staff who are trying to help them. David Cameron advocates a stronger volunteering ethos and calls for an ‘army of recruits' willing and able to help the poor. There are many of us working in the voluntary sector who, like the staff of RMJ, earn a lot less than they might make elsewhere or even work for free. But what we are seeing are services being destroyed due to a chronic lack of funding and government support. The LSC reforms were brought in under New Labour, but if the new coalition government believes in ‘Big Society' it must realise that there is nothing ‘Big' about a society which does not allow its most unfortunate members access to one of the most basic human rights: justice.

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