My research is a case study of peer-recognised high-quality practitioners and organisations doing legal aid work in England: three not-for-profits, two private firms, and twenty barristers in six sets of chambers.
It looks at the relationship between quality, financial viability and client access in the ways that practitioners and organisations mediate demand and supply. Significantly, the Legal Aid Agency does no research (nor is it funded to do any) and my findings suggest it fails to understand the market it manages as a result.
There are fixed fees for most asylum work and interviewees said that these pay for less work than is needed to do the job properly at each stage of the case. Solicitors said the average case cost double the fixed fee. Barristers said the simplest cases cost 1.5 times the fixed fee, but they do ‘what needs doing’ in spite of that. It means the high-quality providers lose money on every legal aid case they do.
Subsidy is essential – from charity funding for the not-for-profits, and from private clients for the private firms and barristers. These are the Robin Hoods, taking from the wealthier to look after the poorest. My findings suggest that the publicly funded bar is heavily dependent on a small number of high earners who no longer do legal aid work themselves but who continue making large financial contributions into chambers which subsidise the publicly funded work of others.
The alternative is poor-quality work within the amount paid for on the fixed fee. These are the ‘sausage factories’ (Bridges et al), churning out case after case, all looking identical, regardless of their actual content. Although I focussed on high-quality organisations, I spoke to a number of ‘escapees’ from poorer-quality providers, as well as barristers and others who had experienced the work of those firms, who talked about the ‘processing’ model and providers who deliberately keep their work within the fixed fee, regardless of the client’s needs. On one level, it’s hard to criticise any business or worker for only doing as much work as they’re paid for – but some of these are life and death cases and doing an inadequate job means the client might be treated as a liar and refused asylum.
The ‘Robin Hoods’ have to reduce their legal aid market share, to limit their losses to the amount they can raise in subsidy. Some withdraw from the legal aid market altogether because they can’t reconcile quality with financial viability. The poorer-quality providers, on the other hand, are often happy to maintain or increase their market share, and in this way the overall quality in the market is driven down.
There are large areas of England and Wales where there are no providers at all, or only one provider, meaning clients have no choice of provider. Even when they have a choice, they have no meaningful information to base a choice on, and if they later realise the provider is poor, the legal aid rules don’t allow them to switch to another provider. That means the current legal aid system protects the poor-quality providers from market forces, while forcing out the good ones.
My overall conclusion is that there is a market failure in immigration and asylum legal aid, in terms of maintaining both availability and quality of services. This is caused by the way in which the state operates the market, meaning it is a state-driven market failure.
System-wide thinking and action are needed to resolve these problems. Previous strategy has been to reduce cost in fragments of the system in a way that reduces access to justice. We need to reduce demand without reducing access to justice, in ways that support existence of a high-quality supply side of the market.