The numbers of community care lawyers have plummeted - how can we reverse this trend?
This article is reproduced with kind permission of Legal Action Group, who published it in the December 2024/January 2025 edition of Legal Action Magazine.
Adapt and Survive
Community care law was one of the few areas of legal aid to escape the LASPO cull, so why are the numbers of lawyers doing this essential work plummeting and what can be done to reverse the fall? Karen Ashton, Tim Baldwin, Louise Eardley, Caroline Miles and Laura Peters explain.
In 2022, Access Social Care (ASC), a charity providing free legal advice on community care issues, conducted research on the decline in the number of legal aid practitioners in this area of law. We found that the nature and financial sustainability of the work had led to the decline. Here, we address some of the specific problems that community care practitioners face, including use of investigative representation under the legal aid scheme, and how practitioners can access further support.
Published article in Legal Action Magazine.
Community care practice in decline
In 2012/13, 4,977 Legal Help Community Care matters were started in England and Wales (Legal aid statistics tables – January to March 2024, Ministry of Justice (MoJ), 27 June 2024, table 5.1). By 2023/24, this had fallen to 1,643, a decline of around two-thirds. While this period covers the implementation in April 2013 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), that is not an obvious cause of the decline in community care practice. The scope of community care work was one of the few areas that survived the LASPO cull intact.
The decline was noticed in the Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, MoJ, February 2019), which also spotted that there had been a 75 per cent increase in the legal aid certificates granted in the Community Care category (figure 4, page 32):
The volume of legal help has fallen in these categories … 63% in community care, despite the fact there was no scope change. This could be due to a number of factors … The fact that civil representation increased in these categories – potentially due to an increase in deprivation of liberty cases under the Mental Capacity Act 2005 – further suggests that there are multiple factors at play and it is difficult to isolate just one driver (para 138, page 27).
Despite the decline in legal help use in these categories, the review failed to delve into the issue further. But ASC’s Legal Education Foundation-funded research report, Community care legal career pathways (April 2022), did so and found a pattern. Practitioners had been shifting their community care practices away from public law/judicial review work to Court of Protection (CoP) work. This attracts the higher rates of remuneration because it can often bypass legal help, moving straight on to certificated legal aid. The report concluded:
Practitioners routinely have to restrict the number and type of new legal help cases they take on or jeopardise the financial viability of their practice (page 4).
The legacy of this strategy is a serious deficit in the enforcement of rights in the social care field. Those who face the consequences of unlawful decision-making by local authorities cannot access the specialist legal advice they need.
The problem of financial sustainability is not, of course, unique to community care practice – it is a daily struggle for legal aid practitioners across the board. With no prospect of any imminent reforms, we need to explore whether there are alternative survival strategies that might keep us going. This requires a sectoral approach.
The nature of public law community care casework
In a typical public law community care case, there is usually significant and complex early investigative work that needs to be done before it is possible to advise. The key remedy available is judicial review, which, because of the permission stage and the burden of proof, frontloads casework into the very short limitation period. The legally relevant cause of common community care problems is often unclear at the start of a case. It may be the consequence of an error of law, an irrational failure to make relevant enquiries, a breach of regulations, and so on. The complexity of the legal framework for disabled children is one of the key reasons for the current review of that framework by the Law Commission (see page 21 of this issue). Early work in a community care case can rarely be undertaken in a formulaic way or delegated to a less-experienced caseworker or paralegal.
The time required to undertake the relevant investigations will be impacted by a number of factors, including:
a lengthy and complex factual history that is not all within the client’s knowledge;
straightforward investigative tasks being time-consuming, requiring the use of statutory rights to obtain basic information;
an ongoing process and changing factual context;
the need for a significant level of client care support to enable clients to successfully instruct a legal adviser; and
the need for home visits because of regional contracts and provider clustering, and the disability needs of clients.
If this early work is done thoroughly and a well-founded pre-action protocol letter is sent, the case will usually settle and the presenting problem will be solved without the need for litigation. If the case remains funded by the legal help scheme, an enormous amount of often complex work is undertaken at financially unsustainable rates that are not cross-subsidised by litigation work funded by the certificated legal aid scheme or inter partes costs.
All of this builds in an incentive to apply for a full representation certificate as early as possible where that is an option. This is where a caseworker can identify ground(s) of challenge where it is possible to say it meets a merits threshold of at least a 50 per cent prospect of success. However, there are potential disadvantages and it may not be the best tactical approach because of the following:
Further investigations could improve the correct identification and formulation of grounds and the remedies sought, which may promote earlier settlement or reduce the risk of refusal of permission, with the consequences for legal aid payment that can flow from that (Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 (CLA(R) Regs) reg 5A).
Securing a costs extension on a full representation certificate to fund further investigations can be difficult (Lord chancellor’s guidance under section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, LCG-S4, version 1/2023, MoJ, May 2023, para 7.36, page 31).1
In order to apply for a full representation certificate, a pre-action protocol letter must be sent. The opponent public authority may be able to deal with the case that has been put forward without the benefit of more detailed investigations and it may be difficult to justify further funding at that stage.
What does investigative representation have to offer community care practice?
Investigative representation (IR) is certificate funding that pays for investigative work to be done at the higher rates of pay available to the certificated scheme. It is available where the prospects of success are unclear, but there are steps that can be taken that will enable a reliable estimate of those prospects to be made (Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 (CLA(MC) Regs reg 40). The statutory qualifying criteria require that the amount of investigative work is ‘substantial’ (reg 40(1)(a)) and the Lord chancellor’s guidance under section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 advises that this threshold would be met where a solicitor would ‘reasonably need’ to carry out at least six hours of investigative work or that work would incur disbursements (para 6.11, page 20). As mentioned above, the public law community care case where the prospects of success are immediately clear is the exception rather than the rule. We understand from the Legal Aid Agency (LAA) that it received nine community care IR applications in the first quarter of this year. This seems to be a significant underuse.
In the course of its Career Pathways project, ASC has spoken to practitioners who have identified why they remain on legal help until they can apply for a full representation certificate:
lack of experience and knowledge of the requirements, thus risking refusal;
past experience of refusal/poor-quality LAA decision-making;
the need for time and effort to be spent completing the IR application;
delay while the application is processed; and
costs limitations on IR certificates do not cover the cost of the investigative work at certificate rates, so the caseworker ends up working a lower rate anyway.
While this is understandable in a context where capacity is limited, the case may remain on legal help and settle in the course of that work – the application for full representation is never made. And there are other financial disadvantages to working on legal help:
no payment on account scheme, so payment is not made until the end of the case, which could be months down the line;
no payment for work once the total costs have reached the fixed fee threshold until the total reaches three times that fixed fee (the escape fee threshold); and
the cost of instructing experts or counsel before the escape fee threshold has been reached is likely to leave the caseworker out of pocket.
IR offers a significantly higher hourly rate. The LAA seems to accept that work on a potential judicial review will justify a mark-up enhancement to the prescribed certificate rates without any particularly exceptional feature. The difference between this and legal help can therefore be significant. A 20 per cent enhancement outside London would offer a rate of £81 per hour compared with the escape fee rate of £48.24 under legal help (CLA(R) Regs Sch 1 Part 3 Table 10(a) and Sch 1 Part 2 Table 7(a)). There are additional potential advantages:
payments on account can be claimed at regular intervals;
applications can be made for extensions to the costs limitation on a certificate to ensure sufficient funds to pay counsel and experts; and
arguably, the regulation that prohibits the LAA from paying for work done in judicial review cases where permission is refused does not apply to investigative work – the prohibition only applies to work done ‘making that application’ (CLA(R) Regs reg 5A).
IR is not always the best course of action in public law community care cases. Legal aid funding decisions have to be taken based on the circumstances of the individual case and no general rules can be applied. However, something is going badly wrong if a funding scheme is not being used to fund the work it was set up to fund.
Making investigative representation work
ASC has been taking steps to try to address some of the barriers identified by practitioners. It participated in the MoJ’s Review of Civil Legal Aid (started by the last administration) to ensure that the particular problems encountered in community care practice were not overlooked just because it takes up only a small proportion of legal aid expenditure. Meetings continue to be held with the LAA to work on system improvements and pass on feedback from practitioners. The LAA has agreed that it will provide the guidance its decision-makers use, alongside data about application refusal that is broken down into full representation and IR certificates. This is in order to better understand why practitioners’ experience is that decisions made do not always reflect regulations and guidance. The LAA has also agreed to co-produce training materials that are specific to community care and is exploring a ‘help us say yes’ clinic, similar to that which is available in family law.
ASC has also run training webinars on IR with practical tips to deal with problems and is in the process of developing template application materials with guidance notes. The idea behind the training and the template is that an application that nails the detail of the relevant eligibility criteria is less likely to be refused, enables a strong appeal to be made if necessary, and is more likely to secure a sufficient costs limitation or provide the basis for a strong case for a costs extension if a low initial limitation is exhausted.
This is not as easy as it sounds for two reasons. First, the eligibility criteria are lost in the maze of relevant regulations (the CLA(MC) Regs), and second, the CCMS (client and cost management system) questions do not mirror the criteria, so it is possible to answer them without providing all the information relevant to meeting the criteria. The training aims to provide a route map through the maze, excavate the three key criteria to be addressed, explore the meaning of the statutory terms used and suggest some tips on how to deal with the trickier issues. The template is being designed to provide relevant information that can then be submitted with the CCMS application.
These seminars and the template have been developed as part of work that ASC is doing to bring together legal aid community care practitioners in a Community of Practice. ASC’s Community care legal career pathways report identified a number of difficulties that practitioners face relating to a lack of support and supervision, the financial viability of legal aid, and the risk of burnout, which have all contributed the decline of community care legal advice. The Community of Practice seeks to provide a solution to these issues and be an active and thriving community.
Conclusion
Community care law is at risk of becoming extinct if action is not taken to address the barriers that practitioners face in establishing sustainable practices and accessing supervision, support and career development. ASC is committed to helping them overcome these barriers and invites expression of interest to become involved in its Community of Practice. Over the coming months, there will be more opportunities to attend seminars, training and peer support, with the community being fully launched in March 2025. ASC is inviting practitioners who are interested in the Community of Practice to email: caroline.miles@accesscharity.org.uk.
Karen Ashton is a solicitor and public law strategic development lead at Central England Law Centre. Tim Baldwin is a barrister at Garden Court Chambers. Louise Eardley is a senior associate solicitor at Gold Jennings. Caroline Miles is a solicitor and manager of Access Social Care’s Career Pathways project. Laura Peters is Access Social Care’s legal director.
1 Para 7.36 states: ‘The effect of the standard and specific merits criteria is that legal representation for judicial review can only be provided where there is an immediate right and intention to bring a challenge to an identifiable act, omission or other matter, subject only, in respect of investigative representation, to the need to confirm that the prospects of success test for full representation is met’ (emphasis added).