Lawyers limit community care cases “to help firms stay afloat”

Gough: Future for sector is bleak

Community care lawyers are limiting the amount and type of legal aid work they do to ensure that their firms remain financially viable, a report has found.

The field is also struggling with recruitment and retention, given the rates of pay stressful nature of the work.

Researchers said that, while the number of legal help matter starts plunged by 77% in the last 10 years, the number of legal aid certificates issued for better-paid work, such as Court of Protection cases, increased by a similar amount.

“Practitioners overwhelmingly told us that they find it difficult to run a financially sustainable practice in community care on legal aid funding.

“The clear evidence from project participants is that the reduction in legal help matter starts is directly related to the strategies that providers have adopted in response.

“Limiting the type and amount of legal aid work they do, referred to by many as ‘achieving a balanced caseload’, is a way to maintain at least a level of service rather than withdrawing from legal aid altogether.”

This balance was achieved by taking on a greater proportion of community care case types with better rates of legal aid pay, such as Court of Protection work, a proportion of privately paying work and grant-funded project work in the not-for-profit sector.

The report, by the charity Access Social Care, was based on government statistics, interviews with practitioners, roundtables and responses from 23 organisations with legal aid contracts which took part in an online survey.

Figures from the Ministry of Justice (MoJ) showed that, in the 10 years from 2011 to 2021, community care matter starts fell by 77%, despite there being no reduction in scope under LASPO, unlike other areas of civil legal aid.

Meanwhile, the number of legal aid certificates issued for community care work increased by 75% and lawyers’ fees for that work went up by 138%.

Researchers said it was their understanding that Court of Protection work was “more likely to move directly on to a certificate without using the legal help stage” of the legal aid scheme.

“All of this suggests that the demand (as measured using the MoJ data) for community care legal help advice is being artificially depressed and skewed away from ‘core’ community care work.”

Researchers said that, unlike the Administrative Court, the Court of Protection could not “directly rule on the lawfulness or otherwise of what a local authority does, for example whether it has completed a Care Act-compliant needs assessment”.

There were “significant difficulties” in recruiting and retaining community care lawyers.

“Younger practitioners increasingly find themselves making a choice between buying a home and starting a family and remaining in legal aid community care practice.

“Burnout is a particular problem. Supporting clients in crisis who are so dependent on public services can be extremely stressful.

“The need to do so whilst working within the confines of legal aid and meeting high volume targets due to low remuneration rates only compounds levels of practitioner stress.”

There were particular difficulties retaining and recruiting experienced staff as supervisors, exacerbated by the “difficulties meeting the supervisor standards, particularly for those taking a career break or working part-time because of caring responsibilities”.

The report called for changes in the way legal aid was paid, including moving between legal help and certificated funding, removing “unnecessary hurdles” preventing experienced lawyers from being supervisors, more pastoral and other support to avoid burnout and promoting community care as a career choice for lawyers.

Lainey Gough, director of operations and impact at Access Social Care, a solicitor and the co-author of the report, added: “The future for specialist community care practise is bleak. The difficulties in accessing such advice is not the result of a lack of demand but a lack of supply.

“Demand for this type of legal work is going to increase as the population ages and we need to ensure that those requiring specialist advice receive it.”

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