Remuneration is too low to support a ‘sustainable legal aid practice’ and working conditions are ‘intolerable’ leading to system overload in the family legal aid system, according to a new report from the Bar Council.
‘System overload: a report into family legal aid’ highlights the ‘detrimental impact’ family legal aid is having on barristers, as access to justice is diminished by underfunding. The report also identifies the negative impact financial and systemic pressures have on barristers’ wellbeing.
“In 2001, the ‘fat cat’ lawyer trope was born and hurled at legal aid lawyers. It’s a myth that has prevailed ever since, and yet when you read this report, you will see that it could not be further from the truth…” says Barbara Mills KC, chair of the Bar Council in her opening comments in the report, laying bare the changing working conditions of publicly funded family legal aid work.
No one is questioning barristers’ commitment and dedication, the report goes on to say. But with family legal aid fees now worth approximately half of what they were in 1996, barristers report having to take on more work to simply make ends meet.
The report notes:
“Rates of remuneration are now so low that some barristers feel it’s untenable to sustain a publicly funded practice with many saying they once expenses are deducted, some pieces of work are essentially done for free. This disincentivises the profession from taking on legal aid work, meaning people are not getting the representation they desperately need.”
The report, which sought the views of 100 family barristers for the report, also found 70 hour weeks have become normalised.
“The people working within the system are collapsing and this cannot be ignored or tolerated,” Mills said.
“The very real impact the financial and systemic pressure legal aid work is having on barristers’ health and wellbeing, made plain in this report, is extremely alarming.
“It is unacceptable that some family barristers are unable to support themselves and are being driven away from the profession at a time when legal aid representation is in desperate need.
“We need the government to invest in the court estate and improve the conditions in which family barristers are expected to work. We need to see an increase in legal aid rates, and a commitment to updating and maintaining the fee schemes including an independent fee review body. Improvements can be made now to bring the system back from the brink, before access to justice is further compromised.”
James Roberts KC, chair of the Family Law Bar Association, added:
“The FLBA is grateful to the Bar Council and to Dr. Rose Holmes for producing this important research. It will make depressing reading for barristers working under the legal aid schemes but perhaps more importantly for their clients who are among the most vulnerable in our society. The failure of successive governments to take any steps to improve the situation is disgraceful. Barristers in this field are effectively being paid half as much as they were in 1996 for twice the work. This is unsustainable. Without urgent investment the experience required to conduct these sensitive family law cases will be lost to the publicly funded arena for ever.”
There needs to be better recognition and appreciation for the work of family barristers, the Bar Council said. As a short term fix it is calling for an immediate increase in fees paid across the board, with a regular review of fee structures to avoid the same crisis in the future. It is also calling for funding to be allocated to work which currently received no remuneration, including public funding for legal representation for all parties in all family proceedings in which domestic abuse is a factor.
There must be long term and sustainable funding ‘that recognises the complexity of the work that is undertaken (and) the tasks that barristers are required to undertake.’
The recommendations conclude:
“If the situation continues to deteriorate, it is only a matter of time before cases are compromised either through a shortage of suitably experienced counsel, or because building pressures mean the system is too inadequately resourced to function.”
The Bar Council’s report echoes the Law Society’s own research, Law Society president Mark Evans said.
“Many families in poverty cannot access legal advice because the government has not yet increased financial thresholds for the legal aid means test. Our research shows that an estimated 5.5 million more people would be eligible for legal aid if thresholds were increased. Currently only people living in deep poverty, up to 80% below the minimum income standard, are eligible for full legal aid.
“By throwing a legal lifeline to everyone who needs it, we strengthen families and protect children.
“Access to legal advice is of the utmost importance, particularly in cases involving domestic abuse. Unfortunately, many people in these situations often struggle to obtain legal support and vital legal aid services are closing down. The government can, and must, properly fund family legal aid, a vital public service, to help level the playing field and ensure a fairer society for all.”
