Time Period Covered by the Report

Contents

Executive summary

Background and purpose

Background

Purpose

Time period covered by the report

Availability of legal services

Accessibility of legal services

Immigration and asylum: contentious and non-contentious

Overall context for asylum and immigration matters in Scotland

Overall potential demand

Contentious and non-contentious matters

Immigration and asylum advice and the role of legal services

Geographical Coverage

Number of firms available to act in asylum cases

Reports of problems with access to solicitors or advocates

Overall summary of the availability and accessibility of legal services

Assessment of systemic problems with access to solicitors for immigration and asylum

Protective orders (other)

Overall context for legal services and protective orders

Role of Legal Services

Geographical Provision

Assessment of systemic problems with access

Assessment of systemic problems with access to legal services for protective orders (other)

Homelessness

Overall context for homelessness issues

Role of legal services

Geographic Spread

Reports of problems with access to solicitors or advocates

Overall summary of the availability and accessibility of legal services

Assessment of systemic problems with access to legal services for protective orders (other)

Public and Administrative Law: Judicial Review and Public Inquiries

Overall context for public and administrative law in Scotland

Role of solicitors and advocates

Geographic coverage

Reports of problems with access to solicitors or advocates

Overall summary of the availability and accessibility of legal services

Other areas of law

Conveyancing (low)

Wills, Trusts, and Executry (low)

Boundary Disputes and Rights of Way (low)

Finance and Leasing (low)

Non-contentious Planning (low)

Contentious Planning (low)

Contentious Landlord and Tenant Issues (low)

Non-Contentious Landlord and Tenant Issues (low)

Education (low)

Community Care (low)

Compensation for Fraud (low)

Defamation (low)

Timeshares (low)

Motor Vehicles (low)

Hire Purchase (low)

Sale of Goods and Services (low)

Specific groups

Appendix 1: Interpretation of Legal Services (Scotland) Act 2010

Appendix 2: High level assessment of systemic problems with access to legal services

Appendix 3: AJRG terms of reference

Appendix 4: Further organisations invited to comment or provide data

Executive summary

This report sets out the work undertaken by the Scottish Legal Aid Board (SLAB) to fulfil its function of providing Scottish Ministers with advice and information on the availability and accessibility of legal services.

The Legal Services (Scotland) 2010 Act introduced, on 1 April 2011, a new general function for the Scottish Legal Aid Board of monitoring the availability and accessibility of legal services in Scotland, including by reference to any relevant factor relating particularly to rural or urban areas. For the purposes of this monitoring function, legal services are defined as services provided by solicitors and advocates.

The monitoring function is not restricted to those legal services funded by SLAB or other public funders. It therefore includes privately funded services, whether provided to individuals or bodies corporate, and legal services such as conveyancing, insolvency and other private or public client work that would not normally fall within the scope of legal aid.

Availability of legal services in this context means solicitors or advocates willing to act in different areas of law for different client groups. Availability is important in terms of how it impacts on access to legal services.

In discharging its new function and duty, it would not have been practical for SLABto attempt to establish objective benchmarks of whether legal services are accessible. SLABhas instead sought to identifyevidence as to whether there are, or are likely to be, problems with accessibility in practice.

SLAB intends continually to monitor on the basis that a problem with access to legal services is defined as the inability of potential clients to find solicitors or advocates to act in different areas of law or various geographic areas.

In the context of advising Ministers, SLAB’s strategy is to assess the risk of actual instances of systemic problems with access occurring by looking at:

the probability of an access problem occurring; and,
reports of actual instances of problems with access.

Whilst individuals or businesses may experience problems finding or retaining a solicitor, these may be isolated incidents which, although important to the individual involved, are not representative of how the legal services market as a whole is operating. We aim to collect information on actual instance of problems in a systematic and comparable way, so that any systemic problems can be identified.

The analysis set out in thisand previous monitoring reports shows that, for some areas of law, advisers other than solicitors and advocates may be the most prominent sources of assistance. This observation is important in terms of assessing the impact of any identified issues about access to legal services.

Findings

For those areas of law considered during this year of monitoring, our analysis has largely shown that for the majority of the areas of law considered, there is no evidence which indicatesthe existence ofsystemic access problems. We have included in the body of this report full sections for four priority areas of law, including those areas in which concerns have been raised in relation to the availability and accessibility of legal services by the AJRG or wider stakeholders in response to position papers issues.

A full list of areas of law and our assessment is set out in Appendix 2. Summaries of our findings for the four papers included in full are set out below:

Immigration and asylum lawis an area which we examined for the first time in this report. SLAB’s assessment is that there is a low probability that systemic accessibility issues are leading to actual instances of problems in this area. The data we currently hold does not suggest any issues with the accessibility or availability of legal services for this area of law.

For protective orders not relating to domestic abuse, our current assessment is also that there is a low probability that systemic accessibility issues are leading to actual instances of problems in this area. We have received no reports of actual instances of problems with access, and our current view is that there is a low risk of systemic problems in this area.

Homelessness law is an area of law in which SLAB received comments from a number of stakeholders which suggested that there may be problems with the availability of legal services. As such, we include the full position paper in this report. Comments received suggested that people with arguable cases may find it difficult to access a solicitor’s services, particularly where there are no law centres or similar providers specialising in these types of cases. We have received comments suggesting that there are instances in which people are unable to access a solicitor’s service and assessed this area accordingly.

Public and administrative law (specifically judicial review and public inquiries) is the second area in which we received comments which suggested the possible existence of an accessibility problem. The Faculty of Advocates suggested that there may be unmet need for legal services in relation to judicial reviews, particularly in the area of housing. The Faculty also noted that they are aware of several specific instances in which their Free Legal Services Unit has come across people unable to access a solicitor’s services for an arguable case. We have reflected these concerns accordingly in our assessment of this area.

In total, 20 position papers relating to a broad range of topics were completed during this year of the monitoring duty. A small number of areas due for consideration this year have been pushed back to 2016. However, for practicality, we have not included the full papers for every area of law within the body of this report. Papers relating to the assessment of other areas of law can be found on our website[1]and our assessment for each area is included within this report.

This is the fourthyear of carrying out this duty and we aim to build on the progress which we have made to identify, collect and collate relevant data in the coming year.

Background and purpose

Background

The Legal Services (Scotland) 2010 Act (the Act) introduced, on 1 April 2011, a new general function for the Scottish Legal Aid Board (SLAB) of monitoring the availability and accessibility of legal services in Scotland, including by reference to any relevant factor relating particularly to rural or urban areas.

SLAB was also given a new power to provide advice to Scottish Ministers as it considered appropriate in relation to the availability and accessibility of legal services. Finally, the Act introduced a duty on SLAB to provide information to Scottish Ministers from time to time, as they may require, relating to the availability and accessibility of legal services.

To assist in meeting these requirements, the Act also places a duty on a number of bodies to provide SLAB with such information as it may reasonably require. The three bodies are the Law Society of Scotland, the Faculty of Advocates and the Scottish Courts and Tribunal Service.

This report sets out the work undertaken by SLAB to discharge its new function and provides Scottish Ministers with advice and information on the availability and accessibility of legal services.

Purpose

In light of the intention behind the monitoring function, as set out in Appendix 1,SLAB monitors accessibility on the basis that a problem with access to legal services is defined as the inability of potential clients to find or obtain the services of solicitors or advocates willing to act in different areas of law or various geographic areas. We intend to identify actual instances of problems with access, or levels of supply that appear likely to increase the risk of this happening.

Whilst individuals or businesses may experience problems finding or retaining a solicitor, these may be isolated incidents which are not representative of how the legal services market as a whole is operating. We aim to collect information on actual instances of problems in a systematic and comparable way, so that any systemic problems can be identified.

Within this very broad spectrum, the policy memorandum for the Act directly linked the monitoring duty to areas of law where the Scottish Parliament viewed that the current legal services market may not be operating effectively, including family law, employment and social welfare law.

In implementing this duty SLAB does not expect to be able to establish objective benchmarks for the adequacy of any particular level of availability or accessibility. Previous research in this field and the work of other organisations investigating similar issues is consistent with our belief that this is not possible in practice.

Time period covered by the report

This report seeks to incorporate the most up-to-date information, along with responses to that from relevant stakeholders. This leads to some older data being reported and relied upon in the report. The reason for the time lag is two-fold. SLAB relies on collation of data from a number of sources, which becomes available in the months following the end of the financial year. Secondly, we seek the views of key stakeholders on the data and our interpretation of it by way of meetings of the AJRG and through consultation with wider stakeholders. Both these processes necessarily take time, but are essential to ensuring that our assessments are as robust as possible. We would expect stakeholders to advise if their experience suggested a substantial change that required attention since the data had been collected.

Availability of legal services

For the purposes of this monitoring function, legal services are defined as services provided by solicitors and advocates.

The services of advocates are not related to where their offices are located, as they serve all areas of Scotland. The Faculty of Advocates advise that an advocate will be found in all cases where instructions are sought.

This section provides information about the volume and spread of solicitors and their firms across the country.

The annual report from the Law Society of Scotland sets out the overall number of solicitors holding practising certificates. This is set out in graph 1, which shows the number of solicitors holding practising certificates and whether they are male or female. In terms of broad availability of legal services, it is positive that there are more solicitors available to undertake work and that the make up of the profession is becoming more reflective of the population in Scotland as a whole (where 52% are female). The overall number of firm branches has remained fairly stable over the three years period for which we have information.

In terms of assessing availability and how this might affect access, we do not know the overall size and shape of the legal services market (for example, the volume of transactions undertaken in which areas of law) and how this has changed over time, which would be a better indicator of broad availability of legal services. This is an area where research to fill this gap in our knowledge would be welcome, with plans developing for research into the legal services market in Scotland.

The number of firms and solicitors registered to provide legal aid work on the civil legal aid and criminal legal aid registers is similar to five years ago, although the number of criminal firms and solicitors registered has fallen slightly in recent years. By the end of March 2015,there were 652 firms registered to provide civil legal assistance. This is 27 fewer than in 2014, but higher than the total at the end of March 2010. There were 557firms and 1,361 solicitors registered to provide criminal legal assistance: 24 fewer firms and 41 fewer solicitors than in 2014. For children’s legal assistance there were 382 firms and 875 practitioners registered. Children’s legal assistance is the only area in which the number of firms registered has risen on 2014 levels (though the number of practitioners fell slightly).

We note that asthe economy recovers, more solicitors may return to private practice, so the declines in legal aid registrationoutlined above do not necessarily suggest a problem in relation to availability.We will continue to monitor legal aid registration numbers to confirm whether this trend continues.

Graph 1: Number of solicitors with practising certificates on 31st October of each year[2], by gender

We have used data provided by theLaw Society of Scotland to compare the 2013 mid-year estimated population of the various urban and rural areas to the number of branches in each type of area (Graphs 2 and 3).[3]

Graph 2 shows that close to60% of firm branches are located in large urban areas, compared to less than 40% of the Scottish population, whereas for accessible rural areas – which are on the periphery of urban areas – the proportion of branches is far lower than their 12% share of the population. A similar pattern can be seen for accessible small towns.

Turning to remote small towns and very remote small towns, we can see that the proportion of firm branches is higher than expected when compared to the share of the population, as measured by the 2013 mid-year estimate. The opposite is true of remote and very remote rural areas.

Graph 2: Proportion of total firm branches and 2013 Mid Year Estimated population by 8 Fold Urban Rural Classification[4]

Graph3 shows how many firm branches there are for each person in the different areas set out in the 8-fold urban rural classification. The key point is the relatively high number of firm branches per person that is in evidence for remote small towns and very remote small towns. Along with the data presented in Graph 2, this indicates that remote areas are being served by firm branches based fairly locally, in small towns.

The pattern for urban and more accessible areas shows a similar story, with large urban and other urban areas showing a higher number of firm branches per person compared to accessible rural areas and accessible small towns.

Graph 3: Number of firm branches per person by 8 Fold Urban Rural Classification3

Graph 2 andGraph3 suggest that, in general, there may be a link between the location of firm branches and the geographic area served. There appears to be an important role for firm branches in remote and very remote small towns, whilst accessible rural areas are served by firm branches in large urban areas.

The Law Society of Scotland have provided additional information which allows us to analyse the location of firm branches by council area, areas of law practised by solicitors, organisation type and the number of solicitors.

Table1 shows the number of solicitors who are members of the Law Society of Scotland and their principal place of business, broken down by type of organisation[5] and council area. In line with the analysis presented above, this demonstrates that there are solicitors working from branches that are spread across the country. This is consistent with SLAB’s own data that shows solicitors undertaking legally aided work all across Scotland.