Why MPs are a flawed substitute for legal advice

– Dame Karen Buck, former MP

Time was, MPs attended upon their constituencies for the most important civic occasions and to seek re-election. The very concept of ‘constituency casework’ and ‘advice surgeries’ would have been alien. In his (rather wonderful) autobiography, Roy Hattersley recounts his first election hustings in 1951, during which George Darling responds to his predecessor’s reputation as an absentee MP by “making a solemn promise to return to the constituency every three months and, during the Saturday of his visitation, make himself available for assistance and advice”. Yet heaven now help those parliamentarians who do not take this aspect of work seriously. Responding to the concerns of individual constituents has become as central to the role as the more traditional functions: legislating, scrutiny and forming the pool from which government ministers are drawn.

The sheer weight of casework on MPs’ time has inevitably triggered a backlash. It’s said that they “are now little more than glorified social workers”, distracted from the serious business of law-making. And yet if there is one thing constituency casework offers, beyond satisfaction and potentially some electoral benefit, it is insight into the efficacy – or lack of it – of the laws Parliament passes. To that extent, it may increase the aptitude for making laws, at the same time as eating into the time available for doing it. In terms of what we should want from our Parliament and our MPs, the casework question is a delicate balance. But it is balance that is – as I will show – liable to get out of kilter when the (broadly defined) justice system isn’t working as it ought to.

From the vantage point of the citizen in difficulty, by contrast, excess reliance on busy and generalist MPs will rarely be optimal, at least when compared to the alternative of dedicated and specialist advice. Yes, the MP may have some clout, but they very often won’t have the know-how to get a particular problem resolved. And there will be wild variation in their personal inclination and electoral motivation to go the extra mile for their constituents. It is, in other words, a lottery as to how much help citizens can expect.

So, what signs of excess reliance are there? The casework role has increased exponentially – it rose 8- to 10-fold during my 27 years as an inner-London MP, between 1997 and 2024. Admittedly, the decline in the number of local councillors, from around 75,000 before 1974 to 18,000 today, must have had some effect, leaving MPs to pick up some of the casework they used to do. The bigger story, though, starts with the pressures on, and complexities of, the welfare state which mean that citizens need ever-more advice and legal support to secure their rights – at the same time as precisely this sort of support has been restricted. Moreover, the fall-back of recourse to the courts has got costlier and more restrictive too. The upshot is that MPs nowadays see many people who would ideally either have resolved things through specialist advice without having to go to court, or else gone ahead to a tribunal, and achieved a timely resolution there. When those routes are closed off, a lot of traffic is diverted to the door of the constituency surgery, which can be relied on to open, even if it’s not the most suitable port of call.

At some point, there will be a price to pay in terms of our political processes too. Even with the most committed local MP, there will be a point of overwhelm, where the volume of cases reduces how much attention can be given to each, and impedes their hopes of achieving anything on the national stage. If we don’t want our politics to end up in this place – where it fails the constituent and frustrates the effectiveness of their representative – then we need to dig into what exactly has driven the explosion of casework, and ask what can be done to contain it.

Needs for surgery

Four drivers of casework are worth disentangling. Firstly, amid a prolonged squeeze on living standards and funding for most public services, the rising needs of citizens have far outstripped the capacity of public agencies. More and more ‘gatekeeping’ has come into effect, with additional decision-making and appeals and delays at different levels of the process. This is frequently complicated by greater localism, as in the case of some parts of the benefit system since 2013. Second, with all this rising complexity, the level of functional and particularly digital literacy required to navigate the system has risen. Digitalisation has been a benefit for many but a massive additional barrier for many others.

Third, expert and especially legal advice have been cut. There was the squeeze on legal aid, consequent upon the 2012 Legal Aid, Sentencing and Punishment of Offenders Act, and then the assault on local authority budgets, after which access to advice and advocacy fell sharply. As Chair of the All-Party Parliamentary Group on Access to Justice, I helped lead the inquiry into the state of Legal Aid, which highlighted the alarming spread of “advice deserts” across the country, a phenomenon that the Law Society has recently mapped.[ref]The Law Society. 2024. Legal aid deserts. Available from: https://www.lawsociety.org.uk/campaigns/civil-justice/legal-aid-deserts/.[/ref] Taking evidence from lawyers and clients, our cross-party panel heard compelling stories of where the right help at the right time changed someone’s life – in some cases changing the law and public policy – yet at the same time, heard about a system in crisis.

As part of the process, we surveyed MPs, partly to get a sense of the effect upon their work. That 2018 snapshot revealed the sheer scale and variety of casework, and how inextricably linked it was to the condition of legal and advice services:

My inner-London constituency was not, like some, an advice desert: both Paddington and North Kensington have Law Centres, Citizens Advice Bureau – plus more specialist advice agencies on housing and benefits, and (still, just…) some firms actually taking Legal Aid clients. Yet despite this relative advantage, advice services scarcely touch the sides of demand, for a variety of reasons. Squeezed rates have rendered Legal Aid cases unviable for many providers; at the same time, the wholesale removal of Legal Aid from some fields of work has shrunk the areas within which they can operate. As local authority budgets have come under pressure, funding for the advice sector has become increasingly unstable, unreliable and tightly targeted. My local Law Centre had no support at all from the council for many years, and while the legal team punches well above its weight, there is no escaping the fact that there is only one housing lawyer!

The fourth and final big factor – after overwhelmed substantive services, the rising challenge of accessing them, and squeezed legal and advice services – is creaking and sclerotic public administration. The time it takes to resolve complaints or challenge bad official decisions has risen significantly. And when more people are dissatisfied with administrative decisions, more may seek redress at a tribunal. When the tribunals are themselves pressed for resources, the upshot is the growing backlog evident in the official statistics, which represents another group of citizens stuck in limbo.[ref]Ministry of Justice. 2024. Official Statistics – Tribunal Statistics Quarterly: April to June 2024. Available from: https://www.gov.uk/government/statistics/tribunals-statistics-quarterly-april-to-june-2024/tribunal-statistics-quarterly-april-to-june-2024.[/ref] All these delays have a catastrophic impact upon the most vulnerable, including, but by no means limited to, many with poor mental health, ranging from psychosis and PTSD to severe anxiety and depression. In my constituency office, expressions of suicidal ideation – frequently backed by medical evidence – were so common that the toll on staff was impossible to ignore.

Home truths

I’m very aware that what I saw in Westminster North saw was not necessarily the same as colleagues in other parts of the country. The overall volume of casework was higher than in many places, the content was also different.

Throughout those years, immigration ran second in the table of constituency issues, an element of the caseload initially dominated by asylum applications. With substantial Iraqi, Sudanese, Kosovan and Lebanese communities among others, we were soon dealing with thousands of appeals for help a year, often via legal representatives of variable quality, but almost completely unable to get any response at all from a beleaguered Home Office. As the context shifted, with dispersal systems put in place, the emphasis moved towards visa queries, but successive crises still required my committed team of four and I to burn midnight oil. The invasion of Ukraine brought an emergency temporary resettlement scheme; the fall of the Afghan government saw no equivalent scheme – but still led to local hotels and schools suddenly accommodating hundreds of refugees, and required a level of support which fully occupied our office.

Delays were baked in to every level of the system, to the point where a substantial part of our work involved responding to applicants’ legal representatives frustrated at not being able to get a response or a hearing date. The government engaging efficiently with legal representatives and legal processes is, in itself, an important feature of a well-functioning justice system. When it doesn’t happen, local MPs end up becoming an imperfect way to attempt to fix that missing link. But there are limits on how much advice and support they can offer in guiding constituents through complex systems that cannot efficiently resolve problems and uncertainties.

However, it has not been immigration but the housing issues that have – consistently, year on year – dominated the caseload. Basic needs (homelessness, overcrowding, disrepair), the problems associated with my seat having the largest proportion of private rented accommodation in the country (insecurity, affordability, disrepair again), and the complex interaction between housing and social security restrictions combined to generate several thousand cases a year.

Housing law is well-defined, especially in respect of homelessness duties, and my tribute to the housing lawyers who have responded to my pleas over many years is heartfelt. Despite their efforts, in any average week, my office could receive anything from 30 to 100 new housing-related cases, requiring some urgent assistance – an imminent possession hearing or discharge of housing duty, a bailiff quite literally on the doorstep… any of these would demand that other work immediately be put on hold.

Many of these emergencies would not arise if citizens could rely on early access to legal and other specialist advice – or indeed efficient public administration. On one occasion in 2023 I stayed on the phone for most of a morning with a terrified tenant whose landlord was, as we spoke, attempting a wholly illegal eviction – while at the same time trying to reach the council’s Tenancy Relations Officer and getting the police to attend. Via a local school, I had to head off an eviction for arrears of a family where, it transpired, all the information from housing to benefits, was still registered in the name of a father who had been absent for more than five years. The council had been told, but never seemed to update its records, and continued to try and communicate through him: word of the family’s true situation had not reached the court.

Sometimes the strained housing system simply cannot provide even the essentials, despite the best efforts of everyone working within it. In my final spell in Parliament, my office was called by a tenant who had had a possession order made, in a hearing where she wasn’t present. There should have been a duty solicitor present at the court but on this occasion, there wasn’t – and my constituent was terrified of losing her home. My senior caseworker helped with a hearing to set aside the previous order, explaining how the last hearing had been missed due to ill health and poor communication. He also found deficiencies in the so-called Section 21 ‘no fault’ eviction notice, and happily, at the ‘set aside’ hearing, the substantive possession order was also dismissed. Things worked out that time, but they don’t always. No-one should have to rely on their MP happening to have a good caseworker, and a lucky day at a hearing, to keep a roof over their head. And this is true even when notional rights are getting stronger. It’s good news that the current Renters’ Rights Bill is abolishing Section 21 evictions, but tenants need to be able to know about – and enforce – their new rights. And that takes a strong advice and justice sector.

A striking proportion of homeless families in recent years have included at least one child with special needs – something which, even if monitored, is not analysed or factored into decision-making. As the housing crisis escalated, ever-more families would approach my office for assistance because frequent moves, first from a private rental to emergency housing, then from emergency housing (usually a hotel or hotel annexe room) to what could be the first of many Temporary Accommodation homes, often some distance away. One family with an autistic child with an Education, Health and Care Plan (EHCP) had long been in temporary accommodation out of borough, in North London. They received a letter telling them that they were required to move to alternative Temporary Accommodation with a week’s notice. This would involve starting the EHCP again mid-term in GCSE year. Another family were relocating from a hotel having become eligible for housing assistance. This required either finding a new school (again, mid-term, with no notice, and all for the sake of totally insecure, nightly paid new accommodation) for a child with paraplegia, or else transporting that child for an hour-and-a-half each way to her current school. If you were a parent in this situation, you would surely need advice – proper, expert advice.

Toothless rights

Supporting homeless households with suitability reviews became the single biggest demand on my caseworkers’ time – whether this was something we did ourselves or, where a practical means for doing so existed, referred on. And it is a telling example of what you might hope the justice system would do (and perhaps used to do) and what it actually offers today. For while many decisions are or could be challengeable in principle, the length and uncertainty of the legal process was a profound deterrence for many homeless households.

As we tried to step in and provide some of what the law either didn’t or wasn’t felt to offer, we were always conscious of a very real dimension that shows nowhere in any official statistic – the emotional dimension. Anxious people, at a time of crisis, often need a real investment of time: time to explain the options, the sharp constraints and the painful trade-offs. “Don’t leave your tenancy before the bailiffs are due, however traumatic their arrival may be, and however much the eviction is without fault on your part,” we would have to explain, “because it can damage your homelessness application.” Or: “Please don’t refuse the offer of Temporary Accommodation, even if it is the other side of the city from your children’s schools, because then we have to face an intentional homelessness decision.” Committed constituency offices will gradually absorb these sorts of maxims from experience, but without expert training they can never be sure they are giving all the right advice, particularly for constituents in more unusual circumstances.

Alongside the urgent cases there would be several hundred important, but less-urgent cases, in such areas as disrepair and overcrowding. Poor housing conditions have been a long-term preoccupation – again, not surprisingly given a local history which has encompassed the slums Dickens described and Booth mapped, and then the tenements in which Rachman and Hoogstraten defined bad landlordism. Under-recognised in the aftermath of the horrors of the Grenfell disaster (just beyond the borders of my constituency) was that inner-West London already had the dubious distinction of being the site of several of the worst residential fires in post-war Britain. But when families raised a concern about unsafe or unhealthy conditions, all too often they landed up with a new worry: the fear of retaliatory eviction, which can often be the most pressing worry of all. This shouldn’t happen, and where householders were well-advised on their rights, and everybody was confident in their ability to enforce it, it wouldn’t happen. But with the advice and justice sector in its present condition, that is not the world we are in.

But of course, the law itself also needs to give the system something to enforce. On this count, the position varied. For many years, a strong working relationship with the Residential Environmental Health team paid real dividends in private and Housing Association properties. An inspection under the Housing Health and Safety Ratings system, underpinned by the threat of enforcement, was often sufficient to deal with a problem of disrepair (even if it was sometimes followed up with a Section 21 eviction).

Where it ceased to work was in the council’s own properties, where no enforcement power existed. Mrs B was one such council tenant, where my representations simply failed to generate a response. When I knocked on her door during an election campaign, I found the ceiling down across two rooms thanks to leaking from a privately owned flat upstairs. As so often, unresponsive private owners, not infrequently based abroad, prolong the process of securing repairs beyond tolerable limits. I found Mrs B an excellent lawyer. She was well, and ultimately successfully, represented. Even so, the process took so long, her husband died in the meantime, never seeing either the repair completed, or compensation paid.

I had a similar experience with Mr C, who was wheelchair reliant, in an adapted flat that would have been perfect for his needs were it not, again, for a missing ceiling. By now deeply sceptical about how long a legal case would take – bearing in mind any less-formal representations would be shut down for the duration, as no housing provider will talk to the MP while a legal case is pending – I ended up with the time-honoured fall-back of getting a TV camera in to name and shame. The job was done. Time to start immediately on the disrepair to the wheelchair ramp leading to the front door, and another year of correspondence.

Spiral of strain

Inevitably, financial distress and housing issues feed off each other, just as both interact with poor health. Sorting out a debt problem or a benefit entitlement can be the key that unlocks a housing problem. Legal and other expert advice, and ultimately the courts themselves, should be accessible to resolve any one of these problems, and thereby kick off a virtuous cycle in which other issues might then be resolved. But when they are not, a vicious cycle becomes more likely. And this is true in spades in an environment where underlying entitlements are being cut back.

A raft of measures in the 2011 Welfare Reform Act and subsequent 2015 legislation – restricting Local Housing Allowances, imposing the Benefit Cap and the “bedroom tax” on social tenants with a spare room – had a direct impact on housing in my own borough. Together with the charity Z2K, I soon found myself working on hundreds of cases where benefit restrictions had led to arrears and landlords seeking possession.

Such restrictions then placed an ever-greater premium on those benefits – specifically Disability Living Allowance, and its successor Personal Independence Payments (PIP) – which conferred exemption from some of the harshest cutbacks, generating vast additional demand for advocacy in this area. With an increasing proportion of these applications turning on the client’s mental health conditions, it would have been valuable to have had more support with initial form-filling and attendance at tribunal hearings, but this was rarely the case; the lack of such support inevitably ended up creating more work down the line. One constituent was refused PIP for her non-verbal adult son, who had constant fits and insufficient risk awareness to cross a road. Another was initially awarded no PIP ‘points’ for her PTSD which, after her trauma of seeing her children killed in front of her in a war zone, left her almost unable to carry out everyday functions. The justice system needs to be there to put these things right in an accessible and timely manner, but it will itself be strained when too many problems of this sort are piling up on it at once.

The fact is, when so many components of the machine are under stress at the same time, something has to give. One the one hand, swathes of the welfare state now feel as if they are in a constant condition of emergency. Employment, incomes and housing are precarious, adding to the pressure on already vulnerable communities who have other problems to cope with – poor mental and physical health, language and communication barriers. An ever-rising number seek help only at the point of crisis, not least because the system lacks capacity to intervene earlier, as any time spent in either a county court housing possession hearing or an MP’s surgery attests. And at that point what people need is good representation, which in turn relies on there being the time to put the case together, sometimes in the face of absent, confused and chaotic evidence.

It is a demand that asks a lot, and all too often a demand that goes unanswered. MPs’ surgeries are often a last-gasp place to try when other, more suitable help is nowhere to be found. But as the caseload numbers rise, even dedicated politicians with superlative staff can’t give every case the attention that it needs. Politicians know this. The good ones, at least, surely worry about it. Which might make you wonder why more of them don’t campaign vocally for a well-resourced and accessible justice and advice sector.

The mostly young and far-from-well-paid caseworkers who helped me over many years have my unbounded admiration, as do those amazing people who continue to operate legal aid services on a shoestring. I’m awed by what they do in the face of the storm of need and desperation. I’d be happier still if it were less essential.

The Nuffield Foundation has commissioned this project, but the views expressed are those of the authors and not necessarily the Foundation.