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Reviewing legal aid

The implications of the major changes to eligibility for both civil and criminal legal aid in the last Parliament are not yet fully apparent. Critics claim that unintended consequences of the changes include a rise in the number of litigants in person, and threats to the safety of those suffering domestic violence, as well as a reduction in the number of legal aid specialists. A series of legal challenges to aspects of the reforms have not succeeded in reversing the main thrust of the changes.

In response to these concerns, the previous Government argued that the legal aid bill was unsustainable, and pointed out that the cost per person in England and Wales was well above comparable states, even those with common law systems, such as New Zealand.

It also argued that the changes to eligibility would lead to a growth in the use of mediation services, a less costly form of resolving family law cases.

The report of the Justice Select Committee inquiry into civil legal aid, published in March 2015, concluded that, while the previous Government had indeed yielded cost savings through its changes, access to justice had been harmed for some, and overall value for money may have been affected by knock-on costs.

Chart 1: Cases granted legal aid

Change to number of cases granted legal aid, selected categories, 2013/14 vs 2012/13.

Chart showing the change in number of cases granted legal aid in selected categories (housing, immigration tribunals, family, other social welfare, debt, welfare benefits and total) 2013/14 vs 2012/13

The report also noted that the Ministry of Justice had not achieved its objective of ensuring legal aid expenditure was focused on the most serious cases and the most vulnerable individuals.

Chart 2: Public expenditure on legal aid

Public expenditure on legal aid was on a downward trajectory even before the previous Government's changes to eligibility expenditure on legal aid, financial years 2007/08 to 2013/14, £ billion.

Chart showing the expenditure on legal aid for criminal and civil cases between financial years 2007/08 to 2013/14 in £ billion.

Unforeseen consequences?

The changes to legal aid were predicted by some to lead to knock-on costs amounting to £139m per year, arising from reduced social cohesion, increased criminality, reduced business and economic efficiency, and increased resource costs to other Departments.

The previous Government maintained that there was insufficient evidence of this happening in practice. Legal aid can only be accessed at the most urgent point, such as threatened eviction, when earlier intervention might have led to a more long term solution.

Advice services report heavy demand and diminished resources. 86% of respondent MPs indicated a big increase in demand for advice since 1 April 2013, corresponding with the areas of law where civil legal aid had been removed, according to a survey for the Law Commission on advice services.

Contrary to the previous Government's expectations, the use of available evidence suggests that many potential clients are not aware of the services available due to lack of contact with sources of legal advice.

Senior judges told the Justice Select Committee that courts have faced an "unprecedented increase" in numbers of litigants in person (LiPs), with the major impact beingin private family law cases.

Since April 2013 there has been an increase in the proportions of self-representing cases for domestic violence (from around 85% to around 90%) and for private law cases (from around 50% to around 75%). This, the judges argued, has led to anadverse impact upon courts' administration and efficiency, as LiPs have sought advice from judges and court staff.

Critics of the changes also argue that the domestic violence "gateway" for legal aid is too narrow, preventing victims of domestic violence from obtaining the help that they need.

Research provided by Women's Aid to the Justice Select Committee demonstrated that in the first 4 months of the domestic violence evidence gateway, 50% of women experiencing violence did not have the prescribed forms of evidence to access family law legal aid.

Following some reforms in April 2014 the figure is now around 43%. The Children's Commissioner has published research showing 70% of children cases lack representation.

Access to the exceptional funding scheme, offering access to vulnerable applicants, appears unduly restrictive, with few applications being accepted.

It is unlikely that the legal aid budget will be restored to the levels it attained before the previous Government's changes.

However, in the wake of critical reports at the end of the last Parliament, the effects of the changes to legal aid eligibility will continue to be closely scrutinised, and pressure for government action to improve access to justice for the most vulnerable is likely to continue.

The impact of the previous Government's changes to legal aid eligibility

  • Civil legal aid Briefly, cases are in scope only where they are specified in Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So clinical negligence, education, employment, welfare benefits, debt (except where the client's home is at risk), housing (except where there is an immediate risk of homelessness) and private law children and family cases where domestic violence is not present are all generally excluded. If in scope, legal aid is also subject to means and merits tests, which have also been tightened.
  • Criminal legal aid restrictions have included no legal aid for prison law cases; introducing a financial eligibility threshold of £37,500 (disposable household income) in the Crown Court; and refusing to fund cases with borderline prospects of success. A new contract and fees regime for legal aid work has also been applied.
  • Legal profession the previous Government's proposed 10% reduction in fees for civil and family legal aid providers was expected to yield £72 million in annual savings.

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