By Lee Henderson, Goodman Ray

On 12 March 2015 the Justice Committee published its report on the impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

The Justice Committee found that the Ministry of Justice (MoJ) had:

– harmed access to justice for some litigants;

– failed to achieve three of its four objectives for the reforms to legal aid;

– realised an underspend in the legal aid budget; and

– failed to achieve its aim of providing a ‘safety net’ protecting access to justice for the most vulnerable people.

Underspend

In its November 2014 report ‘Implementing reforms to civil legal aid’, the National Audit Office stated that the Legal Aid Agency was funding “legal help in 326,000 fewer cases than would have been expected without the reforms.  It agreed funding for representation in court in 36,537 fewer cases.”  The report concluded that the “Ministry is on track to exceed spending reduction forecasts by £32 million.”

The Committee asked Mr Shailesh Vara, the Minister for Legal Aid, why there had been an underspend.  Aside from the Legal Aid Agency’s debt collection system’s success the reasons offered were that there had been a “lower take-up of mediation” than expected, that “many other agencies provide this sort of advice”, and “people are aware that there have been reductions in legal aid and they simply are not coming forward”.  This last comment is particularly frustrating: people believe that legal aid is no longer available because the MoJ has failed to inform them otherwise.

The Committee heard evidence that people are not accessing legal aid because they do not have enough information on whether they are eligible.  Most of the witnesses approached by the Committee placed the failure to provide good public information on the Government’s doorstep.  This lack of accessible and useful information is a theme in the report.  The Committee recommends that the MoJ undertakes a public campaign to combat the widespread impression that legal aid is almost non-existent.  Perhaps the £20 million underspend could be utilised to inform the public that legal aid is still available rather than relying on solicitors ( that people do not go to see because they do not think they can get legal aid) to inform them.

Exceptional Case Funding

Where an individual’s case is not within the scope of LASPO they may, in exceptional cases, be entitled to legal aid.  An application must be made to the Legal Aid Agency’s exceptional case funding team.

As the LASPO Bill passed through Parliament the MoJ estimated that 5,000 to 7,000 applications for exceptional case funding would be made each year and that around 3,700 of those applications would be granted (around 53% to 74%).  The Legal Aid Agency’s latest figures show that 151 of 2,090 applications made between April 2013 and September 2014 were granted – that is a success rate of 7.2%.  Of the 151 successful applications 21 were for family law matters.  Is this a safety net?  Or is it a token gesture by the MoJ in an attempt to ensure that LASPO is compliant with human rights?

Some of the witnesses approached by the Committee criticised the formal guidance given to caseworkers, others the approach, knowledge and ability of the caseworkers – either way this is surely easily remedied?  Whatever the reason for the low success rate, exceptional case funding has failed to offer a safety net to those most in need of legal aid.

The ‘legal aid: exceptional case funding’ section on the gov.uk website states that a client can apply directly to the Legal Aid Agency for exceptional case funding.  It advises applicants that they must meet the ECF criteria set out in LASPO and described in the Lord Chancellor’s funding guidance (a link to this guidance is provided which takes the applicant to a page featuring the ECF application form and the accompanying guidance).  The application form is complex, lengthy and, along with the accompanying guidance, drafted in a way that is inaccessible for those clients most likely to be entitled to exceptional case funding.  It is surprising therefore to read Mr Vara’s comment to the Committee that “there is a belief that it is a discretionary fund and that, if you are turned down through the normal route, then, if you apply here, you might just be lucky”.  Perhaps if the website gave prospective applicants comprehensible guidance on what a successful ECF application might look like the belief that it is a discretionary fund might be dispelled.  Mr Vara is correct in one sense: “you might just be lucky”.  Indeed, it appears that luck plays a far larger part in accessing legal aid than might be expected.

For any chance of success the ECF application must be made by an expert on the area of law in question (who, it should be noted, will spend at least three to four hours completing the form – excluding time spent taking instructions from the client – but will not be paid for an unsuccessful application).  It is surprising and demoralising for those making these applications to learn that the application is then determined by a caseworker without any specialist knowledge of the relevant area of law.

Domestic Violence Gateway Evidence

LASPO took private family law proceedings out of the scope of legal aid.  Where a person has suffered domestic violence they may still be able to obtain legal aid for private family law proceedings.  They must however be able to prove the domestic violence by way of specified evidence, evidence which must be less than 24 months old.

The Committee’s report cites a statistic provided by the charity, Rights of Women: 39% of victims of domestic violence did not have the evidence required for a legal aid application.

Rights of Women recently challenged the regulation that places a time limit on the required evidence, amongst other things.  The challenge failed.  The court said that “the time limit provides a test of the on-going relevance of the abuse.”  The test is arbitrary – it does not take into account the lasting impact of domestic violence, the ever-changing relationships that are often the subject of private family law proceedings, and the fact that those relying on the evidence are often not the one resorting to the courts.

The Committee offers a common sense recommendation: that the Legal Aid Agency be given discretion in respect of the 24 month time limit.

Litigants in Person

The MoJ has suggested that the rise in cases where both parties are litigants in person has not resulted in longer hearings, that, in fact, such hearings are comparable in length to those where the parties have representation.  The statistics on which this claim is founded are based on the courts’ case management tool used for providing time estimates for hearings which often do not correlate with the  actual hearing times therefore it is difficult to know how useful (if at all) this suggestion is.

Mediation

The MoJ predicted that there would be an additional 9,000 Mediation, Information and Assessment Meetings (MIAMs) each year following the changes to legal aid.  The number of MIAMs has actually declined by 17,246 per annum.  This has resulted in a £20 million underspend in the legal aid budget.

Some of the witnesses approached by the Committee felt that the decline was due to a serious lack of information about mediation available to those about to enter family law proceedings.

Conclusion

It is clear that the current system requires urgent attention.  Access to justice has been harmed yet there has been a significant underspend of the budget – this is a nonsense.  The public’s perception of legal aid has been determined by press headlines rather than the reality and the MoJ has made a lacklustre and failed attempt with its updated website at offering the facts to those looking to access justice.  Those most in need of legal aid must persevere with the clumsy and ill-conceived system for exceptional case funding only to have their application determined by an under-trained and under-qualified caseworker.

Accessing legal aid can be, it seems, a matter of luck rather than entitlement.

The Committee’s report can be found here.

In keeping with our founding principles Goodman Ray continues to be committed to undertaking publicly funded work in all those areas of family law which remain in scope.  If you are in doubt whether your case is one of the kind that is still covered by the legal aid scheme please contact us.

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