Legal Aid: the review of LASPO Part 1

Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), along with its secondary legislation, made significant changes to the provision of in England and Wales.

Changes to the scope of civil and family legal aid

LASPO changed the scope of civil and family legal aid. Whereas previously a legal matter was within scope and qualified for legal aid funding unless it was specifically excluded by the Access to Justice Act 1999, LASPO reversed this position and listed in Schedule 1 those areas of legal problems that now remained in scope. It also provided for an Exceptional Case Funding (ECF) scheme to provide legal aid in cases where a failure to provide legal aid would be a breach of an individual’s rights under the Human Rights Act 1998 or European Union law. The Coalition Government said its goal was to refocus the scope of legal aid on those who need it most. With legal aid available in fewer areas of law, the volumes of publicly funded cases dropped, and expenditure fell by approximately £90m in civil cases and £160m in family cases.

Those providing evidence to the review told the Ministry of Justice (MoJ) that often those presenting with a legal problem are unlikely to have just one matter of concern and that a hard line between what is in and out of scope leaves people with a solution to only some of their problems. Others submitted that the legal the system is not yet sufficiently capable of catering for those without legal representation. The Government also heard that as a result of many solicitors having abandoned legal aid work, there are now ‘advice deserts’ for certain categories of law, particularly immigration and housing.

In response the MoJ said it would enhance the support offered to litigants in person and would launch a new campaign to improve awareness of how people can access support to help them resolve their issues (ideally before they become legal problems).

Changes to the eligibility criteria for civil and family legal aid

Regulations under LASPO made four changes to the eligibility criteria for civil and family legal aid:

• Applying capital eligibility test to all legal aid applicants;
• Increasing Income Contributions for Contributory Clients;
• Capping the subject matter of dispute (SMOD) disregard at £100,000;
• Removing legal aid in cases with ‘borderline’ prospects of success.

The Coalition Government said the reforms were designed to target the provision of public funding at those in the greatest financial need; to ensure those who can afford to pay some or all of their legal costs do so; and to reduce unnecessary litigation where the prospects of success are borderline. The review found the changes to eligibility contributed to savings in the cost of the scheme. These were largely down to the application of the capital means test to all applicants for legal aid, which saved an estimated £9m per annum.

During the evidence gathering phase of the review the MoJ was told that the changes have prevented people from accessing legal aid because of difficulties in obtaining the relevant financial evidence to support their applications. The MoJ also heard that the financial eligibility threshold is set at a level that requires many people on low incomes to pay a contribution which they cannot afford while maintaining a socially acceptable standard of living. The “overwhelming view” expressed by respondents to the review was that LASPO should have fundamentally changed the means testing scheme to align with the cost of current living standards.

In response the MoJ announced it would conduct a further review into the thresholds for legal aid entitlement. It promised that whilst the review is ongoing it would ‘passport’ all applicants in receipt of universal credit through the means test.

Fee changes in civil and family legal aid

Regulations under LASPO reduced fees paid to lawyers in civil and family matters. In addition, the uplifts for some hourly rates were capped or removed and remuneration for pre‑permission work on judicial review cases was limited. The Coalition Government saw fees as an area for reducing the overall spend on legal aid. The review estimated that the policies saved a combined £110m in 2017-18.

The MoJ was told that as a result of the fee reductions, young lawyers are no longer attracted to careers in areas of law funded by legal aid. Young Legal Aid Lawyers reported that low remuneration, combined with high levels of tuition fee debt, was a barrier to entry to the profession. Evidence submitted to the review from the third sector reported an increase in demand since LASPO but that charities and advice organisations are unable to ‘fill the gaps’ where legal practitioners are absent.

In response the Government argued that the reduction in the number of legal aid providers (a drop of 32%, varying between the differing areas of civil law) is a consequence of the reduction in the total expenditure on civil legal aid work (25% since 2012-13). It argued that the average income per civil legal aid provider has increased by 11%. It asserted that the market is sustainable at present but accepted that there are areas of civil and family law where it will need to look further at remuneration for legal aid lawyers.

Changes to criminal legal aid

LASPO made a number of changes to criminal legal aid, principally concerning the fees paid to solicitors and barristers, but also some changes to eligibility criteria and the provision of legal aid to prisoners. The review estimated that the fee changes have saved £140m per annum.

During the evidence gathering phase the Bar Council and Law Society told the review that the remuneration changes in criminal law had cumulatively impacted on the sustainability of the criminal legal aid market. In terms of prison law reforms, it was argued that LASPO has simply shifted costs onto other areas of Government, including the Prison and Probation Service and that the cost of this may outweigh that of corresponding legal aid provision. The Joint Committee on Human Rights raised concerns regarding the Government’s reliance on alternative dispute resolution mechanisms for prisoners, which have been described as unsuitable and ineffective. The Howard League for Penal Reform and the Prisoners’ Advice Service both reported significant increases in calls to their advice lines and the Howard League reported the lack of specific legal support available for young prisoners, during and after their prison sentence.

In response the review pointed out that the Government had acknowledged that, for certain matters concerning prison law, prisoners should be supported through legal aid and had made the necessary changes to expand scope. It pointed to increased overall funding on the Advocates’ Graduated Fee Scheme, with a focus on more junior advocates. However it also stated that it believed the time is right for a further, “more holistic review” of criminal legal aid fee schemes.

Changes to experts’ fees

Regulations under LASPO (and the Access to Justice Act 1999 beforehand) also reformed the fees paid to experts in civil, family and criminal proceedings. The Coalition Government’s intention was to reduce spending and to ensure consistency. The review estimated that policies have saved the legal aid fund £30m per annum.

The review heard evidence that the new rates of remuneration have made it difficult for lawyers to persuade experts to provide evidence in proceedings funded by legal aid. The MoJ asserted that expert fees must represent value for money, but pointed out that there are processes are in place to allow for higher rates in exceptional circumstances.

The creation of the Legal Aid Agency

LASPO also replaced the Legal Services Commission (LSC) with the Legal Aid Agency (LAA). Some respondents to the review expressed concern that the position of the Director of Legal Aid Casework is far too close to ministers in terms of decision making. The MoJ replied that changes made under LASPO were made to ensure independence and avoid political interference. It also dismissed concerns that the LAA does not have the LSC’s duty to consider access to justice. The MoJ said the duty now rests on the Lord Chancellor.

Reaction to the review

Reaction to the review was mixed. Whilst the Bar Council called the review “a wasted opportunity”, the Law Society greeted the PIR as a “shift in the right direction” and Young Legal Aid Lawyers expressed the hope that it would make a turning point in the Government’s policy on legal aid. The Justice Committee, meanwhile, warned that the numerous proposals for further reviews and research “risked being seen as ‘kicking the can down the road’.”