Davies: Eligibility concerns
The Ministry of Justice’s (MoJ) failure to manage the legal aid market – beyond reducing its budget – has been laid bare by a major report from the National Audit Office (NAO).
The watchdog said the MoJ “does not know whether everyone eligible for legal aid can access it” and “still lacks an understanding of the full costs and benefits of its reforms”.
The MoJ has accepted that removing early advice for some categories of law from the scope of legal aid may mean that cases escalate into a more complex and costly form.
But it has made “little progress in understanding the potential scale of these costs”.
Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, real-terms spending on legal aid has fallen 28%, or £728m, to £1.86bn, which was the objective, the NAO acknowledged.
Civil legal aid fees, which have been frozen since 1996 and were reduced by 10% in 2011/12, are now around half what they were 28 years ago in real terms. Though the MoJ is now holding a review of civil legal aid, there is no commitment to increase fees, the NAO said.
It noted also last month’s High Court ruling that the then Lord Chancellor’s decision-making in failing to implement in full a 15% pay rise for criminal solicitors recommended by the Bellamy review was irrational.
The NAO’s report – Government’s management of legal aid – evaluated the processes and information both the MoJ and Legal Aid Agency (LAA) have to manage the overall legal aid system and to ensure value for money.
It recommended that “the MoJ do more to ensure legal aid is available to all those who are eligible”, saying the department did not collect sufficient data to understand whether those who were entitled to legal aid were able to access it.
“Delivering access to justice is one of MoJ’s three key priorities. However, MoJ lacks a good understanding of both the demand for legal aid and the capacity of existing providers so it cannot ensure advice is available to those entitled to it.
“We recognise that assessing demand is inherently challenging but MoJ could do more.”
Despite the budget reduction, the MoJ could not demonstrate how much its reforms represented a spending reduction for the public purse overall, the NAO said.
It cited examples of where costs appeared to have shifted to elsewhere in the public sector, such as local authorities funding legal advice for immigration cases to mitigate costs to themselves later on.
The proportion of people representing themselves in family cases has risen from 14% to 40% in a decade, but HM Courts & Tribunal Service has not looked at the impact of this on court costs since 2018 and in any case only recorded estimated, not actual, hearing lengths.
The MoJ had expected referrals to mediation in family cases to increase by a third post-LASPO, but in fact they have fallen by 60% “because the reforms withdrew most funding for solicitor consultations which were the most common source of mediation referrals”.
NAO research found that the proportion of the population within 10km of a legal aid office has fallen since 2013-14 for most areas of law, such as from 73% to 64% for housing advice.
“While the lack of a local office does not automatically prevent people from accessing support, with some firms able to provide advice remotely, LAA and MoJ recognise that there are areas of law where there may be unmet need. These include housing, immigration and advice in police stations.”
It went on: “MoJ has set providing swift access to justice as one of its primary objectives. Theoretical eligibility for legal aid is not enough to achieve this objective if there are an insufficient number of providers willing or able to provide it.”
Gareth Davies, the head of the NAO, said: “The MoJ must ensure that access to legal aid, a core element of access to justice, is supported by a sustainable and resilient legal aid market, where capacity meets demand.
“It is concerning that MoJ continues to lack an understanding of whether those eligible for legal aid can access it, particularly given available data, which suggest that access to legal aid may be worsening.”
The NAO said it heard that providers may ‘cherry pick’ straightforward cases that require less work for a fixed fee. “Therefore, even in areas where providers are active, an eligible individual may not be able to access legally aided services.”
The MoJ “has been slow to respond to sustainability risks and lacks the data it needs to do this successfully”, the report continued, with the LAA lacking routine financial and other data to help it raise sustainability risks early.
“Instead, it has relied on one-off large-scale reviews of the sustainability of criminal and civil legal aid.”
Demand for criminal and some types of civil legal aid was likely to increase “at a time when the market is in a fragile position to respond”, the report also noted.
“MoJ expects that the government’s Illegal Migration Act will increase demand for civil legal aid. An increase in the number of police officers, which will likely lead to more arrests, is likely to increase demand for criminal legal aid.
“At the same time, many respondents to our consultation highlighted difficulties in training and recruiting staff and expressed plans to reduce or withdraw their legal aid services in the near future.”
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