Ministers urged to be ‘more interested’ in the vulnerable over legal aid access

By Jonathan Bunn, Reporter9th February 2024News EnglandCourts / Justice, Government / Politics, News England, Victim Support

The Government does not know whether eligible people are able to access crucial legal aid and should do more to ensure it is widely available, according to the public spending watchdog.

A report by the National Audit Office (NAO) said it is concerned about gaps in the Ministry of Justice’s (MoJ) understanding of the impact of legal aid reform, while the chairwoman of the Public Accounts Committee called on the department to be “more interested” in the vulnerable people affected.

Under legislation implemented in 2013, the MoJ aimed to discourage “unnecessary and adversarial litigation at public expense”, ensure legal aid was targeted to those most in need, significantly reduce the costs of the scheme and deliver value for money.

As a consequence, legal aid spending fell in real terms by 28% from 2.58 billion in 2012/13 to £1.85 billion in 2022/23 as the volume of cases reduced.

Despite ensuring access to justice being one of the MoJ’s three key priorities, the department cannot guarantee advice is readily available without an understanding of both demand for legal aid and the capacity of providers, the NAO said.

The watchdog acknowledged there are challenges in assessing demand, but insisted the MoJ could do more to address limitations in its datasets.

For example, the report said the Government does not have estimates on demand for all services which fall under legal aid.

In addition, while the Legal Aid Agency within the MoJ monitors the capacity provided by registered providers overall, it does not assess why some undertake a limited number of cases or none at all.

The NAO found at least one in 10 providers operating in civil law, excluding family and mental health cases, took on no cases in 2022/23.

The report added there may be various reasons for this, including a lack of provider capacity or low demand, but said it is “not possible to tell”.

Also, the ministry does not monitor whether individuals receiving “exceptional case funding” are subsequently able to secure a provider.

This type of support relates to issues outside the scope of legal aid but is provided when not doing so would risk breaching an individual’s human rights, or for inquest cases with a wider public interest.

Financial eligibility thresholds for legal aid support have not increased in cash terms over the last decade, reducing the proportion of people able to access support.

Following the implementation of reforms in 2012/13, there was a 11 percentage point decrease in the proportion of taxpayers able to access legal aid for civil cases by 2021.

There was also a 16 percentage point decline in people eligible for support for criminal cases in magistrates’ courts over the period.

The ministry has committed to update these thresholds, the NAO said.

The watchdog found that the proportion of people living within 10km of a legal aid office has fallen across most aspects of law since 2013/14.

For housing issues including evictions, the proportion has declined from 73% to 64% over the past decade.

The NAO said that, while the lack of local offices does not necessarily prevent access to support, the MoJ acknowledged there are areas of law in which may be unmet need, including housing, immigration and advice in police stations.

Responding to the report, the Public Accounts Committee’s Labour chairwoman Meg Hillier said: “The government has a duty to fund legal advice for the most vulnerable people in society.

“The MoJ has met its aim to cut its legal aid spending, but evidence suggests that access to legal aid services is worsening. The MoJ needs to be more interested in the impact on people of their reforms.

“The MoJ must proactively work with others across government and legal providers to collect more information on costs and demand. They have to build a sustainable legal aid market where everyone who is eligible for legal aid can access it.”

The report also concludes that the Government does not know the full cost and benefits of the 2012/13 reform because of a lack of progress on determining how the changes affected costs in other parts of the criminal justice system and the wider public sector.

Examples cited include councils funding legal advice for immigration cases and court “efficiency” being undermined by a significant increase in people representing themselves in civil cases.

The NAO said 40% of family dispute cases between January and March 2023 took place without both the applicant or respondent having legal representation.

This compares with 14% over the same timeframe in 2013, but the impact of self-representation in family courts has not been assessed since 2018.

Gareth Davies, head of the NAO, said the MoJ’s lack of understanding of the wider costs of reform means the Government cannot evidence a spending reduction for the public purse overall.

He added: “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.”

Law Society of England and Wales vice president Richard Atkinson said both the civil and criminal legal aid systems are “on their knees”, with millions of people unable to access the help they are entitled to.

He added: “The MoJ must ensure that access to legal aid – which is itself a core element of access to justice – is supported by a sustainable and resilient legal aid market.

“This landmark report shines a light on the stringent and successive government cuts to legal aid alongside stagnant fees paid for expert advice provided by the remaining charities and small firms.”

A Ministry of Justice spokesperson said: “Our priority has always been to ensure legal aid is available to those who need it most – evidenced by the fact that in the last year alone, we have spent nearly £2 billion helping people facing legal difficulties, including thousands of families and domestic abuse victims.

“This month alone, we announced proposals for a £21.1 million pay boost for Criminal Legal Aid lawyers and we have already increased most criminal legal aid fees by 15% – ensuring representation is available when needed. This is on top of our ongoing root-and-branch review into civil legal aid. We will now consider the NAO’s findings closely and report back in due course.”