| MAGISTRATES' COURTS' PERFORMANCE ON CRIMINAL LEGAL AID MEANS TESTING
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| C&AG's Report, HC 615, para 1.4
| 5. To qualify for criminal legal aid an applicant must pass a means test, and a separate test to establish whether it is "in the interests of justice" that the applicant should have legal representation. The means test is intended to ensure that applicants are not awarded legal aid to which they are not entitled, or that they make a contribution towards their legal aid costs when they should.
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| Qs 1 and 12
| 6. Our predecessors asked the Lord Chancellor's Department what they were doing to ensure that the long-standing problems with the performance of the magistrates' courts on the means testing of criminal legal aid were being addressed, in order to avoid further qualifications in future years. The Department agreed that the position was not satisfactory. The problem had proved more deep-seated than had first appeared, but they had been working hard to put matters right, on the whole with some success, and the Department hoped that there would be no further qualifications.
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| C&AG's Report, para 1.17
| 7. The C&AG's report considered these matters with respect to- the 70 per cent of awards made by the magistrates' courts where applicants in receipt of qualifying benefits are automatically granted criminal legal aid (benefit cases); the remaining cases where applicants must declare their financial resources and court staff carry out a means test (assessed cases).
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| (i) Benefit cases
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C&AG's Report, para 2.1
C&AG's Report, para 2.8 and 2.9
C&AG's Report, paras 2.14 and 2.18
| 8. An applicant who meets the interests of justice test is automatically awarded free legal aid when he or she is in receipt of income support, family credit or disability working allowance. Not all evidence obtained by the courts is adequate to demonstrate receipt of these qualifying benefits. The National Audit Office found that the courts obtained adequate evidence in only 54 per cent of benefit cases and that there were significant variations in court performance. The main problems were a lack of awareness by court staff as to which benefits qualify for free legal aid and what evidence should be accepted. In signing the application, applicants authorise the court to confirm receipt of qualifying benefit with the Benefits Agency. But only six out of the 20 courts visited by the National Audit Office had any liaison with the Benefits Agency to confirm benefit entitlement of applicants.
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Qs 6 and 7
Q 47, Q 109
Q 154
| 9. The Department told our predecessors that the latest completed surveys by their Internal Assurance Division, the results of which were not available in time for the Comptroller and Auditor General's report, showed that the number of cases in which adequate evidence was given had risen to 94 per cent. The Department had been encouraging courts to have a standing relationship with their local Social Security office and would shortly be issuing comprehensive guidance. Whilst they agreed that it would be much better in future to rely on the single method of a benefit entitlement certificate from the applicant's Social Security office to confirm the amounts and type of benefits received, they felt that it was not the right time to impose this. However, they were preparing guidance describing the advantages of the certificates and how to use them.
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C&AG's Report, para 3.15
Q 32
C&AG's Report, para 3.15
Qs 32 and 99
| 10. The National Audit Office found that most courts automatically granted free legal aid when applicants were in custody. The Department pointed out that this would often be the right course of action. However, the National Audit Office found that most courts made no attempt to establish whether applicants were later released on bail, so that evidence of qualifying benefit could be demonstrated, or evidence of means if not eligible for benefit, although one of the courts visited, Mid- Warwickshire Magistrates' Court, was monitoring releases on bail. The Department had seen a diary system operating in the legal aid section at Uxbridge, and felt that it should be perfectly practicable for courts to follow up prisoners released from custody.
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| (ii) Assessed cases
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C&AG's Report, para 3.1
Qs 116, 117 and Evidence, Appendix 1, pp. 22-23
| 11. Around 30 per cent of applications are from people who are not in receipt of qualifying benefit and require a means assessment. The applicant is required to provide a full statement of means with supporting evidence of declared income, outgoings and capital.
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C&AG's Report, paras 3.7 and 3.8
Q 27
Evidence, pp. 1-3
Q 111
Q 112
| 12. The National Audit Office found that the courts obtained "best" evidence of applicants' income, such as payslips showing 13 weeks' or three months' pay, in only 41 per cent of cases. Some evidence was provided in a further 44 per cent of cases. The Department's Internal Assurance Division found in October 1996 that 96 per cent of the assessment cases they examined had some income evidence. The Department told our predecessors that "best" evidence would not be available in every case, but agreed that 41 per cent did not appear very high and that there was certainly room for improvement. They were undertaking a major exercise to prepare comprehensive guidance using comments on problems and examples of best practice from around the country.
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C&AG's Report, para 3.19
Q 27
Q 113
| 13. Evidence of applicants' declared outgoings was obtained in only 21 per cent of the cases examined by the National Audit Office, although 68 per cent of applicants declared outgoings. Recent Internal Assurance Division surveys show an increase in the proportion of cases with evidence of outgoings to 43 per cent, but the Department recognised that there was still room for considerable improvement. The courts had no discretion, and had to obtain evidence of outgoings, so further improvement was essential.
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C&AG's Report, para 3.30
Q 59
Q 34
Qs 34 and 60
Q 35
Q139
| 14. The National Audit Office found that over a third of legal aid assessments were incorrectly calculated by the courts. Recent Internal Assurance Division surveys show that the position has deteriorated and that half of assessments are incorrectly calculated. Rounding down of contributions and incorrect conversion of monthly and annual rates were two particular types of arithmetical error which the Department were addressing with guidance to the courts. But the deteriorating accuracy of contribution calculations was the Department's greatest area of concern. Errors involving interpretation of the legal aid regulations were not always straightforward because in many cases the court had discretion, for example on the determination of outgoings against income. The Department had therefore not issued much guidance on these types of error, but they agreed that they must give more by providing court staff with examples of items which had or had not been allowed.
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C&AG's Report, Figures 5, 6, 8, 9 and 10, Q 7
Qs 26, 81 and 82
Q 145
| 15. The National Audit Office found wide variations in the performance of individual courts. The Department suggested that, with the improvements in performance noted by the Internal Assurance Division, the variation between courts was probably less than it had been. The Department accepted that the recent progress and the performance of the best courts showed that compliance was possible under the present system. It was one of the Department's published aims to put matters right, and the subject was of great concern to them.
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Q 56
C&AG's Report, para 3.26
Q 100
Q 114
| 16. The Department told our predecessors that many applicants for criminal legal aid were not at all well off. Even so, the National Audit Office found cases where applicants with second homes involving substantial equity had been awarded legal aid. The Department accepted that the courts needed more guidance on dealing with people with capital, but consider that courts would always have to rely to some extent on the honesty of applicants. The Internal Assurance Division would be making a special selection of capital cases in future to make sure that evidence was being properly obtained.
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Q 28
PAC 25th Report, HC 314 (1995-96)
Q29 and Evidence, Appendix 1, pp 22-23
Q 28
Q 31
| 17. The previous Committee asked the Department about the Special Investigations Unit, which the Committee considered, in their earlier report on civil legal aid, to be the most important recent measure to combat the threat posed by the growing number of high risk civil legal aid applicants with complex legal and financial affairs. The Unit had nine full time staff and spent £60,000 on consultant accountants in 1995-96. It had saved nearly £1 million so far, and probably more in view of the number of cases abandoned by applicants after being referred to the Unit. The Department were not yet able to refer criminal cases to the Unit, but expected to do so in future. They also agreed that it might be possible to save more by increasing the size of the Unit.
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| Conclusions |
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| 18. We are seriously concerned that the Department's accounts for legal aid expenditure have been qualified for the sixth successive year. We consider that the Department should have taken effective action well before now to ensure that the statutory regulations are properly implemented.
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| 19. We note that 70 per cent of applicants are awarded free legal aid on the grounds that they claim to be in receipt of income support, family credit or disability living allowance. We consider it unacceptable that at the time of the National Audit Office examination, in 46 per cent of cases courts were still not obtaining adequate evidence to demonstrate that applicants actually were in receipt of these benefits, and so entitled to free legal aid.
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| 20. We note that surveys by the Department's Internal Assurance Division show a substantial improvement, with only 6 per cent of cases now without adequate evidence. We remain concerned at the time being taken to improve performance, and expect these latest increases in the provision of evidence to be sustained and improved further.
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| 21. We endorse the Department's intention to issue comprehensive guidance incorporating the National Audit Office's good practice recommendations. We expect the Department to underline to responsible staff in the magistrates' courts, especially in those courts which are still achieving low levels of performance, the importance of the proper management of means testing for criminal legal aid. In particular, the Department should ensure that the courts adopt proper arrangements for checking an applicant's social security benefit entitlement by obtaining appropriate documentary evidence such as a benefit entitlement certificate.
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| 22. We note that most courts automatically grant free legal aid when applicants are in custody and therefore not in a position readily to provide evidence of their entitlement. However, we are concerned that few courts have arrangements to track applicants later released on bail, who are then in a position to demonstrate that they are eligible for free legal aid, or to provide the evidence required to assess their means if they are not. We urge the Department to ensure that all courts operate systems to trace applicants released from custody.
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| 23. We note that 30 per cent of applicants are not in receipt of a qualifying benefit and require a means assessment. We are concerned that at the time of the National Audit Office examination, in 15 per cent of cases courts were not obtaining any evidence of income declared by applicants. We note that surveys by the Department's Internal Assurance Division show an improvement, with 4 per cent of cases in which no evidence was obtained.
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| 24. We note that the Department do not monitor the provision of "best" income evidence, such as payslips showing 13 weeks' or three months' pay, which the National Audit Office found to be provided in only 41 per cent of cases. This still leaves considerable room for improvement. We recommend that the Department should monitor the proportion of cases with "best" income evidence so as to ensure that this evidence is sought whenever possible.
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| 25. We are concerned at the low level of evidence of applicant's outgoings- 22 per cent-in the cases examined by the National Audit Office, and that whilst the Department's recent surveys show an increase, the proportion of cases with evidence of outgoings is still only 43 per cent. This low level of compliance needs to be raised, and we urge the Department to impress on court staff the need for substantial improvements.
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| 26. We consider it unacceptable that courts were incorrectly calculating over a third of legal aid assessments at the time of the National Audit Office examination. We are therefore seriously concerned by the subsequent deterioration in the accuracy of assessments, with one half of legal aid assessments shown to be wrong in the Department's survey. The Department should ensure that their planned further guidance assists court staff in the interpretation of the legal aid regulations and is sufficiently comprehensive to enable them to achieve a significant improvement in performance.
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| 27. We recommend that the Department's Internal Assurance Division should report on the variations between courts and identify those courts which are continuing to perform poorly. The Department should press the staff in these courts to improve their performance to the standard of those already achieving a high level of compliance.
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| 28. We note the success achieved by the Special Investigations Unit in identifying civil legal aid recoverable from individuals who were not eligible to receive all or part of the payments made to them. We urge the Department to review the Unit's work to assess whether it should now be extended to cover applicants for criminal legal aid.
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