Supplementary evidence from the Ministry
of Justice following the evidence session with Jonathan Djanogly
on Wednesday 16 February 2011 (AJ 60)
FOLLOW UP
QUESTIONS ON
ACCESS TO
JUSTICE
Following my appearance at the evidence session on
16 February, I undertook to write to the Committee on a number
of issues. I am also responding to the Committee's request for
further information later that day.
(a) International cost comparisons
Suma Chakrabarti wrote to you on 16 December explaining
the sources for the international comparisons that had informed
the legal aid policy assessment and the formulation of the reform
proposals. Subsequently you have taken evidence from Professor
Roger Bowles who headed the York University team that carried
out the October 2009 study for the Ministry.
The York study concluded that legal aid expenditure
per head was higher in England and Wales than in the other jurisdictions
studied, due to three main factors:
- more cases per capita are funded in England and
Wales than elsewhere, in both criminal and civil justice;
- more criminal suspects are brought to court than
elsewhere, and more of them are given criminal legal aid; and
- there is higher spending per case on both criminal
and civil cases.
A range of factors are likely to contribute to the
higher costs per case than elsewhere. These include, for example,
differences in criminal procedure (eg length and nature of proceedings).
It should also be noted that the figures quoted in the York Study
does not control for differences in the cost of living or the
relative value different countries place on access to justice.
The other major source of information is the biennial
publication from the European Commission for the Efficiency of
Justice. We are aware of some issues with the expenditure data
for England and Wales in the most recent edition published last
autumn. The CEPEJ figures are not consistent with their previously
published figures. We are working with CEPEJ to ensure they are
corrected in the next publication. The general position is that
the England & Wales figure remains at £38 per head.
How is MoJ bearing down on its internal functioning
(of LSC) to make sure that its services are dealt with more efficiently?
Our recognition that there are administrative efficiencies
to be achieved at the LSC forms part of the rationale for our
proposal that the LSC's status be changed from an Executive NDPB
to an Executive Agency of the MoJ. As an agency, the LSC will
be able to realise efficiencies in a greater number of areas than
would be the case if it was to rationalise but remain a NDPB.
Savings will result from working reforms and efficiencies in HR,
communications, IT, legal and governance, planning and assurance,
shared services and finance. Additionally, the agency will have
a significantly reduced headcount.
Do you see cost per case or scope as being more
important in terms of reducing the overall cost burden of legal
aid?
As mentioned during the hearing, they are both important
issues.
(b) The operation of tribunals
The Committee referred to the view expressed by His
Honour Judge Robert Martin, the President of the Social Entitlement
Chamber, that welfare benefits law had become increasingly complex.
The Government introduced its Welfare Reform Bill to Parliament
on 16 February. The Bill represents the biggest set of changes
to the welfare system in the last 60 years. The Universal Credit
will restore fairness and simplicity to an overly complex, outdated
and expensive benefits system that often acts as a barrier to
getting back to work. It will find the right balance between the
welfare state as a safety net and a benefits system that sends
out a clear message: if you can work, you should work. Universal
Credit is a fundamental reform of the benefits system. It will
replace current means tested working age benefits and Tax Credits
with a single welfare payment that rewards people for moving into
work.
According to the 2007-08 report by His Honour Judge
Martin when he was President of the Appeal Tribunals,[45]
since 2001 it is a regular theme of the Tribunal that DWP decisions
are most commonly overturned because the Tribunal elicits additional
factual information from the appellant, rather than through legal
arguments. This is mainly in the form of oral evidence readily
available from the appellant.
As I mentioned at our session, MoJ and DWP are already
working closely together as part of wider Welfare Reform initiatives
to improve the decision making and reconsideration processes for
social security cases and increase efficiency throughout the appeal
system, including at the Tribunal. This work should reduce the
number of cases overturned at Tribunal by getting more decisions
right first time.
With regard to the specific concerns associated with
our legal aid proposals that tribunal cases could take longer,
that poor cases will be brought which are not brought at present,
or that winnable cases might not reach the Tribunal, we will be
considering in the coming weeks the responses to the consultation,
as well as the potential impact of our changes, including on the
Tribunal Service. Our consideration will also include our literature
review of the potential impact of litigants in person. All of
this will be used to inform the final decisions on our proposals.
The social security appeals jurisdiction maintains
a very strong focus on an accessible and informal tribunal process
using informal tribunal rooms, clerks who have had customer service
training and most importantly judges who are trained in helping
unrepresented appellants give their side of the story and the
appropriate consideration of equality and diversity and other
cultural issues.
(c) The funding arrangements for, for example,
drug tests or psychiatric assessments—where these might
be needed to determine whether an adult poses a risk to a child's
safety—in cases involving litigants in person
Under the consultation proposals, legal aid would
continue to be available in public law cases, such as care and
supervision proceedings, which involve concerns about a child's
welfare. The consultation proposals included removing private
law cases, such as disputes over contact with children, from the
scope of legal aid, except where there is evidence of domestic
violence. This would mean that legal aid would no longer be available
for the parents' share of the costs of expert assessments.
Legal aid would continue to be available for children
who need their own separate representation in family proceedings.
Under rule 9.5 of the Family Proceedings Rules, to which I referred
when I appeared before the Committee, the court can make a child
a party to proceedings and appoint a guardian in circumstances
including those you have raised. In such cases a public funding
certificate would be issued for a legal representative for the
child, and it could cover a proportion of the costs of expert
assessments, depending on the circumstances of the case.
In addition, exceptional funding will be available
for individual out of scope cases where legal aid is required
in order to meet our domestic and international legal obligations.
The issue of funding expert reports has also been raised in responses
to the consultation, and we are giving it careful consideration.
(d) The availability of trained mediators
As a result of the LSC tender in 2010 to deliver
publicly funded family mediation services, the number of organisations
delivering mediation under legal aid has increased by 11%. There
are now 201 organisations, quality assured by the LSC, which deliver
mediation services across 1,002 locations in England and Wales
(up from 742 locations previously) ensuring strong and improving
levels of client access to mediation.
We are working with the Family Mediation Council
to enable this growth to continue and to meet the increase in
demand for services. This includes a programme of training courses
for new mediators and "refresher" events for those who
may not have done mediation work for some time.
There are at least 600 family mediation services
in England and Wales listed on the database of the Family Mediation
Helpline service. These are a mix of both private and voluntary
sector family mediation services. Organisations responding to
the consultation have indicated to us that there has been increased
interest in training for mediation as a result of the Government's
legal aid proposals.
In addition, the Committee raised six questions as
follows:
QUESTIONS FROM
THE COMMITTEE
Transfer of funds from DWP to MoJ
1. What mechanism is in place for the transfer
of funds from DWP to the MoJ relating to the cost of tribunals
where the DWP is found to have been at fault?
2. How is the level of funds to be transferred
determined?
3. What value of funds have been transferred
in each of the last five years; and what proportion of the cost
of tribunal cases involving cases where the DWP was shown to be
at fault this represented in each year?
4. Do any other mechanisms exist to transfer
funds between the DWP and the MoJ to reflect the cost to the legal
aid budget of providing advice and representation in cases involving
DWP decision-making?
As I also mentioned at the hearing, the Department
of Work and Pensions provide more funding for the tribunals system
if they provide more work for it. This derives from their responsibility
to fund the additional cost of any policy change that they make.
It does not relate to the success rate of the Department at the
tribunal. At the moment DWP are funding additional costs resulting
from the introduction of Employment Support Allowance which replaced
Incapacity Benefit. The number of appeals against decisions made
in relation to this benefit has been the major cause of an expected
71% increase in Social Security and Child Support appeals between
2008-09 and 2010-11. Funds have been transferred from DWP in relation
to Employment Support Allowance for initial training costs and
the cost of increased appeal hearings and comprise £1.3 million
in 2008-09, £9 million in 2009-10 and an expected £21.1
million for 2010-11. There has also been a small transfer of funds
for DWP changes to the child maintenance system comprising £0.2
million for each of the years 2008-09 and 2009-10.
There are no further mechanisms in MoJ to receive
funding from DWP on a case-by-case basis once policy changes have
been put into effect.
Family law
5. What research has the Department considered
on the likely impact of removing legal aid funding from most private
family law cases on the numbers of cases which will reach court?
The Department is not aware of any research that
exists on this specific topic. While we have considered research
suggesting that court engagement can sometimes exacerbate the
conflict and distress of both children and parents, and that mediation
can hold considerable advantages for some cases, the behavioural
response of clients to changes in the availability of legal aid
is uncertain and very difficult to accurately estimate. However,
we consider that our proposals will incentivise people to take
up mediation and as a result more family matters would be resolved
through that route. We are currently conducting a review of the
existing published research on litigants in person. We have also
recently conducted a review of published literature looking at
the impact of different types of advice, which set out to establish
what evidence exists on the impact of advice on civil and family
justice issues. Specifically, it aimed to address whether the
advice provided is acted upon, whether the issues being faced
are resolved following the provision of advice, whether those
receiving the advice were satisfied with the advice, whether the
advice led to those receiving it being more educated on the issues
faced and hence more able to deal with similar issues in the future,
and whether the advice was an efficient method for addressing
justice-related issues. We intend to use both literature reviews
to inform our response to the consultation.
6. The Minister referred to figures which
suggested that cases in which both parties were not represented
took half of the court time than those in which both parties were
represented. Could we please have a copy of the source of these
figures (along with any relevant commentary you might like to
provide)?
The Department provided an answer to this question
to the Committee on 17 February 2011. I am attaching a copy of
this response as an annex to this letter.
I hope this is helpful. A copy of this letter is
being sent to the Clerk of the Justice Committee, Mr Tom Goldsmith.
If you have any further queries please do not hesitate to contact
my office.
January 2011
45 "President's Report: Report by the President
of Appeals Tribunals on the standards of decision-making by the
Secretary of State, 2007-08". Back
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