Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced as part of the Government's programme of spending cuts to achieve significant savings to the legal aid budget. In this Report we consider the impact of the reforms to civil legal aid, including the removal from scope of some areas of law and changes to the financial eligibility criteria.
The Ministry's four objectives for the reforms were to:
· discourage unnecessary and adversarial litigation at public expense;
· target legal aid to those who need it most;
· make significant savings in the cost of the scheme; and
· deliver better overall value for money for the taxpayer.
Our overall conclusion was that, while it had made significant savings in the cost of the scheme, the Ministry had harmed access to justice for some litigants and had not achieved the other three out of four of its stated objectives for the reforms.
Since the reforms came into effect there has been an underspend in the civil legal aid budget because the Ministry has not ensured that many people who are eligible for legal aid are able to access it. A lack of public information about the extent and availability of legal aid post-reforms, including about the Civil Legal Advice telephone gateway for debt advice, contributed to this and we recommend the Ministry take prompt steps to redress this.
Parliament intended the exceptional cases funding scheme to act as a safety net, protecting access to justice for the most vulnerable. We are very concerned that it has not achieved that aim. We heard of a number of cases where, to our surprise, exceptional case funding was not granted. The Ministry was too slow to respond to the lower than expected number of such grants; we now expect it to react rapidly to ensure that the system fulfils the purpose Parliament intended for it.
Private family law was removed from the scope of legal aid, but those who can provide evidence of domestic violence are still eligible. We welcome the Ministry's efforts to ensure that victims of domestic violence are provided with the necessary evidence by healthcare professionals and its assurance that the types of evidence required are under continual review. However we are concerned by evidence we received that a large proportion of victims of domestic violence do not have any of the types of evidence required. We are also troubled by the potentially detrimental effects of the strict requirement that the evidence be from no more than 24 months prior to the date of application, which we consider should be a matter of discretion for the Legal Aid Agency in appropriate cases.
We received evidence on the effects of the reforms on the legal aid market and providers of publicly-funded legal services. We were told by both the for-profit and not-for-profit sectors that the reforms have led to the cutting and significant downsizing of departments and centres dealing with such work, leading to concerns about the sustainability of legal aid practice in future. We are troubled by National Audit Office findings which indicate that there may already be 'advice deserts', geographical areas where these services are not available, and think that work to assess and rectify this must be carried out immediately.
There has been a substantial increase in litigants in person as a result of the Government's reforms, but the precise magnitude of the increase is unclear. More significant has been the shift in the nature of litigants in person, who are increasingly people with no choice other than to represent themselves and who may therefore have some difficulty in effectively presenting their cases. The result is that the courts are having to expend more resources to assist litigants in person and require more funding to cope, alongside increased direct assistance by the Ministry for litigants in person.
Also indicative of the lack of evidence on the effects the reforms would have has been the sharp reduction in the use of mediation, despite the Ministry's estimates that it would increase. We found that this was because the Ministry did not appreciate what makes people seek mediation, with the end of compulsory mediation assessment, the removal of solicitors from the process, and the lack of clear advice from the Ministry all contributing. Unlike in other areas, however, the Ministry did act swiftly to remedy the problems.
The Ministry's significant savings are potentially undermined by its inability to show that it has achieved value for money for the taxpayer. The Ministry's efforts to target legal aid at those who most need it have suffered from the weakness that they have often been aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive. There have therefore been a number of knock-on costs, with costs potentially merely being shifted from the legal aid budget to other public services, such as the courts or local authorities. This is another aspect of the reforms about which there is insufficient information; the Ministry must assess and quantify these knock-on costs if it is to be able to demonstrate it has met its objective of better value for the taxpayer.
It was clear to us that the urgency attached by the Government to the programme of savings militated against having a research-based and well-structured programme of change to the provision of civil legal aid. Many of the issues which we have identified and which have been identified to us could have been avoided by research and an evidence base to work from, as well as by the proper provision of public information about the reforms. It is therefore crucial that, in addition to the various remedial steps which we recommend in the short term, in the longer term the Ministry work to provide this information and undertake the requisite research so a review of the policy can be undertaken.