House of Commons - Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Justice Contents

8 Value for money

Early intervention: "a fence at the top of the cliff not an ambulance at the bottom"

159. The Ministry of Justice told us one of its objectives in introducing the legal aid reforms was to focus money on the most serious cases.[259] Our witnesses were almost unanimous in telling us, however, that early intervention is considerably cheaper than allowing legal aid to kick in only when an individual faces a threat to life, liberty, physical safety or homelessness. A small sample of the evidence we received on this issue is as follows. John Gallagher, of Shelter, said "the restriction on scope with LASPO means that people now cannot get legal advice on a range of landlord and tenant and housing issues, such as tenancy deposit schemes, rent increases, joint tenancies, relationship breakdown…It is that preventative element that has now gone."[260] On debt matters, Paula Twigg of the Mary Ward Legal Centre said: "There are issues that, if you do not nip them in the bud at the early stage, will go all the way through the court system, and so…you are looking at things like bankruptcy, or…with debt, where a charge is being applied to a property, an order for sale is in scope but the charging order element is not in scope."[261] Dave Emmerson, of Resolution, said a small amount of initial legal advice in which litigants could be given "an analysis of the problem…detailed advice…on how the law particularly applies to that person's case, information about how they could take litigation themselves [and] out-of-court solutions such as mediation or collaborative law" would be particularly valuable in achieving access to justice for vulnerable individuals.[262] Susan Jacklin QC, of the Family Law Bar Association agreed that early advice was the most cost-effective when considered in the round.[263] Julie Bishop, of the Law Centres Network said that "the current system allows problems to escalate…you are not getting in early as you were able to do previously."[264]

160. In its final report the Low Commission concluded that focusing on the seriousness of the claimant's position "creates a perverse incentive to wait until things reach a crisis point. If the government wishes to see individuals resolve their problems outside the formal justice system, removing the availability of early advice to help people resolve their problems before they become more intractable does not make sense." The Commission added: "If individuals are only able to access support on crisis issues, and advisers are not funded to address clusters of associated problems or the fundamental cause of the problem (such as unemployment, not receiving the correct benefit, or resolving underlying financial problems), then the individual will keep returning to crisis point as the problem will only be temporarily masked, not solved."[265] The Low Commission noted that a survey conducted of attitudes towards civil justice by UCL, Paths to Justice, found that two out of three people advised that nothing could be done about their case did not seek to pursue the matter through the courts saving court time and the associated costs to public authorities.[266]

161. An issue closely related to early intervention is the complexity and cost of cases where some parts remain eligible for legal aid and others are outside the scheme. We heard that this was a particular problem for housing matters where the landlord had brought possession proceedings for non-payment of rent, for which legal aid is available, but the primary reason for non-payment of rent is a problem with the payment of housing benefit, which is not eligible for legal aid. Connor Johnston, a barrister at Garden Court Chambers, said in such cases he usually asked the judge for an adjournment for the tenant to sort out the housing benefit claim:

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The upshot of such cases is usually a possession order, often with the knock-on costs to the local authority of having to house someone who is now homeless.[268] Sara Stephens, of the Housing Law Practitioners Association, said that lawyers on the Lambeth county court duty scheme found around half of all housing cases were being adjourned for this reason.[269] Other areas in which the complexity of the scope changes on eligibility can lead to escalated costs are debt cases as noted by Paula Twigg (see paragraph 159 above).

162. The Senior President of Tribunals, Lord Justice Sullivan, told us legal advice, rather than legal representation, was of the greatest value to cases heard in tribunals: "If you can advise people as to the merits of their claim so that they are discouraged from putting in duff claims and encouraged to put in good ones in a sensible way, you can probably leave it in the tribunals world to the expert tribunal to sort it out."[270]

163. Lord Low told us that it "it makes more sense to put the fence at the top of the cliff than to call the expensive ambulance when the person has fallen to the bottom", [271] an analogy we find compelling. The Low Commission recommended a "sense check" be conducted of the cost-benefit of the changes to scope to ensure that each aspect of the reforms was saving money.

COSTS-SHIFTING ONTO PUBLIC FUNDS AND INDIVIDUALS

164. The cost of delaying intervention in cases is not only a direct cost to the Ministry of Justice. We noted above evidence from Connor Johnston on the increased costs to public authorities arising from homelessness cases. Sarah Campbell of Bail for Immigration Detainees told us that problems in accessing advice meant that people:

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The cost of detaining people because they cannot access advice to resolve their cases is an additional cost to the state as well as constituting a human cost to the individuals concerned. Denise McDowell, of the Greater Manchester Immigration Unit, said: "We do not give counselling, but…we are often trying to maintain people's mental health. People are in a situation which is unbearable; they are neither moving forward nor being removed…"[273] The potential for a negative impact on health and well-being in cases where the litigant finds it difficult to resolve their case is not confined to immigration matters. We noted above evidence that people under benefit sanctions may suffer ill-health as a result of limited access to food and other necessities while the stress of trying to resolve problems around contact with children in the aftermath of an acrimonious break-up is likely to be considerable. The 2010 English and Welsh Civil and Social Justice Panel Survey found that 50% of respondents who were eligible for legal aid reported that their civil legal problem had a negative effect on their health and wellbeing.[274]

165. Prior to the legal aid reforms, we recommended the Ministry of Justice seek to quantify the level of additional costs to the public purse the legal aid changes might cause.[275] The Ministry did not do so despite research carried out by Dr Graham Cookson of King's College, London on behalf of the Law Society, who concluded that the knock-on costs to the Government of all the changes could potentially undermine the financial savings achieved by around £139million.[276] Following the reforms, the National Audit Office concluded that the level of unquantified knock-on costs risked undermining the level of financial savings achieved by the reforms.[277]

166. While it is clearly right that legal aid be available for people facing threats to life, liberty, personal safety or their home, our evidence shows that the legal aid changes focused disproportionately on the crisis point of some cases and failed to appreciate the costs saving inherent in resolving disputes before they arrive at court.

167. We note in particular the frustration experienced by housing and debt advisors when clients stand in danger of losing their homes because of an inability to access advice earlier due to the scope changes.

168. The Ministry of Justice has avoided quantifying the level of knock-on costs arising from the reforms. Without this information the Ministry of Justice is unable to say whether it has achieved its objective of significant financial savings to the taxpayer. We recommend that the Ministry of Justice conduct a post-hoc cost-benefit analysis of the legal aid reforms.

Preventable demand

169. We have long been concerned about poor decision-making at Government Departments, particularly the Department for Work and Pensions and the Home Office. The Government has a duty to adjudicate fairly in matters between the state and an individual. The consequences of a failure to achieve justice for the individual involved are at best distressing and at worse can lead to destitution or deportation to a country in which that person is in danger. We are particularly alive to the fact that poor decision-making by other Government Departments leads to increased costs for the Ministry of Justice through increased use of HM Courts and Tribunals Service and grants of legal aid.

170. In 2011, following our inquiry into the Government's proposed reform of legal aid, we recommended that a form of the 'polluter pays' principle be developed" with the DWP (and other public authorities whose decisions impact upon the courts and tribunals) required to pay a surcharge in relation to the number of cases in which their decision-making is shown to have been at fault."[278] The Government rejected the recommendation, saying a "strict application of the "polluter pays" principle might call into question the effective cost protection that the legal aid fund currently receives when funding litigation. A significant proportion of cases funded by the [Legal Services Commission] are not successful, and any requirement for the [Legal Services Commission] to routinely meet the costs of other parties in unsuccessful cases would be a significant drain on the fund."[279] In evidence the then Parliamentary Under-Secretary of State at the Ministry of Justice, Jonathan Djanogly MP, commented that our recommended approach seemed to be a matter of "robbing Peter to pay Paul."[280]

171. Our recommendation was picked up by the Low Commission which, however, preferred an approach involving a system of capped summary costs orders against a Government Department where the claimant has been represented by a qualified lawyer— £100 for a short hearing under an hour up to a maximum of £500 for a hearing lasting over three hours. This would not only incentivise the Department concerned but recompense representatives in areas of law which have gone out of scope, encouraging them to assist meritorious claimants. The Commission suggested the system should cover all "tribunals concerning public authorities, which in practice will mainly involve the DWP, the Home Office and the UK Border Agency."[281]

172. We were interested to hear the evidence from Lord Low on a pilot carried out in Nottinghamshire in which advice agencies and Nottingham City Council's Housing and Council Tax Benefits service worked together to identify and implement changes to improve service delivery. Lord Low said the idea was to look at:

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The results of the pilot were striking: the time taken to process cases fell in the advice service from 142.2 days to 30.8 days, and in the benefits services from 56.3 days to 16.3 days.[283] In addition, none of the decisions involved in the pilot were appealed.

173. We reiterate the recommendation from our Report on the Government's proposed reform of legal aid: that Government departments should be penalised for poor decision-making that leads to increased costs for the courts system.

259 Ministry of Justice (LAS0073) Back

260 Q 135 Back

261 Q 190 Back

262 Q 71 Back

263 Q 89 Back

264 Q 2 Back

265 Low Commission Report Back

266 Ibid. Back

267 Q 122 Back

268 Ibid. Back

269 Q 138 Back

270 Q 246 Back