Conclusions and recommendations
1. The Ministry would have been better able
to deliver its policy objectives if it had developed and made
use of a robust evidence base. The Ministry
is on track to meet its objective of making a significant reduction
to spending on civil legal aid, but it is far from clear whether
the Ministry has achieved its other objectives of reducing the
number of cases coming to court, targeting civil legal aid to
those who need it most, or delivering better overall value for
money in civil legal aid. The Ministry consulted on its reforms
in November 2010, more than two years before implementing them.
Despite this, it gathered little evidence before implementation
and did not make good use of the information that it did have.
For example, the Ministry was told during its consultation that
people who are subjected to domestic violence may have difficulty
providing evidence to demonstrate their eligibility for legal
aid after the reforms, but was still making changes to the evidence
rules in April 2014, a year after the reforms were implemented.
The Ministry admits that it still has little understanding of
why people go to court and how and why people access legal aid.
It commissioned a research project to look at these issues in
2014, more than a year after the reforms were implemented. It
does not expect to publish this until mid-2015, two years after
the reforms were implemented.
Recommendation: Where policy intent is clear,
the Ministry should gather the necessary evidence proactively
so that decisions are taken on that basis.
2. The Ministry's approach to implementing
the reforms has inhibited access to mediation for family law cases.
As this Committee has noted before, mediation can be a cost-effective
alternative to court for resolving disputes in many cases, and
the Ministry intended that more people with family law disputes
would use mediation instead of the courts. But mediations for
family law matters fell by 38% in the year after the reforms,
rather than increasing by 74% as the Ministry expected. Referrals
to the assessment meetings that determine suitability for family
mediation fell by 56%. The Ministry knew that solicitors were
the major channel through which people were referred to mediation,
but failed to foresee that removing legal aid funding for solicitors
would reduce the number of referrals to family mediation. In April
2014, the Ministry made mediation assessment meetings mandatory
for couples seeking to go to court over disputes about children
or finances, in an attempt to address this problem. However, we
also heard concerns from the Magistrates' Association that mediation
firms may have gone out of business as a result of the drop in
work in the year after the reforms. If this is the case, people
may have difficulty finding a mediation service to provide their
mandatory mediation assessment.
Recommendation: The Ministry should closely
monitor the take up of mediation following the changes it made
in April 2014, and should take prompt action if this does not
increase as expected.
3. Contrary to its assurances to Parliament,
the Ministry does not know whether people who are eligible for
legal aid are able to get it. The Ministry
said in its 2012 impact assessment that it would establish a robust
mechanism to identify and address any shortfalls in the provision
of legal aid, but it has not done so. The Agency monitors provision
of legal aid by the number of contracts it awards to providers,
rather than the amount of work actually being done. But awarding
contracts does not alone guarantee supply of legal aid, because
the Agency removed the requirement for providers to do a minimum
amount of work to keep their contracts. The Agency had not undertaken
any analysis but the NAO identified that 12% of law firms holding
legal aid contracts did not undertake any legal aid work in the
year after the reforms. There were 53 local authority areas with
fewer than 50 face-to-face civil legal aid cases, and in 14 of
these areas there were no cases started. The Agency was not able
to explain the significant variation in provision and accepted
that it needed to do more work in this area.
Recommendation: The Agency should, as promised
in its 2012 impact assessment, establish a robust mechanism to
identify and address any shortfalls in provision, building on
the NAO's analysis, so it can be confident those still eligible
are able to access legal aid.
4. The complexity of the justice system may
be preventing people who are no longer eligible for civil legal
aid from securing access to justice. The
civil justice system is complex and many people will not be able
to represent themselves effectively in court. We heard evidence
from the Magistrates' Association that the increase in the number
of people representing themselves in court (known as litigants
in person or LIPs) caused by the reforms, especially in cases
involving children, may have a negative impact on the administration
of justice. In addition, the Ministry's exceptional case funding
scheme, which is intended to provide legal aid for people whose
human rights would be breached without it, is being used far less
than expected, with 1,520 applications received in the first year
after the reforms against an estimate of 5,000 to 7,000, and only
69 cases approved. The Ministry could not explain why applications
were below expected levels but the legal aid providers consulted
by the NAO said that the complexity of the exceptional case funding
scheme made it very difficult for people to apply.
Recommendation: The Ministry should review
and simplify the processes that it intends people who do not have
legal advice to follow, to ensure that these processes do not
restrict access to justice.
5. The Ministry cannot manage the impact of
the increase in litigants in person, because it still does not
understand the impact that they have on the courts service.
The Ministry acknowledged in 2012 that the number of LIPs was
likely to increase as a result of the reforms. Yet it has still
not improved its ability to monitor the impact of LIPs on the
courts. It does not collect reliable data on how long individual
court hearings take, and its recently published analysis of court
hearing durations was based on inadequate information. It is therefore
not able to say whether hearings in which people represent themselves
are longer or shorter than those in which legal representatives
are present and it will not accept the anecdotal evidence provided
by the judiciary. The NAO identified a 30% rise in the number
of cases starting in family courts in which both parties were
LIPs. The NAO also identified an increase in the number of contested
family cases reaching the courts, with the figure rising from
64% to 89%. The Magistrates' Association told us that these cases
with litigants in person take longer and place additional pressure
on the courts service.
Recommendation: The Ministry should routinely
collect reliable data on the operations of the court service,
for example on hearing length, use of other court resources, types
of case, and representation, and use this to better understand
and manage the impact of LIPs.
6. The quality of face-to-face legal aid is
unacceptably low, and the Agency does not understand the link
between the price it pays providers and the quality of the advice.
The Ministry cut fees paid to legal aid providers by 10% as a
part of the reforms. This came on top of a 15 year period in which
legal aid fees were not adjusted for inflation, which represented
a real terms cut of 34%. A large majority of providers that the
NAO consulted said that the fees paid for legal aid do not cover
the costs of providing the service. The Agency's own quality assurance
processes indicate that the quality of face-to-face legal advice
is unacceptably low, with almost one in four providers failing
to meet the quality threshold. This has serious implications in
terms of both value for money for the taxpayer and access to justice
for legal aid claimants. The Agency could not explain why these
results were so bad, or whether they are related to the reduction
in fees paid for civil legal aid. It seems to have done nothing
to understand why some providers are falling short of the quality
standards expected.
Recommendation: The Agency should set out
targets to improve the quality of legal advice and a plan and
timetable to meet those targets. It should do this by identifying
and addressing the reasons that providers are failing its quality
assurance tests, including whether or not the high failure rate
is driven by the decline in legal aid fees.
7. The Ministry does not know whether the
reduction in spending on civil legal aid is outweighed by additional
costs in other parts of the public sector as a result of the reforms.
The Ministry identified the potential for wider costs to the public
sector in its 2012 impact assessment, but has since done nothing
to establish the likelihood or measure the scale of these costs.
It was unable to say whether the cuts that it made to legal aid
spending have simply shifted costs elsewhere in the public sector.
For example, the Ministry has not estimated the likely knock-on
costs as a result of increased physical and mental health problems
arising from the inability to access advice to resolve legal problems.
The Ministry told us that it is not possible to quantify wider
costs to the public sector. We were disappointed by this lack
of ambition, as this is fundamental to assessing the value for
money of the reforms. The Ministry seems unwilling to even ask
other departments about any impacts on their spending, and we
note that other departments (for example, Transport) are only
too willing to estimate wider benefits to the public purse,
despite the inherent difficulties, when carrying out cost benefit
analysis to justify spending. We received evidence from Citizens
Advice about the considerable work it has done to estimate the
likely savings to the public purse as a result of the advice it
provides and we would expect that the Ministry would do similar
work to understand the impact of its reforms.
Recommendation: The Ministry should identify
the wider costs to the public sector as a part of a full evaluation
of the impact of the reforms.
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