Implementing reforms to civil legal aid - Public Accounts Committee Contents

1  The Ministry's evidence base for the reforms

1. On the basis of a report by the Comptroller and Auditor General, we took evidence from the Ministry of Justice (the Ministry) and the Legal Aid Agency (the Agency) about the implementation of reforms to civil legal aid through the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.[1] We also took evidence from the Magistrates' Association and Citizens Advice.

2. Rights of access to justice for those who cannot afford legal fees date back 800 years to the Magna Carta. Legal aid provides access to justice for some of the most disadvantaged people in society, by providing funding for legal advice.[2] For those people who meet the government's eligibility criteria, it pays for telephone and face-to-face legal advice, as well as family mediation. The Ministry is responsible for legal aid policy and is ultimately accountable to Parliament for ensuring that legal aid is functioning as parliament intended.[3] The Agency is responsible for the day-to-day operation of the legal aid system. This includes managing legal aid contracts, providing guidance and advice to contracted legal aid providers, making decisions about the eligibility of applications for legal aid, and monitoring the accessibility and quality of legal aid.[4]

3. The LASPO Act introduced major reforms to civil legal aid, which were implemented in April 2013 and included: limiting the areas of law for which legal aid is available, including removing access to legal aid for most family and social welfare law; tightening the financial eligibility criteria for receiving legal aid; and providing more legal aid advice via the telephone instead of face-to-face. The Ministry also reduced the fees paid to civil legal aid providers by 10% between October 2011 and February 2012.[5]

4. The Ministry is on track to meet its objective of making a significant reduction to spending on civil legal aid. The Agency approved funding for around 300,000 civil legal aid cases in 2013-14, a reduction of 56% compared to what would have been expected without the reforms. The NAO estimates that the reduction in cases started equates to a reduction of £300 million in spending when these cases are paid for.[6]

5. The Ministry began consulting on changes to legal aid in November 2010. It produced its final assessment of the likely impact of the changes in 2012, in which it acknowledged that it lacked evidence about the way people use the civil justice system and the likely impact of the reforms.[7] We asked the Ministry why it did not gather more evidence about the likely impact of the reforms before implementing them. The Ministry told us that the spending reductions were required urgently and that the most important evidence that it had was the existing level of spending and that the Government wished to cut the legal aid budget. The Ministry acknowledged that it still does not have a good understanding of fundamental issues such as why people go to court for civil legal issues. It commissioned research to investigate this in April 2014 and expects to have the results of this research in mid-2015.[8] During its consultation for the reforms, the Ministry received considerable evidence of concerns about the requirements for demonstrating eligibility for legal aid on the grounds of domestic violence being present in a relationship.[9] We have been told that this included concerns that the evidence needed could only be produced if the alleged domestic violence had been formally reported, and the requirement that evidence be dated within two years of the legal aid claim being made.[10] We asked the Ministry about the changes that it made to the evidence requirements for demonstrating the presence of domestic violence. The Ministry told us that it made some changes during the consultation period, but had to make further changes to the evidence requirements in April 2014 to ensure that people who were eligible could access legal aid.[11]

6. The Ministry intended that people with family law disputes would use mediation instead of the courts to resolve their disputes. As this Committee has noted before, family disputes that are resolved through mediation can be cheaper, quicker and, according to academic research, less acrimonious than those that are settled through the courts.[12] The Ministry told us that it knew that many people were referred to mediation by solicitors. Despite this it did not anticipate that removing access to solicitors would reduce the number of cases being referred to mediation.[13] It expected the number of mediation cases to increase by 10,000, or 74%, but mediations actually fell by more than 5,000, or 38% in the year after the reforms. In addition, the Ministry expected referrals to mediation assessments (which determine whether a case is suitable for mediation) to increase by 9,000, or 30%, but there were actually 17,246, or 56%, fewer referrals.[14]

7. The Ministry acknowledged that it did not do enough to promote mediation after the reforms, but said that it has since addressed this by funding a website that assists people to find a mediator in their local area.[15] In April 2014 the Ministry also made it mandatory for couples to attend a mediation assessment before going to court for private family law matters, and it will fund one mediation session for both parties in cases where only one party is eligible for legal aid.[16] After our evidence session the Ministry published statistics showing that the number of mediation assessments has started to increase in the six months since April 2014; but at the current rate of increase it will not return to pre-LASPO levels until March 2016. It will be a further 9 months before it reaches the level the Ministry expected to achieve immediately after the LASPO reforms.[17]

8. The Magistrates' Association told us that it is concerned about a potential shortfall in the supply of mediation services following the reforms. It told us that the sudden decline in the number of mediations in the year after the reforms may have caused some mediation businesses to go out of business. If this is the case, people seeking to complete their mandatory mediation assessment may have difficulty in finding a mediator.[18]

1   C&AG's Report, Implementing reforms to civil legal aid, Session 2014-15, HC 784, 20 November 2014 Back

2   Qq 82, 84, 191 Back

3   Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 1(1) Back

4   C&AG's Report, para 1.3 Back

5   C&AG's Report, para 2 Back

6   C&AG's Report, Figure 2 Back

7   Ministry of Justice, Impact assessment: Legal aid reform in England and Wales, cumulative legal aid reforms, 13 July 2012, p.11-13 (link to .zip file) Back

8   Q 40-51 Back

9   Q 156 Back

10   Email from Louise Tickle, freelance journalist, to the Public Accounts Committee, 4 December 2014 Back

11   Q 158 Back

12   Committee of Public Accounts, Legal Services Commission: Legal aid and mediation for people involved in family breakdown, Fifty-first Report of Session 2006-07, HC 396, 16 October 2007 Back

13   Qq 61-62 Back

14   C&AG's Report, para 2.8 Back

15   Q 65 Back

16   C&AG's Report, para 2.10 Back

17   Ministry of Justice, Legal Aid Statistics: main tables, July 2014 to September 2014, 18 December 2014  Back

18   Q 25 Back

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Prepared 4 February 2015