The Public Accounts Committee (PAC) has published its report
scrutinising value for money from legal aid.
The report finds that, nearly a decade on from the PAC's last
report on the subject, the Ministry of Justice still lacks an
understanding of the costs and benefits of its 2013 legal aid
reforms and whether those who are eligible for legal aid can
access it.
The PAC expresses its deep concerns in the report about MoJ's and
the Legal Aid Agency's lack of curiosity on the impact of
decreasing numbers of providers on people's access to legal aid,
despite evidence which suggests access is getting more difficult.
Conclusions and recommendations
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Over a decade since the legal aid (LASPO) reforms, the
Ministry of Justice (MoJ) and the Legal Aid Agency (LAA) still
do not have sufficient data to assess whether those eligible
for legal aid can access it. In 2015 this Committee
reported that, contrary to MoJ's assurances to Parliament,
neither MoJ nor LAA had a robust mechanism for identifying and
addressing shortfalls in the provision of legal aid.
Disappointingly, this remains the case. The Committee has seen
strong evidence that potentially eligible clients are routinely
turned away by providers due to lack of capacity. For example,
MoJ's survey of civil legal aid providers shows that the
majority of providers turn away an average of 26 eligible cases
each per month and experience a high level of demand. However,
MoJ and LAA do not collect routine data on people who attempt
to access legal aid services unsuccessfully, nor do they
consider specific local variations such as deprivation levels.
For example, MoJ is aware of cases where people did not take
legal advice as a result of long waits for duty solicitors at
police stations; but has no data on how frequently people
request a duty solicitor but do not get one.
Recommendation 1: In its Treasury Minute response, the
Ministry of Justice and the Legal Aid Agency should set out how
they intend to improve the data they collect on demand for and
access to legal aid so that they can better monitor:
- whether an area has sufficient provision for a particular
category of law to meet demand. This should include details of
how they plan to consider specific local variation such as
deprivation or access to public transport and demographics such
as disability; and
- the extent to which capacity constraints may mean people are
unable to access legal aid in areas where there are providers.
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There are areas of the country lacking face-to-face
provision of legal aid, which risks penalising vulnerable
groups disproportionately. Stakeholders have
consistently raised the issue of ‘legal aid deserts' where
large geographic areas lack a legal aid provider for specific
categories of law. For example, large areas of the South West
and North West have no face-to-face housing or debt support.
MoJ has stated that where there is no provider, people can seek
remote advice, which can work well for many. But it does not
understand the impact of remote advice on vulnerable groups,
for example those with limited access to public transportation,
English as a second language or people with a disability.
Charities such as the Child Poverty Action Group report that
many of their clients struggle to obtain relevant evidence of
their eligibility due to having limited access to technology or
low digital capabilities: this is exacerbated when services are
provided remotely as many are unable to travel, for example due
to a disability.
Recommendation 2: In its Treasury Minute response, the
Ministry of Justice should:
- clarify what the options are for those who are unable to make
use of remote advice. It should specifically consider vulnerable
groups in areas with no face-to-face legal aid provision, whose
issues may be too complex to solve via telephone; and
- set out how it plans to better understand the impact of
remote provision on vulnerable groups and address any problems
identified.
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We are concerned about access to legal aid for
immigration matters which often involve extremely vulnerable
people, and the effectiveness of the Exceptional Case Funding
(ECF) scheme for some of these cases. Organisations
including the Immigration Law Practitioners' Association
provided evidence to the Committee of a ‘supply crisis' in the
immigration and asylum legal aid market. People eligible for
support are often unable to find a provider with capacity to
take their case. Additionally, those applying for help via the
ECF scheme, intended as a safety net to ensure an individuals'
human rights are protected, face several hurdles accessing
support. MoJ acknowledges that a shortage of immigration and
asylum legal aid providers in some areas is concerning. It is
trying to address expected increases in demand due to the new
Illegal Migration Act 2023 (IMA) by increasing fees for work
related to the policy. However, this risks exacerbating access
issues for other immigration cases where MoJ has not increased
fees, as providers may prioritise higher paying work. MoJ is
looking at whether the ECF scheme is the most efficient route
for immigration cases given the high rate of approval of
applications (87%) and the additional administrative burden for
LAA.
Recommendation 3: The Ministry of Justice should set out
in its Treasury Minute response:
- how it plans to monitor the impact of the Illegal Migration
Act 2023 on the capacity of other areas of immigration advice and
how it plans to respond where evidence suggests people are unable
to access advice; and
- details of its plans to assess whether the Exceptional Case
Funding scheme is the most efficient route for immigration cases.
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The Ministry of Justice has been slow to review
financial eligibility thresholds, leaving fewer people eligible
for legal aid, and it has not set out how it plans to review
thresholds in future. One of the aims of MoJ's 2013
reforms was to target legal aid at those who need it most.
However, it did not create a mechanism for reviewing financial
eligibility thresholds for legal aid and has not altered them
since. Consequently, each year a reducing proportion of people
have been eligible for legal aid due to wage inflation. For
example, over the period from 2012-13 to 2020-21 the proportion
of UK income taxpayers eligible for civil legal aid decreased
by 11 percentage points (73% to 62%). In February 2019, MoJ
announced its plans to review means testing for legal aid, but
it took until 2023 for it to propose changes, and changes will
not be fully implemented until 2026 due to “wider competing
Government priorities”. It has assured the Committee that
thresholds will be adjusted for inflation before they are
implemented as they are currently based on 2019-20 data.
However, MoJ could not provide us with clear plans for how it
will routinely review and uprate thresholds in the future, as
it considers this to be a political matter.
Recommendation 4: In its Treasury Minute response, the
Ministry of Justice should set out what it will do to:
- ensure that financial eligibility thresholds for legal aid
are kept under review in light of changes in the economy; and
- ensure that any proposed changes can be implemented quickly
and efficiently.
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The Ministry of Justice has still not made sufficient
progress in identifying or addressing wider system costs of its
legal aid reforms. Almost a decade ago, this Committee
urged MoJ to get a better understanding of the wider costs of
its reforms. While MoJ has taken some steps to understand where
additional costs may lie, its overall progress in measuring the
scale of these costs is disappointing. For example, MoJ
acknowledges that the removal of most early legal advice via
the reforms is likely to have led to additional costs to the
public sector. However, its attempts to understand the costs
and benefits of providing early advice have been unsuccessful
to date. Similarly, evidence suggests that MoJ's attempts to
reverse the decline in legally-aided mediation following its
reforms are not working, and the proportion of
litigants-in-person in courts remains high. Shortcomings remain
in HM Courts and Tribunals Service's data on
litigants-in-person remain, which mean that its analysis in
this area provides limited insight. MoJ says it is now working
with other government departments such as the Department for
Levelling Up, Housing and Communities to better understand
where its reforms may have shunted costs to other government
departments, but we are yet to see the results of this work.
Recommendation 5: The Committee recognises that it will
not be possible to calculate a precise figure of the costs of the
reforms to other areas of government and the justice system.
However, the Ministry of Justice should set out in its Treasury
Minute response:
- how it plans to work with other government departments such
as Department for Levelling Up, Housing and Communities and the
Department of Health and Social Care to better understand where
reforms may have led to cost-shunting and the potential scale of
these costs. This should include looking at the extent to which
local authorities are funding immigration legal advice; and
- how it intends to work with HM Courts and Tribunals Service
to improve available quantitative analysis on the impacts of
litigants-in-person on the administration of justice, as
recommended in the PAC's 2015 report.
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We are not convinced that the Ministry of Justice has
put in place sufficient measures to ensure the future
sustainability of the legal aid market. MoJ has been
slow to initiate and complete its large-scale sustainability
reviews of both criminal and civil legal aid. While its review
of criminal legal aid is complete, it has yet to implement some
of the changes. Of particular concern is the civil legal aid
sector as MoJ will not complete its review of the sector until
July 2024, despite not increasing fees for the last 28 years.
Before these reviews, MoJ and LAA did not collect the routine
data needed to respond to sustainability issues proactively.
Low fees can impact firms' ability to train and recruit new
staff and impact their long-term sustainability. MoJ has
assured the Committee that the Criminal Legal Aid Advisory
Board will be able to make recommendations to ensure that
criminal legal aid fees are reviewed more regularly in future.
But it has not yet set out similar arrangements for the
continued review of civil legal aid fees.
Recommendation 6: The Ministry of Justice should set out
in its Treasury Minute response how it plans to improve its
ability to respond to emerging sustainability issues in a timely
manner. This should include:
- how it plans to work with providers to keep the profitability
of legal aid work in view;
- how it plans to implement the recommendations from the
Criminal Legal Aid Board; and
- what mechanisms it will put in place to review the
sustainability of civil legal aid more routinely once its review
is complete in July 2024.
