Following a long engagement and consultation process, the Government has now published its response to the Legal Aid Means Test Review. This sets out the changes it intends to make to the process of determining who is financially eligible to receive civil and criminal legal aid services in England and Wales.
The Government has put forward a detailed set of proposals to improve the legal aid means test and thereby increase the proportion of the population eligible for legal aid. We are now analysing these proposals and will be working with our partner organisations to ensure that they are implemented effectively and as quickly as possible. However, since the start of the consultation process, we have been urging government to introduce other changes to the legal aid system to ensure that any positive reform of the means test can and will lead to an actual increase in the number of people accessing legal aid. In the absence of changes to improve the viability of organisations delivering legal aid, we fear changes to the means test, however positive, create only a theoretical entitlement to services. As the number of legal aid providers continues to fall, and large gaps in provision have opened up across England & Wales, who will assist the newly-eligible clients with critical cases such as domestic abuse, homelessness and deprivation of liberty?
We are also concerned that no regular review mechanism has been proposed by government to ensure that eligibility thresholds keep pace with inflation. Whilst this is an acute problem during a cost of living crisis, there will always be a need to ensure that thresholds are reviewed regularly so that access can be maintained to such vitally important services.
Nicola Mackintosh KC (Hon), Co-Chair of LAPG states:
‘Everyone should be entitled to access justice, regardless of their ability to pay for legal advice and representation. The means test for legal aid is totally outdated and has needed urgent reform. Many of the proposals to change the system are to be welcomed, so that more of the population are eligible for help with legal costs and therefore have access to justice. It is however a missed opportunity to rectify some of the worst injustices in the legal aid scheme such as the need for vulnerable disabled people detained in the community to have a right to non-means tested representation.
But although there are some welcome changes, there is an elephant in the room, and it is a very large elephant which is not addressed by this report.
Civil and criminal legal aid is in crisis, with stagnant rates of pay for decades. Legal aid practitioners are being forced to leave because it is impossible to continue to practice. Firms are reducing legal aid work, because it is unsustainable and the endless bureaucracy is exhausting. Without legal aid practitioners, there will be no increased access to justice because there will be no-one to deliver the services the public need. Extending eligibility ignores the urgent and pressing need for the justice system to have an immediate injection of funds to increase rates to keep existing practitioners. Otherwise the thousands, or millions of people who may benefit from the means test changes will find themselves in exactly the same position because on the ground there will be no-one to provide them with a legal aid service’.
The ONS Legal Aid Statistics demonstrate a sharp and consistent decline in the number of legal aid providers across England & Wales.
The Law Society of England & Wales analysis also demonstrates that in social welfare categories of legal aid, large advice deserts have opened up as a result of the fall in the number of providers.
Without significant investment in civil legal aid fees, and further investment in criminal legal aid fees to supplement the proposals arising from the Criminal Legal Aid Review, it is likely that the Means Test Review proposals will not lead to an increase in people accessing legal aid.
LAPG is a membership body representing the interests of all those involved in the delivery of legal aid services across England & Wales.
Contact LAPG CEO Chris Minnoch, email@example.com for further information