PAC report on civil legal aid

The Public Accounts Committee has released a damning indictment of the Government’s cuts to civil legal aid.

The Committee conducted an inquiry into the impact of the cuts that were introduced under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in April 2013, looking at the process leading to implementation, the actions of the Ministry of Justice since then and the knock on effects of cuts on consumers and the justice system. The resulting report pulls no punches, concluding:

No evidence based policy – The Ministry is on track to make a significant and rapid reduction in the cost of legal aid but it is far from clear that these savings represent value for money. Despite consulting on its planned cuts two years in advance the Ministry gathered little evidence before implementation and didn’t make good use of the evidence it had. The Ministry should gather necessary evidence proactively so policy decisions are taken on that basis.
Mediation – The Ministry’s approach to implementing the reforms has inhibited access to mediation for family law cases. 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.
Monitoring – The Ministry does not know if people eligible for legal aid are able to get it. It should introduce a robust mechanism to identify and address any shortfalls in provision.
Complexity – The justice system is complex and may be preventing people accessing justice if they are no longer eligible for legal aid. An increase in litigants in person caused by the reforms may be having a negative impact on the administration of justice. The exceptional case funding scheme is being used less than expected and this may be due to its complexity. The Ministry should simplify processes that people who do not have legal advice must follow.
Litigants in person (LiPs) – 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. It 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.
Quality – The quality of face-to-face legal aid is unacceptably low, and the Legal Aid Agency does not understand the link between the price it pays providers and the quality of the advice. The Agency should set out targets to improve quality of legal advice and a plan and timetable to meet those targets. It should identify 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 which have had a real terms cut of 34%.
Knock on costs – 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. It should identify the wider costs to the public sector as a part of a full evaluation of the impact of the reforms.

Read the full report here.

The Chair of the Committee, Margaret Hodge MP, said:

“Access to justice is one of the most fundamental principles of our society, and the purpose of legal aid is to ensure that the poorest and most vulnerable people enjoy that basic right. So it is deeply disturbing that the Ministry of Justice’s changes to civil legal aid were based not on evidence but on an objective to cut costs as quickly as possible. The Permanent Secretary told us that “the level of spend” was the “critical” factor driving the reforms. The Ministry still does not understand what its reforms mean for people. It has little understanding of why people go to court and how and why people access legal aid in the first place, and only commissioned research into these issues in 2014 – more than a year after its reforms were implemented….

..The Ministry does not know, and has shown little interest in, the knock-on costs of its reforms across the wider public sector as a result of increased physical and mental health problems caused by the inability to access advice to resolve legal problems. It therefore has no idea whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. It does not understand the link between the price it pays for legal aid and the quality of advice being given. In short, there is not a lot the Ministry does know. It needs to get on and urgently review the impact of its reforms and, where necessary, act to address issues such as cost-shifting and
people struggling to access justice.”

This critique must be viewed alongside the robust report of the National Audit Office in November 2014, which concluded that the cuts had the potential to create additional costs. It is particularly significant because the Committee is appointed by the House of Commons to examine public expenditure and does not consider the merits or formulation of policy. Its focus is value for money criteria based on economy, effectiveness and efficiency. The Government has consistently returned to claimed financial savings to justify its actions in cutting civil legal aid. Yet now two independent bodies tasked with scrutinising financial claims have found that rhetoric rings hollow. The Government has admitted it made decisions based on no evidence and with no interest in obtaining evidence to meet its duties to the public and its actions may very well have increased costs instead of saving money.

Young Legal Aid Lawyers gave evidence to the committee which you can read here. We said:

Legal aid lawyers provide comparatively good value for money;
Cuts to legal aid are making life increasingly difficult for junior lawyers working in this sector. In our view this is likely to lead to a deterioration in the quality of advice and representation provided to clients;
Cuts to legal aid generate an additional burden on MPs’ constituency surgeries which they are not well placed to meet;
The Government has expended a significant sum of money unnecessarily pursuing the implementation of a ‘residence test’ for legal aid.

We took issue with the implication by one witness before the committee that legal aid lawyers may earn as much as judges, pointing to evidence gathered from our members that shows how we earn no more than many other public servants such as social workers and teachers, and less than government lawyers. Testimony provided to us by members working in the civil legal aid sector shows the difficulty many junior lawyers face in balancing repayment of study debts and other living costs on their incomes. It also makes plain how demanding their work can be and how much is required of legal aid lawyers when trying to do their job well.

The Committee commented that the Ministry gathered little evidence before implementing its cuts and work could be done to develop a better understanding of the value of civil legal aid and likely impact of removing it could be done. We drew attention to the findings from our research with MPs that has shown the potential for the cuts to free advice provision to harm MPs’ ability to help their constituents, requiring increased time from their offices to deal with advice queries raised by people unable to get help elsewhere. Citizens Advice surveyed clients to asses the impact of advice on their financial problems and health. The Legal Action Group surveyed GPs and found 88% of respondents agreed that denying access to advice on social welfare issues can have a negative impact on health. No such effort has been made by the Government to truly understand the price of reducing access to justice. The Committee also noted the Ministry had no intention of undertaking research to estimate knock on costs from the cuts to other budgets within government.

An example of the poorly thought through approach to civil legal aid “reform” and the cost of its actions is the Government’s proposed “residence test”. This was proposed after the introduction of LASPO to restrict access to justice for people based on their immigration status. We cited evidence from the Ministry of Justice showing that its expenditure on defending action against the proposed residence test has been £35,334.50 up to August 2014, with rates of pay to its lawyers exceeding those of legal aid lawyers. This policy was found to be unlawful by the High Court as warned by many from its inception, yet the Government continues, even now, to pursue it.