Authors:Katie McFadden and Lucie Boase and Ollie Persey
Last updated:2023-09-18
“We are calling on our members to assist in Project Means Test.”
Marc Bloomfield
In our last column (September 2019 Legal Action 18), we wrote about #TakeYourMPtoWork, the joint campaign we are running with the All-Party Parliamentary Group (APPG) on Legal Aid. While this campaign continues to go from strength to strength, with more MPs signing up to join the campaign and visit early legal advice providers in their constituencies, YLAL is widening its campaign strategies and renewing its focus on legal aid policy.
We have been doing this primarily by engaging in the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LASPO)1See Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, Ministry of Justice, February 2019. an evidence-based assessment of the impact of LASPO and whether it met its legislative aims, and the subsequent Legal Support Action Plan.2Legal support: the way ahead, CP 40, Ministry of Justice, February 2019.
In September 2018, YLAL made a substantive submission to the review, which concluded:
YLAL believes that the overall impact of LASPO upon the justice system and access to justice in England and Wales has been hugely detrimental and urges the government to take urgent steps to repair our justice system before it is too late.
We believe that the review highlighted the detriment that LASPO has caused to access to justice, with insurmountable barriers resulting in a two-tier justice system that fundamentally undermines the rule of law.
Within the review, the Ministry of Justice (MoJ) identified areas that required further review. These included a pilot programme focused on early legal advice, a complete review of the criminal legal aid system, and a review of the means test. Our #TakeYourMPtoWork campaign is focused on promoting early legal advice. The criminal practitioner contingent of the YLAL committee are regularly attending meetings to engage on the various aspects of the criminal legal aid review, speaking up for the most junior in the profession in order to ensure our voices are heard and our interests are protected.
We have also turned our minds to the means test that determines financial eligibility for legal aid. This is something with which YLAL members will be very familiar, since, as a general rule, it is the more junior lawyers who deal with taking clients through the required questions. We sit with clients who detail to us their monthly income and outgoings, who confide in us about how they can barely afford to travel to work. We’re the ones who then have to tell them that they are not eligible for public funding, as they are deemed to have too much money and so should pay privately for legal assistance. As well as assessing eligibility for legal aid (using, for example, the civil legal aid eligibility calculator), our members also deal with the frustrations of spending hours submitting lengthy legal aid applications. They are, therefore, well placed to help us gather substantive data on the means test.
The maximum gross income cap for financial eligibility for civil legal aid applied by the Legal Aid Agency has not increased since it was first introduced in 2013 (by the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480). As time has gone on, the system has failed to account for inflation, resulting in increasing numbers of people being denied legal aid.
YLAL believes that the current means test is not fit for purpose and that legal aid is frequently being refused for those who are unable to pay for legal representation. In light of this, we are calling on our members to assist in Project Means Test, which aims to gather quantitative evidence on the way in which it operates in practice. YLAL believes that this will put us in a strong position to make a robust, evidence-based submission to the MoJ in respect of the means test when the time comes.
YLAL’s members are its greatest resource and we recognise how fortunate we are to have their considerable knowledge and expertise, as well as their time and energy, to draw upon. There is currently a data gap: most data collected on means is inevitably related only to those who are eligible. We want to build a quantitative bank of data that can be used to demonstrate the significant impact that determinations of financial ineligibility for legal aid have had upon clients who are subsequently unable to access necessary legal advice on a publicly funded basis. This data will then form a statistical basis for YLAL’s formal submission to the MoJ on the means test review.
We are asking members to complete a short Google Form each time they assess a client as being ineligible for legal aid. The form requests basic details about the client’s financial circumstances, without any personally identifiable information. We estimate it will take no more than two minutes per submission.
We need as much data as possible – the more data, the stronger submissions we can make about why the current means test is not working. We encourage firms to sign up to our project and ask their employees to take part. If YLAL members require assistance in explaining the concept of the project, we have provided a letter that they can send to their employers.
If you have not already done so, please sign up to Project Means Test; whether you’re a young legal aid lawyer, a supervising solicitor or a partner working in a legal aid firm, we want you to contribute to our research. Participate, spread the word, and we can help ensure the next legal aid means test is fit for purpose.
If you would like any further information, please check out the campaign webpage or contact us.
2     Legal support: the way ahead, CP 40, Ministry of Justice, February 2019. »