Over the past few years, we have tended to focus on the devastating impact of the scope changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). However, we should not lose sight of the more insidious, and seriously damaging, effect of the means test in preventing people from accessing justice.

Legal aid lawyers know the daily stress of explaining to very poor people that their ‘disposable’ income is bizarrely above the limit the government has set to qualify for legal aid – even though they may be receiving other welfare benefits. The Law Society commissioned a report from Loughborough University’s Centre for Research in Social Policy,1Professor Donald Hirsch, Priced out of justice? Means testing legal aid and making ends meet, Loughborough University, March 2018. which compared legal aid eligibility thresholds to the minimum income standard (MIS) set under criteria supported by the Joseph Rowntree Foundation. The research found that the £733 per month disposable income limit excludes people from all types of household at incomes that put them below the MIS. For example, a couple with one child has 28 per cent less than they require under the MIS at the income level that excludes them from legal aid.

The research also found that many individuals with gross income above the £2,657 a month limit (beyond which they are excluded from legal aid entirely) could generally afford to contribute a substantial amount to legal costs. However, some people had incomes below the MIS, primarily because gross income includes tax credits and benefits, which contribute to meeting the cost of additional family members. This means that paying legal aid contributions exacerbates their poverty.

Considering the capital test, the research noted that even those on the lowest incomes who are eligible for legal aid are excluded if they have savings or assets worth over £8,000 (or in immigration and human trafficking cases,2Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480 reg 8(3). £3,000). The report concluded that people with this much in the bank could pay for some legal costs without affecting their ability to maintain a minimum living standard. However, the means test also takes account of the value of people’s homes. In consequence, homeowners who are not working may be excluded from legal aid even though they have no realistic options to pay for legal costs. This particularly affects people living in areas with higher-value housing, so one could argue that legal aid does not operate consistently across the whole jurisdiction of England and Wales, as people in, for example, London and the South East are disproportionately excluded on capital grounds.

The government’s review of LASPO3Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, Ministry of Justice, February 2019. acknowledged the arguments that legal aid was not reaching many of those who needed it, due to disqualification on means grounds. A working group involving Ministry of Justice (MoJ) officials and practitioner representatives is currently examining possible changes. One of the ideas being discussed is returning to the position where ‘passporting’ benefits conferred automatic entitlement in respect of both income and capital. Retaining universal credit as a passporting benefit at all levels would be very positive for access to justice and simplify administration for both practitioners and the Legal Aid Agency, but is likely to fall foul of the Treasury. Other suggestions are non-means-tested legal aid for people experiencing domestic abuse and for initial advice in relation to special guardianship orders.

Young Legal Aid Lawyers (YLAL) is currently conducting a survey, using an online form, to find out why people who want to apply for legal aid are failing the means test, as this is an issue where the MoJ lacks data. The form is very straightforward and should not take longer than a couple of minutes to complete. It does not collect any personal identifiable data and there is a letter that young legal aid lawyers can give to their employers to explain what is being collected and why.

Participating in this is one way in which all legal aid lawyers can really make a contribution to the evidence on which any changes will have to be based, if the MoJ is to get approval from the Treasury. The more data YLAL can collect, the stronger the submissions it can make about why the current means test is not working.