Chris Minnoch looks at key proposals in the government’s response to the Legal Aid Means Test Review and asks whether they will make any positive difference for providers and those who need help.
On 25 May 2023, the Ministry of Justice (MoJ) published
Government response to Legal Aid Means Test Review (CP 842). The review was first announced in February 2019 in the Legal Support Action Plan
1Legal support: the way ahead, CP 40, MoJ, February 2019. and, following an extensive period of engagement, proposals went out for consultation between March and June 2022. The response sets out a wide range of changes, including income and capital thresholds and disregards, the removal of means testing for certain types of case, and a change of approach to ‘passporting’ recipients of universal credit (UC).
A government press release accompanying the response claimed that ‘over 6 million more vulnerable people and families [will be] able to access funded legal support as the government pledges £25 million to boost the legal aid system every year’ (‘
Access to vital legal support extended to millions of vulnerable people’, MoJ, 25 May 2023). As with all government press releases, such claims require careful consideration, which I set out below with a summary of the main proposals and thoughts about the wider legal aid context.
The main proposals
The response document is weighty and anyone delving into it should note the caveat at para 7 (page 7) that the paper does not repeat the full policy rationale for each proposal, so readers will need to refer back to the initial consultation paper (CP 646, 15 March 2022) for the detail. Both documents demonstrate that, whatever your views about the outcome, the MoJ cannot be accused of taking a cursory glance at means testing.
The response is divided into chapters covering overarching measures, civil legal aid, criminal legal aid, and an overview of implementation, review and transitional measures. It is worth noting that relatively detailed impact assessments have been published that help to understand the government’s thinking.
2Separate impact assessments for crime and civil legal aid are accompanied by the obligatory, and rather empty, equalities assessment.Paras 12–17 (pages 8–9) contain a useful summary of both overarching measures and specific proposals. I set out a précis of the proposals below, with added analysis and comment (in italics). As always, much will turn on the finer detail required to implement proposals, including the efficacy of official guidance and the mammoth task of updating the Legal Aid Agency’s creaking digital systems.
Para 12: overarching measures
•To use a cost of living-based approach for the civil legal aid means test.
•To use the OECD-modified approach to adjust gross and disposable income for different household compositions.
•To disregard council tax from the civil legal aid means test and remove the £545 per month cap on housing costs.
•To uprate the existing work allowance for the civil legal aid means test, and implement a similar allowance into the Crown Court and magistrates’ court means test.
•To deduct priority debt and student loan repayments, and pension contributions up to five per cent of earnings, from the disposable income assessment.
Para 13: civil measures for income thresholds, passporting and contributions
•To increase income thresholds and require recipients of UC with household earnings above £500 pcm to go through an income assessment, rather than being passported as at present.
•Acknowledging concerns about the potential adverse impact of this measure on lone-parent families, the government intends to mitigate this by introducing an allowance.
•Victims of domestic abuse on UC will not undergo a means test when they apply for a protective order – it remains unclear whether this will extend to the victim’s children and therefore whether this will adversely impact on private children law matters.
•The actual income and capital thresholds and allowances set out in the response are all up for review prior to implementation as the MoJ has accepted concerns about rising costs and inflation since the consultation was published.
•Income contributions are to be time-capped to a maximum of 24 months.
Para 14: civil capital thresholds, disregards and passporting
•To increase disposable capital thresholds and the equity allowance.
•To disregard compensation, ex-gratia and damages payments for personal harm [this is a discretionary disregard], and backdated benefit and child maintenance payments [this is a mandatory disregard].
•To disregard property that is the subject matter of dispute.
•To disregard inaccessible [or ‘trapped’] capital that cannot be sold or borrowed against to fund legal services.
•To exempt recipients of certain welfare benefits who are not homeowners.
Para 15: immigration and asylum, under-18s and inquests
To remove means testing for:
•civil representation for children under the age of 18;
•Means testing will remain for civil legal help, family help and help at court, although a simplified ‘light touch’ approach will be adopted.
•parents/those with parental responsibility whose children are facing the withdrawal or withholding of life-sustaining treatment; and
•legal help in relation to inquests that relate to a possible breach of rights under the European Convention on Human Rights (within the meaning of the Human Rights Act 1998) or where there is likely to be a significant wider public interest in the individual being represented at the inquest.
•This section also contains proposals that impact on immigration tribunal work, which generated a great deal of concern for respondents, along with a new proposal to passport recipients of asylum support.
Para 16: Crown Court income and capital thresholds, passporting and contributions
•To increase income thresholds for legal aid at the Crown Court and the magistrates’ court, to take into account increases in the cost of living and private legal fees.
•To increase the maximum contribution period for income contributions at the Crown Court to 18 months, and implement a tiered contribution rate (40 per cent/60 per cent/80 per cent).
•Respondents to the consultation were particularly concerned about the impact that this may have on clients on low incomes.
•To remove the upper disposable income threshold for legal aid in the Crown Court.
•Para 293 (page 66) states that changes will enable all Crown Court defendants to qualify for legal aid, albeit with hefty contributions in some cases. Paras 294–295 (page 67) specify that if a defendant is acquitted, income contributions will be refunded with interest, but if they have paid privately, they will no longer be able to claim any legal costs. Will this proposal influence whether some clients pay privately for their defence?
•To remove the current exemption from paying a capital contribution for homeowners convicted at the Crown Court who are in receipt of passporting benefits.
Para 17: magistrates’ court, criminal advice and assistance, and advocacy assistance
•To continue passporting all recipients of relevant means-tested benefits (including UC) through the income assessment.
•To align the criminal advice and assistance and advocacy assistance means tests with the government’s proposed new civil legal aid means test.
Implementation sequence and timeline
The changes will be phased in, starting with non-means testing for the groups set out in para 15 (page 9). The remainder of the civil changes will follow. Crown Court, magistrates’ court, criminal advice and assistance and advocacy assistance changes come next. Finally, one to two months later, Crown Court capital passporting for benefits recipients who are homeowners will be removed.
The government intends to lay the statutory instruments for the civil changes, which will include commencement dates, by the end of 2023. It expects all phases to have been implemented within two years of the consultation response, so by around May 2025.
Transitional provisions
When the proposals come into effect, existing recipients will be able to opt for a reassessment under the new rules, potentially enabling them to benefit from more generous provisions. In the Crown Court, when a reassessment is triggered by a change of income (for example), that reassessment will be carried out under the previous means testing rules unless the defendant opts to use the new test. Concerns were raised by a number of respondents about the lack of hardship measures for civil clients and the need for clear guidance due to the complexity of transitional arrangements.
Reviewing the means test thresholds
The government response has acknowledged that the proposed thresholds and allowances, while generally more generous, are now out of date due to the spiralling cost of living, and will therefore be reconsidered prior to implementation. But what of the longer-term approach? At para 451 (page 95), the government has noted:
We will review the income and capital thresholds for legal aid (including the earnings threshold for UC passporting), as part of a post implementation review (PIR) 3 to 5 years from the new means test coming into operation. The PIR would be published no earlier than 3 years and no later than 5 years after all the means test review measures have come into operation.
This is a major concern. Anyone familiar with the PIR of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) will know that a similar three-to-five-year promise was broken. Further, given that it will take two years to implement these proposals (longer if the tech proves as tricky as we anticipate), it could be at least seven years before crucial elements of the means test are reconsidered. It is almost certain that in that period, thresholds and allowances will fall well behind increasing living costs, leaving more and more people unable to access legal aid each year.
Missed opportunities
The proposals do not address some of the iniquities in the current system, such as the lack of allowances to reflect the additional costs of living with a disability. Despite calls for change, the government has also failed to introduce non-means-tested legal aid for mentally incapacitated adults in supported living placements who are deprived of their liberty. Legal Aid Practitioners Group co-chair Nicola Mackintosh KC (Hon) notes: ‘People in care homes and hospitals are entitled to non-means-tested legal aid and there is no logic behind the different treatment. The review has unfortunately failed to rectify this unjust anomaly.’
But probably the biggest shortcoming of the review is the failure to address administrative burdens. The new test is likely to be more complex and more administratively onerous on beleaguered providers and therefore their clients. This is particularly acute in relation to the proposal to means test UC recipients. Simon Mullings, co-chair of the Housing Law Practitioners’ Association, puts it succinctly: ‘It is clear to us that the MoJ listened extremely carefully and attentively to stakeholders, and thereby identified the measure that would deliver the most difficulty to frontline organisations delivering legal aid.’
Will more clients actually receive legal aid?
It is significant that despite the government estimating that 6m more people will be eligible for legal aid, its best guess is that around 35,000 new clients will access legal aid each year (see para 5, page 6). The response and impact assessments show that the government thinks the majority of those new cases will be civil legal help, which is a surprising claim given that this work is so poorly paid that it has declined dramatically post-LASPO.
3See, for example, Legal aid statistics tables – October to December 2022, MoJ, 30 March 2023, table 5.1, which shows an 86 per cent reduction in family cases and a 72 per cent reduction in housing cases.The difference between government rhetoric and reality is important. Any increase in clients accessing legal aid is positive, but an increase of 35,000 is just three per cent of the nearly 1.2m legal aid cases commenced in 2021/22.
4The headline figures for the various schemes are available here. As the government doesn’t attempt to measure unmet legal need, we have no idea whether these proposals will actually enable those locked out of the system to access legal support. And given that provider numbers have fallen consistently since LASPO, who is going to see the extra 35,000 clients? New clients may just displace those currently eligible for legal aid or, more realistically, both sets of clients will miss out as providers continue to withdraw.
In the absence of a remuneration increase to make every legal aid case financially viable, changes to the means test, however well-intentioned, will make no perceptible difference for the vast majority of people in legal need because they do not increase providers’ capacity to take on more cases. With both criminal and civil legal aid ‘under review’, there remains hope that the government will see that sensible changes to means testing will only work if accompanied by sensible increases in fees. If it doesn’t, this won’t be a case of rearranging the deckchairs, it will be an exercise in putting out more deckchairs while the legal aid ship sinks.
The author would like to thank Makin Dixon Solicitors, the Housing Law Practitioners’ Association, Nicola Mackintosh KC (Hon) and Public Law Project for helping to prepare this article.