Legal aid means test review – Law Society response
The Ministry of Justice (MoJ) is reviewing the means test, to widen who is eligible for legal aid:
- an extra 2 million people for civil legal aid, and
- 3.5 million more people at the magistrates' court
Some of the key proposals include:
- expanding the financial thresholds in both crime and civil means tests, making more people eligible for legal aid
- removing the means test for certain areas (such as representing under 18s, including asylum-seeking children and separated migrant children)
- deducting costs (such as council tax, student loan repayments and pension contributions) when assessing someone’s disposable income
- removing the upper disposable income threshold for defendants in the Crown Court
The MoJ plans to review income and capital thresholds three to five years after the changes are introduced.
We welcome many of the proposals as a substantial step forward from the means test as it exists today.
However, clients will only see the benefits of these changes if there is significant investment in the legal aid sector.
To fulfil the promise of these proposals, the government must also commit to the necessary investment in both criminal and civil legal aid.
The figures used in the consultation are based on the cost of living in 2019.
In light of the present cost-of-living crisis and spiralling inflation, it’s essential these figures are updated before implementation and then annually.
Otherwise, we’ll soon be back where we started in 2018, with families disqualified from justice.
We are concerned about the disproportionate impact the proposals will have on lone parents which will particularly impact domestic abuse cases.
An additional allowance for lone parents should be added to address this.
We are concerned by the removal of universal credit as a passporting benefit for legal aid due to the:
- impact on struggling households
- extra administration it will impose on legal aid providers (a group already in crisis)
Domestic abuse cases
The proposals should go further to address the problems faced by survivors of domestic abuse.
Non-means tested legal aid should be available for protective injunctions and prohibited steps orders, to protect survivors and their children.
A person’s home should not be considered as accessible capital to fund legal services.
If someone is living at a low income or on benefits, they simply will not be able to re-mortgage or get a loan to access those funds.
To inform our response to this consultation, we commissioned further research by Professor Donald Hirsch on the impact of the proposed changes to the legal aid means test.
What this means for solicitors
The means test review will be implemented in phases – starting with non-means tested areas (hopefully by the end of 2022), then civil means test, then criminal.
All existing legal aid recipients will be able to apply for reassessment under the new arrangements if more advantageous for them (particularly relevant if paying income contributions).
The MoJ estimates it will increase legal aid providers' income by up to £20m a year on top of its existing legal aid fund projections. This does not take into account the impacts of the criminal legal aid independent review.
The consultation closes on 7 June 2022.
The government will analyse the responses and it's expected to publish full details of the new means tests in autumn 2022.