Cost of living crisis could drive a wedge into justice gap

A positive shake-up of legal aid financial eligibility criteria risks being undermined by a failure to account for spiralling inflation, the Law Society of England and Wales said as it published independent research by Professor Donald Hirsch at Loughborough University into the impact of proposed changes to the means test.

Key findings of the research:

  • more generous allowances in the proposals greatly reduce the extent to which people on the lowest incomes are denied legal aid. For example, at present a single adult is ineligible for legal aid even if their income is a third less than they need, according to the Minimum Income Standard*. Under the proposals, the threshold rises to about the Minimum Income Standard level
  • these gains will however be quickly eroded if the thresholds are not uprated with inflation. The “cost of living allowances” in the proposals are based on expenditure benchmarks that are already three years old and would be in place without revision until at least 2026
  • while the proposals seek to treat people in different types of household equitably, the proposed formula determining the means test level gives insufficient weighting to the needs of lone parents. This particularly risks restricting access to justice for people seeking protection against abuse by ex-partners. The report proposes an additional income allowance for lone parents that would make the system more equitable

“Legal aid is a fundamental part of the British justice system. Anyone who cannot afford the legal advice and representation they need to secure justice must still be able to get it, so everyone is equally able to enforce and defend their rights,” Law Society president I. Stephanie Boyce said.

“We commissioned Professor Donald Hirsch to follow up his research that led the government to review its criteria for who can receive legal aid.

“This new analysis confirms the Ministry of Justice’s (MoJ) proposed changes to the means test should lead to more people on low incomes becoming eligible for legal aid.

“However, MoJ oversights risk partially – and in some cases fully – reversing improvements over time.

“The most significant omission is the failure to uprate cost-of-living allowances regularly in line with inflation.

“The MoJ proposes using 2019 expenditure benchmarks through to 2026, but with the cost-of-living crisis these are already out of date and prices are expected to have risen by a breath-taking 20% by 2026.

“Progressively more people would be left unable to seek justice if this is not addressed.

“The MoJ needs to look at how it assesses income needs for different groups as evidence shows these are inaccurate for actual relative need, which would leave some families out in the cold.

“Single parent families will be disadvantaged compared with other types of households because proposed changes fail to recognise one-parent families must budget a higher proportion of their income to pay for their children’s needs relative to two-parent families.

“Lone parents also commonly need legal help for family cases and rarely have income high enough to afford it without legal aid – this includes survivors of abuse seeking protection for themselves and their children.

“There is no perfect formula to equalise the needs of households accurately in all circumstances, but it is important to limit the size of inequities across household types, while keeping the system simple.

“Professor Hirsch suggests an additional allowance for single parents which we support.

“Our conclusion from these findings is while we wholeheartedly support the more generous approach to legal aid means testing represented by the proposed changes, there must be more frequent and systematic inflation uprating than proposed – particularly in the present period of high inflation.” 

Notes to editors

Read Professor Hirsch’s report: More affordable justice: Proposals to reform the legal aid means tests and implications for living standards

*The Minimum Income Standard is based on research by Loughborough University assessing what households require for a minimum acceptable standard of living, according to members of the public.

About the Law Society

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Press office contact: Harriet Beaumont | 0208 049 3854

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