Struggling families disqualified from justice despite Supreme Court verdict

Poverty-hit families are being denied vital help to fight eviction, tackle severe housing disrepair and address other life-changing legal issues, the Law Society of England and Wales revealed today.

Last summer the Supreme Court declared that employment tribunal fees were unlawful because households on low incomes were expected to sacrifice an acceptable living standard to afford legal costs.

The same effect is being meted out by an excessively restrictive formula that determines whether someone is entitled to civil legal aid.

Law Society president Joe Egan said: “No-one in modern society should have to choose between accessing the justice system and a minimum living standard.”

“The financial eligibility test for civil legal aid is disqualifying people from receiving badly-needed legal advice and representation, even though they are already below the poverty line.”*

He was speaking on the publication of a new report commissioned by the Law Society and produced by Professor Donald Hirsch of Loughborough University.

The report finds that people on incomes 10% to 30% below a minimum living standard are being excluded from legal aid.

The Law Society is asking the government to restore the means test to its 2010 real-terms level, and to conduct a review to consider what further changes are required to address the problems exposed by this report.

Joe Egan said: “This report is hard evidence that people with less income than they need, some below the poverty line, are unable to get the help that they need through legal aid in order to access justice.

“The position has been getting progressively worse, because the means test thresholds have been frozen since 2010, while the cost of living, of course, has not. Action is long overdue.” **

Further hardship is caused by the fact that, even for people on the lowest incomes who rely on means-tested benefits, there is a capital means test that treats the equity in their homes as funds available towards legal costs.

Joe Egan added: “We are calling on the Ministry of Justice to review the means testing regime in accordance with their obligations under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). We are also asking that they exempt those on means-tested benefits from capital assessment.”

Professor Hirsch said: “Millions of households in Britain today struggle to make ends meet, even when they include someone in work, often because of part-time, low-wage or irregular earnings. Yet in general, the legal aid system requires working people to pay their legal costs, either in full or by making a contribution that low earners would find hard or impossible to afford.

“Those who are out of work are generally covered by legal aid, but may be excluded if they own their homes. The assumption that someone could sell their home to cover a legal bill is out of line with other forms of state means-testing – such as help with care costs, where the value of your home is ignored if you or your partner still live in it.”

Campbell Robb, chief executive of the independent Joseph Rowntree Foundation (JRF) said:

“As a country we believe in justice and compassion, but it is simply unacceptable that millions of people are unable to access legal support because they live on a low income.

“We all face life-changing events which can pull us into poverty, such as a divorce or leaving home to escape an abusive relationship.

“Dealing with these shocks and being locked in a daily struggle to make ends meet can put enormous stresses and strains on people’s lives.

“We must loosen these constraints so people are protected from harm when things go wrong and can build a better life.”

Read the full report 

Notes to editors

Civil legal helps fund legal services for people on low incomes in cases including domestic violence, forced marriage, child abduction, mental health, asylum cases and debt and housing matters where someone's home is at immediate risk.

The means test leaves some people who cannot reasonably afford to pay for legal services without effective access to the courts. This principle is required by the common law, as set out in the July 2017 Supreme Court judgement in response to a legal challenge by the trade union Unison. The Court said it was not lawful to expect households to sacrifice ‘ordinary and reasonable expenditure for substantial periods of time’ in order to save for a legal cost.

Donald Hirsch is Professor of Social Policy and Director of the Centre for Research in Social Policy at Loughborough University.

* The ‘poverty line’ is defined as 60% of median income.

** Prior to 2010, the means test levels were uprated every year in line with inflation.

These findings are based on a comparison of the legal aid means test with research on what is needed for a minimum acceptable standard of living in the UK today.

This research, the Minimum Income Standard (MIS), is carried out regularly by Loughborough University, funded by the Joseph Rowntree Foundation. It is based on detailed deliberation by members of the public about what households require as a minimum in order to meet key material needs and to participate in society.

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 some cases £3,000. Those with this much in the bank could pay for some legal costs without affecting their current ability to maintain a minimum living standard. However, the means test also takes account of the value of people’s homes. As a consequence, home owners who are not working may be excluded from legal aid even though they have no realistic options for paying for legal costs.

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