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Legal aid means test review restarted
The Ministry of Justice (MoJ) has restarted its work on the review of the legal aid means test and is due to consult on the proposals to change the means test in spring 2021.
We’ve outlined what we believe are the overarching principles that should guide the review of the means test and proposed revisions to the test.
We believe the aim of the means test review should be to ensure that legal aid is:
The review should ensure that legal aid provides effective access to legal rights for those who cannot afford their own legal costs.
In defining "those who cannot afford their own legal costs" the judgment of the supreme court in Unison (R (Unison) v Lord Chancellor   UKSC 51) on what it means for justice to be reasonably affordable should be included in the aim of the review and should be used as a measure against which any modelling of proposals should be made.
Lord Reed states in the judgment "Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable" (paragraph 93).
It should also ensure equality of arms, particularly where individual’s cases involve the state.
The review should consider the accessibility of available funds. Where funds are not reasonably accessible, they should not be considered as income or capital.
The test should be simple to administer for both practitioners and the Legal Aid Agency and simple for the public to understand.
Address operational issues
The review should seek to understand the operational problems that exist within the means test and address these.
The review should ensure the means test is future proofed, for example, annual uprating in line with inflation. The present means test has not been uprated for 10 years.
Judgment of the supreme court in Unison (R (Unison) v Lord Chancellor   UKSC 51)
In 2017, 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, with the judge citing the minimum income standard (MIS) in determining an acceptable living standard.
The same impact can be seen in the formula that determines whether someone is entitled to legal aid, where individuals not able to meet the MIS are deemed ineligible for legal aid through the means test.
What is the minimum income standard
The MIS is a standard set by the Joseph Rowntree Foundation which indicates the income needed to reach a socially acceptable standard of living.
Economic research on the means test
We commissioned academic research on the means test. The MoJ must take this research into consideration in developing proposals on changes to the means test.
Civil legal aid – income and contributions
We commissioned Professor Donald Hirsch of Loughborough University to consider legal aid eligibility for those on low incomes.
The report concludes that people with incomes below the MIS can either exceed the maximum income threshold or, if eligible, cannot realistically afford the current levels of contributions.
Civil legal aid – capital
We also commissioned research on capital eligibility.
The report by Dr Lisa Whitehouse considers whether it is feasible for a person with a low income, but excluded from legal aid by virtue of capital in their property, to borrow against that equity in order to pay for legal services.
The report finds that it is not realistic for most people in this situation to obtain such a loan.
Criminal legal aid
We commissioned a further report by Professor Donald Hirsch which shows that many working people on low incomes facing criminal charges are being denied the right to a fair trial as they are unable to afford the legal aid contributions and cannot afford to pay privately for legal representation.
The requirement to contribute financially at each stage of proceedings is actually pushing people below the MIS – the amount of income needed to reach a socially acceptable standard of living.
The means test also has to be viewed within the context of what is left within the scope of legal aid. What remains are the most serious issues, largely poverty and human rights.