Legal Aid: The Review of LASPO Part 1
Wednesday 20th May 2020
The Legal Aid, Sentencing, and Punishment of Offenders Act (LASPO) 2012 abolish private family law matters, with some exceptions, from the scope of publicly funded legal help and representation. In 2017 its effects on all areas affected by the legal aid reform were closely scrutinized in a Memorandum submitted by the Ministry of Justice to Parliament Justice Committee as the first stage in the post-implementation review of the act which began to collect information in March 2018.
What The Review Covered
The Government scrutinized several areas in part 1 of LASPO, which handles with legal aid, including:
● The modification made to the scope of legal assistance for family, civil, and criminal cases
● The changes made to fees for legal aid work
● The changes to the application of the merits tests
● The dissolution of the Legal Services Commission and its arrangement with the Legal Aid Agency
● The introduction of evidence requirements for victims of domestic violence and child abuse
● The changes to the rules on financial qualifications, including the application of the capital eligibility test to all legal aid applicants, increasing income contributions for those who qualify to contribute, and finishing the subject matter of dispute disregard.
● The Exceptional Case Funding scheme
● The introduction of the mandatory telephone gateways
Changes To The Eligibility Criteria For Legal Aid
Regulations under LASPO made four changes to the eligibility criteria for civil and family legal aid:
● Applying capital eligibility test to all legal aid applicants;
● Increasing Income Contributions for Contributory Clients;
● Capping the subject matter of dispute (SMOD) disregard at £100,000;
● Removing legal aid in cases with 'borderline' prospects of success.
The reforms were created according to the Coalition Government to:
● Target the provision of public funding at those in the greatest financial need
● Make sure people who can afford to pay some or all of their legal costs to do so
● Reduce unnecessary litigation where the prospects of success are borderline.
The review discovers that the modification to eligibility contributed to savings in the cost of the scheme. These were mainly focused on the application of the capital means to evaluate all applicants for legal aid, which saved an estimated £9m per annum.
During the review, the MoJ was told that the modifications had blocked people from accessing legal aid because of challenges in obtaining the relevant economic evidence to support their applications.
Another problem was that the financial eligibility threshold is set at a level that demands many people on low incomes to pay an input that they cannot allow while maintaining a socially acceptable standard of living.
Besides, the reduction of free or subsidised legal advice increases the responsibilities of public services. The truth is that the absence of promptly legal advice can cause minor problems to escalate, establishing health, social and financial problems, and put pressure on public services.
For instance, in housing law, legal aid is still accessible to defend possession proceeding, but only in the case where the loss of a home is imminent. Free, and immediately, legal advice could handle the problem before getting to this point.
The conclusion communicated by respondents to the review was that LASPO should have essentially modified the means-testing scheme to align with the cost of current living standards.
The MoJ declared it would conduct an additional review into the thresholds for legal aid benefit. It promised that during the review, it would allow all applicants in receipt of universal credit through the evaluation of the mean.
Fee Changes in Civil and Family Legal Aid
Another aspect under LASPO regulations is that it reduced fees paid to solicitors in civil and family matters. Also, the charges for some hourly rates were exceeded or removed and, remuneration for pre-permission work on judicial review cases was limited.
For the Coalition Government, fees are an area in which the overall spend on legal aid can be reduced. According to the review, this modification saved a combined £110m in 2017-18.
The problem of reducing legal fees is that young solicitors are no longer attracted to careers funded by legal aid. Low remuneration, combined with high levels of student debt, was an obstacle to entry to the profession.
The truth is that charities and advice organisations are not capable to filling the gaps where solicitors are absent. For the Government the reduction in the number of legal aid providers is a consequence of the decrease in the total expenditure on civil legal aid work. It disputed that the average income per civil legal aid provider has increased by 11%.
Changes To Criminal Legal Aid
LASPO also made several modifications to criminal legal aid, mostly concerning the fees paid to solicitors and barristers, and also some alterations to eligibility criteria and the provision of legal assistance to prisoners. The review predicted savings of £140m per annum due to the fee changes.
During the information-gathering phase, the Bar Council and Law Society told the review that the compensation modifications in criminal law had increasingly impacted on the sustainability of the criminal legal aid market.
It was discussed that in terms of prison law reform, LASPO has shifted costs onto other areas of Government, including the Prison and Probation Service and that the cost of this may exceed that of corresponding legal aid provision.
In return, the review identifies that the Government had admitted that, for some matter concerning prison law, prisoners should be backed personally through legal aid, and had made the required modification to expand the scope.
Changes To Experts' Fees
LAPO regulations also changed the fees paid to experts in civil, family, and criminal proceedings. These changes have saved £30m per annum for the legal aid fund.
According to the evidence heard at the review, solicitors are having problems convincing experts to give evidence in proceedings funded by legal aid. The MoJ declared that expert fees must represent value for money, so they are considering allowing higher rates in unusual circumstances.
The Legal Aid Agency
The Legal Services Commission (LSC) was replaced with the Legal Aid Agency (LAA). The problem declared in the review is that the position of the Director of Legal Aid Casework is far too close to ministers in terms of decision making.
As stated by the MoJ, all the changes made under LASPO were made to ensure independence and avoid political interference. The Moj declared the job now rests on the Lord Chancellor.
The reaction to the review differed. For instance, the Bar Council expressed the reviews was "a wasted opportunity," the Law Society congratulates the PIR as it considers a "shift in the right direction," and Young Legal Aid Lawyers declared they are hopeful for a change in the Government's policy on legal aid.
Finally, The Justice Committee advised that the various motions for more reviews and research will only postpone a decision.
Cites and References
1. McGuinness, T. (2020). Legal Aid: the review of LASPO Part 1. House of Commons Library. Retrieved 9 May 2020, from https://commonslibrary.parliament.uk/research-briefings/cbp-8910/.
2. LASPO review - The Law Society. Lawsociety.org.uk. Retrieved 9 May 2020, from https://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/laspo-review/.
3. LASPO 4 years on: Law Society review - The Law Society. Lawsociety.org.uk. (2017). Retrieved 9 May 2020, from https://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/.
4. Statement on LASPO review | Young Legal Aid Lawyers. Younglegalaidlawyers.org. (2019). Retrieved 9 May 2020, from http://www.younglegalaidlawyers.org/LASPO-Feb19.