MoJ to consult on legal aid means test in spring 2021

The government hopes to consult on threshold changes to the legal aid means test next spring, a justice minister has confirmed.

The Ministry of Justice paused its review due to Covid-19. However, Alex Chalk told yesterday’s meeting of the All-Party Parliamentary Group on Legal Aid that the review has restarted. ‘We are looking to publish our findings along with a consultation on policy options in spring 2021,’ he said.

The department will also look at the sustainability of the civil legal aid system, including fees, the availability of early legal support and advice, and how administrative burdens can be reduced.

However, Richard Miller, the Law Society’s head of justice, warned of a ‘sectoral collapse’ if the ministry did not address the three problems currently facing practitioners: cashflow implications of Covid-19, loss of income and the underlying crisis of sustainability.

Without a sustainable supplier base, Miller told the meeting that nothing else mattered ‘because there will be no one else to provide the services that are supposed to be available’. He was encouraged by the minister’s announcement on the review. But he warned that ‘the longer it is before remedial measures are put in place, the more difficult it will be to rebuild the supplier base’.

Crime, immigration and housing were hit particularly hard by Covid-19. But, in busy areas such as family and mental health, Miller said ‘there are significant question marks over the volume of work they have actually been able to deliver,’ pointing out that remote hearings were taking longer.

As a starting point, Miller told the minister that legal aid rates must be increased in line with inflation. ‘The MoJ must stop it getting worse whilst we discuss how we’re going to make it better. Making it better necessarily involves paying for legal advice and representation from qualified lawyers in appropriate cases,’ he said.

On tackling the court backlog, Miller said one crucial lever remained untouched. ‘Providing early advice in all litigation matters will take some cases away from the courts thus mitigating the worsening backlog. Having representation for all parties in court will ensure judicial time is used as efficiently as possible for those cases that do need to go to court,’ he said.

Changing the means test threshold will be an ‘obvious crucial lever’ as more people will qualify for legal aid, and receive advice and representation, and ‘the impact on the court backlog will become more effective’.

Miller urged the ministry not to publish any more court recovery plans that do not involve the provision of comprehensive advice and representation. He said the focus should not be on the number of courts or extended hours, but on ‘actually making sure fewer cases are going to court and those that do are dealt with more effectively as a result of representation being provided’.

Elsewhere, the justice minister told the meeting that practitioners would see a ‘ramping up’ of Nightingale courts in August, September and October.