The Ministry of Justice has responded to the Legal Aid means test review. Here is today’s analysis from PLP . . .

This response does not address fundamental and on-going sustainability issues in legal aid. Some of the changes outlined in the response are welcome, but the long implementation period, lack of regular review, and failure to tackle sustainability mean that access justice – for too many people – will remain out of reach.

Income test

It’s good news that the Ministry of Justice (MoJ) is making the income test more realistic: the income thresholds are being raised; the ‘single person housing cap’ is being removed; and debt payments will be capable of being deducted in the income test. Another welcome change in this area is that the disregard for backdated benefits payments will be mandatory (if received within 24 months) rather than discretionary.

The MoJ has listened to evidence about ensuring the additional costs faced by lone parents are taken into account. However, in light of high inflation, the MoJ needs to make sure these thresholds are not left to lag behind. They have committed to reviewing in ‘no later than 5 years’ but it is concerning that there is no concrete commitment to actually uprating the thresholds if it is necessary to do so.

Universal Credit passporting

It is regretful that the MoJ has not taken on board the significant criticism of their Universal Credit (UC) passporting proposals. 88% of respondents disagreed that the MoJ should remove benefit passporting for those earning more than £500 per month on UC. A requirement to means assess clients going forward will increase significant administrative burdens already placed on the dwindling pool of legal aid lawyers. The MoJ could have agreed to pay providers to carry out this additional work, and it is unfortunate that they have not.

Trapped capital

The MoJ’s trapped capital proposals are a positive development in that they have done away with the idea of introducing a system which would have burdened people – many of them women with children – with a charge on their home in return for accessing legal aid. The idea was that when their property came to be sold, the Legal Aid Agency would have been able to claw back money from the individual, potentially years after the conclusion of the legal matter. It is good news that the MoJ has listened to concerns raised by consultees and are proceeding with an amended version of this proposal which could have a positive impact.

“Investment” of £25 million

The introduction to the consultation response claims that a £25 million investment will increase eligibility for legal aid in civil and criminal matters.

This claim should, however, be treated with caution; it is based on the assumption that legal aid providers will take more cases, which may not happen if they have no capacity and if legal aid rates remain too low for them to expand their practices. The additional funding would mainly come from legal help cases, which providers in many areas of law widely consider loss making.