Access to Justice - Making the legal system

accessible to all
General Election 2017 briefing

The Law Society represents, promotes, and supports solicitors, publicising their unique role in
providing legal advice, ensuring justice for all and upholding the rule of law

The Law Society's priorities

 Access to justice is a fundamental principle of the rule of law. It enables people to exercise
their rights and encourages effective participation in the legal system.

 The Law Society is concerned that increases in court fees, court closures, and legal aid
cuts, are progressively eroding access to justice for ordinary people in England and Wales,
undermining their ability to exercise their rights.

 Unmet legal needs arising from barriers to access to justice can have a detrimental knock-
on impact on the public purse and affect all aspects of people's lives: family, income,
housing, and health, and on society.

To ensure justice is accessible to those who need it, the next Government should:

1. Reinstate legal aid for early advice, particularly in housing and family law. Without early
advice, relatively minor legal problems can escalate, creating health, social and financial
problems, and put pressure on public services.

2. Review the legal aid means test to restore the real value of the thresholds and allowances,
and remove the capital test for those on income-related benefits.

3. Make no cuts to legal aid rates for the life of the next Parliament.

4. Continue the current review into the impact of parts 1 and 2 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2012 (LASPO). It is particularly important that further
planned reforms to civil justice take place after this review rather than before.

5. Review the impact of court fee increases, and more specifically scrap the current
employment tribunal fee system, which since its introduction has undermined people’s ability
to enforce their employment rights.

6. Scrap moves to increase the small claims limit, which would make it difficult for people to
claim compensation for injuries such as a broken rib or facial scarring.

7. Ensure that the increasing use of technology in the court system widens and enhances
access to justice for all.

8. Implement proposals to end the cross-examination of survivors of domestic abuse by

their alleged abusers in the family courts.

9. Implement proposals to increase the flexibility of the rules determining whether a

survivor of domestic abuse can receive legal aid.

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 1. Reinstate legal aid for early advice, particularly in family and housing law

 The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which came
into force in April 2013, introduced cuts to the scope of civil legal aid. Until 2012, legal aid
was available for almost all areas of law, subject to specified exceptions. LASPO part 1
changed the system, transforming it overnight to a system focusing on a much smaller and
more specific list of legal areas which are eligible (or in scope) for legal aid.

 Areas removed from scope included private family law, such as divorce and custody battles;
most clinical negligence cases; most employment law, non-asylum immigration law, where
the person is not detained; some debt and housing cases, and most welfare benefit issues.

 The Government stated that under this new system legal aid would be targeted at those
most in need. In reality, the reforms have resulted in vulnerable groups finding themselves
excluded from free legal advice, and the number of civil legal aid advice cases was reduced
from 573,710 in 2012/13 to 157,723 in 2015/16.

 In legal areas that are now no longer in scope, people now have a stark choice: to pay for
their own legal advice, represent themselves, or be excluded from the justice system
altogether.

 One of the Government's stated objectives when introducing LASPO was to discourage
unnecessary and adversarial litigation at public expense. However, LASPO removed the
early advice that often stopped problems becoming more serious. As a result, public
expense elsewhere has increased as people are unable to access free, reliable, and timely
legal advice.

 Soaring numbers of litigants in person create a substantial burden on the courts, and a lack
of early advice can result in minor problems escalating quickly, particularly in relation to
debt, housing, and health.

 In 2014, the National Audit Office (NAO) reported:

o A 30% increase across all family court cases (including those that remain eligible for
civil legal aid) in which neither party had legal representation.
o A 22% increase in cases involving contact with children (Children's Act private law
matters) in which neither party was legally represented.
o That the increase in LiPs in family courts was already costing the MoJ £3.4 million
long before the full effects of LASPO had worked their way through the system.

 If early legal advice was available to address problems before they escalate, this would go
some way in addressing the large numbers of LiPs and would help decrease the social and
economic cost for the wider justice and welfare systems.

Family

 When removing legal aid for the majority of private family matters, the Government hoped to
increase uptake in mediation so families could resolve their problems outside of court.

 They predicted an increase of 9,000 mediation assessments and 10,000 mediation cases
for the year 2013-14. However, there was actually a decrease of 17,246 or 56% in mediation
assessments in the year after the reforms. In addition, the number of mediation cases
starting fell by 5,177 cases, or 38% in the same period.

 We believe that this has happened because solicitors providing early advice were a
significant source of referrals to mediation.

 Funding early advice for people with familial disputes which could be resolved by mediation,
would mean that, when faced with a dispute, people are more likely to speak to a legal

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 adviser who could signpost them to mediation, explain why it would be a good option for
them, and support them through the process.

 This would both reverse the trend of fewer people making use of mediation, and ensure
fewer people enter the legal system with no advice about the options available to them after
mediation, or as an alternative to mediation, where it is not appropriate.

Housing

 Although housing remains an area of law for which legal aid is still available, an individual
can only get housing advice under legal aid when a problem has become severe, such as
serious disrepair of a property, or in cases of actual or threatened homelessness. Legal aid
is not available to deal with issues such as rent and mortgage arrears that may result in
possession proceedings.

 A problem with housing benefit escalates into rent arrears and ultimately an expensive
repossession case, which could be prevented through low cost early advice to resolve the
housing benefit issue in the first place.

 We have calculated that legal aid for early housing advice could be restored for around £2
million a year. This calculation is based on the costs of pre-LASPO advice for housing
benefits and has not yet been verified by the Ministry of Justice’s statisticians.

The new Government should:

 Reinstate Family Help Level 1 or equivalent legal aid for early advice in family cases.
The estimated cost of this would be £14 million.

 Bring early advice for housing benefit, and rent arrears and mortgage problems
arrears back into scope of legal aid.

2. Review the legal aid means test and remove the capital test for those on income-
related benefits

 There are a number of financial considerations that are taken into account when determining
an individual's eligibility for legal aid. These include the civil legal aid gross income cap, a
detailed assessment of 'disposable income', and a capital means test, the application of
which was extended under LASPO.

 While we acknowledge the need for financial criteria when determining who should be
eligible for legal aid, the current requirements are too stringent and are not aligned with
other means testing, resulting in vulnerable individuals, or those on a low income, being
denied access to legal advice.

 Until 2010, the maximum gross income cap for financial eligibility for civil legal aid, and all
thresholds and allowances within the system, were up-rated annually to take inflation into
account. This means that the income cap, which is currently £2,657 a month for a family that
includes up to four dependent children, has reduced in real terms, as have all the fixed
allowances for expenditure which the means test takes into account. Moreover, there are
fixed allowances for housing costs and work-related travel costs, which have also been
frozen since 2010. The actual increases in these costs have been substantially in excess of
the general rate of inflation.

 In addition, before LASPO was implemented, applicants for legal aid who were in receipt of
certain income-related benefits were automatically 'passported'. Since 2013, benefits
recipients have to undergo a capital means test. The significance of this is that, unlike
benefits means tests, the test for legal aid treats equity in a person's home as an asset
available to them. The effect of this change is that the vast majority of homeowners who are
on means tested benefits are financially ineligible for legal aid.

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  This has created a barrier to legal aid for those on ever-more-modest incomes, who are
caught in a trap where they do not financially qualify for legal aid but still cannot afford to
pay privately for legal advice and representation. Those who do still qualify for legal aid find
they have to pay higher contributions in real terms than they would have done, with an
increased risk that such contributions are unaffordable.

 Particularly in relation to domestic violence, in some cases the victims of domestic abuse
have to contribute to top up their legal aid with their own money. These financial
contributions were increased by LASPO. The combination of increased contributions and
the changes to capital requirements has resulted in victims of domestic abuse being unable
to access protection from an abusive partner through a domestic violence injunction.

The new Government should:

 Review and routinely up-rate the civil legal aid means test and to reflect current levels
of inflation and changes in the cost of living.

 Scrap the capital means test for civil legal aid for those on means tested welfare
benefits.

3. Make no cuts to legal aid rates for the life of the next Parliament

 In April 2016, the then Lord Chancellor suspended a 8.75% cut in the rates paid for criminal
legal aid work for a period of one year from 1 April 2016. This cut had been made to rates
that had not been increased for at least 20 years and which had already suffered an 8.75%
cut in March 2014. The second cut was suspended after being in place for nine months,
from July 2015.

 In 2014 we commissioned Oxford Economics to produce a report on the Legal Aid Agency's
(LAA) forecasts indicating that expenditure on criminal legal aid was likely to continue to
decline because of the fall in the volume of cases. More recently, the implementation of the
criminal justice system reforms, Transforming Summary Justice and Better Case
Management, are also likely to result in a decline in expenditure from efficiency savings. Our
view is that further fees cuts are unnecessary, as costs for the MoJ are declining.

 In addition to this, in March 2017, the MoJ proposed cuts to the Litigators Graduated Fee
Scheme and to payments Section 38 of the Youth Justice and Criminal Evidence Act 1999,
under which a lawyer can be appointed to conduct the cross-examination when an
unrepresented defendant is banned from cross-examining in person. These cuts totalled an
estimated £30 million.

 We are concerned that, if the 8.75% cut were to be reinstated or alternative cuts such as
these were introduced, there would be a significant risk of a collapse in the criminal legal aid
market.

 In 2013, PA Consulting prepared a report for the MoJ on the likely impact of the proposed
cut in fees of 17.5%. This report found that if the full 17.5% cut was implemented, three
quarters of criminal legal aid firms would become loss-making.

 For the nine months in which the fee cut was in force, firms took a significant financial hit
which has weakened them. Since then, volumes of cases have continued to decline and
costs have continued to increase.

 By late 2015, many firms, particularly among the larger ones, were reporting to us that they
would be unlikely to remain in business without either a significantly greater volume of work
or the restoration of the fees. This means that clients will find it very difficult, or will be
unable altogether, to access legal advice and representation, even if they are entitled to
legal aid.

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  In relation to rates paid for civil and family, the number of solicitors offering legal aid services
has fallen significantly over the life of the current legal aid contracts. This raises a significant
doubt as to whether they are economically viable at current rates that have not been
increased since 1994..

4. Implement the current review into the impact of parts 1 and 2 of LASPO

 The current Government committed to a review of Parts 1 and 2 of LASPO, the former to be
completed by April 2018, and we call for the new Government to continue this review.

 We believe that a review of LASPO should be integral to the development of an overarching

access to justice strategy considering all elements: court reform, fees and costs regimes,
procedures, public legal education, and pro bono.

 The Law Society will be developing its own review of part 1 of LASPO, which will be
published after the election.

 It is important that further planned reforms to civil justice take place after the Government's
LASPO Part 2 review, rather than before, to ensure that there is not a piecemeal approach.

 As part of the review, the new Government should look at the sustainability of the civil legal
aid system which particularly focuses on economic viability for service providers as well as a
focus on local need and demand.

 Data from the LAA shows a number of areas of the country have little or no provision of
legal aid advice – otherwise known as legal aid deserts.

 A desert is an area where advice is not available through legal aid or where there is only
one provider locally. This means that people will face difficulty, and might be prevented from
accessing the advice they need.

 Government data published in April 2016 shows that large areas of the country have little or
no provision of housing legal aid advice:

o Almost a third of the legal aid areas (usually counties or metropolitan boroughs) in
England and Wales have one or no local legal aid housing advice providers.
o Neither Shropshire nor Suffolk has any housing legal aid advice provider.
o Over the past 18 months, another half a dozen areas, including Kingston upon Hull
and Surrey, had no provider for a number of months, until the Legal Aid Agency took
remedial action.

 Having only a single provider in a legal aid area is a major problem for housing advice
provision for the following reasons:

o Families on low incomes cannot afford to travel to see the one provider that might be
located many miles away from where they live. This means they are unable to seek
essential legal advice, even in the most extreme cases, such as homelessness.
o One firm in a large area might not have capacity to provide advice to all those who
need it. People who need legal aid advice for housing issues often need that advice
urgently, and cannot go onto a waiting list.
o Conflicts of interest can arise because one law firm cannot represent both a tenant
and their landlord. A conflict can also arise if the firm has been acting for the landlord
on another issue, such as a family matter. This would mean the firm would not be
able to act for the tenant.

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5. Review the impact of court fee increases, and scrap the current employment
tribunal fee system

 Over the past three years, the Government has introduced significant and wide-ranging
increases in court fees. Employment tribunal fees were also introduced in July 2013. The
first round of court fees was announced in March 2015, increasing the fees up to 622%.

 A key aspect of access to justice is the ability to use a local court without incurring
unreasonable expense. Higher fees will discourage people from bringing legitimate cases.
This will reduce access to justice and will have a greater impact on some groups,
particularly those on smaller incomes and vulnerable people.

 In its report on court and tribunal fees published in June, the Justice Select Committee
unequivocally stated that, in the balance between income generation and access to justice,
the latter must prevail1.

 The introduction of employment tribunal fees caused a significant decline in the number of
claims. The most recent MoJ statistics show that there has been a decrease in claims to the
tribunal by around 70%.

 In some areas there has been an even more dramatic drop in claims. For example, claims
have fallen by 87% in sexual discrimination cases and by 70% for equal pay claims2.

 High employment tribunal fees should also be seen in context of the abolition of legal aid for
employment advice, except in discrimination cases, in April 2013. Together, they create a
huge barrier to access to justice for workers seeking to enforce their legal rights.

 The employment tribunal fee is prohibitively high for most people. The average monthly take
home salary is £1,792.27 per month3. Further research by the Citizens Advice Bureau (CAB)
found that just under half of people with an employment issue would have to save for six
months to afford fees of £1,2004. This puts claimants at a disadvantage as for most cases
you have to bring your claim within three months from the date of dismissal, or for
discrimination claims when the first complaint was made.

 Discouraging employees from pursuing valid claims does not just harm the individual, it also
puts many well run businesses at a competitive disadvantage compared to the minority who
adopt a 'less careful' attitude to employment law.

 Acas reports that among those who could not reach an agreement through the early
conciliation process and then decided not to pursue a claim, the most frequently cited
reason was ET fees - 26%5. Only 20% did not pursue the claim because the issue had been
resolved.

The new Government should:

 Scrap the current employment tribunal fee system to restore people's ability to
enforce their employment rights.

6. Scrap moves to increase the small claims limit

 The Prisons and Courts Bill did not complete its passage through Parliament due to the
announcement of a General Election. The Bill contained provisions to introduce:

1
http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/167.pdf.
2
https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2015
3
(Office of National Statistics, Annual Survey of Hours and Earnings, 2013 Provisional Results).
4
https://www.citizensadvice.org.uk/about-us/how-citizens-advice-works/media/press-releases/four-in-five-deterred-by-
employment-tribunal-fees/.
5
http://www.acas.org.uk/media/pdf/5/4/Evaluation-of-Acas-Early-Conciliation-2015.pdf, pg 97.

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 o A fixed tariff system to compensate victims of whiplash and minor related
psychological injuries, for example in case of travel anxiety or shock.
o A ban on offers to settle without medical evidence in road traffic accident (RTA)
related whiplash claims only.

 In its response to its consultation on personal injury reform, the Government also
announced measures to:

o Increase the small claims limit for all RTA claims to £5,000.
o Increase the small claims limit for all other types of personal injury claims to £2,000.

 The measures to raise the small claims limit do not require primary legislation and could be
introduced by the new Government through secondary legislation.

 If a claim falls within the small claims limit, the claimant cannot recover legal costs. This
would make it uneconomic in most cases to get legal advice, meaning the claimant would
have to act as a litigant in person, or not seek justice. The small claims system was devised
for simple cases such as unpaid invoices and consumer disputes. It was not designed for
cases where the claimant has to obtain and interpret expert medical evidence and engage in
complex arguments about liability and the appropriate level of compensation.

 We oppose proposals to introduce a fixed tariff system to compensate for all RTA claims,
including whiplash claims.

 The proposed fixed tariffs for compensating whiplash injuries up to 24 months, starting with
a sum of £250 for injuries with a duration of up to 3 months, are far too low. Compensation
should be commensurate to the severity of the injury sustained and should reflect actual
pain, suffering and loss of amenity. A 'one size fits all' approach penalises those who are
suffering from more complex symptoms.

 Injured people may still need legal advice to ensure that they have been awarded the right
amount under the fixed tariff system. However, the tariff system combined with the
proposals to increase the small claims limit to £5,000 mean that all victims of road traffic
accidents, not only motorists who suffer whiplash injuries, would not be entitled to recover
legal costs.

 The reform would deny ordinary people the right to seek compensation for being injured
through no fault of their own and deter them from making a genuine claim. Because legal
costs would no longer be recoverable, genuine claimants will be left with no choice but to:

o Pay for a solicitor themselves, losing part of their damages.

o Represent themselves in a complex legal environment, at risk of being
undercompensated.
o Drop the claim altogether, being denied compensation they are entitled to under the
law.

 The Government has stated that the reform was introduced to tackle 'the problem of the
industrialisation' of whiplash claims and that proposals would reduce annual insurance
premiums by an average of £40. We are not aware of any evidence that fraudulent claims
are out of control so as to justify the removal of a basic common law principle. Preventing
genuine claimants from bringing their claims seems to be disproportionate to the problem
the Government is seeking to address.

 The Law Society welcomes appropriate measures to tackle fraud. For this reason, we
support proposals to ban pre-medical settlements for whiplash claims without medical
reports.

 In addition to this, we are concerned that there is no mechanism in place to hold insurers to
account and to effectively pass savings on to consumers. Only a few companies have

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 indicated that they are prepared to do so and the Government has no powers of
enforcement.

The new Government should:

 The new Government should reconsider the decision to implement the small claims
limit for personal injury. Any increase to the limit - if it is raised at all - should be in
line with inflation.

 Scrap proposals to introduce of fixed tariff system to compensate all RTA claims,
including whiplash claims.

7. Ensure that the increasing use of technology in the court system widens and
enhances access to justice for all

 We support the reform programme of the courts and tribunals system and we are working
with Her Majesty Courts and Tribunals Service (HMCTS) and the MoJ to make the most of
developments in IT and other systems and to ensure modernisation enhances justice.

 We agree that pressure on courts and tribunals should be managed and mitigated, to take
advantage of the opportunities that technology can provide to delivering a just,
proportionate, and efficient justice system. We also welcome the Government's commitment
to invest £700 million in the courts and tribunals system to create a more proportionate
justice system.

 However, we believe that accessibility is integral to the success of any digital service. It
should not be limited to the design and development of any assisted digital service but to all
aspects of the proposed reforms, from virtual hearings to digitised divorce.

 In addition to this, digital literacy should not be conflated with legal literacy - on this point, we
welcome the MoJ's assurance that it will not mandate the use of digital channels, and the
recognition that assisted digital services are not a substitute for proper legal advice and
representation.

 We have contributed to the review undertaken by Lord Justice Briggs into the structure of
the civil justice courts. In line with Lord Briggs' report, we believe that IT may improve court
efficiency. We are also pleased that he has recognised the vital role solicitors will play in
helping clients navigate the new system and ensuring that they are able to access justice.

 We are keen to continue to engage in the development and implementation of the

reform programme being undertaken by HMCTS6.

8. Implement proposals to end the cross-examination of domestic violence victims

by their alleged abusive ex-partners in the family courts

 The Prisons and Courts Bill contained provisions on family proceedings, which prohibit
alleged perpetrators from cross-examining in person a witness who is the victim, or alleged
victim, of domestic abuse. This had cross-party support.

 The Law Society is calling for the new Government to address this issue with urgency and to
implement the previous Government's proposals. We welcome former Justice and Courts
Minister Sir Oliver Heald QC MP's assurance that a Conservative government would
continue support for victims of domestic violence.

 We are also calling for the next Government to implement the reforms designed to ensure
that more victims of domestic abuse get legal aid, which have been the subject of discussion
in recent months between the MoJ and relevant stakeholder groups.

6
https://www.judiciary.gov.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf.

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  As part of LASPO, an evidence test for domestic violence funding through the legal aid
scheme was introduced. In order for those who had experienced or were experiencing
domestic violence to get legal aid, they would have to provide evidence obtained within a
two-year time limit to prove that they had suffered from abuse.

 Research from Rights of Women demonstrated that the Domestic Violence Gateway
excludes a number of victims of domestic violence from accessing legal aid funding to which
they are entitled.

 For this reason, we welcome the former Government's announcement on 25th April that it
would make changes through secondary legislation that would make easier for victims of
domestic violence to access legal aid. These changes include removing the time limit on all
forms of evidence and accepting evidence from domestic violence supporting organisations.

The new Government should:

 Implement proposals to end the cross-examination of domestic violence victims by

their alleged abusive ex-partners in the family courts.

 Implement proposals to increase the flexibility of the rules determining whether a

victim of domestic abuse can receive legal aid in accordance with the announcement
of 25th April 2017.