Implementing reforms to civil legal aid

The Ministry would have been better able to deliver its policy objectives if it had developed and made use of a robust evidence base. The Ministry is on track to meet its objective of making a significant reduction to spending on civil legal aid, but it is far from clear whether the Ministry has achieved its other objectives of reducing the number of cases coming to court, targeting civil legal aid to those who need it most, or delivering better overall value for money in civil legal aid. The Ministry consulted on its reforms in November 2010, more than two years before implementing them. Despite this, it gathered little evidence before implementation and did not make good use of the information that it did have. For example, the Ministry was told during its consultation that people who are subjected to domestic violence may have difficulty providing evidence to demonstrate their eligibility for legal aid after the reforms, but was still making changes to the evidence rules in April 2014, a year after the reforms were implemented. The Ministry admits that it still has little understanding of why people go to court and how and why people access legal aid. It commissioned a research project to look at these issues in 2014, more than a year after the reforms were implemented. It does not expect to publish this until mid-2015, two years after the reforms were implemented. Recommendation: Where policy intent is clear, the Ministry should gather the necessary evidence proactively so that decisions are taken on that basis.

The Ministry’s approach to implementing the reforms has inhibited access to mediation for family law cases. As this Committee has noted before, mediation can be a cost-effective alternative to court for resolving disputes in many cases, and the Ministry intended that more people with family law disputes would use mediation instead of the courts. But mediations for family law matters fell by 38% in the year after the reforms, rather than increasing by 74% as the Ministry expected. Referrals to the assessment meetings that determine suitability for family mediation fell by 5 56%. The Ministry knew that solicitors were the major channel through which people were referred to mediation, but failed to foresee that removing legal aid funding for solicitors would reduce the number of referrals to family mediation. In April 2014, the Ministry made mediation assessment meetings mandatory for couples seeking to go to court over disputes about children or finances, in an attempt to address this problem. However, we also heard concerns from the Magistrates’ Association that mediation firms may have gone out of business as a result of the drop in work in the year after the reforms. If this is the case, people may have difficulty finding a mediation service to provide their mandatory mediation assessment. Recommendation: The Ministry should closely monitor the take up of mediation following the changes it made in April 2014, and should take prompt action if this does not increase as expected.

Contrary to its assurances to Parliament, the Ministry does not know whether people who are eligible for legal aid are able to get it. The Ministry said in its 2012 impact assessment that it would establish a robust mechanism to identify and address any shortfalls in the provision of legal aid, but it has not done so. The Agency monitors provision of legal aid by the number of contracts it awards to providers, rather than the amount of work actually being done. But awarding contracts does not alone guarantee supply of legal aid, because the Agency removed the requirement for providers to do a minimum amount of work to keep their contracts. The Agency had not undertaken any analysis but the NAO identified that 12% of law firms holding legal aid contracts did not undertake any legal aid work in the year after the reforms. There were 53 local authority areas with fewer than 50 face-to-face civil legal aid cases, and in 14 of these areas there were no cases started. The Agency was not able to explain the significant variation in provision and accepted that it needed to do more work in this area. Recommendation: The Agency should, as promised in its 2012 impact assessment, establish a robust mechanism to identify and address any shortfalls in provision, building on the NAO’s analysis, so it can be confident those still eligible are able to access legal aid.

The complexity of the justice system may be preventing people who are no longer eligible for civil legal aid from securing access to justice. The civil justice system is complex and many people will not be able to represent themselves effectively in court. We heard evidence from the Magistrates’ Association that the increase in the number of people representing themselves in court (known as litigants in person or LIPs) caused by the reforms, especially in cases involving children, may have a negative impact on the administration of justice. In addition, the Ministry’s exceptional case funding scheme, which is intended to provide legal aid for people whose human rights would be breached without it, is being used far less than expected, with 1,520 applications received in the first year after the reforms against an estimate of 5,000 to 7,000, and only 69 cases approved. The Ministry could not explain why applications were below expected levels but the legal aid providers consulted by the NAO said that the complexity of the exceptional case funding scheme made it very difficult for people to apply. 6 Recommendation: The Ministry should review and simplify the processes that it intends people who do not have legal advice to follow, to ensure that these processes do not restrict access to justice.

The Ministry cannot manage the impact of the increase in litigants in person, because it still does not understand the impact that they have on the courts service. The Ministry acknowledged in 2012 that the number of LIPs was likely to increase as a result of the reforms. Yet it has still not improved its ability to monitor the impact of LIPs on the courts. It does not collect reliable data on how long individual court hearings take, and its recently published analysis of court hearing durations was based on inadequate information. It is therefore not able to say whether hearings in which people represent themselves are longer or shorter than those in which legal representatives are present and it will not accept the anecdotal evidence provided by the judiciary. The NAO identified a 30% rise in the number of cases starting in family courts in which both parties were LIPs. The NAO also identified an increase in the number of contested family cases reaching the courts, with the figure rising from 64% to 89%. The Magistrates’ Association told us that these cases with litigants in person take longer and place additional pressure on the courts service. Recommendation: The Ministry should routinely collect reliable data on the operations of the court service, for example on hearing length, use of other court resources, types of case, and representation, and use this to better understand and manage the impact of LIPs.

The quality of face-to-face legal aid is unacceptably low, and the Agency does not understand the link between the price it pays providers and the quality of the advice. The Ministry cut fees paid to legal aid providers by 10% as a part of the reforms. This came on top of a 15 year period in which legal aid fees were not adjusted for inflation, which represented a real terms cut of 34%. A large majority of providers that the NAO consulted said that the fees paid for legal aid do not cover the costs of providing the service. The Agency’s own quality assurance processes indicate that the quality of face-to-face legal advice is unacceptably low, with almost one in four providers failing to meet the quality threshold. This has serious implications in terms of both value for money for the taxpayer and access to justice for legal aid claimants. The Agency could not explain why these results were so bad, or whether they are related to the reduction in fees paid for civil legal aid. It seems to have done nothing to understand why some providers are falling short of the quality standards expected. Recommendation: The Agency should set out targets to improve the quality of legal advice and a plan and timetable to meet those targets. It should do this by identifying and addressing the reasons that providers are failing its quality assurance tests, including whether or not the high failure rate is driven by the decline in legal aid fees.

The Ministry does not know whether the reduction in spending on civil legal aid is outweighed by additional costs in other parts of the public sector as a result of the reforms. The Ministry identified the potential for wider costs to the public sector 7 in its 2012 impact assessment, but has since done nothing to establish the likelihood or measure the scale of these costs. It was unable to say whether the cuts that it made to legal aid spending have simply shifted costs elsewhere in the public sector. For example, the Ministry has not estimated the likely knock-on costs as a result of increased physical and mental health problems arising from the inability to access advice to resolve legal problems. The Ministry told us that it is not possible to quantify wider costs to the public sector. We were disappointed by this lack of ambition, as this is fundamental to assessing the value for money of the reforms. The Ministry seems unwilling to even ask other departments about any impacts on their spending, and we note that other departments (for example, Transport) are only too willing to estimate wider benefits to the public purse, despite the inherent difficulties, when carrying out cost benefit analysis to justify spending. We received evidence from Citizens Advice about the considerable work it has done to estimate the likely savings to the public purse as a result of the advice it provides and we would expect that the Ministry would do similar work to understand the impact of its reforms. Recommendation: The Ministry should identify the wider costs to the public sector as a part of a full evaluation of the impact of the reforms. 9 1 The Ministry’s evidence base for the reforms

The Magistrates’ Association told us that it is concerned about a potential shortfall in the supply of mediation services following the reforms. It told us that the sudden decline in the number of mediations in the year after the reforms may have caused some mediation businesses to go out of business. If this is the case, people seeking to complete their mandatory mediation assessment may have difficulty in finding a mediator.18 2 Access to civil legal aid after the reforms

The Ministry stated in its 2012 impact assessment that it was working with the Agency to “ensure that they have robust mechanisms in place to identify any developing market shortfall”.19 The Agency monitors supply by the number of contracts that it awards, but as part of the reforms it removed the contractual requirement for providers to do a minimum amount of work. This means that awarding contracts does not guarantee that there will be sufficient supply of civil legal aid. There are 14 local authority areas where no face-to-face legal aid cases started in 2013–14 and in a further 39 areas there were between 1 and 49 cases. 12% of law firms that held legal aid contracts did not undertake any legal aid work in 2013–14.20 The Ministry also spent significantly less than forecast in some areas of law, for example 86% less in debt advice.21

While some variation in the provision of legal aid might be expected, for example between more and less affluent areas, it is important that the Ministry knows how much of the variation is due to differences in demand and how much, if any, is due to lack of supply. We asked the Agency whether it was confident that all those who are eligible for civil legal aid are able to access it. The Agency told us that this “is not a knowable fact”.22 Following the session, we received evidence from a legal aid provider who specialises in mental health law. He told us that because of the way the Agency manages legal aid contracts, he had to turn away people who are eligible for legal aid.23 We questioned the Agency about the variation in provision of civil legal aid, and it agreed that it should do further work to improve its understanding of this.24

Following the evidence session, the Ministry told us that it considers that the variation can be explained by the fact that most of the 14 areas in which no face-to-face legal aid work was done have small populations or low levels of deprivation, are situated close to 17 Ministry of Justice, Legal Aid Statistics: main tables, July 2014 to September 2014, 18 December 2014 18 Q 25 19 Ministry of Justice, Impact assessment: Legal aid reform in England and Wales, cumulative legal aid reforms, 13 July 2012, p.17 (link to .zip file) 20 Qq 99, 100, 133 21 Q 166 22 Q 111 23 Letter from John O’Donnell LLB to Chair, Committee of Public Accounts 24 Qq 115, 125 12 other local authority areas in which large legal aid providers are located, and had low volumes of legal aid work before the reforms. However, the Ministry still does not know whether people in these areas are able to access face-to-face legal aid. The Ministry also made a commitment to complete three surveys to improve its understanding of the legal aid market and the way people access legal aid. The Ministry told us the results will be published by autumn 2015.25

We heard from the Magistrates’ Association that some people have difficulties with the court forms and processes involved in family law matters. For example, the application form for a case involving contact with children is 24 pages long, and the guidance document for that form is 32 pages long. The Magistrates’ Association told us that this complexity may prevent people from accessing support to maintain a relationship with their children.26

The Ministry is responsible for the operation of an exceptional case funding scheme, which is intended to provide legal aid for people whose human rights would be breached if they did not receive it. Respondents to the National Audit Office’s consultation with civil legal aid providers said that the exceptional case funding scheme may be inaccessible for many people. They argued that although people are permitted to submit applications without assistance from a lawyer, the complexity of the forms meant that most individuals would not be able to complete them. In addition, lawyers who complete applications are only paid for this if the application is successful, and there is little incentive for lawyers to do this given the low rate of approvals.27

The Ministry expected to receive between 5,000 and 7,000 applications for the scheme, but received only 1,520 in the first year after the reforms and granted just 69. We asked the Ministry to explain this, and it responded that it was not possible to predict the number of applications it would receive, as the scheme was new and its use would be based on the demand from people who had been taken out of scope of legal aid.28 25 Letter from the Permanent Secretary, Ministry of Justice, to the Chair, Committee of Public Accounts, 12 December 2014 26 Qq 7-9 27 C&AG’s Report, para 3.7 28 Qq 141-147 13 3 Understanding the impact of the reforms

In the year following the reforms, there was an increase of 18,519 cases (30%) in which both parties were representing themselves (known as litigants in person or LIPs) in family courts. Within this, there were 8,110 more cases involving contact with children in which both parties were LIPs in 2013–14, an increase of 89% from the previous year. Judges have estimated that cases involving LIPs can take 50% longer and many legal professionals have said that they place additional demands upon court staff.29 The NAO also identified an increase in the number of contested family cases reaching the courts, with the figure rising from 64% in 2012–13 to 89% in 2013-14. We heard evidence from the Magistrates’ Association that magistrates feel that the significant rise in the number of LIPs in family courts has had a negative impact on the administration of justice.30

The Ministry does not understand the impact of the increase in LIPs on court resources because it does not have reliable information about key aspects of the court system, particularly hearing lengths. The data that it collects on the representation status of litigants and the type and complexity of cases is also limited. The Ministry agreed that without this information, it cannot know what impact LIPs have on court costs.31 Research that the Ministry commissioned to examine the impact of LIPs recommended that follow up research is needed to examine the impact of legal aid reforms on the impact of LIPs on the court system.32

The Ministry told us that it does not believe that cases involving LIPs take longer than other cases, and cited its recently published ‘experimental analysis’, which indicates that cases involving LIPs may be shorter than cases in which both parties are represented.33 However, the Ministry acknowledged that the data used for this analysis is drawn from estimates of hearing lengths made before the actual hearings.34 The analysis that the Ministry referred to states that the data analysed “is not intended to provide reliable statistical data to be used for performance monitoring”.35 The Ministry did not accept the anecdotal evidence provided by the judiciary that there was a 50% increase in length of hearings where there are litigants in person.36

The Ministry reduced the fees paid to legal aid providers by 10% as a part of the reforms to reduce spending on civil legal aid, but did not assess the costs of providing legal aid or model the impact of the changes.37 Fees paid for legal aid have not been increased for inflation since 1998–99, which equates to a real-terms reduction of 34% before the 29 Qq 27, 66, 71; C&AG’s Report, para 1.27 30 Q 7 31 Q 81; C&AG’s Report, para 1.19 32 Ministry of Justice, Litigants in person in private family law cases, 27 November 2014 33 Qq 66-78 34 Qq 75-76 35 Ministry of Justice, Experimental statistics: analysis of estimated hearing duration in private law cases, England and Wales, 27 November 2014, p.7 36 Qq 70-71 37 C&AG’s Report, para 3.20 14 additional 10% fee reduction is taken into account. A large majority of respondents to the National Audit Office’s consultation with legal aid providers said that the price paid for civil legal aid does not cover the cost of providing the service. In addition, 56% said that their ability to provide comprehensive legal advice to civil legal aid clients had become worse since the reforms were implemented.38

The Ministry conducts peer reviews of legal aid advice; most are targeted (providers are selected for review based on concerns that the Agency has about them) and some are selected at random. In 2013–14, 32% of targeted firms failed their review and 23% of firms selected at random failed. In the previous year, 28% of targeted firms failed their review and 41% of firms selected at random failed.39 The Agency could not explain why such a high proportion of firms were failing to meet its quality thresholds or what the longer-term trends were in its quality assurance results. It was also unable to tell us whether there was any link between the reduction in fees over time and the quality of civil legal aid being provided. The Agency told us that it believes it has mechanisms in place to monitor and address poor quality and that it sometimes issues warning notices or does not renew contracts when providers fail quality assurance tests. However, it appears to have done nothing to understand the reasons why some providers are falling short of the standards expected and would not commit to a target or timeframe for improving the quality of legal aid to a more acceptable level.40

While the Ministry is on track to reduce its spending on civil legal aid significantly, it is likely that the reforms will lead to costs to the wider public sector. The Ministry acknowledged this in its 2012 impact assessment, noting that people who would have had access to civil legal aid may no longer be able to resolve their civil legal issues, and accepting that this might lead to possible knock-on costs to government services including health, welfare and housing. The Ministry did not attempt to quantify these potential costs.41

We have reported previously on the importance of understanding the full impact of cuts, and that interdependencies between departments mean that cuts in one department can lead to additional costs elsewhere.42 We asked the Ministry why it had not done more to measure the costs of its reforms to the wider public sector. The Ministry told us that it was not possible to know what the impact of the reforms might be outside of the Ministry. We heard from the Treasury Officer of Accounts that impact assessments often do not quantify costs of policy changes to the wider public sector.43 Following the evidence session, the Ministry told us that the failure to monetise potential knock-on costs of reforms is “representative of a common pattern seen across government”.44 38 Q 189; C&AG’s Report, para 3.14 39 Q 178 40 Qq 180-188 41 Ministry of Justice, Impact assessment, p.11(link to .zip file) 42 Committee of Public Accounts: Cost reduction in central government: summary of progress, 80th Report of Session 2010-12, HC 1845, 27 April 2012; and Managing Budgeting in Government, 34th Report of Session 2012-13, HC 661, 8 March 2013 43 Qq 194-195, 204 44 Letter from the Permanent Secretary, Ministry of Justice, to the Chair, Committee of Public Accounts, 12 December 2014 15

Evidence from other organisations indicates that more can be done to estimate the wider impacts of these reforms. For example, Citizens Advice told us that it has surveyed clients to gather evidence on the impact of their advice on their clients’ financial problems and mental and physical health.45 The Legal Action Group commissioned a survey of 1,001 GPs to gather evidence about the impact of the reforms on the health and wellbeing of patients. It found that the majority of GPs surveyed had noticed an increase in patients who would have benefited from legal advice on social welfare issues, and that 88% of GPs surveyed agreed that the denial of access to legal advice on social welfare issues can have a negative effect on health.46

These studies do not, in themselves, provide conclusive evidence on the wider impact of the reforms, but they are examples of the kind of work that can be done to develop a better understanding of the value of civil legal aid and the likely impact of removing access to it. We asked the Ministry whether they did any work with other Departments to estimate costs to their budgets, and the Ministry told us that it would not “be a practical piece of research”.47 The Ministry did not undertake any research on this subject before implementing the reforms and told us that it does not intend to do any further work to measure the impact or cost of the reforms on the wider public sector. Without this information, the Ministry is not able to know the full impact of the spending reductions from its reforms and cannot know whether or not the spending reductions to the legal aid budget outweigh additional costs to other parts of government.48 45 Q 5 46 Legal Action Group, Health legal advice: Findings from an opinion poll of GPs, 3 December 2014 47 Q 203 48 Qq 194-195 16