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Public Accounts Committee disturbed that legal aid changes were not evidence-based

PAC concerned by the rise in LiPs and fall in mediations

The Public Accounts Committee has criticised the changes to civil legal aid in a report published on the 4th Fenruary.

The chair, Margaret Hodge MP, said that it is 'deeply disturbing that the Ministry of Justice's changes to civil legal aid were based not on evidence but on an objective to cut costs as quickly as possible'.

She said:

'The Magistrates' Association raised concerns about the increase in the number of people representing themselves in court – known as litigants in person – caused by the reforms, especially in cases involving children.

'There has been a 30% rise in the number of cases starting in family courts in which both parties were representing themselves, and the number of contested family cases reaching the courts rose from 64% in the three months before the reforms to 89% a year later. The Magistrates' Association told us that these cases with litigants in person also take longer and place additional pressure on the courts service.

'Moreover, the Ministry's approach to implementing the reforms has inhibited access to mediation for family law cases. Amazingly, it failed to foresee that removing legal aid funding for solicitors would reduce the number of referrals to family mediation.

'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 56%.'

The report concludes that whilst the Ministry is on track to meet its objective of making a significant reduction to spending on civil legal aid, 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.

According to the PAC, the Ministry's approach to implementing the reforms has inhibited access to mediation for family law cases. As the 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 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, the Committee 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.

The report states that the Ministry's exceptional case funding scheme 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.

The National Audit Office 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.

Jo Edwards, chair of Resolution, commented:

'The PAC's conclusion that the Government's cuts to family legal aid have significantly hindered access to justice for many ordinary British people comes as no surprise to those of us who work with separating families every day.

'The PAC's report shows that family lawyers, far from fitting the stereotype of money-hungry solicitors pushing people towards expensive court battles, in fact played a key role in keeping family disputes out of court before the legal aid cuts were implemented. The rise in contested proceedings and drop in mediation numbers since the removal of family legal aid is no coincidence - it confirms that timely and appropriate legal advice is crucial to helping separating couples manage conflict and costs during their divorce.

'The PAC has recommended that the Ministry review the impact of the reforms and the ongoing issues that the cuts to legal aid are causing for access to justice in this country. Resolution has long been pressing for a wholesale impact assessment.

'Resolution proposes that funding be made available for initial legal advice in family cases. It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most – so even if they end up representing themselves, they have an initial discussion about what they need or want to do.

'This would provide a more comprehensive system of support and enable vulnerable people to access the domestic violence gateway to legal aid, and find out about all of the dispute resolution options available to them. It is also likely to result in a higher referral rate to mediation, as it would restore a major source point of access that existed before the cuts to legal aid. This would significantly reduce the number of litigants in person using the courts, whose issues do not always require court time but who, without access to legal advice, invariably think that court is the only option.'

The report is here.

8/2/15