Ministry of Justice should do more to ensure legal aid available to all those who are eligible, says spending watchdog

The Ministry of Justice (MoJ) must ensure that access to legal aid is supported by a “sustainable and resilient” legal aid market and is available to all those who are eligible, the National Audit Office (NAO) has warned.

According to its new report - Government’s management of legal aid - the spending watchdog found the Ministry of Justice “does not know whether everyone eligible for legal aid can access it”, and found problems with the sustainability of the legal aid markets.

The report suggested that while the MoJ had achieved its aim of “significantly” reducing legal aid spending, it still lacked an understanding of the full costs and benefits of its reforms.

NAO research found that the proportion of the population within ten kilometres of a legal aid office had fallen since 2013-14 for most areas of law.

For housing issues such as eviction, the proportion fell from 73% to 64% in the past decade.

“While the lack of a local office does not automatically prevent people from accessing support, with some firms able to provide advice remotely, LAA (Legal Aid Agency) and MoJ recognise that there are areas of law where there may be unmet need. These include housing, immigration and advice in police stations”, said the NAO.

The report also observed a “lack of data” on whether providers’ capacity limits access to legal aid.

Stakeholders told the NAO that providers may ‘cherry pick’ cases, and only take on cases which are straightforward and therefore require less work for a fixed fee. “Therefore, even in areas where providers are active, an eligible individual may not be able to access legally aided services”, the NAO warned.

The report revealed that the proportion of the population eligible for legal aid support had reduced, as the financial eligibility thresholds had not increased in cash terms for more than a decade.

The MoJ introduced reforms to legal aid in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, implemented in April 2013. The reforms “significantly curtailed” the types of cases for which people could claim legal aid and made some adjustments to financial eligibility criteria, said the NAO.

By 2020-21, there had been an 11% decrease in the proportion of UK income taxpayers financially eligible for civil legal aid since 2012-13, and a 16% decrease in those eligible for support for criminal cases in magistrates’ courts.

Gareth Davies, head of the NAO, said: “The Ministry of Justice has succeeded in its objective of significantly reducing spending on legal aid, which has fallen by more than a quarter in the past decade in real terms. However, it still lacks a complete understanding of the wider costs arising from the reforms and so cannot demonstrate a spending reduction for the public purse overall. Nor does it collect sufficient data to understand whether people entitled to legal aid are able to access it.

“The MoJ must ensure that access to legal aid, a core element of access to justice, is supported by a sustainable and resilient legal aid market, where capacity meets demand. It is concerning that MoJ continues to lack an understanding of whether those eligible for legal aid can access it, particularly given available data, which suggest that access to legal aid may be worsening.”

The NAO recommended that the MoJ should:

• Do more to ensure legal aid is available to all those who are eligible.
• Work with stakeholders to improve its understanding of the costs and benefits of legal issues removed from scope during legal aid reforms.
• Improve its research on areas of stakeholder concern including the impact of the removal of early advice for issues such as housing and debt.

A Ministry of Justice spokesperson said: “Our priority has always been to ensure legal aid is available to those who need it most – evidenced by the fact that in the last year alone, we have spent nearly £2bn helping people facing legal difficulties, including thousands of families and domestic abuse victims.

“This month alone, we announced proposals for a £21.1m pay boost for Criminal Legal Aid lawyers and we have already increased most criminal legal aid fees by 15% – ensuring representation is available when needed. This is on top of our ongoing root-and-branch review into civil legal aid. We will now consider the NAO’s findings closely and report back in due course.”

Lottie Winson