Early Legal Advice Pilot Scheme Order 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Early Legal Advice Pilot Scheme Order 2022.

My Lords, I beg to move this statutory instrument, which establishes the early legal advice pilot scheme that will be conducted in Middlesbrough and Manchester for a time-limited period. The instrument amends part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, colloquially known as LASPO, to bring civil legal services for certain housing debt and welfare benefit matters in scope of legal aid for the purposes of the pilot scheme. It makes consequential amendments to secondary legislation for the purposes of that pilot scheme. The draft order is made using the powers conferred by LASPO itself.

The instrument lays the necessary foundations to put the pilot scheme into operation and signifies a crucial step in delivering a key commitment made in the Ministry of Justice’s legal support action plan, which we published in 2019. Through the pilot scheme, we will test the impact of early legal advice on the resolution of legal problems. We will also seek to quantify the benefits to individuals, their support networks, the Government and, ultimately, the taxpayer.

Civil legal aid is available to an individual if their issue is listed in Part 1 of Schedule 1 to LASPO. Legal aid may also be available on an exceptional basis where there would be a breach, or the risk of a breach, of the individual’s rights under the European Convention on Human Rights or any retained enforceable EU rights. This is known as exceptional case funding, or ECF.

Eligibility for legal aid, for both in-scope matters and ECF, is subject to a statutory means and merits assessment. The means test sets out that, if an individual’s capital or disposable income is above a certain threshold, they are generally not eligible for legal aid. There are different merits tests depending on the type of case but, generally, the merits test provides for a cost-benefit test and a “prospects of success” test. If those tests are not met, again, funding would not be granted. Under the current arrangements, legal aid for social welfare law matters such as debt, housing and welfare benefits is limited to the most urgent and important circumstances, for example if an individual is at risk of losing their home through eviction or repossession. This is so that legal aid is targeted at those who need it most.

I should also point out to the Committee that there are some technical amendments to other instruments. It amends the regulations on financial resources, merits criteria and remuneration. The financial resources and merits criteria regulations set out the means and merits tests, and they are amended, as I explained, to enable participants to meet the means and merits tests. The amendments to the remuneration regulations introduce a new fee for the legal providers undertaking work as part of the scheme. They will be asked to provide information and data for the purposes of assessing the pilot in addition to the information they normally provide to the legal aid scheme, as any legal provider would do. Because they are being asked to do more, we will pay them an extra 25% uplift to reflect that extra burden of providing information for the pilot.

The essential point is that this will enable us, we hope, to have an evidence base to allow us to determine whether a service as set out in the pilot would provide meaningful benefit to individuals and local and central government. We think this is the best way to proceed so we can obtain that evidence, and I commend the instrument to the Committee.

An evidence base? The clue to these proceedings was in the Minister saying that they are looking for savings to the public purse. I think the Treasury is definitely behind this.

When I was a humble solicitor in the 1960s, I used to fill in a green form for people to give them advice. In 1973, a simple green form scheme was introduced and in 1994 the noble and learned Lord, Lord Mackay of Clashfern, then Lord Chancellor, described it as

“an important means of access to legal advice for people on low incomes. In 1993/94, over 1,600,000 people received help from the … scheme.”—[Official Report, 3/11/1994; col. WA 73.]

I fail to see why we now need a highly expensive two-year study to find out whether there is a need for such advice. It is obvious. It was in 2013 that the coalition Government, I am afraid, reformed the scope of civil legal aid in the LASPO Act, including, as the memorandum tells us,

“the removal of funding for early legal advice and support for most social welfare law.”

Some reform that was.

As for research, the Explanatory Memorandum states in paragraph 7.3:

“While research by organisations such as Citizens Advice, Shelter, the Law Society and the Equality and Human Rights Commission was persuasive in suggesting a link between early legal advice and downstream benefits, officials in the department concluded that their findings did not robustly quantify the financial savings for government, nor did they account for the costs of individuals whose problems would not be resolved with early legal advice”.

So there has been considerable research by NGOs, all pointing the same way.

The Government produced their review in 2019, and it has been knocking about for three years before anything was done under it. There will now be a two-year pilot scheme, very limited to 1,600 individuals in Manchester and Middlesbrough. Some five years will elapse from the review that the Government themselves carried out.

My Lords, the noble Lord, Lord Thomas, has given us an historical context for what we are receiving through this statutory instrument. We of course support it, because it goes some way to ameliorating the position we have had since the massive cuts in 2013 with LASPO. The noble Lord has made the broader points, with which I agree.

I want to focus on two particular questions, one of which was asked by my honourable friend Afzal Khan when this matter was debated in the House of Commons. He contacted the Greater Manchester Law Centre and the Law Society there, the only two welfare benefit and legal aid providers in Manchester city and the only two debt legal aid providers in Middlesbrough, one of which also advises on welfare benefit law. He made the point in the House of Commons that the scheme will undoubtedly create an increase in demand. There was scepticism, from that limited number of providers, whether the three-hour limit is enough in itself and whether the pay is enough for those three hours. How, given that there is very likely to be an increase in demand, will the ministry respond?

The Minister used a couple of phrases that I thought were appropriate when he talked about the problem of the clustering of cases around a multitude of different contexts—housing, welfare and the like—and about the problem of escalation. From different parts of our working lives outside this House, we all know that both of those things are right and true, both in the housing context and the criminal justice context as a whole—something I know from my work in magistrates’ courts.

The Minister said that there was limited evidence of financial benefit from early intervention. The noble Lord, Lord Thomas, expressed extreme scepticism, and I agree with him: there is a multitude of reports about the benefits of early intervention, and I have lost track of the number of early-intervention pilots that I have seen on the criminal justice side that have fallen by the wayside for various reasons.

My Lords, I am very grateful for the contributions from the noble Lords, Lord Thomas of Gresford and Lord Ponsonby of Shulbrede. I will pick up a few points in response. On the Treasury being behind it, I say that this is not a Treasury-driven measure, in the sense that the sole focus is not the public purse. But we have to recognise that the Treasury is ultimately behind the legal aid system: it is funded by the public purse, and we have to make sure that we get value for money.

One of the things that we are doing here is trying to answer this question—we all feel this instinctively, perhaps, and, as the noble Lord, Lord Thomas, said, there are lots of people in the market, so to speak, who say, “Spend some money now; you’ll save more money later on”. But we want to have some robust evidence to see to what extent that is actually the case—and also to see to which particular groups it applies more and to which it applies less. We have a very diverse population, and one of the things that we will be able to do in the pilot is look at people with different backgrounds and needs and see the extent to which the early legal advice actually helps. Although I am well aware of the research by the various NGOs that the noble Lord mentioned, that is not empirical evidence. We do not have the robust, quantitative evidence that we will get from the pilot.

I will pick up the points made the noble Lord, Lord Ponsonby, who asked a few questions around time limits and associated points. First, on the appropriateness of the fee, I explained the 25% uplift. To obtain the figure for the underlying fee, we used the existing non-London hourly rates for housing and family matters; that generated the baseline fee for the work. We added the 25% uplift to increase the extra costs. We are confident that that will mean that we get proper take-up from providers.

As to why the allocation is three hours and not, for example, two and a half hours or four hours, I will make two points. First, at the moment, little information is available about the average time that providers would spend with somebody requiring advice of this nature. As part of the pilot, we will ask providers to record the time that they spend. We will also ask them whether they spend that time during one appointment or over a series of appointments, because some people might come and say, “This is my problem”, and the provider might say, “Ah, I can help you on that, but I need to see a particular document that you haven’t brought with you. So please make another appointment and come back”. So they might have an initial half-hour, for example, and then another two and a half hours later. The pilot will enable us to gather that evidence. To make this administratively simple, the way we are doing this is that, even if the provider spends only two and a half hours, there is a flat fee for three hours with the 25% uplift. There may be a bit of rough with the smooth, so to speak, in that we have sought to make it simple because we want providers to engage and we want proper take-up.

On the other point made by the noble Lord—I say respectfully that it was a very good point—we will follow up on the experience of people who are part of the scheme. Specifically on dropouts, it may be a bit more difficult, but we will attempt to follow up on the experience of people who dropped out and ask them why they dropped out. Was it because they did not like the provider, for example? Was it because they thought their issue was a housing issue but it turned out that it was a different issue? We are focused on that; it is an important point.

I hope I have responded to the main points that were made. I am grateful for the broad support for the instrument, even if it is on the basis that heaven rejoices over all sinners who repent. At least there was broad agreement on the principles underlying the pilot; I therefore commend the instrument to the Committee.

Motion agreed.

My Lords, the Committee will adjourn for a few moments until the people involved in the next business are in place.

Sitting suspended.