On 11 May 2017, the Ministry of Justice closed a consultation on its proposals to amend how eligibility for legal aid is assessed for those receiving Universal Credit.

The proposed changes only apply to means-tested legal aid. Those entitled to non-means-tested legal aid, for example those applying to the Mental Health Tribunal or those challenging a Deprivation of Liberty, will be unaffected.

Original system: passporting benefits

Means-tested Legal Aid is a way to find out who is entitled to receive funding for legal advice. The means-test takes into account:

  • a)capital; and
  • b)income.

The income calculation can be complex and time-consuming as there are multiple factors which need to be taken into account. The point of “passporting” was to reduce the time spent on these calculations. Passporting benefits were, originally:

  • State Pension Credit Guarantee element;
  • Income-based job-seekers allowance;
  • Income-based employment support allowance; and
  • Income support.

These are all benefits that require a means test by the DWP. The idea was that, since a means test has already been done by the DWP, it is a waste of time and resources doing another one, so people only have to prove that they are receiving one of these benefits.

NB: this only applies to the “income” element, “capital” is still assessed and is not affected by the proposed changes discussed below.

Current system: addition of Universal Credit

Universal Credit is being rolled out as a new type of benefit. Universal Credit can currently include:

  • Income-based job-seekers allowance;
  • Income-based employment support allowance;
  • Income support;
  • Tax credits; and
  • Housing benefit.

Therefore, it includes some of the original passporting benefits and some benefits that were not considered passporting.

When Universal Credit was originally rolled out, it became a passporting benefit to ensure that people who should be receiving Legal Aid would continue receiving it. However, the Ministry of Justice considers this to be unsustainable for the following reasons:

  • It claims that the current system will result in additional £14million per year cost to the legal aid fund;
  • It considers it leads to a discrimination in eligibility between those receiving Universal Credit and those in low-paid employment

MoJ Proposal

The MoJ consultation, discussed several options which are not detailed here. The one put forward as the most viable was:

  • a)Original (or ‘legacy’) benefits continue on the same passporting system;
  • b)Those receiving Universal Credit will be passported only if they receive zero income from earnings.

Anybody receiving Universal Credit but also in low-paid employment would not be passported. This does not mean that they would not be eligible, just that they would have to go through the whole means test before financial eligibility could be decided.

Responses: Public Law Project (PLP)

The PLP has published as response to the consultation. In this document, it outlines why it is not reasonable to limit passporting of Universal Credit recipients only to those receiving zero income. In particular, it does not mirror the current situation for people on other passporting benefits who are able to carry out certain paid work while still claiming those benefits.

The PLP also highlights the significant problems with the MoJ’s impact assessment which means they are unable to comment on a lot of the claims because there is not enough evidence.

Responses: Young Legal Aid Lawyers (YLAL)

YLAL published their own response, in which they endorsed the response of the PLP. They further criticised the inadequate impact assessment and lack of assessment as well as raising the risk of discrimination.

YLAL also raised the question of the aim of legal aid. The MoJ stated that the policy objective of legal aid is to target “those most in need”. YLAL calls for a review of the whole means test as legal aid should be available to all those who are unable to pay for legal advice and representation, not just those who can pass the current “stringent financial means tests”.

What next

The Consultation Paper states that the Government intends to respond in July 2017. How the Government responds will, of course, be impacted by the outcome of the General Election to be held in June.

A substantial part of the work of Conroys Solicitors LLP is conducted under Legal Aid funding, whether non-means tested or means-tested. We offer free 30 minute consultations and will always consider whether you could be eligible for Legal Aid funding.