Early Legal Advice Pilot Scheme Order 2022

Lord Wolfson of Tredegar Excerpts

Thursday 10th March 2022 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

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

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

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.

However, during the post-implementation review of LASPO, we heard from respondents that the reforms in that Act, which came into effect in 2013, might have caused increased financial costs to individuals, their support networks and the Government. Those respondents explained that individuals experiencing social welfare legal problems, especially related to housing, were now unable to resolve their problems at an early opportunity. This meant that they were now likely to experience problem-clustering and problem escalation, each of which can lead to costly intervention. Frequently cited examples included increased use of court services for possession proceedings; greater reliance on welfare benefit and on temporary and permanent accommodation services; and increased use of health services for stress and anxiety.

Although we have some anecdotal evidence to support the view that early legal advice could produce benefits to individuals and to local and central government, there is limited empirical evidence. In particular, there is limited evidence in relation to the financial impact of early intervention through the legal aid scheme. I am sure we can all agree that the argument that early intervention can result in cost savings feels intuitively correct. However, in order to make robust arguments for funding for early legal advice and ensure that we provide value for money for the taxpayers who will fund it, we need an argument based on actual evidence. We are therefore bringing these matters into scope and using the pilot scheme as an opportunity to gather robust, quantitative evidence that can demonstrate whether early legal advice can lead to early problem resolution, thus bringing savings to the public purse.

The pilot will be in two specific areas—Manchester and Middlesbrough—and will be time limited, from 1 April 2022 to 31 March 2024. Individuals will be eligible if they live, or habitually reside, in the area of Manchester City Council or Middlesbrough City Council. They must be selected to participate by a person appointed by the Lord Chancellor, who will publish guidance explaining who the person will be—they might be an independent evaluator—and how they must select participants. Participants will receive a maximum of three hours of advice and assistance for housing, debt and welfare benefit matters.

We have worked closely with legal aid providers and other government departments to devise the pilot scheme and finalise the terms of this amendment. The amendment to Part 1 of Schedule 1 to LASPO in this instrument brings these matters into scope for legal aid, subject to some exclusions outlined in the order; for example, participants cannot receive advocacy or representation services. This reflects the intentions of the pilot because it is all about advice before court proceedings are initiated.

It covers, therefore, civil legal services relating to advice and assistance in relation to housing, debt and welfare benefits for a maximum of three hours. Participants can receive advice and assistance irrespective of whether their matters fall into one or all of those categories. They will receive holistic advice on all those categories as far as needed. The maximum time for advice is fixed at three hours, but there is no means or merits test. The only criteria are the geographical requirements and that they are included in the pilot scheme by the person appointed by the Lord Chancellor.

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[Lord Ponsonby of Shulbrede (Lab)]

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.

I will raise another question, which comes from the Secondary Legislation Scrutiny Committee report’s appendix 2:

“Further information from the Ministry of Justice on the draft Early Legal Advice Pilot Scheme Order 2022”.


Question 1c is as follows:

“The wording of the SI indicates that those who are selected but receive no advice will also be informed that they are part of the pilot—will that control group also be required to fill in any evaluation or description of their experience? Otherwise, they will be just like any other Housing benefit claimant—what marks them out?”


That is to say, what marks them out as different in the data collected? The answer is:

“The pilot is seeking to develop robust quantitative impact evidence, and so how to best collect control or comparison group evidence is a priority issue to be examined. The specific criteria and process for identifying and engaging the control or comparison group is to be determined based on feasibility work to be undertaken by the independent evaluator.”


I did not read that out very well, but I understand what it means. My experience on the family court side is that a large number of people drop out of the system. Advice is made available and people start accessing it, but then the process becomes difficult and tiresome and people just stop engaging.

So, arising out of that question and answer, my question to the Minister is: will there be an evaluation of people who start the process but do not finish it? That is part of the overall cost, and it is also a demonstration of the impact or otherwise of these schemes. As I say, from my experience in a different context—family law—a very big part of the overall picture is the people who do not pursue the advice and support that are available to them because doing so is just too burdensome.

[Lord Wolfson of Tredegar (Con)]

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.