This blog entry has been written by Paul Tubb a solicitor-advocate, who is an equity partner in a Midlands law firm, QualitySolicitors Mander Cruickshank. He was called to the bar in 2003, qualified as a mediator in 2003 and cross qualified to become a solicitor in 2006. He currently practises in and around the Midlands in all courts, including Crown Court trials.
If anybody knows the reality behind Mr. Grayling’s false protestations that “only the rich will pay” then Paul Tubb does.
As you will see below, unlike the unquantified bluster promulgated by the Secretary of State, Paul actually knows the figures, knows how they work, and most of all, knows what he is talking about!
Mr. Grayling is giving the very misleading impression that legal aid is available to the poor, and non-wealthy. His figures as quoted give the impression to the public that legal aid is routinely available to people who earn modest incomes. The reality is that in the Magistrates Court, legal aid is not available to many defendants on less than modest incomes. And although the Crown Court funding is another chapter to the story, those people who do not get legal aid in the Magistrates Court then have to pay a contribution to get legal aid (in reality it is not a contribution as often the five payments made (six if not made on time) to the LAA, are often greater than the payments that the litigator and advocate actually receive. The contribution levels vary, but often £250 to £900 per month is typical.
Grayling’s proposals come on the back of sustained cuts to availability of legal aid to defendants. I am not talking about fee cuts, but availability of funding.
Bear in mind the following:
Central Funds Costs are capped at legal aid rates in the Magistrates Court – so if you don’t get legal aid, you lose out even if you win
Central Funds Costs have been scrapped in Crown Court for defendants entirely
There is no funding guarantee pre committal in the Mags, it is dependent on the means test – even on either way matters
There is a”contribution” in the crown court – even for people in custody!!!
And now there is capping the level at which you can get Crown Court funding – (but ignoring that many would not have had funding for the lower court work anyway and may have therefore just pleaded guilty to get it done and dusted with)
The point of this article is essentially that Grayling is bamboozling the wider public by his misleading facts – the vast majority of cases are concluded in the Magistrates Court, so in fact the dire situation of availability of funding in the Magistrates Court hits more people than it does in the crown court.
His current proposals are to increase further the number of people who are excluded from obtaining any form of funding whatsoever. Whilst he says it will just be the rich, in reality, it is both the rich and the poor, if you look at the bigger picture, in all courts, and in all circumstances.
Over the last few weeks, hundreds of articles have appeared in both the local and national press about legal aid and the criminal justice system. For anyone who is not involved within the criminal justice system, understanding the changes and true impact of those changes is made extremely difficult by the drip feed of misinformation and diatribe emanating from Chris Grayling, the Justice Secretary. For those involved within the criminal justice system, it is frustrating to say the least, when someone in such a position of responsibility resorts to sound-bites and hype about a subject he clearly knows very little about.
As someone who is actively involved in criminal legal aid work on a daily basis, I would like to respond to just one aspect of Chris Grayling’s misinformation, which stems from an article published in the Telegraph on the 1st June 2013.
“The changes to entitlement to legal aid are really designed only to affect people earning £100,000-a-year or more” Mr Grayling states. Following warnings from experts about how his changes will leave middle-class families with huge fees he goes on to insist that his changes to the legal aid system will only hit the wealthiest.
You could be forgiven for being reassured that legal aid is, and will continue to be, available to people who earn less than a six figure salary.
This reassurance is furthered by him stating that the reforms are absolutely not designed to affect people on relatively low incomes who will always carry on getting access to legal support if they find themselves in court.
Well, that is it then. If the people on relatively low incomes will always get access to legal aid, then what is the problem?
He offers no clarification of what he considers to be a low income, or for that matter what constitutes a wealthy person. He makes no differential between work done during an investigation, during a Magistrates court case, or during a Crown Court case.
In fact Chris Grayling is very careful never to be specific, or to provide qualified or quantified examples in any of his articles or press releases. So I shall take this opportunity to do so on his behalf.
His suggestion that people on relatively low incomes will carry on getting access to legal support if they find themselves in court is quite frankly a lie.
To be guaranteed to pass the financial eligibility test for legal aid in the Magistrates Court, you have to have an income of less than £12,475. That equates to a weekly (pre-tax and national insurance) wage of £239.90. If you earn over the threshold of £12,475 then you are subject to a full means test assessment. Except it is not full as most every day living expenses such as food, drink, clothing, utility bills, petrol, car tax, insurance are not included within the assessment. If you earn over £22,325 then you do not qualify for legal aid in the Magistrates Court at all. And that is regardless of what your disposable income or other liabilities may in fact be.
So let us presume you are a single person, working in a shop, earning £13,000 per year. You were lucky to get affordable rented accommodation at £60pw, with council tax of only £800 per year. You have no children, no child care costs and no maintenance payments. Your income is above the level at which the Ministry of Justice believe makes you a wealthy individual! Congratulations, although I fear it is Cava and not Bollinger you will be celebrating with. This is because a full (or in my view, selective) means test applies. You will qualify for legal aid if your disposable income is less than the £3,398 disposable income threshold.
Alas, the computer says no. With the details as described above, you are deemed to have a disposable income of £3,404, which is £6 per year too much disposable income for legal aid.
The result? A fax from the Magistrates court to your former solicitor with FAILED ON MEANS endorsed across it.
This may be of some surprise to you, but with the current threshold level set at £12,475, anyone who earns £12,476 or above who still lives at home with parents or relatives, and therefore no relevant outgoings such as rent or council tax to pay, is highly unlikely to get legal aid for the Magistrates Court. Whilst an appeal is possible on the grounds of Hardship, the review process is not simple or easy, and can take weeks to resolve, with many cases having concluded before the financial review has been undertaken.
So let us presume you live with a partner, but both only work part-time, each earning a handsome salary of £10,250pa. You however keep your salaries and expenditure seperate, as you have only recently moved in together. You were not so lucky to get very cheap rent, so have to pay £500 per month which you split equally between the two of you. Your council tax was not capped this year, and has risen to £1,200 per year. You have decided that you cannot afford to have children and have no children from former relationships. Your total housing costs pa are therefore £7,200 pa.
Surely this part-time couple must receive legal aid for the Magistrates Court? Please put the champagne on ice for a moment. Whilst your partner has nothing to do with the allegation, and has only recently moved in, your partners income is fair game for legal aid purposes regardless of their wishes. The Legal Aid Agency computer crunches the numbers, and allocates an “adjusted living allowance base amount of £5,676”, an “equivalisation of 1.64” and an “adjusted value of £9,308.64”. This means the total annual aggregated expenditure is £16,508.64, with a total annual disposable income of £3,991.36, which is of course over the threshold of £3,398.00.
Please don’t ask me to explain what “equivalisation” is, and how these figures are calculated. Please ask the Justice Secretary, I would like to see his response!
In laymans terms, the computer has again said no. You are too wealthy for legal aid yet again.
But the Justice Secretary only wants people who are wealthy not to get legal aid I hear you cry. The Justice Secretary said that changes to legal aid will only hit the wealthiest I hear you say. The Justice Secretary said that people on relatively low incomes will always carry on getting access to legal support if they find themselves in court
Yes, one thing in the criminal justice system is a dead certainty at the moment, and that is that the Justice Secretary will say something
He will say anything
He will say everything
Everything but the truth, the whole truth, and nothing but the truth.