The Law Society has mounted a major challenge to the legal aid system’s increasingly stringent restrictions that now entitle only those on the very lowest incomes to help with civil legal costs.
It argues that the system is failing to uphold a principle of common law: that people should not have to sacrifice an acceptable living standard in order to afford the cost of getting access to justice. This principle was established by the Supreme Court, based on a quantified measure of a socially acceptable living standard that was produced from my team’s research at Loughborough University.
This measure is a powerful illustration of how systematic evidence can transform how we think about and implement standards. It is commonly accepted that we should maintain stated educational or health standards, and indeed that these should improve over time as society progresses. There is also a desire to maintain decent living standards for the population, but considerable controversy about what this should entail.
Mechanisms for maintaining minimum levels of income, such as means-tested benefits, are not subjected to any type of rigorous inspection – as schools are by the regulator Ofsted, for example – that could show incomes falling below expected standards. When benefits started declining in real terms in 2013 – because they stopped being uprated in line with inflation – no Office for Income Standards handed out a “must improve” rating.
The previous Labour government did pass a Child Poverty Act (since repealed), with targets for reducing the number of children in poverty, defined as being in households with below 60% of median income. But this useful indicator has never fully achieved the status of a “standard”, partly because it is an abstract statistic rather than a description of what an acceptable standard of living entails.
A new way of looking at income requirements
This helps to explain why the Minimum Income Standard (MIS) – a regular calculation for the UK since 2008 – has attracted growing interest and influence. Carried out independently by the Centre for Research in Social Policy at Loughborough, with the support of the Joseph Rowntree Foundation, the research behind the standard is based on detailed deliberations by members of the public on what goods and services households of different types should be able to afford in order to cover essential material needs and to have the opportunities and choices required to participate in society. The results are used to draw up and cost minimum weekly budgets.
Those adopting this standard have valued how it determines living standards that distinguish “needs” (for example, a mobile phone that enables an individual to communicate – included) from “wants” (an iPhone, an aspirational item – not included).
In 2016, the Living Wage Commission, representing unions, employers and other stakeholders, concluded that a Living Wage should “accurately reflect the views of ordinary people” about what is needed to live on. It also confirmed MIS as the main basis for setting the voluntary Living Wage, now paid by around 4,000 employers.
The standard has also become the most commonly used tool for charities giving individual grants to help identify who is in need. They are attracted by the idea of using a living standard that allows for and invites social participation – after all, charities greatly value the external validation of criteria to determine who they should support.
And so the authority of the standard grows as it becomes more widely used. The Scottish government has also adopted MIS to help measure fuel poverty, and it is being used experimentally to set “living rents”.
The cost of justice
In July 2017, the Supreme Court ruled that it was unreasonable for the government to charge fees for employment tribunals without an adequate system to help workers afford them if they could not do so out of their own incomes. The court ruled that people should not be required to sacrifice “ordinary and reasonable expenditure” in order to access justice – using MIS as the benchmark. As a consequence, the employment tribunal fees were withdrawn.
In the Law Society’s interpretation, this precedent means that the means-test for legal aid should also not force someone to choose between meeting their needs and accessing justice. I have therefore written a report for the Law Society evaluating the adequacy of legal aid on this basis. My findings show clearly that people can be excluded from legal aid even though their incomes fall well short of what they would require to meet their needs as measured by MIS, and even without covering legal costs.
This experience shows that national standards can develop not only via top-down government diktat, but also from the production of evidence-based benchmarks and their incremental adoption by employers, civil society and the courts. The big question now, as the Ministry of Justice considers the Law Society’s case for the reform of legal aid, is whether central government will also heed this evidence.