Criminal Legal Aid Means Testing in the Magistrates’ Courts · Criminal Legal Aid Means Testing...

NATIONAL AUDIT OFFICE

REPORT BY THE

COMPTROLLER AND

AUDITOR GENERAL

Criminal Legal AidMeans Testing in theMagistrates’ Courts

ORDERED BYTHE HOUSE OF COMMONSTO BE PRINTED22 JULY 1996

LONOON: HMSOHC 615 Session 1995-96Published 1 August 1996 f9.85

Criminal Legal Aid Means Testingin the Magistrates’ Courts

TMs report has been prepared under Section 6 of tie National AuditAct 1983 for presentation to the House of Commons in accordancetith Section 9 of the Act.

John Bourn

Comptroller and Auditor GeneralNational Autit Office

12 Jtiy 1996

The ComptroUer and Auditor Generaf is the head of the NationalAudit Office employing some 750 staff. He, and the NAO, are tota~yindependent of Government. He certifies the accounts of aUGovernment departments and a tide range of other puhhc sectorhodles; md he has statutory authority to report to ParHament on theeconomy, efficiency and effectiveness tith which depmtments andother bodies have used their resources.


Contents

Summary and conclusions

Part 1: Introduction

Part 2: Benefit cases

Part 3: Financial assessments

Part 4: Points for action

Page

1

7

15

23

41

Appendices

1: Previous coverage of criminal legal aid by the 47

Committee of Pubhc Accounts

2: Statement of Means form 49

3: Magistrates’ courts tisited by 55

the National Audit Office

4: Sampling methodology 56

5: National Audit Office focus woups amongst magistrates’ 58

court staff involved in criminal legal aid means testing

Introduction


Summary andconclusions

1 Criminal legal aid is protided to enable people of sma~ or moderatemeans to defend a criminal case. To quahfy for legal aid an

apphcant must pass a means test, which examines hls or herfinancial circumstances, and an “interests of justice” test toascertain whether the apphcant shotid have legal representation.

2 Gross expenditure on criminal legal aid in the ma~strates’ courtsand the Crown Court increased by 41 per cent between 1990-91 and1994-95, from 1333 miRion to S469 million. The Lord Chancellor’sDepartment have overall responsihihty for the provision of legal aidin England and Wales. The Legal Aid Board meet the cost ofcriminal legal aid granted in the magistrates’ courts. Day to daycontrol over the granting of legal aid is the statutory responsibility ofthe courts in accordance with the Legal Aid Act 1988 and theLegal Aid in Criminal and Care Proceedings Regulations 1989.Magistrates’ courts act independently in this matter. The LordChancellor’s Department have no authority to direct or controlma~strates’ courts staff.

3 Every year since 1990-91 the Comptroller and Auditor General hasqualified hls audit opinion on the legal aid appropriation accountsbecause of doubts that the provisions of the statutory regulationsrelating to the award of legal aid and the determination ofcontribution orders were being properly apphed in the magistrates’courts. There was therefore significant and material uncertainty asto the propriety and regularity of the substantial sums ofexpenditure on criminal legal aid included in the accounts for theseyears.

4 In March 1996 the National Audit OfRce puhhshed a report on themeans testing of civil legal aid, concentrating on the sufficiency anddepth of the checks made to confirm the statements provided hyapplicants of their means. This report on criminal legal aid focusesmore on the concern that magistrates’ courts are not obtainingadequate evidence of applicants’ means. Without such evidence,there is a potential risk that applicants will not make a contributiontowards their legal costs when they should. In addition, someapplicants may be awarded legal aid to which they are not entitled.

1

On benefit cases

On assessed cases


5 To get to the heart of the problem, the National Audit Officereviewed the means testing arrangements at 20 magistrates’ courtsand examined a representative sample of 1,080 mems assessments.This sample was su~cient to enable statistically valid conclusions tobe drawn about the award of criminal legal aid by dl the courts (seeAppendix 4), The examination included cases where apphcants werein receipt of benefits, such as income support, that entitled them tofree legal aid, It also included cases where tbe applicant’s meanswere specifically assessed, The National Audit Office alsocommissioned two focus group discussions with court staff to helpget behind the statistics and to understand the reasons why the legalaid regulations are not being fully and properly applied at all courts.

6 Around 70 per cent of criminal legal aid apphcations granted by themagistrates’ courts are automatically awarded free legal aidbecause the applicant is in receipt of income support, family creditor disability working allowance. The examination found that whilesome evidence of receipt of benefit was obtained in 91 per cent ofcases examined, in the National Audit Office’sview this wasadequate to confirm entitlement in only 54 per cent of cases. Innine per cent of cases applicants were granted free legal aid withoutproviding any evidence that they were receiving the entithngbenefits.

7 Mthough recent internal audit reviews suggest there has been acontinuing trend of incremental improvement in performance, theresults are patchy and some courts are doing very much better thanothers. At the courts visited by the National Audit Office, theproportion of cases with adequate evidence ranged from 17 to100 per cent. A contributory factor towards this unevenperformance was the lack of awareness by some court staff of whichbenefits automatically quahfy the applicant for free legal aid and

what evidence should be accepted as clear and unequivocal proof ofbenefit entitlement.

8 Around 30 per cent of apphcations are subject to a fuU meansassessment as the applicant is not in receipt of a quali&ng benefit.Court staff assess disposable income by calculating applicants’weekly income and then deducting outgoings such as housing andtraveling expenses and set allowances towards the maintenance ofa spouse or dependent children. Where this is above S49 per weekthe applicant is expected to pay a contribution towards hls or herlegal costs on a shding scale. Any capital (defined as property otherthan a main home, savings or investments and articles of value)above S3,000 is also payable as a contribution.

2

Points for action


9 The examination found that while courts obtained evidence ofapplicants’ income in 85 per cent of cases, this was “best” evidencein otiy 41 per cent of cases Cn terms specified by the Statement ofMeans form which all applicants are required to complete), Courtstaff still granted legal aid in the 15 per cent of cases where noevidence was provided (and no explanation for its non-provision hadbeen given). Etidence of declared outgoings was obtained in only21 per cent of cases. Few courts were rigorous in pursuing

applicants for missing evidence, particularly in respect of outgoings.In addition most courts granted free legal aid when an appticantwas in custody tithout monitoring whether they were subsequentlyreleased on bail and therefore in a position to provide details anddocumentary evidence of their means.

10 There are some encoura~ng signs, however. The overallperformance of the courts in obtaining evidence of income andoutgoings has recently improved; and though there are significantdifferences in achievement between the courts, the performance ofthe best shows what can be done tithin the present regulatory andadministrative framework. There is no reason why all courts shouldnot strive to match the performance of those courts - few at present- who obtain evidence of declared income and outgoings for all theircases.

11 The examination also found that only 62 per cent of the contributioncases calcdated by court staff were accurate: performance atindividual courts ranged from 32 to 96 per cent. Internal auditreviews show only a slight improvement in the accuracy achievedover recent years. On the cases examined by the National AuditOffice, 118 contributions were understated by a total of f797 a weekand 33 contributions were overstated by a total of E248 a week.Extrapolation of these figures for all criminal legal aid casessuggests that there may be a net understatement of contributions ofan estimated El.8 million a year, although in practice not allcontributions are paid and some are refunded, for example where adefendant is acquitted. Few of the courts visited bad a formalsystem in place to monitor the accuracy of assessments and identifysystematic errors.

12 Court staff face a number of difficulties in obtaining sufficient,relevant and rehable documentary evidence of income, outgoingsand capital. Notwithstanding these difficulties, some magistrates’courts have been able to obtain documentary evidence of means inover 95 per cent of cases and also ach]eve a high degree of accuracy

3

Criminal Legsd Aid Means Testingin the Magistrates’ Courts

in assessing contributions. It ought to be possible for other courts toraise their perform~ce by adopting the practices of the mostsuccessful.

13 The National Audit Office examination and the internal auditreviews established that few courts had low comphance across theboard. And at the courts visited, Justices’ Clerks were very tihg toaddress the problems identified hy audit and to make necessaryadjustments to their systems and controls. This is encoura~g andsuggests that further measures to secure greater comphance wotidbe well received.

14 Courts have to strike a balance hetieen moving business throughquickly and taking time to make further checks. Each Justices’ Clerkwill make his or her own decision on where this bafance is struck inindividual cases. The magistrates’ courts act independently in thismatter. The Lord Chancellor’s Department have no autiority todhect or control magistrates’ courts staff, and do not regwd courtstaff as accountable to them or to any other central governmentdepartment. However, the Department’s internal audit we appointedto audit Justices’ Clerks Accounts under the Justices’ Clerks(Accounts) Regulations and they review the courts’ handhng ofcriminal legal aid means testing.

15 The Lord Chancellor’s Department rely on surveillance, information,persuasion and encouragement in order to secure comphance tiththe Regulations. ‘Ihe Department have taken many initiatives of thiskind, including the issue of a number of guidelines on means testing.The evidence of tbe court visits and focus group discussions suggestshowever that the guidance is not always clearly understood anddoes not address some of the practical problems that arise horn dayto day. Court staff would welcome more specific advice, based on

existing good practices and illustrated with examples of what to doin particular circumstances. The issues that such guidance mightaddress are set out in Part 4.

16 The National Audit Ofice acknowledge tbe efforts of the Departmentto improve the magistrates’ courts’ performsmce in this matter.However, they believe that there are areas where the Departmentcould do more. The Department are now revie~g the guidanceavailable with a view to incorporating the National Audit Office’srecommendations. This till help to promtigate best practice andshould also lead to greater consistency in interpreting and applyingthe legal tid regulations. But although guidance can giveclarification, only the courts can lay down definitive interpretationsof the Regulations. In addition, the Legal Aid Act 1988 creates a

4


preemption that where any doubt arises about whetherrepresentation in a criminal case should be granted to any pereon,that doubt eha~ be resolved in MS or her favour. The Departmenthave also made a stat on the task of tinning the commitment of themagistrates’ courts to improve compliance to a uniformly highstandard through a conference in May 1996 of Justices’ ChiefExecutives which was addressed by a member of the Committee ofPublic Accounts, and in wMch the National Audit Office took part.

17 In consdtation with the Justices’ Clerks Society, the National AuditOffice recommend that the Lord Chancellor’s Department shouldalso encourage the courts:

. to comptie local supplements to the main guidance, covering localiesues and practices and including arrangements for checkingqumg benefit cases with the local Social Security office;

. to provide their staff with appropriate training to help ensurethat the guidance is properly apphed and that their exercise ofdiscretion is properly evidenced;

. to operate quafity assurance systems to check the accuracy ofcontributions on a sample basis and to take any remedial actionnecessary,

. to foster closer Hnks with local sohcitors, and thereby securetheir co-operation in providing the documentary evidencerequired by the re@ations;

. to review their procedures for cotiwm~ng the circumstances of

applicants who were in custody at the time of making theirapplication for criminal legal aid.

18 Since the National Audit Office retiew was completed the LordChanceUor’s Department have retiewed the current arrangements.In a written answer on 30 January 1996 the Lord Chancellorexplained that in view of the fundamental proposals for the reformof the legal aid scheme as a whole contained in the Green Paper“Legal Aid - Targeting Need publisbed in 1995, he would notpropose any earlier changes in the arrangements for the grant oflegal aid in the magistrates’ courts, so long ae the improvement incomphance tith the present arrangements is continued.

5

Criminal Legal Ad Means Testingin the Magistrates’ Courts

19 Since this report was prepared, the Lord ChanceUor hw pubEshedthe government’s proposals for reforming both critinal and citilegal aid in England and Wales in the Wlte Paper ‘Striking theBalance - The Future of Legal Ad in England and Wales’ (Cm 3305).

6

1.1

Ctilnal Legal Ad Means Testingin the Magistrates’ Cotis

Part 1: Introduction

Pretious examination of legal aid

Criminal legal aid k protided to enable people of sm~ or moderatemeans to defend a criminal case. Asistance is provided by payingso~citors’ and comse~s legal btis. Criminal legal aid expenditure hthe ma~strates’ comts and Crown Comt bas increased by41 per cent over the last five years, and was E469 m~on in 1994-95(Fi~e 1). Over the same period the nmnber of people assisted rosefrom 581,000 to 603,000- an increase of 3.8 per cent. The mostrecent fi~es, for 1995-96, show that tbe nmnber of people assistedfe~ to 586.000.

7

Criminal Legal Ad Means Testingin the Magistrates’ Cowts

1,2 Since 1990-91 the Comptroller and Auditor General has qua~led hisaudit opinion on the legal aid appropriation accounts because ofdoubts that the provisions of the statutory regulations relating to theaward of legal tid and the determination of contribution orderswere being properly apphed in the magistrates’ touts. There was,therefore, significant and material uncertainty as to the proprietyand re~arity of tie expenditure on criminal legal aid included inthe accounts for those years. The Committee of Pubfic Accountshave taken evidence from the Lord Chancellor’s Department and theLegal Aid Board twice before on the basis of the Comptroller adAuditor Genera~s Reports, A summary of the mainrecommendations of the Committee of Pubhc Accounts’ Reports(HC 1921991-92 and HC 282 1994-95) are at Appendix 1.

1,3 The National Audit Office have also examined the scope smdadministration of the legal aid scheme on three pretious occasions,focusing on the forecasting, monitoring and control of legal aidexpenditure and, more recently, the means testing of citil legal aid(HC 1821985-86, HC 901992-93 and HC 242 1995-96). This reportexamines the means testing of criminal legal aid in the magistrates’courts.

Criminal legal aid

1.4 To quahfy for legal aid an apphcant must pass both a means test andan “interests of justice” test. The means test is undertaken toestablish whether the applicant’s financial circumstances entitle himor her to assistance in meeting the costs of the case and, if so,whether with or without a financial contribution, A separate test isundertaken to ascertain whether it is in the interests of justice thatthe apphcant should have legal representation. Relevant

considerations would include whether it was hkely that, if foundguilty, the defendant would go to prison or lose hls job; whetherthere are substantial points of law to be argued; and whether thedefendant is hkely to be able to follow the proceedings. This reportis concerned only tith the arrangements for means testing and notthe interests of justice test.

Administration of criminal legal aid

1,5 The Lord ChanceUor’sDepartment have responsibility for pohcy andlegislation Meeting legal aid and for funding the costs. TheDepartment meet direcfly the expenditure on criminal legal aid in thehigher courk - tbe Crom Cowt and the Cowt of AppeaL The Legal AidBoard meet the cost of criminal legal aid in the magistrates’ courts,

8


but, except in cases where they retiew apphcations which wererefused on interests of justice grounds, the Board have no directcontrol over the granting of legal aid. This is the responsib~lty of thecourts who are re@ed to grant or refuse apphcations for crtilndlegal aid in accordance with the statutory re@ations. Some99 per cent of the awards of legal aid, which protide the authori~for payments to sohcitors and counsel, are granted in themagistrates’ courts. Ma@trates’ courts act independently in tismatter. Court staff we employed hy 100 separate and independentMagistrates’ Courts Committees. Neither the Lord ChanceUor’sDepartment nor any other cential government department have anydirect control over the courts or their staff. The Lord ChanceUor’sDepartment do not regard conrt staff as accountable to them or anyother central government department. However the Department’sinternal audit are appointed to audit Justices’ Clerks Accounts underthe Justices’ Clerks (Accounts) Re@ations and they retiew thecourts’ handkg of criminal legal aid means testing.

1.6 The Department can issue guidance on the operation of theRe@ations. But although this guidance can offer clatilcation, ody thesuperior Courts, and not the Department, can lay down deftitiveinterpretations of the Re@ations, and the scope of the diecretiomwhich they confer. Stiarly, wbRe the Department can give adtice asto best practice, they camot lawfWy fetter the exercise hy magistrates’courts staff of any discretion which is given to them by the Act and theRe@ations. In addition, Section 21(7) of the Legal Aid Act 1988creates a presumption, which the Department has no authori~ to alter,that “where a doubt arises whether representation under this part

tie representation in criminal cases) shodd be granted to any person,the doubt sha~ be resolved in the person’s favour”.

1.7 To secure compliance with the Regtiations they have made, theLord Chancellor’s Department rely on surveillance, information,persuasion and encouragement, Since 1990, the Department havetaken many initiatives of this kind. In particular, acting with theJustices’ Clerks’ Society, they have issued a number of guidelines onmeans testing. Since the National Audit Office retiew was completedthe Lord Chancellor’s Department have retiewed the currentarrangements to determine whether the existing responsibilities formeans testing need to be changed, In a written answer on30 January 1996 the Lord Chancellor explained that in view of thefundamental proposals for the reform of the legal aid scheme as awhole contained in the Green Paper “Legal Aid - Targeting Need”published in 1995, he would not propose any earlier changes in the

9

1.8

ICriminal Legal Md Means Testing

I in the Magis-tiates’ Courts

Iarrangements for the Want of legal aid in the magistrates’ courts, solong as the improvement in compliance with the presentarrangements continued.

Means testing procedures

Means testing is based on the concepts of “disposable income” md“disposable capita~, that is tbe income and capital whlcb applicantshave left after deductions are made for certain regular expenses andfrom which they can reasonably be expected to pay for a lawyer.The rules governing these calculations and for Wanting or refusingapplications are set out in tbe Legal Md in Criminal and CareProceedings Regulations 1989 (as amended) and supplemented byguidance from the Lord Chancellor’s Department and the Justices’Clerks’ Society (Figure 2). In May 1996 the Department produced acompilation of all the guidance issued in the last four years.

10

1.9


Defendants applying for criminal legal aid must complete an

application form and, unless they can prove that they are in receiptof income support, family credit or disability working allowance,must also protide a Statement of Means (see Appendti 2), whichshould be supported by documentary etidence of the income,outgoings and capital declared. The apphcant’s sohcitor sends bothforms to the magistrates’ court, where the means testing is carriedout by court staff under the supervision of Justices’ Clerks.

1.10 Around 70 per cent of criminal legal aid acts of assistance - some600,000 in 1994-95- are from people on income support, familycredit or disability working allowance. Apphcants in receipt of oneor more of these benefits should automatically receive free legal aidprotidlng that they meet the interests of justice test. Themagistrates’ courts do not carry out a separate means test:

applicants are simply asked to protide evidence of their receipt of aqualifying benefit.

1.11 Other applications are subject to a full means assessment. This isbased on an assessment of disposable income and capital. Courtstaff calculate disposable income by taking average weekly incomeand deducting specified outgoings, such as council tax, housing andtraveling expenses and set allowances towards the maintenance ofa spouse and dependent children.

1.12

1.13

If the assessed weekly disposable income is more than E49, the

applicant will be asked to pay a wee~y contribution from the datecriminal legal aid is granted to the conclusion of the proceedings orthe withdrawal or revocation of the legal aid order. Unhke civil legalaid, there is no upper income limit above wh]ch the applicant isautomatically refused legal aid. If the apphcant’s assesseddisposable capital is over f3,000, then he or she till be asked to paythe excess over E3,000 towards the cost of the case.

Legal aid is granted by means of a legal aid order awarded hy thecourt. The apphcant will he notified about any contribution he orshe will have to pay. Ml applicants must sign a declaration that theinformation protided on the Statement of Means form is completeand correct. The application and Statement of Means forms clearlystate that anyone knowingly protiding false statements orwithholding information shout their financial circumstances may beprosecuted and fined or sent to prison for three months. Thedeclaration also gives the court powers to make such enquiries ofthe Benefits Agency as it considers necessary. It permits the court to

11


seek further information from the apphcant, to confirm that theinformation provided is accurate; and it requires applicants to notifythe court of any changes in their financial circumstances.

1.14 In response to the consultation paper on “Legal Aid for theApparently Wealthy” in December 1994, the Lord ChanceUorannounced in February 1996 that the Legal Aid Board would set upa Special Investigations Unit to investigate the means of applicantswith complex financial affairs. Its remit till initially cover citil legalaid cases, but will be extended as soon as possible to cover criminalcases. In addition, new regulations aimed at applications for legalaid hy the apparently wealthy came into effect on 1 June 1996. Theregulations were also amended to introduce a tougher regime forthe revocation or discharge of legal aid where applicants have beendishonest or uncooperative. Similar powers already exist for citillegal aid.

National Audit Office examination

1.15 The risk identified in the recent examination of civil legal aid(HC 242 1995-96) was not so much that etidence of apphcants’means was not being supplied, but that there was inadequateverification of the evidence supphed. For criminal legal aid, on theother hand, concern has focused more on failure to obtain adequateevidence of applicants’ means. In the absence of such evidence,there is a high risk that applicants will not make a contributiontowards their legal costs when they should. In addition, some

applicants may be awarded legal aid to which they are not entitied.

1.16 Consequently this examination of criminal legal aid means testingfocused primarily on the existence and adequacy of documentary

evidence of means and addressed two separate issues:

. whether magistrates’ courts obtain appropriate etidence of.,

applicants means to make informed decisions about whether togrant or refuse legal aid;

. whether contributions are calctiated accurately from theevidence supphed.

Since most apphcations where an assessment is carried out are odysupported by hmited evidence, this report does not look closely atverification of the etidence.

12


1.17 Within this report the issues in paragraph 1.16 above areconsidered with respect to:

. benefit cases - where apphcants in receipt of ~a~ng benefitsare automatically granted free legal aid (Part 2);

. assessed cases - where applicants must declare their financialresources and court staff carry out a means test (Part 3).

The main points for action arising out of the National Audit Oficeexamination are summarised in Part 4, together with speciOcrecommendations for improving the means testing arrangements.

1.18 In undertaking this work, we reviewed the means testingarrangements at 20 courts (Appendix 3) and examined arepresentative sample of 1,080 means assessments where legal aidhad been granted between May and Jtiy 1995. This examinationcovered both benefit and assessed cases. Details of the samplingmethodolo~ are at Appendm 4. This work was supplemented bytwo focus group discussions, attended by magistrates’ court staffinvolved in means testing, and run by David Wall from the Centrefor Criminal Justice Studies, University of Leeds. These discussionshelped us to get behind the statistics, to identify common problemsand to suggest solutions. The mati points arising out of the twofocus group discussions are summarised in Appendw 5 and arereferred to throughout the report. Views on the arrangements forcriminal legal aid means testing were also sought from the Justices’Clerks’ Society, the Magistrates’ Association, the Central Councfl ofMagistrates’ Courts Committees and the Inner London Magistrates’Courts Service.

1.19 This report also refers to the findings of three separate reviews ofcriminal legal aid carried out by the Internal Audit branch of theLord Chancellor’s Department. These reviews were carried out inthe periods September and October 1994, January andFebruary 1995, and May to August 1995. Internal audit intend tocontinue to monitor the performance of courts in the fight of therestits of the National Audit Office’sand their own reviews.

1.20 The confidentiality restrictions of the Legal Aid Act 1988 section 38prevent the National Audit Office from commenting in detail onindividual cases.

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Criminal Legal Md Means Testingin the Magistrates’ Cowts

1.21 The National Autit O~ce report was prepared prior to theptitication in Jtiy 1996 of the Lord Chancellor’s proposals forreforming legal aid in England and Wales in the White Paper‘Stritig tie Bafance - the Futue of Legal Aid in England andWales’ (Cm 3305).

14


I

Part 2: Benefit cases

Introduction

2.1 Ao applicant who meets the interests of justice testis automaticallyawarded free legal aid when he or she is in receipt of incomesupport, famfiy credit or disabihty working allowance. Such casesmake up around 70 per cent of the awards of criminal legal aidmade by the magistrates’ courts.

2.2 The National Audit Office examined 586 cases at 20 magistrates’courts where free legal aid was awarded on the basis of receipt of aquahfying benefit in the period 1 May to 31 July 1995, Theexamination focused on the extent and adequacy of the evidenceobtained by the courts in support of such cases,

Evidence of qualifying benefit

2.3 Apphcants claiming free legal aid on the basis of receipt of aquahfying benefit are only required to complete the legal aid

application fOrm and not the full Statement of MeanE<TheaPphcation form should contain details of why legal aid is requiredand information relevant to the claim for benefit, such as theNational Insurance number and address of the Social Security officedealing with the claim. Applicants should also provide documentaryevidence of the benefit received.

2,4 There may be vahd reasons why applicants are unable to providedocumentary evidence: the apphcant maybe in custody, forexample, and not have access to the evidence. Such explanationsshould be given on the legal aid application form. If no documentaryevidence or vatid explanation, such as being in custody, is providedtith the application, the court staff should request it.

2.5 In 91 per cent of the cases examined by tbe National Audit Office,the magistrates’ court had obtained some documentary evidence ofbenefit entitlement (excludlng those cases where tbe applicant wasin custody or provided a vahd explanation of why evidence could notbe produced). Because the sample of cases examined at each courtwas selected on a statistical basis (see Appendix 4), the NationalAudit Office have been able to extrapolate their findings to all casesautomatically awarded free criminal legal aid by the magistrates’

15

2.6

2.7


courts. On this basis, one can be 95 per cent confident that between83 and 97 per cent of cases awarded free legal aid on the basis ofqualifying benefit are supported by some form of etidence ofentitlement.

These results are broadly in hne with the findings of a retiewundertaken by the Internal Audit branch of the Lord ChanceUor’sDepartment across 36 different magistrates’ courts in the periodMay to August 1995. Figures from internal audit retiews (para~aph1.19) show an increase from 71 per cent in September 1994 to93 per cent in September 1995 in the proportion of cases wherecourts obtained documentary evidence of quahfying benefits.

The National Audit Officeextiation, however, showed si~catvmiations between the courts. The performance of individusd courts inobtaining etidence of quwg benefits ranged from 73 per cent to100 per cent (Figure 3). Eleven magistrates’ courts obttied etidencein more than 90 per cent of cases examined; tiee magistrates courts’obtained etidence in less thm 80 per cent of cases.

16

2.8

2.9

Criminal Legal &d Mews Testingin the Magistrates’ Cowts

Adequacy of evidence

Not au the evidence obtained by tbe courts to support a legal aid

apphcation is adequate in demonstrating unequivocally that theapphcant is in receipt of a qna~ng benefit. The National AuditOffice re-examined the etidence protided to check whether it:

.

.

.

clearly related to the apphcant

clearly stated the quahfying benefit and the amount received,

related to current entitlement to benefit.

To be classed as “adequate”, evidence had to meet these tiee cfitetia.

Tbe examination found that the magistrates’ courts had obtainedadequate evidence in ody 54 per cent of au benefit cases examined(Figure 4). Figures from internal audit reviews (paragraph 1.19)

2.10

2.11


show an increase from 44 per cent in September 1994 to77 per cent in September 1995 in the proportion of cases wherecourts obtained adequate evidence to support free legal aid.

The performance of individual courts varied tidely. At the20 magistrates’ courts visited by the National Audit Office thepercentage of adequate evidence obttined ranged from 17per centat one court to 100 per cent at another (see Figure 5). Onfysix magistrates’ courts managed to obtain adequate etidence inmore than 75 per cent of the cases automatically awarded free legalaid. Eight magistrates’ courts obtained adequate evidence in lessthan 40 per cent of cases.

Tbe examination also revealed uncertainty amongst court staff as towhat should be accepted as adequate etidence of a quah&lngbenefit for free legal aid. Guidance issued by the Justices’ Clerks’Society in May 1995 states that courts should not accept theunemployment “signing on” form UB40 as evidence of a quahfyingbenefit. The form UB40 only provides evidence that tbe apphcant is

18


(or was) registered unemployed. It does not state what benefits fifany) are being received. However, in 18 per cent of the casesexamined, the National Audit Office found that courts had accepteda UB40 as evidence of automatic entitlement to free legal aid(Figure 4). In some of these cases the information provided was overtwelve months old.

2.12 In a further 19 per cent of free legal aid cases the evidence obtainedby the courts was equivocal (Figure 4). For example:

. the evidence obtained, usually a copy of the benefit encasementhook, only showed the amount received and did not specifywhether it was a qualifying benefit;

. the evidence of qualifying benefit was more than three monthsold;

● the court had seen the evidence hut had not copied il lo the file,making independent review impossible.

2.13 In nine per cent of cases no evidence was provided (Figure 4) but

applicants were still awarded free legal aid with little or no attemptmade to obtain the necessary evidence. In such circumstances, freelegal aid may have been awarded to those who were not entitled toit.

Problem areas

2.14 There are thus two problems in the courts’ handhng of claims forfree legal aid:

. insufficient action being taken to obtain evidence where none hasbeen provided (paraWaph 2.13);

. lack of awareness of what should be accepted as adequateetidence that the apphcant is in receipt of a qualifying benefit(paraWaphs 2.11 and 2.12).

The National Audit Office also noted several cases where free legalaid had been awarded even though the local Social Security officehad clearly stated that the applicants were not in receipt ofqualifying benefits. As no means assessment was carried out in suchcases the National Audit Office could not determine whether any ofthe apphcants should have qualified for legal aid.

19


2.15 The examination of assessed cases also disclosed that manymagistrates’ courts had incorrectly awarded free legal aid on thebasis that the applicant was receiving (non-qualifying) state benefits,such as sickness benefit and invahdity benefit. Such cases shmddhave been assessed to determine if a contribution was payable, butin six per cent of the 494 assessed cases examined free legal aid wasawarded on the basis of non-qualifying benefits.

Good practice

2.16 The National Audit Office noted two examples of good practice in itsprogramme of court visits:

● the use of benefit entitlement certflcates;

● the cross-checking of selected cases with the Benefits Agency,

Benefit entitlement certificates

2.17 Only one court visited by the National Audit Office - Lincoln -obtained adequate evidence in au cases automatically awarded freelegal aid (paraWaph 2.10). Legsd aid was only awarded when

apphcations were accompanied by a “benefit certificate”, apro-forma letter produced by the court which the apphcant mustcomplete and take to hls or her local Social Security office toconfirm the amount and type of benefits received. The SocialSecurity office stamps and dates the certificate as etidence for thecourt. Similar arrangements were in place at other courts hut werenot being applied to all applications received.

Cross-checting selected cases

2.18 The signature of the apphcant on the legsd aid form authorises thecourt to make “...such enquiries of the Benefits Agency as itconsiders necessary” and consents to “..the disclosure ofinformation to confirm,, receipt of benefit”. However, ody six out of20 courts visited by the National Audit Office had any form of haisonarrangements with the Benefits Agency to confirm benefitentitlement on individual apphcations. Most took the view that itwas up to the applicant’s solicitor to provide this information. Evenat the six courts where the Benefits Agency provided cofimatorydetails of qualifying benefits, the arrangements were somewhat adhoc and were not used by the courts for all cases where doubtexisted as to entitlement. The findings were consistent with theviews of the court staff who attended the focus group discussions

20


commissioned by the National Audit Office. Most participants saidthat, there were no arrangements at their court for checkingentitlement with the local benefits office.

2.19 In response to the National Audit Otice’s findings tbe Departmentwere in June 1996 Haising with the Benefits Agency, the Law Societyand the magistrates’ courts on issuing guidance to solicitors,through the Law Society Gazette and other legal journals, on theprocedure to be followed for cotilrming tith local benefit officeswhether an appficant is in receipt of a qualifying benefit.

2.20 A circular issued by the Justices’ Clerks’ Society in August 1995recommended courts to subject samples of applications to a “spotcheck with the local Benefits Agency ofice. For this to worksuccessfully, the apphcants must protide their national insurancenumber and the address of their Social Security office, In18 per cent of the cases examined, the National Audit Office foundthat one or both of these details had not been supplied, althoughclearly required on the application form. As no means test wasundertaken their entitlement to legal aid could not have beenconfirmed tithout recourse to further enquiries.

2.21 The Department have recognised that the regnfations did notsufficiently protide for the position of an apphcant whosecircumstances change and consequently ceases to receive aqualifying benefit. The re@ations were amended from June 1996so that the court may require information of any change in theirfinancial circumstances and that there is a positive obhgation onthat recipient to protide such information.

Conclusions

2.22 Around 70 per cent of criminal legal aid cases granted by themagistrates’ courts are automatically awarded free legal aid on thebasis that the apphcant is in receipt of a qutilfying benefit. TheNational Audit Office examination revealed that while in 91 per centof cases the apphcant provided some etidence of his or her receiptof a quahfying benefit, adequate etidence was protided in only54 per cent of cases. In nine per cent of cases no etidence wasprovided, though the courts had still granted free legal aid to theapplicants concerned.

2.23 There are tide variations in the performance of individual courts,caused largely hy uncertainty as to which benefits quahfy for freelegal aid and what shodd be accepted as adequate etidence ofentitlement. The performance of the best does show, however, the

21

Criminal Legal Md Means Testingin the Magistrates’ Courts

scope that exists within the present re@atory and administrativeframework to get a much tighter grip on means testing and thesecuring of sufficient and good quality etidence. Ad the resdts ofinternal audh retiews suggest an incremental improvement in theperformance of courts in obtaining etidence. However, some toutsare still accepting the UB40 form as evidence of qualif~g benefit,despite goidance to the contrary, Those courts with arrwgementsfor confirming that applicants are in receipt of a quahfying benefitgenerally achieved a hlgber performance. These arrangements andother proposals for improving the performance of courts areconsidered further in Part 4.

22


Part 3: Financialassessments

Introduction

3.1 Some 30 per cent of apphcations for crtilnal legal aid in themagistrates’ courts are from people who are not in receipt of aqualifying benefit (paraWaph 2.1). These apphcants must completea separate Statement of Means, giting details of their own and theirspouse’s income, outgoings and capital or satings. Supportingdocumentary evidence must he protided. Court staff assess

applicants’ means on the basis of this information, calculating theirdisposable income and capital and any contributions they may heasked to pay towards their legal costs.

3.2 The National Audit Office examined 494 cases where a financialassessment was carried out between 1 May and 31 Jdy 1995. Ofthese, 179 resulted in a contribution being payable from income and315 resulted in a nil contribution. In each case we re-performed themeans assessment to establish whether

. the necessary documentary etidence of declared income,outgoings and capital had been provided;

● the contribution payable had been calculated accurately.

Evidence of declared income

3.3 The Statement of Means (which forms part of the legal aidregdations - see Appendix 2) specifically requires apphcants toprovide documentary evidence of income received over the past13 weeks. It suggests that three montMy or 13 weekly pay slipswmdd be the “best” evidence. Self-employed people are required toprotide their most recent set of accounts. The guidance issued bythe Justices’ Clerks’ Society suggests that a letter from an employeror accountant, or bank statements showing income over the relevantperiod, would be acceptable.

3.4 The National Audit Office examination focused on two distinctaspects to the protision of documentary evidence of income:

23

I

3.5

3.6


.

.

whether or not evidence of income was obtained by the courfi

the adequacy of the evidence obtained.

Documentary evidence obtained

The National Audit Office found that some evidence of income hadheen obtained in 85 per cent of the cases examined (excluding thosewhere the applicant was in custody or provided a vahd explanationof why evidence could not be provided - see paragraph 2.4). As thecases examined were selected on a statistical basis (see Appendm 4),one can he 95 per cent confident that some evidence of apphcants’income is obtained by the magistrates’ courts in between81 per cent and 87 per cent of assessed cases. The Department’sinternal audit reviews (para~aph 1.19) also suggest that there hasbeen an incremental improvement in the level of evidence obtained.

There are striking variations betieen the courts. At the 20 courtsvisited by the National Audit Office, the proportion of cases wheresome evidence of income was provided ranged from 71 per cent to100 per cent (Figure 6). Two courts obtained evidence for less than75 per cent of the cases examined, whilst four courts obtainedevidence on more than 95 per cent of cases.

24


Adequacy of income etidence

3.7 Mthough some evidence ofincome wasprovided in85 percent ofthe cases examined, this was not always “best” evidence in terms oftbe requirements of the Statement of Means form (Appendix 2) orthe Justices’ Clerks’ Society’s Good Practice Guide (paragraph 3.3).For example, the evidence might be of insufficient quantity, such asonly oneortwo wee~ypaysfips, Clearly 13weeks evidence of paywill not be available in cases where the applicant has not been inwork for that period, in which case payslips for a lesser period tilbe the “best” available. In addition some evidence maybe lessreliable, such as handwritten wage slips or income records, but itmay be the only evidence available. The National Audit Office couldonly have ascertained the rehab~lty of such evidence by makingfresh enquiries of apphcants.

3.8 Interms of theamount ofetidence obtained, the National AuditOffice found that the “best” evidence - such as paystips shoting13 weeks or 3 months of pay (or less than 13 weeks in cases wherean apphcant had not been working for the full period), a letter froman employer or accountant or a set of accounts (see paragraph 3.3) -wasprovidedin41 percent of the cases examined. Evidencesupporting between 4 and 13 weeks of pay was obtained in22 per cent of cases; and evidence supporting less than 4 weeks ofpay was obtained in 22 per cent of cases (see Figure 7). In the

.Evidence of less than4 weeks of income22”h

3.9

3.10


remaining15 percent ofcases noevidence wasprovided hut legalaid was still awarded.

The level of “best” evidence provided ranged from 18 per cent to78 per cent across the 20 courts examined (see Figure 8). Threecourts provided’’best” evidence inlessthan 30percent of cases;five courts provided “best” evidence in more than 50 per cent ofcases; the rest fell in between.

Problem areas

Court staff face a number of difficulties in obttining sufficient,relevant and reliable evidence:

.

.

.

many applicants may have a casual, cash-in-band type ofemployment or may simply not retain previous pay shps;

applicants may not provide consecutive payshps - Wls might be adeliberate ploy to understate income hy providing ody the lowestpay shps;

the pay slips provided may relate to periods more than 3 monthsearlier and so not give a true reflection of current income;

26

ICriminal Legal Aid Means Testing

3.11

3.12

3.13

3.14

in the Magi~trates’ Courts

I

. etidence may comprise only handwritten, undated PaY sliPs orother unrehahle income records.

The variations in court performance show that these problems canbe overcome, however. If the best practices of individual courts wereadopted generally, it should be possible to secure the evidencerequired to validate the award of criminal legal aid.

Problems with the quahty and timehness of information protided bysohcitors to support legal aid apphcations were also raised bymagistrates’ courts’ staff attending the two focus group discussionscommissioned by the National Audit Office (paragraph 1.18).Mthough there have been some improvements in quality sinceMay 1995, in many cases supporting evidence is still deficient.Courts’ staff said that they were constantly re-requestinginformation from sohcitors. The resulting delays can disrupt theefficient operation of the court, In addition, Justices’ Clerks will alsobe conscious of the need not to delay the business of the courts. Thebalance struck between obtaining adequate evidence and movingcourt business along is determined by the circumstances of eachcase.

Were the etidence protided is deficient and no reasonableexplanation is given, court staff have a discretion to refuse legal aidor assume that the apphcant’s disposable income or capital exceedsthe limits for award of legal aid. There was no record of suchdiscretion being exercised in any of the cases examined by theNational Audit Office where the evidence was deficient.

The examination revealed a small number of cases where evidencereferred to on the casefile had not been copied and retained. For thepurposes of analysing the evidence protided, the National AuditOffice assumed that etidence had been obtained in such cases, butthat it was for less than four weeks’ income (Figure 7).

A further problem arises in comection tith the treatment of

applicants who are in custody at the time of the legal aidapplication. Akhough custody may be taken as a reasonableexplanation for an applicant’s inabihty to provide documentaryevidence, the National Audit Office found many cases where the

appficant effectively used custody as a reason for not completing anyfigures for income or outgoings on the Statement of Means. Clearly,custody may result in apphcants losing their source of income(though not usually that of their spouse). But many applicants are

27


held in custody for ody short periods - often overnight - and wi~ hegranted hail. They would then he in a position to declare thekmeans and provide the necessary evidence,

3.15 Based on the evidence from the sample of cases examined, theNational Audit Office found that most courts automaticfly grantedlegal aid with a nil contribution when applicants were in custody(whether or not the applicant declared any means). And most courtsmade no attempts to establish whether applicants were laterreleased on btil. Mid-Warwickshire Magistrates’ Court monitoredwhether custody cases were released on bail and, if they were,requested the apphcant to complete a new Statement of Mews orprovide the necessary evidence,

3.16 Court staff attending the two focus group discussions (see paragraph1.18) confirmed the difficulty of monitoring whether custody casesare released on bail. Each court seems to adopt its own methods -there are no recommended monitoring arrangements - and those inplace rely mainly on manual methods, such as attaching notes tobail applications.

Good practice

3.17 Anoted, at five of thecourts tisited `'best'' etidence of declaredincome was obtained in more than 50percent ofcases. TheNational Audit Office identified a number of elements OfgOOdpractice at these and other courts, including

. taking action to remind local solicitors of the requirements fordocumentary evidence and the main changes that were to bemade to the regulations in May 1995;

o the compilation of a legal aid procedures manual, based ma~yon the Good Practice Guide issued by the Justices’ Clerks’ Societyand adapted for particular local practices;

. early checks on apphcation forms received, to identify thosewhich are incomplete or provide inadequate evidence;

. prompt return of such applications, using a stmdard letter torequest specific information and a system to monitor the returnof these apphcations;

. a system to monitor whether applicants in custody cases aresubsequently released on bail so that they can be requested toprotide a new Statement of Means form md provide thenecessary evidence (paragraph 3.14 above).

28


Evidence of outgoings

3.18 In calctiating disposable income, the court must a~ow certainoutgoings to couot against an apphcant’s income - for example,councti tax, rent and mortgage pa~ents and travel expenses. A setallowance is also given towards the maintenance of a spouse ordependent children, Tbe Statement of Means (Appendix 2)specifically requires applicants to provide evidence of all declaredmstgoings except travel expenses and suggests the form thisetidence might take - for example, a council tax demand from thelocal authority, rent books or etidence of mortgage installments.

3.19 Applicants declared outgoings in 68 per cent of the cases examinedand etidence of these was protided io 21 per cent of cases. On thebasis of these sample restits, one can be 95 per cent confident thatetidence of declared outgoings is obtained in between nine per centand 31 per cent of assessed cases. Figures from internal audit’sretiews (para~aph 1.19) show an increase from 13 per cent inSeptember 1994 to 41 per cent in September 1995 in the caseswhere etidence was obtained to support declared outgoings.

3.20 There are wide variations between the courts in securing etidenceof outgoings. At tbe 20 courts tisited by the National Audit Office,the proportion of cases examined where evidence of declaredoutgoings was provided ranged from nil to 100 per cent(see Figure 9 overleafl. Seven courts obtained evidence in less than10 per cent of cases; only two obtained etidence in more than halfthe cases. The positive side to these restits is the success achievedby some courts in applying tbe means testing requirements. Othercourts shonfd learn from the good practices adopted.

Problem areas

3.21 The main reason for the inadequacy of the documentary etidence inthe cases examined appeared to be that some courts were notenforcing the requirements of the legal aid regulations. At the timeof the audit, only two courts routinely pursued etidence ofoutgoings; and three courts had just started to do so.

29

3.22


Good practice

Otiy one court - Plymouth - obtained etidence of declared outgoingsin all the cases examined. The National Audit OfUceidentifiednumber of elements of best practice that could be adopted by other

courts:

. specific action toinform local solicitors oftbeneedto protideevidence of outgoings;

. prompt return ofapphcations tithinadequate etidence and theuse of standard letters to request - and set out clearly - the typeof evidence required;

.

.

disallowing outgoings against applicants’ income unless they aresupported by evidence;

attendance at training courses that reinforced the need to obtainevidence of outgoings.

30


Etidence of capital

3.23 Applicants are asked to declare three types of capital in theStatement of Means (see Appendix 2):

. property other than their main dwelting;

● savings such as money in any bank or building society, cash andinvestments;

. articles of value, such as jewellery, furs or paintings.

Documentary evidence, such as building society pass books, isrequested on the Statement of Means.

3.24 The National Audit Office examination included only 48 cases(10 per cent) where any form of capital had been declared; andevidence was obtained by the courts in ody eight (17 per cent) ofthese cases. Only one court obtained evidence of the capital declaredon all cases.

Problem areas

3.25 Court staff experience a number of difficulties in the treatment ofdeclared capital:

. capital or savings are diffictit to detect unless declared. Courtstaff rely almost entirely on an applicant’s honesty;

● there is fimited guidance on what constitutes capital. Court staffhave themselves to decide whether items such as expensive cars,hi-fi systems or cameras shodd be included.

3.26 Of the five cases examined where applicants declared savings inexcess of S3,000, evidence was obtained in just one. In a furthernine cases, apphcants had declared a second home involvingsubstantial equity - exceeding E50,000 in two cases - but legal aidwas still awarded. Few spot checks were undertaken of amountsbelow the S3,000 threshold for the purpose of confirming that thefull amount of capital had been declared.

31


Accuracy of contributions

Calculation of disposable income and capital

3,27 Court staff calculate an apphcant’s disposable income by taking theaverage wee~y income over the past 13 weeks ad subtractingcertain outgoings, such as housing and travelhng expenses and setallowances towards the maintenance of a spouse and dependent ichildren (see paragraphs 3.3 and 3.18). If the weetiy disposable .’

income is S49 or less, legal aid is wanted tith a nil contribution.Otherwise a contribution of El per week is letied for every E3, orpart of S3, hy whlcb tbe disposable income exceeds S48 per week.Ml disposable capital above E3,000 is aJso payable as a one-offcontribution. (

Guidance

3.28 The Lord ChanceUor’s Department issue annual @dance to courtstaff for the calculation of legal aid contributions (see Figme 2). Thisis supplemented by the guidance issued hy the Justices’ Clerks’Society. Court staff who attended the focus woups held by theNational Audit Office considered that more needed to be done. Theyregarded the current guidance as patchy and of Bttle help inaddressing the dlficult issues they face from day to day inadministering the means test. They felt that the guidance shmdd bemore comprehensive to standardise practice and, where

appropriate, include case study examples of the sorts of problemsthey have to deal with.

3.29 The Lord Chancellor’s Department and the Justices’ Clerks’ Societytill need to consider whether the guidance on the award andassessment of criminal legal aid should be developed further, tith

the inclusion of practical examples and case stuties.

National Audit Office examination

3.30 The National Audit O~ce re-performed 494 means assessments,based on the evidence in the courts’ casefiles, and found that thecontribution calculated by the court was accurate in ordy62 per cent of cases. On the basis of these sample resufts, theNational Audit Office are 95 per cent cotildent that the contributionwas accurate in between 49 per cent and 69 per cent of assessedcases. The results of retiews by internal audit indicate ody a limitedimprovement in accuracy levels.

32

Criminal Legal Aid Means Testingin the Magistrates’ Comts

3.31 Performance also varied across the 20 courts visited by theNational Audit Office. The proportion of accurate contributionsfound on the cases examined ranged from 32 per cent to 96 per cent(see Figme 10). At six courts the accuacy levels were below50 per cent at another six courts the accuracy levels were above70 per cent. As noted elsewhere, the restits from the betterperforming courts illustrate what aU should be capable of achieting.

3.32

● cases where the apphcant had been in custody and had declaredno means at all (paragraph 3.14);

. cases where apphcants otiy declared income from anon-qualifflng benefit and were incorrectly granted free legal aidtithout a means assessment (paragraph 2.15).

33

3.33

I

Criminal Legal Aid Means Testingin the Ma~strates’ Conrts

[n the above cases no figures for apphcants’ means were available!or the National Audit Office (or the court) to calculate a potentialcontribution.

rhe National Audit Office found that 33 contributions had heenoverstated by between fl and f39 per week - a total overstatement~ff 248 per week (see Figure 11). A further 118 contributions hadbeen understated by between fl and f49 per week - a total Iunderstatement of E797 per week. Overall, there was a total net .

understatement in contributions of f549 per week. Wle it isdi~cult to be precise in extrapolating these results across all courts I

Qven their different sizes, staffing, organisational arrangements andmanagement practices, the National Audit Office statistical sampleof cases was randomly drawn across twenty courts. On theassumption that an average case lasts for nine weeks and that thelevel of understatement found is typical of all assessed cases - andthere is no reason to think otherwise - the National Audit Oficeestimate that the total contributions letied are understated hy someEl.8 million a year; although in practice not aU contributions are

.

34

3.34

3.35

1

1

1

(

1

I

,

,

.

.

*


oaid and some are refunded, for example where a defendant is~cquitted. Wst the El.8 mfion is small (0.38 per cent) in relation;Othe total expenditure of 8469 million in the magistrates’ courts~nd the Crown Court, it is significant in relation to the level ofcontributions received (S4.2 milhon in 1994-95).

[n some cases the inaccuracy of the contribution was due to the:omposite effect of several separate errors. The National Audit2ffice identified a total of 196 individual errors on the 151 caseswhere the contribution was inaccurate. These errors fell intotwo distinct categories:

, interpretation errors (112 individual errors);

I calculation errors (84 indltidual errors).

rhe effect of each error wotid have heen to over or understatecontributions from applicants (depending on the exact nature of theerror).

[interpretation errors

rhe errors here appeared to reflect problems and uncertainties ininterpreting and applying the legal aid regulations. The lack ofietailed guidance and specific training for court staff carrying outmeans assessments may account for some of these errors, which fellinto the following broad categories (see Figure 12 overleafl:

Understatements

allowing outgoings in respect of non-essential items such ascataloWe payments, hire purchase of a hi-fi system, lifeinsurance, car insurance and car loans etc (car insurance andcar loans needed for an apphcant’s means of employment wouldbe allowed and in such cases were not treated as an error);

faiting to include child benefit as income, even where dependentchildren are declared and allowances for them are included inthe assessment

faihng to carry out an assessment, even though the applicant haddeclared means which should have led to a contribution;

understating disposable income by incorrectly calculating taxdeductions where no figures had been provided hy the applicant

failing to include income and outgoings declared by foreignnationals.

35

ICriminal Legal Ad Means Testing

3.36

in the Magi~trates’ Courts

Either over or understatements

. using the figures declared by the apphcant rather than thosesupported by the evidence provided;

. basing the means assessment on evidence which is over 3 monthsold;

● various errors, including incorrect treatment of housing benefit,accepting etidence not in the apphcant’s name, calctiatiog acontribution when the apphcmt was in receipt of Fatiy Credit.

Failing toinclud6° ‘ ‘ ‘ .:’”. ‘ “..’.child benefit mstea(

16% ~

,. ...: :..,::...:,,:,.:,..:,.......... ,,,..;,,.::,.:,.,,: .,:,::,.:.;..:,:: .. . ,;.:,..’:.:::,:’~.,,:,::‘, ‘.: ‘.,::.:;...’~.:’ .~:......:: ,.. . .,, ,,:.,

“~ . Usino.decl,ared figures: :.~’bf evidence ..

fifiedReason for discrepancy

CTH#!e~~/~s+’i’:il;j~i.,,,, ,,..,,.,,,,,....,<12%

..;,.,.!.,,,No assessment carried ,, :.,,

de:;:d=””

out although means ~ ,~o~

A v’i;’~e

]?

Wrongly granted freelegal aid on basis of a Evidence overnon-qualifying benefit 3 months old Tax deductions

8°h 4“h incorrectly calculated3“h

A particdar problem identified was the treatment of apphcsmts whoffly completed the Statement of Means form but declared ticome hornnon-~ah~g state benefits. Figure 12 shows that eight per cent of theindividusd interpretation errors identied were due to court staff f~gto carry out a means assessment and to csdctiate a contribution on thebasis of the figures provided. In tiese cases the National Audit Officecalcdated that a total contribution of S105 a week shmdd have beenletied, which if typical of aUassessed cases wmdd amomt to someS340,000 a year in utievied contributions.

I

36


I

3.37 One of the main ~ctities faced by conrt staff is deter-g whichoutgotigs shoofd be a~owed against income. There is hmited @dancein this area - the legal aid re@ations refer otiy to a few specficexamples such as councfi t=, housing expenses and set allowances fordefendants. No additiond guidance is given by the Lord ChanceUor’sDepartment. Dtierent perceptions of the admiestiity of certainoutgoings were hig~gbted by tbe conrt staff attending tbe tio focosgroups (paragraph 1.18). Fignre 13 demonstrates the types ofoutgoings where court staff may have to make judgments. We cowstaff have consistent tiews about whether or not to Wow some ~es ofoutgotigs, for other types the staff have Werent PercePtio~ andwotid need to rely on their own judgement md experience.

37

3.38

3.39

3.40


Under the Regulations, court staff have discretion to allow “amountswhich are reasonable in the circumstances of tie case”. This issomewhat open-ended and most staff do not appear to know in whatcircumstances they should exercise discretion and how they shotidexercise it correctly. Magistrates’ courts’ staff attending two focusgroups said they would welcome guidance, and examples, on how toexercise this discretion properly,

The National Audit Office also noted 12 cases where applicantsdeclared outgoings which exceeded their income - in one case hyalmost S280 a week. On the face of it, such “negative disposableincome” suggests another source of income or support. In four cases

applicants prOvided plausible explanations, such as hating justbeing dismissed from their job or Eving off their savings, and in twocases allowances for a spouse or dependent children accounted forthe difference. But generally in such cases courts dld not seekfurther clarification or request evidence to support declared incomeand outgoings.

Calculation errors

This type of mistake is usually clear-cut and often due to simpleclerical error. The errors identified fell into the following categories(see Figure 14 opposite):

Overstatements

● omitting to include declared outgoings and defendants’allowances in the assessment

● incorrectly converting weekly disposable income to a contribution

Understatements

. double-counting deductions in respect of outgoings such aspension contributions and rent;

incorrectly converting monthly outgoings to weekly figures(by dividing by 4 instead of multiplying by 12 months and I

.

dividing by-52 weeks);

. rounding the final contribution figures down to the nearestf instead of rounding it up. This could result in a totalunder-recovery of some f 100,000 a year.

.

I

38

3.41

3.42


Either over or understatements

. allowing declared monttiy mstgoings as weekly figures or viceversa;

. using a different figure to that declared.

Quality assurance of means assessments

The Justices’ Clerks’ Accounting Manual states that Justices’ Clerks’should check the quality of financial assessments by samphng caseson a regular basis. The National Audit Office noted that only three ofthe 20 courts tisited had any formal system in place for periodicallychecking the means assessments carried out by more junior staff.

Conclusions

Some 30 per cent of criminal legal aid cases should be subject to afull means test by magistrates’ courts’ staff as the applicant is not inreceipt of a quahfying benefit. The National Audit Office

examination revealed that while courts obtained evidence of

applicants’ income in 85 per cent of these cases, this evidence was“best” in only 41 per cent of cases (see definition in paragraphs 3.7

39

3.43

3.44


and 3.8). In 15 per cent of cases no etidence or any explanation wasgiven but legal aid was still granted. Evidence of declared outgohgswas obtained in only 21 per cent of cases; md contributions wereaccurate in only 62 per cent of cases.

There are wide differences between the courts. Few were rigorousin pursuing applicants for missing evidence, partictiarly io respectof outgoings. Many comts appear to want legal aid automaticallywhen an applicant is in custody, tithout monitoring whether theyare subsequently released on bail. Courts that pursued apphcants hsuch circumstances usually performed better. The restits of titernalaudit reviews suggest that court performance in obttining evidenceof income and outgoings has recendy improved.

There has been ordy a hmited improvement in the proportion ofcontributions calculated accmately compared with previous years.Few courts have a formal system in place to motitor the accmacy ofassessments and identify systematic errors. A large proportion oferrors could he addressed by clearer and fder guidance. Sucharrangements and other proposals for improving the performance ofcourts are considered further in Part 4.

.

I

40


Part 4: Points for action

4.1 Parts 2 and 3 of this Report revealed wide variations between tbecourts in complying tith the legal aid regulations for obtainingproper etidence of apphcants’ means or benefit entitlement, Therewere also marked differences between the courts in the accuracy ofthe calculation of legal aid contributions. Aftbough courts face anumber of difficulties in obtaining sufficient and timely etidence thefact that some magistrates’ courts were able to obtain evidence ofmeans in over 95 per cent of cases and achieve similar levels ofaccuracy in contribution calcdations shows that it should bepossible for most courts to achieve similar levels of performance.There should be considerable scope for improving performance bygenerahsing the best practices observed at individual courts. ThisPart of the Report brings the National Audit Office’smain findingstogether and makes recommendations to this end.

4.2 The current guidance available to court staff is somewhat hmited.To overcome present uncertainties io the interpretation and

application of the legal aid regulations, and to help promulgate bestpractice and improve the overall performance of the courts, theNational Audit Office consider that court staff need to be issued tithclearer and more comprehensive guidance on the means testingprocedures. This should be developed by the Lord Chancellor’sDepartment in constipation with the Justices’ Clerks’ Society andtake the folloting matters into account.

On benefit cases

4.3 Some 70 per cent of criminal legal aid cases granted by themagistrates’ courts are automaticaffy awarded free legal aid.Mthough there has been some improvement in the performance ofmagistrates’ courts, only 54 per cent of the cases examined by theNationfl Audit Office protided adequate etidence of quahfyingbenefit. Improvements in the traiting and guidance for magistrates’courts’ staff involved in awarding automatic free legal aid couldtherefore have a significant impact on enhancing the generalstandard of means testing. New guidance and training needs topromulgate best practice, reiterating that

41

4.4

4.5


.

.

.

.

only receipt of income support, family credit and disabihtyworking allowance automatically qualify an apphcant for freelegal aid. Applications claiming free legal aid on tbe basis ofreceipt of other state benefits should be returned and the

applicant asked to complete a Statement of Means;

adequate evidence should either be a recent letter from tbeDepartment of Social Security confirming receipt of a qualifyingbenefit or a copy of the page of the benefit encasement bookwhich shows the type of benefit paid. Akernatively, benefitentitlement certificates should be considered (pmagraph 2.17).The certificates should he endorsed hy an appropriate official atthe Department of Social Security to guard against the risk offraud;

form UB40S, or other evidence which fails to state the quahf~ngbenefit or amount received, should not be accepted as evidenceof entitlement to free legal aid (paragraphs 2.11 and 2.12);

a system should he in place whereby a sample of free legal aidclaims are cross-checked tith the Benefits Agency on a re~arbasis to confirm current entitlement to free legal aid(paragraph 2.19). Court staff should be tigilant to ensme that

applications which do not protide the National Insurance numberanWor address of the Social Security Office are returned to the

applicant’s solicitor for completion.

Future developments

The proposed introduction of a new benefit payment card from1996, an anti-fraud initiative, will ultimately replace the benefitencasement hook for those claimants paid at post office counters. At

one court visited by the National Audh Office concern was expressedthat magistrates’ courts may find it dlfflcult to cotiwm entitlementto free legal aid as the information on the card itself till be hited.In the National Audit Office examination benefit encasement booksaccounted for 31 per cent of evidence suppfied. It is thereforeimportant that the Department and magistrates’ courts are suitablyprepared for this change and have arrangements in place to ensurethey obtain adequate etidence, possibly by using benefit entitlementcertificates.

The Department are currently liaising with the Benefits Agency, theLaw Society and the magistrates’ courts on issuing guidance tosolicitors on the procedures to be followed for confirming with local

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benefit offices whether an apphcant is in receipt of a quahfyingbenefit (see paragraph 2.19). These arrangements are expected toincorporate a benefit entitlement certificate.

On assessed cases

4.6 Mthough there has recently been some improvement in the overallperformance of magistrates’ courts, further action is necessary toimprove the level and quality of income evidence - currentlyobtained in 85 per cent of cases but only “best” in 41 per cent ofcases. Etidence of outgoings is also obtained in only 21 per cent ofcases, and only 62 per cent of contributions are accurate, Everycourt should seek to bring its standards up those of the best,

4.7 There are two distinct aspects on assessed cases which any revisedguidance should address:

. obtaining the documentary etidence, as required by theregulations;

. calculating disposable income and capital and any contributionpayable,

Obtaining supporting documentary etidence

4,8 Based on the findings from their examination, and taking account ofthe focus group discussions, the National Audit Office consider thatbetter guidance is needed in tbe following areas:

● on the type and quantity of etidence which is acceptable. Forexample, etidence shotid be up to date and provided to supportincome in the previous 3 months rather than earlier periods; andinformation should always be obtained to evidence outgoings;

. on the action which shodd be taken if etidence is not providedwith the application - for example, courts should return deficient

aPPficatiOns and use standard letters to seek outstandingetidence;

. on the extent to wMch court staff should pursue evidence andhow they should properly evidence their exercise of discretion;

● on the proper operation of the regulation whereby courts canrefuse apphcations or set an appropriate contribution if theevidence is deficienc

43

4.9

4.10

4.11

4.12


.

.

.

on the need to return Statements of Means for fufl completionwhere applicants only declare income from a non-quahfyingbenefit;

on the need to request further etidence of capital - for exmple,in cases where applicants declare a second home - in order todetermine whether a contribution from capital should he payable;

on the importance of placing a photocopy of etidence ohttined onthe casefile to enable management and audit to carry out quafityassurance checks.

Potentially “high ris~ cases need to be identified for closer scrutiny.These might include cases involving fraud or deception, applicantswho have an “aura of wealth”, and those who declare outgoings inexcess of their income. The Department’s recent proposals to set upa special investigation unit is intended to deal with these types of“high risk cases”.

Calculating contributions

A number of simple measures are available that would go some wayto improving the standard of means assessments. For example, alegal aid assessment proforma should always be completed, even ifno contribution would be payable, to show how the figures havebeen arrived at. The number of straightforward arithmetical errorsmight be reduced if staff were reminded of the correct procedure forconverting monthly to weekty figures; that contributions shoufd notbe rounded down to the nearest E; and that figures used in theassessment should be those supported hy etidence where thesediffer from those declared hy the appficant.

Additional guidance is also needed in difficult areas, such as thecalculation of net income from business accounts and the

appropriate action in cases where apphcants do not protideevidence of tax deductions. If court staff are expected to carry outdetailed tax calculations, then guidance shoufd be protided.Otherwise gross income should be included in such cases. Achecklist would also be useful to assist staff to identify potentialinconsistencies in the information protided - for example, wherechildren are declared hut no income from child benefit is shown.

Based on the findings from court tisits, and taking account of thefocus group discussions, the National Audit Office consider that,without interfering with the proper exercise of court discretion,better guidance would be useful to help interpretation of theregulations in the following areas:

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4.13

4.14


I

.

.

.

.

the appropriate treatment for different types of outgoings -perhaps providing a fist of allowable and non-allowableoutgoings;

the exercise of discretion to affow a particular outgoing - a briefexplanation should be provided on the casefile of why it was“reasonable in the circumstances”;

action where outgoings claimed are not supported by evidence -for example, returning the apphcation form;

the action to be taken if apphcants declare outgoings whichgreatly exceed their income - for example, seeking furtherclarification of the applicant’s financial circumstances.

Quality assurance checks

Courts will also need to be encouraged to ensure that any revisedguidance is being appfied in practice. Current guidance alreadysuggests there should he a system to check assessments - but thiswas not in operation at all the courts visited. To ensure consistencybetween courts, the Lord Chancellor’s Department and the Justices’Clerks’ Society should encourage courts to specify the nature andfrequency of such checks and record the results and action taken.

Measures to improve means testing

To address tbe main problems identified in Parts 2 and 3- and toimprove the general standard of courts’ means testingarrangements - the National Audit Office consider that the LordChancellor’s Department shoufd consider what action might betaken and encouragement @ven:

. to provide staff who carry out means testing with more detailed,clear and practical guidance (see paragraphs 4.3 to 4.12 above);

. to compfle a local supplement to the main guidance, coveringlocal issues and practices and including arrangements forcross-checking benefit cases with local Social Security offices;

. to ensure that all court staff involved in means testing have the

opportunity to attend relevant training courses;

. to introduce quahty assurance systems for checking the accuracyof contributions on a sample basis and the taking of appropriateremedial action;

45

4.15


. to foster closer links with local solicitors, through the Justices’Clerks, and thereby promote compliance tith the legal aidregulations and avoid undue delays;

● to review their current arrangements for custody cases. Thecourt should have a system to monitor these cases and requestdetails of full means or evidence when applicants are released onbail.

Further action

The National Audit Office have reported the results of each auditvisit to the Justices’ Clerks concerned and have made their overallfindings available to the Lord Chancellor’s Department and internalaudit. Detailed findings and suggestions for action till be madeavailable to the Justices’ Clerks’ Society and the National AuditOffice will discuss with them and the Lord ChanceUor’s Departmenthow these might best be incorporated into revised guidance for themagistrates’ courts.

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Appendix 1

Previous coverage of criminal legal aid bythe Committee of Public Accounts

:wlthstatuto~!requ(rements; ~~le,hasbeen dorres!icegmdance’wa$. r.’’’admlnlstratiowanti more rigorous COMPhaflCe with the re9ulaffons.last issued to Justices’ Clerks in 1984 tb tickle the growing problems of To this end a ghdance circular was issued on 1 April 1992 tocriminal legal aid. Justices’ Clerks. Anew accormffng manual covering the handling of

legal aid applications and the assessment of financial mmtrihrdfmrawas also isarred in 1992.

The Depatiment should introduce strengthened procedures and In addition to the April 1992 circular, the 1992 White Paper “A Newcontrols for the handling of criminal legal aid awards. These should be Framework for Local Justice” contained a range of measmea aimedsupported by effective management information and monitoring al improving efficiency in the magistrates’ coufla’ administration of

systems with a system of periodic spot checks. criminal legal aid, including the introduction of an Irrspectorate andayatemafic performance review. The Legal Aid Board were askad toconduct a feasibility study to determine whether they should assumereapmrsibilify for the grant of legal aid.

The regulafionc should be au~ciently streamtirred and practical to apply Tbe Department would consider whether any improvements could beand should not impose an undue burden on courts m legal aid made, in particular to deal with any practical rfifficulfiea ariaing from

applicants. Ihe issue of fhe April 1992 circular.

The Department has failed to resolve satisfactorily the problem ofinadequately completed Statement of Meana.

Justices’ Clerks are in too many cases faiflng to comply with theregulations, The Depaflmant should monitor closely the performance ofindividual coufla in this reaDect.

Since 1992 fhe Department have taken a number of remedialmeasures including the issue of guidance to magistrate’ cmrtis (aceabove and Figma 2 of the Main Repofl). The Depatimerrt have alsosupported the provision of training to magistrates’ cmrrfa’ staffapeciffcally directad towards compliance with tbe regulations.Recent Internal Amfit work in August 1995 indicatea an improvementin performance but much remains to be done,

Tbe Department will continue to fake all practicable steps to secureevidenca of regularity of expenditure in the grant of criminal legal aidby Justices’ Clerks. Tbe Department are committed to continueregular monitoring of samplea of individual cmrrfa, in order to secureevidence of compliance with the regulations. The Deparfmenf arecmraidering what more might be neceaaary in the contest of theiroverall audit programme,

continued...

47


~T~eDep$arn:rit, may.have FO.rnedn.Sqfenforc!.n, ~~r$v10U31Y{lgdleal: dmil.aCceptable:level$~Depatimerit should; aia’rna~iiofuigeric?cini econsidii lfi~po@biliwOf:legal aid regulations are in fact enforceable. removing the function of granting criminal legal aid from the

magisfrafes’ sorrrfs. While the function remains wifh fhe courts,however, the Department will mainfain their efforts to secureimprovement under fhe current srrsngemerds. The Deparfmanf willconsider all options for ensoring that the regulations are enrorced.

Failure to comply with the regulations should not be allowed tocontinue. The Department must decide whether they can continue toallow Justices’ Clerks to grant ctiminal legal aid, if they are to meet theirobhgafion to safeguard pubtic funds and secure the proprie~ andregularity of expenditure.

The Department had decided in December 1993 fhat the benefits oftransferring the function of granting legal aid fo the Legal Aid Boardwould not outweigh fhe risks to fhe speed and efficiency of thecriminal justice process. Howevar, in tbe Iighf of problems identifiedby fhe Comptroller and Autitor General, options discusced in theGreen Paper Legal Aid - Targeting Need (May 1995) includeremoving the function from Ibe courts and vesting it eifher in fheLegal Aid Board or in contracted suppffera of legal services. ThaLord Cbancellm will make a decision in the fight of responses to fheGreen Paper.

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Appendix 2

Statement of Means form

49

Criminal Legal tid Means Testingin the Magistrates’ Courts

for’~ega~Aid purposes

To apply for criminal legal aid you must complete this form unless you csn prove that you are in receipt of Inwme-basecJobseeker’s Allowance, Income SuppoR, Family Creditor DsabiKty WorMng Allowance and have provided documenta~evidence that you receive one of those benefits when you completed Form 1. (See Section 5 of Form 1 headedYour Hnancial Position).

If you are not yet sitieen, then your mother or father may also be asked to mmplete one. If you have appHad for legalaid for a child of yours who is aged sifieen or over YOUdo not need to fill in this form. Your child should complete it.giving details of his or her own income.

To avoid delay in your application being considered please mmplete the form as fully and carefully as possibleand provide the information and documentary evidence the form requires. If you cannot provide thedocumentary evidence you must explain why at Section 5.

1 Personal Details (please use BLOCK letters)

I

Dvorced U

—

6. “Are you claiming legal aid for a dependent child who is not yet sixteen? VESUIf Yes, give the following details about the child

Surname~:..

NO ❑ (got0secfio”2)

. .. .

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apply, wtite NONE in the space.

AmoulWork Employer’s name Vour Income

and address

Enter gross earnings perweek (before tw andinsurance), includingovetime, wmmiaaion orbonusas. Vou must attachdocumentary evidence ofthe pay you have receivedover the paat 13 weeks.Three monthly or 13weekly pay slips wouldbe the best evidence.

If you are self-employedwrite SELF-EMPLOVED.Show your gmas earningaand attach the mostrecent accounts, showinggross income.

Part time work

Enter gmaa earnings perweek (before t= andinsurance). from any patitime job not includedabova and attachdocumentary evidence.

State Benefits Types of bene

EMoney from property

Enter weekly amounts (before anydeductions) of money from sub-letting a house B

or moms and attach documentary evidence.

Any other income

Plaase give details and weekly amounts andattach d;cumentaV evidence. -

lmporfan~ If the information you have’ given atdetaila of the changes in Section 4 of this form

!celvedIncome of Spouse Official

or Partner use

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Criminal Legal &d Means Testingin the Magistrates’ Comts

ti.%~natiaarfyef~:ls~-fgai~Bi.:;~Gapltala.n@i,sa.yingq::>::.j:?:;;J:.:;:::’:“ ““’.:;.:’::::: :“ .“,’. $:. “‘.. ... “:,, -?:.??.- XYr,%$...<5Y.:W;S?.Y.i.~;?.i.!f.?r,.,,...s~.,<.,<,.~-., . ., ~~.J,t$:, ~ftr;,,, .. ~,$ ,, ,, ,.,.,,, ;):h.&,,.:. ;:2+.. ,.,,-::, .

.,,, ..,;, , .,-F,;;.:,::,,::,.T:: ~ ,. ;, .,),:,:,,, ! ? .,:, . . . . . . . . .. ,., . . . . ~., .,.,. r:.-.>..: ,,.:i$#pl&ase,:glyg.~~@lls;pfall.,ygyr&pltal arid iating~~’if::jou aid.fitiri:g,withyotir”’spouse O; partner you must

‘ ~so’~v6 det~liof:tha’r-eapitaif and aatinga.

Pfopetiy. ●Nota In the questions wMch follow the value of the equity means the sum wtich you would receivefrom the sale of the property after paying the mortgage or other loan on it.

1- Main Dwelfing

Do you or your spouselpaflner own the house or pmpefly You Spouse or Patinerwhich you treat aa your main dwelling? If ao please providethe following information. (Tick appropriate box) YssDNOaYes~N.n

i) What is tha value of the squity’in your main dwslting? D

h) What is your main dwel~ngwoflh now, that is, what is its market value? D

iii) What is ths mortgageon your main dwelhng? D

2- Other Houses or Property

Do you or yourspouselpartner own a house or property other than You Spouse or Partnthe house or prope~ which you treat as your main dwelhng? If so,please provide the following information. (Eck appropriate box) YesDNODYesDNOE

i) What is the value.of the equity.in the hou.se(s)/other properfy? m=

You

T&mSpouse or

Petiner TSsu

N,..u N.1.~2.”Enter the NUMBER of dependanta who are hving with you. If YOUare claiming legal aid for a child,

please include that c~ld. N.B. Dependarrts are the people YOUandyour apouae orpartner look after financially.

‘~orn ~l~~?..ern ?P~~H7D ?~l~;;n ~$1~~ ❑Others (please say who)

I I

::,,,. ,.

~~ “:~.,”.,,~’.,~ ,’.You stiould supply copies ofagttiments or courf orders

52

Crtilnal Legal Aid Means Testingin the Magistrates’ Courts

4. Give the amounts of Council Tw which you and your spouse or patiner pay.

(a) The amount of Council TM paid. You mustprovide evidence of this (eg. thedemand from the local authotify).

(b) la Council T= benefit received?

❑ YES ❑ NO

(please say how much)

m

5. Give the following detaila of housing expenses of you and your apouaelpartner. If you own more than onehouse only give detaila for the house in which you hve. If you are paying the expenaea of a dependent whois not Kving with you, enter the details in the spaces on the tight. You should produce rent books, evidenceof mongage inatalmenta, ana evidence of water and sewerage charges. It ia in your interests to provideevidence of any other expenaea claimed and you maybe requirad to provide ttia.

Rent

Mongage Payment

Ground Rent

Sewics charge

Water and sewerage charges

Board and lodging

Bad and Braakfast

If /week I Amount If /week

If Iweekl

f /week

f /week

‘;pendent(a)=f /week

If Iweakl

f /week

f /week

Your spouseYou or patiner

6, How much does it coat you and your spouee or pannareach w-k totraval to and from work?

mm

7. Give detaila of any otherexpensea which you thinkthe couti should know about.You may include anypayments on coufl orders, andcontdbuiions to approvedpension schemes,but not: money for food,clothing or heating. You shouldproduce documenta~ avidenceof the payments.

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fof,..voi ‘rnusi:tefl the 6urt. Iotti” iari~ ~riforrnafionorto provide futihe[ ptiof of the ‘ih!d!$itio.n ~at~o!:fiave g~v{pj ~, ii; “’””if your finsncisl position changea in any way aftar YOUHaya$!brnjtied t~s f{ ,..,. :..:This is a requirement of the Legal Aid Regulations. ,,... ;’ ...’ “:;,’’!,”.,!.’ .’

I daclare that to the ‘best of .rny knowledge and befief, I havegiyen asomplet~arid Air@ :‘ ;.. :statement of my income; savings and capital (aid that of my spouse or patiner~(and that of my child).’:I authoriae the muti to make such enquitiea of the Benefits Agancy aa it mnsiders nemssaw and Iconsent to the disclosure of information to confim that I am in rtiaipt of benefit.


Appendix 3

Magistrates’ courts tisited by the NationalAudit Office as part of the examination ofcriminal legal aid means testing

BedfordBrentfordBristolChichesterClarOClerkenwellHampsteadtiowsleyLincolnMld-WarwickshireNewcastle-under-LymeNorthallertonNorth East SuffolkNorth West SurreyPlymouth%chmondSedgemoorSevenoaksStratfordTynedale

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Criminal Legal Aid Means Testing

1

2

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in the Magis~rates’ Courts -

Appendix 4

Sampling methodolo~

Statistical sampling approach

Mmost 600,000 apphcations for criminal legaf aid are Wanted eachyear at around 250 magistrates’ cowts. Approximately 70 per centof cases are automatically granted free legal aid because the

applicant is in receipt of one of the qualifying socisd secuitybenefits. The remainder of cases are subject to a fiancialassessment of means.

The National Audit Office adopted a statistical sampbgmethodology to enable conclusions draw horn the sample restits tobe extrapolated to all criminal legal aid apphcations in magistrates’courts in England and Wales. To Wls end a total of 20 magistrates’courts were visited. As separate conclusions were retied for tbetwo types of cases - benefit and assessed - approtiately 30 of eachtype of case were examined at each magistrates’ court.

Tbe four key error types identified were:

. on benefit cases - no evidence of benefit obtained

. on assessed cases - no evidence of income obtained- no evidence of outgoings obtained- contribution inaccurate

Selection of 20 magistrates’ courts

The magismates’ courts were selected on a rmdom basis, sdthoughcourts which interred audit tisited in 1994-95 or planned to visit in1995-96 were excluded. The magistrates’ comts visited by theNational Audit Office are fisted at Appendix 3.

56

Crtilnal Legal Aid Means Testingin the Magistrates’ Comts

Selection of cases for examination

4 A random sample of cases where legal aid had been granted wasselected from the legal aid register at each magistrates’ coort, Mlthe cases selected were assessed in the period 1 May 1995 to31 Jtiy 1995. In total 586 benefit cases and 494 assessed cases wereexamined at the 20 magistrates’ cotis visited.

Extrapolation of results

5 The findings from the 20 courts visited have been extrapolated at a95 per cent confidence intervaL The estimate of the level of error inthe poptiation of all awards of criminal legal tid in the ma~strates’conrts and the associated cofidence intervals are shown in thetable below.

Accumte 59 percent 10 per cent

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Criminal Legal Ad Means Testingin the Ma@strates’ Courts

Appendix 5

National Audit Office focus groups amongstmagistrates’ court staff involved in criminallegal aid means testing

Focus group objectives

In October 1995 the National Audit Ofice commissioned the Centrefor Criminal Justice Studies, University of Leeds to conduct focusgroups amongst magistrates’ court staff involved in means testing.The focus groups explored the problems that staff face in deahngwith applications for criminal legal aid and the extent of consistencyin approach between different magistrates’ courts. The aim of theresearch was to highlight specific problem areas where furtherguidance is required and to identify any examples of good practicewhich could help improve the general standard of magistrates’courts’ performance.

Focus group design and methodolo~

Two focus woups were conducted, attended by 15 experienced courtstaff recruited by Datid Wall in consultation with the National AuditOffice. Participants included representatives from nine of the20 magistrates’ courts visited as part of the National Audit Officeexamination with the remaining six selected from other courts. Each

group discussion lasted around two and a hdf hours and acombination of approaches were used to stimtiate debate includingproblem scenarios that might be encountered during processing

applications for criminal legal aid; self-completion questionnaire onthe acceptabihty of certain allowances: and free tlow discussion.

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Focus WOUpresults

The restits of the focus wmrps cauuot be treated as statisticallysi~ificant. This was a quahtative research study. However, therewas a strong consensus of opinion on many of the issues examinedand the views expressed supported the findings of the NationalAudit Office’s review of means testing arrangements at20 magistrates’ courts. The key findings were:

.

.

.

.

.

.

the general absence of formal liaison arrangements with theBenefits Agency for confirming benefit entitlement on individuallegal aid applications;

the difficulty in obtaining adequate and timely evidence of meansfrom applicants’ sohcitors;

the practical difficulty in monitoring whether appEcants incustody are released on bail;

the need for more comprehensive and standardised training andguidance to assist staff with difficult issues that arise in assessing

applicants’ means - for example in the calculation of net incomefrom business accounts or the treatment of tax and nationalinsurance where only gross income is declared. Such ~idance isalso required to assist court staff in determining which outgoingsare allowable;

the lack of monitoring by the courts of changes in applicants’financial circumstances from that declared on the legal aid

application form, which may affect the amount of contributionthat should be paid;

that visits by auditors have had a si~ificant impact on the waymagistrates’ court staff do their work, for example they wouldnot now rely on UB40 evidence of benefit entitlement, Such visitshave led to courts rethinking how they assess contributions andhave made them aware of the increasing need to justify theirassessments.

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