Last summer the Supreme Court declared that employment tribunal fees were unlawful because households on low incomes were expected to sacrifice an acceptable living standard to afford legal costs.
The same effect is being meted out by an excessively restrictive formula that determines whether someone is entitled to civil legal aid.
Law Society president Joe Egan said: “No-one in modern society should have to choose between accessing the justice system and a minimum living standard.”
“The financial eligibility test for civil legal aid is disqualifying people from receiving badly needed legal advice and representation even though they are already below the poverty line (defined as 60% of median income).”
He was speaking on the publication of a new report commissioned by the Law Society and produced by Professor Donald Hirsch of Loughborough University.
The report finds that people on incomes already 10% to 30% below a minimum living standard are being excluded from legal aid.
The Law Society is asking the government to restore the means test to its 2010 real-terms level, and to conduct a review to consider what further changes are required to address the problems exposed by this report.
Joe Egan said: “This report is hard evidence that people with less income than they need, some below the poverty line, are unable to get the help that they need through legal aid in order to access justice.
“The position has been getting progressively worse because the means test thresholds have been frozen since 2010, while the cost of living of course has not. Action is long overdue.”
Further hardship is caused by the fact that, even for people on the lowest incomes who rely on means tested benefits, there is a capital means test which treats the equity in their homes as funds available towards legal costs.
Joe Egan added: “We are calling on the Ministry of Justice to review the means testing regime in accordance with their obligations under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). We are also asking that they exempt those on means tested benefits from capital assessment.”
Professor Hirsch said: “Millions of households in Britain today struggle to make ends meet, even when they include someone in work, often because of part-time, low-wage or irregular earnings. Yet in general, the legal aid system requires working people to pay their legal costs, either in full or by making a contribution that low earners would find hard or impossible to afford.
“Those who are out of work are generally covered by legal aid but may be excluded if they own their homes. The assumption that someone could sell their home to cover a legal bill is out of line with other forms of state means-testing – such as help with care costs, where the value of your home is ignored if you or your partner still live in it."