Government Consultation on Legal Aid for Families at Inquests
Introduction
The availability of legal aid for bereaved families in inquests is a hotly debated topic that has been the subject of many reviews[1]. This debate led to the Government conducting a review of the current position, which was published in February 2019. The full report can be accessed here.
To address concerns as to whether means testing should remain for all inquests, and that the legal aid system is impenetrable for families, the review covered three main areas:
- The initial stages of the inquest process;
- The legal aid application and its availability; and
- The inquest hearing itself.
The Review
Initial contact with the inquest process
In response to the issues faced by families in understanding the support and financial assistance available to them at an early stage in the inquest process, there will be more accessible, user-friendly information created: (1) a new version of the ‘Guide to Coroner Services’ to be published in spring 2019 will be “shorter, simpler and focused on the needs of bereaved families”; (2) support services will be clearly signposted, and various information leaflets will be produced, breaking down complex topics such as post-mortems; (3) a separate guide on legal aid will be created; and (4) court staff will be trained in how to appropriately engage with bereaved families.
Legal aid for inquests
Seven areas of concern were identified:
- Legal aid for inquests that will engage Article 2[2].
- Representation in cases involving the “wider public interest”.
- Representation where the State (a public body) is represented.
- A review of the financial means assessment.
- Application of the means test.
- Legal aid for other costs incurred during the proceedings.
- Practice by the Legal Aid Agency.
Of these concerns, they fall into two main areas: (a) whether means testing should be removed for certain cases; and (b) the complexity of the application process.
Means testing
There have been calls for removing the means test entirely. It is a difficult and time-consuming process, designed to be completed by lawyers, and families are often applying for legal aid at a time where they are under the emotional strain of bereavement.
Failing the total removal of the means test, the consultations conducted, and previous reviews[3] call for the removal of the means test in certain cases:
- Death in custody cases;
- Article 2 inquests;
- Where the criteria are met for a waiver of the means test by the Director of Legal Aid Casework (‘DLAC’); and
- Where public bodies are represented in the proceedings[4].
The report makes no formal conclusion on the first three points. There is an upcoming “review into thresholds of legal aid entitlement”[5] where these issues will be explored. In relation to the fourth point, the proposal has been rejected. The MoJ is of the view that further lawyers will only complicate proceedings, making them more adversarial, and the increased cost is an estimated £30-70 million[6].
What has changed, is that the DLAC’s discretion to waive the means test requirement has been broadened, with new factors to be considered in determining an application, including the abilities of the applicant (learning disability, mental health, family circumstances). Further, the option to “backdate” funding where a waiver is granted will now apply to both representation at inquest hearings and to legal help sought prior to any hearings– the funding will be backdated to the date of the application.
Complexity of the process
Legal aid can currently be granted, regardless of means, where the “wider public interest” test is met. Section 10(5) of LASPO provides that this is where representation “is likely to produce significant benefits for a class of person, other than the individual and the members of the individual’s family”. This is a legal test and often families will not understand when it may apply.
Regarding Article 2 inquests and funding, the issues raised were that: Article 2 issues often did not arise until later in the proceedings (by which time the legal aid application must have been made); the criteria ignore cases that may have complex legal and medical issues; that the process of applying for legal aid is long and likely to be unsuccessful; and that to seek to argue that Article 2 is engaged is itself a technical legal argument.
The report concluded that many of these concerns were an incorrect reflection of the true position. Therefore, the solution is to make guidance on applying for legal aid clearer, including a description of the “wider public interest” test, explaining that funding can be backdated when Article 2 becomes engaged, and that a further application can be made if necessary. The Lord Chancellor’s guidance has been clarified, to the effect that where Article 2 rights are engaged the presumption is that legal aid will be granted.
Issues were also raised that other costs should be covered by legal aid – specifically costs of attending the hearing (travel and accommodation) and costs of instructing an expert. There were also calls for a review of the provision of legal aid for more than one family member in one inquest. The MoJ concluded that the existing processes are sufficient and thus no changes will be made. There was also a concern that the language in refusal letters from the Legal Aid Agency (‘LAA’) appeared “copy and pasted” and were drafted in legalese. Again, no change will be made as there is mandatory information to be included in such correspondence.
The inquest hearing
Lastly, the MoJ reviewed concerns around the inquest hearing itself. Namely: (1) that inquest hearings are becoming more adversarial; (2) that there are inconsistent approaches to cases between Coroners, in particular with sympathy shown to family members; (3) that there is a lack of support for families during the process, and (4) that the layout of courts does not support families (eg. there are not separate waiting rooms).
Other than increased training for Coroners in dealing with inquests in a way that is sympathetic to families, and in controlling the conduct of lawyers more efficiently, the review found that there is little that can be done to change things.
There are inherent difficulties with enforcing training or accreditation on lawyers for fear of deterring advocates from inquest work, and the layout of the courtroom is not something for the Government to mandate. However, attempts will be made to expand the “Coroner’s Courts Support Service” to all Coroner areas, and guidance documents will be created for those partaking in inquests to adhere to, in order to improve the process for families.
Conclusion
In conclusion, there will be no significant changes to the legal aid scheme and its eligibility criteria. The changes will “improve” the system rather than “revolutionise” it[7]. The upcoming review of legal aid eligibility thresholds and the report on the Independent Public Advocate (‘IPA’) – whose role is to support families following major disasters and the subsequent investigations – are eagerly awaited.
Hannah Thomas
[1] See: Dame Elish Angiolini’s Independent Review of Deaths and Serious Incidents in Police Custody (October 2017); Commission on Access to Justice, Lord Bach (September 2017); Bishop James Jones’ review of the experiences of the Hillsborough families (November 2017) and the Chief Coroner’s Third Annual Report to the Lord Chancellor (November 2017).
[2] Of the European Convention on Human Rights.
[3] See Dame Elish Angiolini’s review.
[4] See the review of the experiences of the Hillsborough families conducted by Bishop James Jones.
[5] See the “Legal Aid Support Plan”.
[6] No time period for this cost is given.
[7] Words used by the report.
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