Centre for Research in Social Policy

School of Social, Political and Geographical Sciences

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Using the Minimum Income Standard as a criterion for fair access to justice has profound implications for its status as a national standard

Today, the Law Society is publishing my report that asks a simple question about the way people are assessed for eligibility for civil legal aid. Can those denied full legal aid because of their income afford to pay for their own legal advice and services?

The criterion for considering affordability is whether such costs can be paid for while still maintaining a minimum acceptable standard of living, as defined by the general public in our Minimum Income Standard (MIS) research. The report finds that, following years of cuts, the means test is now imposed at a point where disposable income already falls below this standard, even before paying legal costs, and that therefore paying for legal services would leave someone drastically short of what they need for an acceptable standard of living.

I was commissioned to write this report not as an academic exercise but because of an important legal development. Last year’s Supreme Court judgement on fees for employment tribunals ruled that it was unreasonable for the government to charge these fees for workers in dispute with their employers, without an adequate system to help people cover them if they could not afford to do so out of their own income. The court was explicit in saying that people should not be required to sacrifice “ordinary and reasonable expenditure”, as identified in the MIS research, in order to access justice. As a consequence, the employment tribunal fees were withdrawn.

In the Law Society’s interpretation, this precedent establishes a common law principle that people should not have to choose between an acceptable standard of living and access to justice. The existence of MIS allows adherence to this principle to be measured against a quantified standard, which has been endorsed by the highest court in the land.

Objectively, the very existence of legal aid suggests that the government agrees that people without the financial means to access justice should be helped to do so – albeit in a restricted range of legal areas, when it comes to civil law. In the same way, the existence of a benefits safety net implies that people who do not have anything else to live on should be afforded some basic standard of living. Yet in both cases the threshold of assistance has been falling, since rates have been frozen in cash terms (and thus declined in real terms as a result of inflation) – since 2016 for benefits and since 2010 for legal aid. This erosion of previous entitlements underlines the need for an objective standard to determine what is a reasonable minimum.

We are now seeing MIS being accepted as a standard in a wide range of areas affecting policy and practice. As well as these areas related to the law, it is the basis for calculating the Living Wage , as endorsed by the Living Wage Commission, and for a wide range of charities in assessing how to target resources helping people in financial need. It is also being used experimentally to set living rents. The Scottish Government is planning to use it in measuring and addressing fuel poverty The more it is used, the more it is accepted as the recognised national standard of how much income people need as a minimum. This is not just because there are no other standards performing this function, but also because people value its evidence-based rooting in public consensus, drawing on regularly updated research.

The legal applications of MIS have also caused me to reflect on how important it has been to develop income standards in the present era. When we first planned the research over a decade ago, we saw it largely in terms of ensuring that everyone was able to keep up with rising living standards in a way that did not detach them unreasonably from the rest of society. As living standards stopped growing, MIS has become more about whether people at the bottom are losing ground. People with the least power have done badly in many ways, which did not start with the financial crisis – ranging from a long-term widening of pay inequalities to an erosion of tenants’ and workers’ rights. Initiatives such as the Living Wage have made considerable progress in stemming and potentially reversing some of these trends. Applying a legal principle of stopping low income from making justice unaffordable would be another huge step in this direction.

 

 

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