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Fees remission – lack of consultation times raises real concern

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Planned Government reforms to the subsidy system which ensures access to justice for all fee-paying users of courts and tribunals have met with strong criticism from the Employment Lawyers Association (ELA), an apolitical organisation whose 6,000 lawyers represent both employers and employees.

ELA is concerned that the Ministry of Justice (MoJ) allowed barely a month’s consultation on sensitive measures which seek to balance reducing costs to taxpayers with ensuring that those who cannot afford to pay can still have their day in court or before a tribunal. Michael Reed and Paul Statham who jointly chaired the ELA Working Party which responded to the consultation said ELA had concerns on many levels, not least that the short response timeframe severely limited ELA’s ability to examine all issues raised.

The main Government proposals are for: A single fee remissions (waiver) system across civil courts and tribunals, including the UK Supreme Court; Amendment to the benefits which will be accepted as proof of entitlement to a fee remission, to account for the introduction of Universal Credit; Introduction of a disposable capital test to the eligibility criteria; Removal of a qualifying benefit for “Working Tax Credit but not also in receipt of Child Tax Credit”; Introduction of a single tapered income assessment to replace certain existing criteria currently used in most courts; Reduction of the time period in which to apply for retrospective fee remission from six months to two months.

In response, ELA says employment lawyers are concerned About the fairness of a system that sets disposable capital limits different to the means assessment for legal aid; That the disposable capital test does not take account of the very short (three-month) limit in most employment tribunal cases and that claimants are likely to be lodging claims when their financial circumstances may be changing drastically and about the practical difficulties around the proposed evidence requirements for capital and income, given the short timeframe involved.

ELA believes that Government has underestimated the resource issues related to processing applications, fearing this could lead to delays and satellite litigation. It also foresees practical difficulties arising from the proposal that household means is used to assess eligibility criteria. “The consultation raised important issues with far-reaching ramifications. It is deeply disappointing that so little time has been allowed for full, quality feedback from those of us who will have to deal with the practical fall-out stemming from any changes,” said Michael Reed. “We foresee a number of problems emerging if current proposals are pushed through as they stand, among them that there will be adverse equality impacts especially for older workers, which is just one of the areas that could spawn legal challenges,” added Paul Statham.

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