Equality impact assessment: civil fees proposal

NICS consultation

July 2007

1.  Introduction: About Law Centre (NI)  

1.1 Law Centre (NI) is a public interest law non-governmental organisation.  We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland .  We provide a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: mental health, community care, immigration, social security and employment to almost 500 member agencies.  Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.   

1.2 Law Centre (NI), a limited company and a charity, operates under a waiver agreement with the Law Society of Northern Ireland, allowing it to employ solicitors. The company directors of the Law Centre are members of its management committee, which is elected by its membership, together with some appointed members.  Law Centre (NI) legal advisers consist at present of eight solicitors with Northern Irish practising certificates, five employed barristers who previously practised in England or in Northern Ireland , three specialist advisers who are not legally qualified and a para-legal.

1.3 Law Centre (NI) made submissions in respect of the consultation on Proposals for Revision of Fees for Civil Business in November 2006 and are pleased to have the opportunity to respond to this further consultation.  We broadly welcome the Equality Impact Assessment we have made some general comments in response and address some of the questions which were posed for consultation.

2.  General Comments

2.1 Providing there is no adverse impact on access to justice, we recognise that it is important to reduce the deficit between the cost of civil business and the fees imposed.  We welcome the decision to undertake a full equality impact assessment (EIA).  An EIA on the matter of civil fees is appropriate given the wide-ranging impact of any changes to the current system.  It is important, therefore, that any potentially adverse impact is recognised and addressed prior to implementation of any new fee structure.

2.2 We are concerned by the level of rises in some of the fees proposed by the initial consultation and referred to again in the EIA.  These are significant increases and we are concerned that the levels of fees set for some civil claims may limit access to justice for particular groups of people.  We would question whether some of the proposed increases represent a proportionate response to the objective to the realised, to address the deficit level between the costs of civil business and the fees generated.  Where there is a significant increase in the level of fees, it is important that there is flexibility to depart from the general principle of payment of fees in advance and permit payment by instalment.

2.3 The small claims court has been an important vehicle for accessible resolution of disputes.  While the increases in fees in the small claims court are modest in terms of the amounts, even small increases in costs may amount to a significant financial burden for some groups of people.  It may be argued, therefore, that consideration should be given to freezing the fees in relation to applications for small claims and the resource deficit in respect of the work of the small claims court met by the projected overall increase in costs for all civil business. 

2.4 We were encouraged by the summary of responses to the initial consultation paper and the decision by the Court Service to alter some of the proposals.  In particular we welcome the decision to not proceed with proposals to introduce an adjournment fee at this time and the reduction of the proposed £57.50 fee for an application for payment out of minor’s funds to £15.

3.  Specific Questions

Q1 Are there any other data that might be drawn upon to help us assess the equality impact of the policy?

3.1 While we welcome the consideration of Bulletin 5 May 2005 from the Poverty and Social Exclusion Project – Household and Individual Characteristics of those in Poverty as part of the data collection.  Consideration should also be given to more recent findings by the Joseph Rowntree Foundation in its report, Monitoring Poverty and Social Exclusion in Northern Ireland 2006.  As Law Centre (NI) and many of the other initial consultees were predominantly concerned with the poverty impact of the increase of civil fees, this report provides valuable information which may further assist with the assessment of the equality impact on people in Northern Ireland .

Q2 Do you agree with the conclusions of this equality impact assessment in relation to the positive and adverse impacts identified?  If not, what alternative conclusions would you draw from the data?

3.2 Law Centre largely agrees with the conclusions of the EIA in relation to the positive and adverse impacts identified. 

Q3 Do you agree that the measures proposed at 6 and 7 above would mitigate or eliminate the potential adverse impacts identified?  If not, what alternative measures would you suggest and why?

3.3 We are pleased that applications arising from domestic violence related matters will be taken out of the charging regime altogether and that arrangements will be put in place to ensure that where a person has more than one surname a separate fee will not be taken on any search against each name.  The introduction of a 50 per cent subsidy for fees pertaining to family and child legislation for the first full year is welcome, however, care needs to be taken to ensure that proper monitoring of the costs and impact of this policy occurs.  The policy must be and re-evaluated prior to the end of the first year rather than allowing for an automatic withdrawal of the subsidy. 

3.4 The EIA makes reference to the administration and granting of civil legal aid.  Given that the focus of our work is on promoting social justice, we strongly support the principle that fees should not prevent access to justice and should make appropriate provision for litigants of modest means.  It must be noted that the financial eligibility test for legal aid has not kept pace with inflation and consequently, the proportion of the population eligible for legal aid has considerably reduced over a period of years.  Less than one in four of the population qualify for full civil legal aid based on their income and capital.  In addition, the requirement for a great number of those eligible for legal aid to make an individual contribution to legal costs can create further hardship for those pursuing a claim.  For example, a lone parent with two young children working 30 hours a week on the minimum wage and claiming tax credits will now have to pay a contribution towards legal aid well in excess of £1,000.

3.5 For those just above the legal aid eligibility threshold, it is important that the possibility of proceeding to litigation, as necessary, should remain open.  We note the comments on the circumstances in which an exemption from paying a fee can be granted.  The power to remit fees in exceptional circumstances involving hardship is important and it is vital that the link between exemptions and receipt of particular benefits is kept under review to take account of any change to the nature of entitlement or benefit. 

3.6 We welcome the commitment to issue guidance to staff on the application of the remittals policy.  Although this power already exists in the fee orders, as stated in the EIA, this power is little used.  Increased staff training on this issue and the provision of appropriate information and guidance to applicants will help to ensure that staff and applicants are aware of the application of the remittals policy prior to the fee orders coming into force, which will greatly benefit many applicants.  We also welcome the recognition of the need for a speedy decision making process and the option for fast tracking of emergency applications in applications of this nature to ensure that access to justice is not delayed.

3.7  As previously stated where there is a significant increase in the level of fees, it is important that there is flexibility to depart from the general principle of payment of fees in advance and permit payment by instalment.  We would, therefore, welcome proposals to allow for the payment of fees by instalment as this will assist those who have limited resources available to pay the fees in one lump sum and will ensure that those in section 75 groups who are likely to suffer adverse impacts in assessing the court system have some level of assurance that the costs will not be unduly onerous. 

Q4  Do you have any other comments of the equality impact of the policy?

3.8 No

4.  Conclusion

4.1  While we recognise the imperative to reduce the current deficit between the overall cost of civil business and the fees paid for same, we believe that promoting access to justice must be the overriding consideration informing the approach to any increases in the fees for conducting civil business.

4.2  Law Centre (NI) welcomes the opportunity to respond to this consultation paper.  We trust you will find our comments helpful.  If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.