Means testing in the magistrates' court: a clarification

Since we publishing this brief in December, there has been a written exchange of views between the Department for Constitutional Affairs and ourselves about this analysis. We have looked very closely again at that analysis, and how we have written it up. Having done that, we remain completely confident that our analysis and arguments are sound; however, there are places where the presentation could be clearer. This note therefore seeks to provide clarification, with regard to two points, namely:

• The example of the lone parent who is not eligible.
• Our estimates of the overall proportions of the adult population no longer eligible.

The lone parent

The essential point is that a lone parent, working 40 hours a week at the minimum wage and with one child aged 10, is close to the eligibility line. In other words, small changes in one or more of a number of factors could take them across this line in either direction. More specifically:

• On the ‘initial’ or ‘gross’ income test, this person has just too much income to qualify automatically for legal aid. As a result, their eligibility depends on the outcome ‘full’ or ‘net’ income test.
• After deducting the income tax and national insurance paid, as well as a living allowance of £7,320 (this being the £5,304 for an individual ‘factored up’ in accordance with the DCA’s estimate of what a parent and 10 year old child together need to live on), this leaves a sum of about £4,000 a year.
• Eligibility then depends on whether housing costs, council tax, childcare and maintenance payments are greater (in which eligible) or less (in which case not) than this £4,000. If there is no childcare or maintenance payments to make, average rent and an average band B council tax bill for a single person produce a total just under £4,000 – hence ineligible.

This is our point: not that all parents working full time at the national minimum wage are ineligible, nor even necessarily that most are, but rather that some are - and all they have to have are what can reasonably be called ‘ordinary’ housing costs.

The overall estimates

The essential point here is that when we talk about ‘three quarters’ of adults in working households being ineligible, or ‘half’ overall, what matters for our argument is the overall order of magnitude, not the precise percentage or number.

There are three reasons for this: first, because our information on housing costs may not be exactly the same as that which would be used by the DCA; second, because we do not have the information on childcare costs or maintenance payments by household; and third because all such statistical estimates have an inherent degree of uncertainty about them. The first two points were made at the time in our technical appendix while the third always applies.

To reflect this, we now think it is preferable to use the phrase ‘around a half’, or more cautiously ‘up to a half’, when describing the proportion of households who are ineligible. Similarly, it is ‘up to three quarters’ of adults in working household who are ineligible.