Review of legal aid for inquests

Inquests offer an opportunity to investigate how a person has died. This process can be traumatic for the bereaved family. But the search to find out what happened is important in helping them to understand and make sense of their loss.

In 2017, in the light of a good deal of public criticism, the then Lord Chancellor, David Lidington MP agreed that there should be a review of the provision of legal aid at inquests. The Report Final report: Review of legal aid for inquests was published in February 2019.

In my view the title is misleading. The Report takes an overall look at the Inquest process. Only 1 of 3 chapters is actually about legal aid. The focus is on process both before a hearing and at the hearing, and the report makes recommendations about amending those processes – which obviously cost little if any money.

Chapter 2 deals with legal aid. In the course of the review, the Ministry of Justice received evidence which pointed to a number of concerns that stakeholders had regarding the provision of legal aid and the role of families in the application and inquests process. In particular, it suggested:

the current legal aid application process might not be fully understood;
there were difficulties in understanding the eligibility criteria for legal aid; and
there were difficulties understanding the types of cases where funding may be available.

The Review also considered the recommendation to expand the provision of legal aid for certain types of cases – such as death in custody cases, and cases where the state are represented. This is the big-ticket item as it in those, often very controversial cases, where there can be a significant inequality of arms as between the parties to the inquest.

In relation to this point, however, the Review concludes:

Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.

So no big change. The Government says it will look at the information it gives to families. In order to address difficulties with the application process, the Government states it will look at the procedure for claiming under the Exceptional Case Funding Scheme to ensure it works as effectively as possible. It also states it will be introducing a provision for the backdating of the legal help waiver, so that all such payments can be backdated to the date of application should a waiver be granted. But these cannot be said to be substantial changes.

Given the overall approach to funding legal aid, following its Post-implementation Review of the 2012 reforms to legal aid (see this blog 8 March 2019) this conclusion is not unexpected. Nonetheless, it will be very disappointing to those who have to cope with inquests, particularly where there are significant evidential disputes as to what happened.

The Report can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf

A press release is at https://www.gov.uk/government/publications/review-of-inquests