Scottish Court Fees Scotland 2018-2021 consultation: equality impact assessment
An equality impact assessment (EIA) looking at possible impacts of new court fees due to come into effect in April 2018.
Equality Impact Assessment Record
| Title of policy/ practice/ strategy/ legislation etc |
Consultation on Scottish Court Fees 2018-2021 |
|
|---|---|---|
| Minister |
Annabelle Ewing |
|
| Lead official |
Walter Drummond-Murray |
|
| Officials involved in the EQIA |
Name |
Team |
| Gery McLaughlin |
Courts Team |
|
| Directorate: Division: team |
Justice: |
|
| Is this new or revision to an existing policy? |
Revision to existing policy |
|
Screening
Policy Aim
The Scottish Government published a Consultation on Court Fees in October 2017 [1] The proposals consulted on were for increases of court fees to take account of projected inflation for the next three years. In addition it departed from the inflation only rises in a few cases and made relatively minor amendments to fee narratives in order to improve consistency and take account of the experience of a number of court reforms that have been introduced in the two years. The consultation closed on 12 January 2018 and this EQIA has been updated to take account of the responses. It is an update of the draft EQIA that was published alongside the consultation.
As a result of the consultation the final proposals have been revised so:
- Raise the level of income that can be earned whilst still qualifying for the social security related court fee exemptions.
- Introduced a new exemption for those in receipt of emergency welfare funds
- Introduced new exemptions for those applying for civil protective orders related to domestic abuse
- Raised the value of claim at which the lowest level of court fee applies.
The policy contributes to the Scottish Government’s Wealthier and Fairer and Safer and Stronger objectives, through the following national outcomes.
- Our public services are high quality, continually improving, efficient and responsive to local people’s needs;
- We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others; and
- We live our lives safe from crime, disorder and danger.
Whom will it affect?
The fee proposals will have an impact on all court users not in receipt of exemptions. Currently, those persons in receipt of civil legal aid, passported benefits and Working Tax Credit (including child tax credit, or the disability element, or the severe disability element) with gross annual income of £16,642 or less are exempt from paying court fees. This figure has been raised to £18,000 under the revised proposals which is the level of the Scottish Living Wage.
In considering the impact of the inflationary fee increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by race, religion or belief, disability, age, caring responsibilities, gender or sexual orientation typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups do not suffer particular disadvantage and so the Scottish Government considers that they would not be discriminated against as a result of inflationary court fee increases.
For persons who are not eligible for exemption from fees, if they are the successful party in civil litigation they will be entitled to have court fees and other outlays reimbursed to them by the losing party. In some cases, pursuers (claimants) may not in practice have to pay court fees because a law firm or claims management supporting them, or a trade union backing them, may be in a position to pay the fees. Further, the Scottish Government proposes in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill [2] that a pursuer using a “success fee agreement” (broadly, a no-win-no-fee agreement) should not be liable to make any payment for court fees or other outlays and that the cost of these should be borne by the provider. The Bill also provides for a form of class action to be known as group procedure which would mean that in the case of multi-party litigation, instead of multiple claims each bearing court fees there would be a single action. [3]
Environmental
There is nothing to suggest that there would be a particular environmental impact from these proposals albeit many environmental groups are concerned about the cost of bringing actions to the courts and Scotland’s compliance with its obligations under the Aarhus Convention (The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) to promote environmental justice. One respondent to the consultation pointed out that Scotland has been found to be non-compliant with the convention by the official compliance committee although in response the Scottish Government would note both that the committee acknowledged the progress in Scotland to date and the on-going work of the Scottish Civil Justice Council in this area.
Rural Impact
The proposals increase fees that would be charged by court services across Scotland and so do not impact disproportionately on rural communities.
Enforcement/Sanctions/Monitoring
Nearly all fees are paid for in advance of the service so the sanction for non-payment is that the service will not be performed. The proceedings may be dismissed if the fee is not paid.
What might prevent the desired outcomes being achieved?
No factors that might prevent the desired outcomes being achieved have been identified. However, the projected income generated by the proposals is based on assumptions regarding case levels. If numbers and cases decrease this would affect the levels of cost recovery. The Scottish Government is mindful that court fees must be set in consideration of the impact upon access to justice. Put simply, it would be unwelcome if fees are set at a level that discourage potential litigants with meritorious claims from bringing their cases to court to vindicate their rights (although there are arguments that it may be desirable for some types of action e.g. low value claims to be determined by alternative dispute mechanisms or otherwise settled without court action).
Stage 1: Framing
Results of framing exercise
This impact assessment is intended to accompany the proposals on which consultation took place. It takes into account the equality impact assessments published for the Courts Reform (Scotland) Bill [1] and the assessment conducted for the Court Fees (Miscellaneous Amendments) Order 2016. [4] This is particularly pertinent to the fees orders relating to the new courts established by the 2014 Act:
“In relation to the civil court reforms (e.g. national personal injury court; Sheriff Appeal Court) these issues were considered when the Courts Reform Act was being developed. Overall, the Equality Impact Assessment on the Courts Reform (Scotland) Bill found that none of the groups with protected characteristics would suffer disproportionately as a result of the interaction of the measures in the Bill with their protected characteristic.” [5]
The Scottish Government fully considered access to justice issues such as affordability for court users when developing proposals to increase fees. Factors such as affordability and the level of fee in relation to the value of claim have historically been taken into account when setting fees.
A particular factor to be considered since court fees were raised is provided by the recent UK Supreme Court Judgement in Unison v Lord Chancellor [2017] UKSC 51 regarding fees charged for access to the Employment Tribunals. That judgment concluded that the particular fees charged in that tribunal were an unlawful barrier to access to justice but held that fees were in principle a permissible method of funding and operating the system of courts and tribunals. The Court also held that the Employment Tribunal fees were indirectly discriminatory under the Equality Act 2010, putting women at a particular disadvantage.
The consultation noted that the Scottish Government is carefully considering the judgment and believes that maintaining access to justice must be a paramount consideration in developing and revising fee charging regimes such as the system for court fees.
Further, the Scottish Government considers it vital that the extensive system of exemptions is maintained and special consideration is given to the parts of the court system that might give rise to particular concerns about access to justice for vulnerable people such as women seeking civil protective orders.
These considerations have always played a part in the setting of court fees. For example the last fees order in 2016 largely protected fees for divorce from increases. Evidence suggests that divorce fees are more often paid by women and fees can be particularly onerous for women who are leaving abusive relationships. In addition the 2016 order protected fees in the Sheriff Personal Injury Court as the cases in that court may often involve vulnerable people. The revised proposals go further and provide additional support by removing a number of orders related to domestic abuse from the court fee structure for those who are just using the courts for that specific purpose.
Environmental
There is nothing to suggest that there would be an environmental impact from these proposals beyond the issue about the bringing of Environmental actions noted above.
Rural Impact
As the proposals are to increase fees charged by court services across all of Scotland, both those living in urban and rural areas will be affected in the same way. There will be, therefore, no particular impact on rural communities. It is worth noting however that since the last fees order the Scottish Land Court has become part of the Scottish Courts and Tribunal Service and therefore falls under the current consultation. The Land Court deals with cases of particular impact on rural communities. The consultation recognises that the Land Court fees have not changed in a number of years but does not propose any changes at this time.
Extent/Level of EQIA required
The consultation was reviewed by range of consultees. Those who responded to previous consultations include those who are directly involved with the legal process such as legal professionals and organisations in the justice system. Additionally organisations with an interest in legal issues through their concern for the welfare of the public in general or specific groups of people have typically responded as have a number of individuals who with an interest.
The consultation asked:
Are any of the proposals likely to have a disproportionate effect on people or communities who face discrimination or social exclusion due to personal characteristics? If so, please specify the possible impact?
The Scottish Government is better informed on equality issues as a result of the response to the consultation as well as to the previous consultation which concluded on 12 October 2016. In particular, a response was received to both consultations from the Equality and Human Rights Commission which highlighted the potential for decline in numbers of equality and human rights legal challenges as a result of higher court fees. In fact, based on the responses to the recent consultation, as well as previous consultations , the group that is most likely to be affected by the proposals is that of those on incomes just above the level that would qualify for exemption. However, looking at the fees regime in totality there is no data to suggest that any of the protected groups would appear to be disproportionately affected albeit some of the detailed responses that are listed in the tables below do raise some particular scenarios where disproportionate impact may arise.
The issue of court fees as part of the cost of court actions needs to be taken in context. In most cases the court fees form a small proportion of the cost of legal proceedings and, as mentioned, a successful party in civil litigation will be entitled to have court fees paid by them reimbursed by the unsuccessful party. Further, through the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill the Scottish Government hopes to increase the availability and attractiveness of success fee agreements so that many pursuers will not have to pay up front court fees in practice.
No further impact assessment is considered necessary beyond this revised EQIA. However, the Scottish Courts and Tribunals Service ( SCTS) will continually monitor cost recovery from the courts. In addition, there will require to be a comprehensive review of court fees in in the years to come. This will be informed by the data available from the newly operating Integrated Case Management System recently launched by SCTS and by an assessment of the impact of the court reforms such as the new Simple Procedure. In addition the revised proposals that relate to domestic abuse will be carefully monitored to ensure that they are correctly targeted.
Stage 2: Data and evidence gathering, involvement and consultation
| Characteristic |
Evidence gathered and strength/quality of evidence |
Source |
Gaps identified and action taken |
|---|---|---|---|
| Age |
Neither the Scottish Government nor the SCTS collect specific information about the age profile of people who make use of the civil courts. However, results from the Scottish Crime and Justice Survey ( SCJS )suggest that 21% of adults said that they had experienced at least one civil law problem in the last three years for which data is available. The SCJS gives a breakdown of these adults experiencing a civil law problem by age band: 16-24 (18%), 25-44 (29%), 45-59 (24%), and 60+(11%). This is a reflection of the numbers in each age band taking such action. In addition, there are a significant number of cases proceeding through the civil courts each year involving families and children, giving some insight into the number of children which might be affected by civil law issues. Age evidence The following statistics are from the Scottish Government Civil Justice Statistics in Scotland, 2015-16 and are the most recent available. They give a breakdown for the sheriff courts and the Court of Session. Sheriff courts
Court of Session
The report “Is Scotland Fairer” [6] produced by the Equality and Human Rights Commission in 2015 stated that “some groups – including children, disabled people and ethnic minorities – were significantly more likely to live in relative poverty AHC [after housing costs] than others. ‘Relative poverty’ was defined as “households who are living on less than 60% of the median income for Scotland, after housing costs”. |
Scottish Crime and Justice Survey 2014-15 (section 9.3, p.93) is the main section relating to civil law in the main findings report) [7] The Scottish Government Civil Justice Statistics in Scotland, 2015-16 [8] The Scottish Government Civil Justice Statistics in Scotland, 2015-16 |
Persons of any age can be affected by civil law issues and people of all ages benefit either directly or indirectly from efficient and fair access to the civil courts. No specific gaps have been identified. |
| Disability |
The Scottish Household Survey 2014 [9] shows that about one-fifth (22%) of households in Scotland contain at least one person with a physical or mental health condition or illness lasting or expected to last 12 months or more. This figure covers all members of the household including children. As would be expected, households comprised of older people are more likely to contain someone with a long-term condition compared to other types of households. The Scottish Government does not hold information on the proportion of people involved in civil litigation who have disabilities. The Scottish Court and Tribunals Service ( SCTS) Court User Satisfaction Survey 2015 [10] , indicated that only 2% of court users self-reported as having a long-term illness or disability. However, prevalence of civil legal problems and disputes is higher for disabled people at 30% as opposed to 21% in the general population. In addition, only 39% of disabled people had solved their most important/only problem whereas 52% without a disability had succeeded in resolving their most important/only problem. The report “Is Scotland Fairer” [11] produced by the Equality and Human Rights Commission in 2015 stated that “some groups – including children, disabled people and ethnic minorities – were significantly more likely to live in relative poverty AHC [after housing costs] than others. ‘Relative poverty’ was defined as “households who are living on less than 60% of the median income for Scotland, after housing costs”. |
Scottish Household Survey 2016 The Scottish Courts and Tribunals Service Court User Satisfaction Survey 2015 Scottish Crime and Justice Survey 2014-15 |
In 2012, the Welfare Reform Act and the Welfare Reform (Further Provision) (Scotland) Act 2012 gave the Scottish Ministers powers to manage some of the changes arising out of the UK Government’s legislative changes, such as preserving Scots’ entitlements to “passported benefits” such as legal aid and court fee exemptions. UK benefits are widely used in Scotland to inform decisions about exemptions from court fees and to passport people onto eligibility for free legal aid. For example, if a person is in receipt of income support then they are automatically eligible to be exempt from paying court fees. The introduction of Universal Credit - the key feature of the UK Government's welfare reform - will see the abolition of all the UK benefits currently used to passport people onto other Scottish benefits. Universal Credit is a new single benefit will replace a range of existing means-tested benefits and tax credits for working age people and bring together different forms of income-related support to provide a simple, integrated, benefit for people in or out of work. It will consist of a basic personal amount with additional amounts dependent on personal circumstances. Universal Credit started is being rolled out gradually across the United Kingdom and it is expected that Universal Credit will cover all benefit claims by 2021. Scottish Ministers recognise the importance of entitlements for those persons receiving benefits such as Court Fee exemptions and are seeking to maintain similar access to them under the new arrangements. It is not our policy intention to restrict access by narrowing the eligibility criteria. Many local services in Scotland including both Court Fee exemptions and legal aid are affected by the forthcoming changes to “passporting” benefits and the Scottish Government is considering its options in the longer term for determining eligibility for help and support. The consultation sought views on the operation of the exemption system and some extensions to the system have been included as detailed elsewhere. |
| Sex |
The SCJS indicates that 21% of males and 21% of females had experienced at least one civil law problem in the last three years. |
The statistics relating to the sex of those experiencing a civil law problem suggest that gender is not an issue although there is some evidence that divorce fees are borne more often by women. One respondent to the consultation did point out, ‘The fact that women are disproportionately poor, that they are disproportionately likely to be experiencing domestic abuse and its sequelae of homelessness and poverty, that 96% of the single-parent families on benefit are headed by women and a myriad of other aspects of women’s reality means that even if the numbers are equal, the impact is highly unlikely to be so.’ Another respondent highlighted the hypothetical situation of someone just above the legal aid disposable income threshold who would face significant fees in a case involving a hearing in the Court of Session. These points acknowledged, if women are disproportionately in poverty then they would also be expected to be disproportionately benefited by the system of exemptions that seek to support those on lower income. Further in relation to legal aid, the criteria should be noted, ‘ For income, the Scottish Legal Aid Board ( SLAB) look at the gross income received by the applicant and a spouse or partner and deduct major outgoings such as tax, national insurance and mortgage repayments as well as allowances for dependents. Applicants are provided with a breakdown of items that have been taken into consideration. If disposable income is less than £3,521 legal aid is granted with no contribution from income. If between £3,522 and £26,239 then legal aid is granted with a contribution from income. Capital takes into consideration savings, investments or equity in property owned by applicant and/or their partner, the house you live in is exempt. If the disposable capital is less than £7,853 there is no contribution, if between £7,854 and £13,017 legal aid is granted subject to the excess of £7853 being paid as a contribution.’ It is therefore the case that people earning significantly in excess of average earnings would be eligible for legal aid and therefore exempt from court fees. |
|
| Gender reassignment |
The Scottish Government does not hold this information in relation to the proposals. |
Although there is no information available on either of these categories, all types of person can be affected by problems which would require resolution in the courts. |
|
| Sexual orientation |
The Scottish Government does not hold this information in relation to the proposals. |
||
| Race |
Respondents to the Scottish Courts and Tribunals Service 2015 Court User Satisfaction Survey identified their ethnicity as below: |
Scottish Courts and Tribunals Service 2015 Court User Satisfaction Survey | Persons of any race or ethnicity can be affected by civil law issues and, similarly, benefit either directly or indirectly from efficient and fair access to the civil courts. |
| Ethnicity of Respondents |
Number | % | |
| White |
|||
| Scottish |
2401 | 85 | |
| Other British |
259 | 9 | |
| Irish |
14 | <1 | |
| Gypsy/ Traveller |
- | - | |
| Polish |
46 | 2 | |
| Other |
26 | 1 | |
| Mixed or Multiple Ethnic Groups |
|||
| Any mixed or multiple ethnic groups |
2 | <1 | |
| Asian, Asian Scottish or Asian British |
|||
| Pakistani, Pakistani Scottish/British |
26 | 1 | |
| Indian, Indian Scottish/British |
4 | <1 | |
| Bangladeshi, Bangladeshi |
3 | <1 | |
| Chinese, Chinese Scottish/British |
4 | <1 | |
| Other |
3 | <1 | |
| African |
|||
| African, African Scottish/British |
4 |
<1 |
|
| Caribbean or Black |
|||
| Caribbean, Caribbean Scottish/British |
1 | <1 | |
| Black, Black Scottish/British |
|
<1 | |
| Other Ethnic Group |
|||
| Arab | 1 | <1 | |
| Other |
2 | <1 | |
| Not Disclosed |
44 | 2 | |
| Total |
2,841 | 100 | |
| The report “Is Scotland Fairer” [12] produced by the Equality and Human Rights Commission in 2015 stated that “some groups – including children, disabled people and ethnic minorities – were significantly more likely to live in relative poverty AHC [after housing costs] than others. ‘Relative poverty’ was defined as “households who are living on less than 60% of the median income for Scotland, after housing costs”. |
|
|
|
| Religion or belief |
The Scottish Government is not aware of any specific information on the faith or religious belief of users in relation to the proposals. |
Although there is no information available on this category, all types of person can be affected by problems which would require resolution in the courts. |
|
Stage 3: Assessing the impacts and identifying opportunities to promote equality
Do you think that the policy impacts on people because of their age?
| Age |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination, harassment and victimisation |
X |
In considering the impact of the fees increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by age typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. Particular fees, such as the fee for seeking a power of attorney, have been identified as of greater relevance to older people. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good relations among and between different age groups |
X |
Do you think that the policy impacts disabled people?
| Disability |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination, harassment and victimisation |
X |
In considering the impact of the fees increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by disability typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. It may be relevant in this context that many litigants who are bringing personal injury actions will benefit from ‘no-win, no-fee’ arrangements with solicitors firms so they do not end up paying a court fee even though they do not qualify for exemption. It may also be the case that extension of the exemptions criteria to include those in receipt of welfare funds will be particularly beneficial in this context. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good relations among and between disabled and able bodied people |
X |
Do you think that the policy impacts on men and women in different ways?
| Gender |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
In considering the impact of the fees increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by gender typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. The Scottish Government’s notes that the last round of fee increases largely protected fees for divorce from increases. Evidence suggests that divorce fees are more often paid by women and fees can be particularly onerous for women who are leaving abusive relationships. The revised proposals to provide additional assistance to victims of domestic abuse should would also be expected to be proportionately more beneficial to women. On the other hand it should be acknowledged that particular types of action, such as the recent number of claims for equal pay are more likely to be brought by women and therefore any rise in court fees would accordingly have more impact. That said, again, equal pay claims are often brought forward by those on lower incomes who would potentially qualify for exemption for fees through legal aid. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good relations between men and women |
X |
Do you think your policy impacts on trans people?
| Gender reassignment |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
In considering the impact of the fees increases on specific groups the Scottish Government considers that affordability would be the main issue. If some groups identified by gender typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good relations |
X |
Do you think that the policy impacts on people because if they are lesbian, gay or bisexual?
| Sexual orientation |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
In considering the impact of the fees increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by sexual orientation typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good relations |
X |
Do you think the policy impacts on people on the grounds of their race?
| Race |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
In considering the impact of the fees increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by race typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good race relations |
X |
Do you think the policy impacts on people because of their religion or belief?
| Religion and Belief |
Positive |
Negative |
None |
Reasons for your decision |
|---|---|---|---|---|
| Eliminating unlawful discrimination |
X |
In considering the impact of the fees increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by religion or belief typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected from the proposed fee increase. |
||
| Advancing equality of opportunity |
X |
|||
| Promoting good relations |
X |
Stage 4: Decision making and monitoring
Identifying and establishing any required mitigating action
| Have positive or negative impacts been identified for any of the equality groups? |
No. However, the inflationary increase in fees will safeguard income to maintain service levels and finance future improvement, and an effective and accessible justice system benefits, either directly or indirectly, all sections of society. |
|---|---|
| Is the policy directly or indirectly discriminatory under the Equality Act 2010? [13] |
No |
| If the policy is indirectly discriminatory, how is it justified under the relevant legislation? |
N/A |
| If not justified, what mitigating action will be undertaken? |
N/A |
Describing how Equality Impact analysis has shaped the policy making process
Careful consideration has been given to any potential impact on different equality groups arising from the fee proposals. No negative impacts have been identified in relation to these proposals. Therefore, no changes were made to the policy as a result of the EQIA.
Monitoring and Review
The SCTS will continually monitor cost recovery from the courts and the OPG. A further equality impact assessment will be completed as part of any fee review, for example if group procedure is introduced as proposed by the Scottish Government in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.
Stage 5 - Authorisation of EQIA
Please confirm that:
- This Equality Impact Assessment has informed the development of this policy:
Yes √
No
- Opportunities to promote equality in respect of age, disability, gender, gender identity/transgender, sexual orientation, race and religion and belief have been considered, i.e:
- Eliminating unlawful discrimination, harassment, victimisation;
- Removing or minimising any barriers and/or disadvantages;
- Taking steps which assist with promoting equality and meeting people’s different needs;
- Encouraging participation (e.g. in public life)
- Fostering good relations, tackling prejudice and promoting understanding.
Yes √
No
Declaration
I am satisfied with the equality impact assessment that has been undertaken for the Consultation on Scottish Court Fees and give my authorisation for the results of this assessment to be published on the Scottish Government’s website.
Name: Jan Marshall
Position: Deputy Director, Civil Law and Legal System
Authorisation date:
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