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Ministry of Justice to press ahead with increasing court fees by inflation – backdated to 2016

The Government believes there is a strong justification to proceed with increasing certain court fees and the ‘Help with Fees’ (HwF) income thresholds by inflation, backdated to 2016, the Ministry of Justice has said.

In the Government’s response to consultation the MoJ said: “The proposed increases reflect historic inflation and are therefore not an increase in real terms. The income generated from these proposals will go towards the running cost of HMCTS and will ensure that the courts and tribunals can continue to deliver access to justice for all.”

The Ministry said the Government appreciated that Covid-19 had had an impact on individuals and businesses. “In order to ensure we continue to protect access to justice for those on a low income, we will also proceed to inflate HwF income thresholds for single people as well as couple and child premiums to 2021/22 levels in line with inflation, backdated to 2016. This will make the fee remissions scheme more generous for those who are unable to afford a fee.”

The response acknowledged that some users “might sometimes be frustrated by the service they receive”. However, it said: “Whilst, like the whole nation, the courts and tribunals have been affected by the pandemic, recovery is our priority. Far from HMCTS profiting from these fee increases; they simply represent the increase in the cost of providing the services.”

The MoJ claimed the increases would make “an important contribution” to funding the ongoing work, and recovery, of HMCTS, adding that the fees did not cover the full cost of running HMCTS. In 2019/20, there was a net fee income of £724m against the £2bn running costs of HMCTS, it said.

The response said the Government would continue with the proposal in the form consulted on, rejecting calls from some respondents for certain fees to be excluded from the inflationary increases. Fees affected include a number in relation to family proceedings and in the Court of Protection.

The MoJ said that a New Burdens Assessment, an assessment which looks at the impact of the increases on local authorities, had been undertaken as part of this work. “This assessment will review if these fees are an additional cost to Local Authorities, and we continue to work closely with the Ministry for Housing, Communities and Local Government on this issue.”

The Ministry also said the Government did not agree that litigants may bring unmeritorious cases due to these changes to the HwF remissions scheme. “Access to justice is a fundamental constitutional principle, and one that the Government is committed to protecting; the merit of a case is not a relevant factor for eligibility for HwF. Since being introduced in 2013, there is no evidence that the availability of the scheme has created a perverse incentive for litigants to bring unmeritorious claims and, therefore, any increases to the income thresholds is unlikely to either.”

The response rejected claims that enhanced fees (fees with specific Parliamentary approval to be set at a level above the cost of providing the underlying service) were unfair. Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 allows the Lord Chancellor to set court fees at a level above the cost of the underlying service, it noted.

“Setting some court fees above cost allows the Government to subsidise other parts of the courts and tribunals system while ensuring that system is effective, efficient and minimises the cost to the taxpayer. For example, vulnerable users seeking non-molestation orders because of domestic abuse; or for those cases before First-Tier tribunals concerning mental health are not charged.”

Accounting for various revisions, the changes will raise an estimated gross income of £23–29m each year once implemented, falling to £20–£25m per annum after remissions are accounted for across the: Family Proceedings Fees Order; Civil Proceedings Fees Order; Court of Protection Fees Order; and Magistrates’ Courts Fees Order 2008.

The additional changes to the HwF scheme across the board are expected to cost £6–7m each year in reduced fee income, so the whole package of proposals will raise an estimated £13–£20m per annum towards the running costs of HMCTS.

The MoJ therefore confirmed that the Government would be proceeding as planned to increase 129 fees outlined in the consultation in line with historical inflation dating from August 2016 to the start of the 2021/22 financial year, or the year the fee was last amended (capped at August 2016).

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