Impact on public & private healthcare providers from significant new changes to legal aid for inquests due to Hillsborough Law

In our article in October 2025, “Hillsborough Law” – what NHS bodies need to know, we discussed how the Public Office (Accountability) Bill aka Hillsborough Law (the Bill) will establish a legal duty of candour on public servants and authorities and promote “parity of arms”, the latter through the addition of non-means tested legal aid provision to all bereaved families which will enable them to access publicly funded legal help and advocacy at inquests where a public authority has been named as an interested person.

The new consultation

On 8 May 2026, the government announced a consultation (the Consultation), Legal aid for inquests: changes to fee schemes which closes on 19 June. It simultaneously published an impact assessment (Impact assessment - Changes to fee schemes for inquest legal aid) and Equalities Impact Assessment (Equality impact assessment - Changes to fee schemes for inquest legal aid).

This Consultation seeks views on reforming the legal aid scheme for inquests by simplifying fees. It says, “This Bill … will promote “parity of arms” through the biggest expansion of legal aid we have seen in a generation”.  It estimates an expansion of eligibility for inquest legal aid from around 200-400 cases to approximately 11,400 per year.

This Consultation and impact assessments adds context following a Parity of Arms Impact Assessment done in 2025 (Impact Assessment template) after which there was much publicity around the costs estimated to be associated with the Bill, of £65m-£108m pa (and a further £3m pa of associated operational costs to the Legal Aid Agency).

That 2025 impact assessment based this headline figure on:

• a 2018 MoJ survey of coroners suggesting that inquests where a public authority was an Interested Person (IP) account for 10-30% of all inquests
• the 2024 Coroner Statistics that estimated there were 36,700 inquests opened that year and around 500 inquests into deaths in state detention

It took 10-30% of 37,200 which equals 4,200 – 11,400 inquests pa. It then applied an estimated cost of £16,300 per inquest to arrive at the headline cost.

The government acknowledges that its figures in its Impact Assessments might be inaccurate as they are based on a number of assumptions.

The current legal aid framework challenges

The current legal aid framework for inquests is divided into:

Legal help/ advice

This is subject to a means and a merits test. It is provided under Controlled Work where fees are based on the relevant category of law which, for contractual purposes, the LAA groups as follows: claims against public authorities (CAPA), clinical negligence, community care, discrimination, education, family, housing and debt, immigration and asylum, mental health, public law, and welfare benefits. There are different fee rates for different categories. However, there is no category for inquests, which fall within whichever category is most relevant to the underlying subject matter of the inquest meaning that providers must hold a contract in that relevant category, which can result in differing fee rates and, going forward under the Bill, difficulties in enough providers holding sufficient contracts under the differing categories.

Advocacy

This is provided as Other Legal Services or OLS under Licensed Work, with one fee scheme.

The consultation says if the above arrangements are continued once the Bill is enacted, it will lead to a lack of consistency, clarity, oversight, and data collection of providers’ fees by the LAA.

Proposed changes to the legal aid framework

The initial steps judged necessary to simplify the legal aid system for inquests are said to underpin the further steps which are the subject of the new consultation. These are:

1. Fees will be simplified by moving to a single legal help fee scheme, categorised simply as “inquests”, i.e. regardless of the category of law in which the work is carried out, and being remunerated at CAPA rates. 
2. This will allow existing providers to continue to undertake inquest work under their current contract categories, while also enabling new or existing providers to apply for the dedicated inquest category. It is hoped that this will address the likely increase needed in the numbers of providers dealing with the new volumes of inquests.

The government intends laying a technical amendment to the provision in the Bill to amend the definition of OLS so that providers will not have to work under two different systems across one inquest case.

What is the consultation for?

The Consultation seeks views on the government’s proposals to change inquest remuneration to:

1. Legal help at CAPA rates - by amending regulation 9 and parts 1 and 2 of schedule 1 of the Remuneration Regulations 2013
2. the inclusion of fee rates for non-advocacy work alongside existing rates for advocacy work for a family member who receives legal aid under other legal services – by amending schedule 4 of the Remuneration Regulations (and subject to a successful Bill amendment to the Merits Regulations)

Who pays?

Page 7, section C, para 24 of the May 2026 Impact Assessment notes that while taxpayers ultimately fund the legal aid fund, where other government departments or their associated public authorities are Interested Persons at an inquest, they will cover the costs to the legal aid fund. The Bill and the legal aid changes will therefore have a very significant effect indeed on NHS budgets.

What is the likely impact on NHS Trusts?

NHS Trusts need to gear up now for vastly more – and more complex – inquests. If families become more routinely represented, we envisage the following impact:

• more inquests where a Trust has IP status
• more complex inquests (e.g. more applications to expand scope, including Article 2 arguments)
• greater scrutiny of care (questioning of clinical decisions, safeguarding actions, commissioning and oversight arrangements will be more forensic)
• potentially more clinical negligence claims
• a likely increase in pre‑inquest reviews, disclosure disputes and expert evidence.

Impact on clinicians

Inquests are likely to become more forensically contested as Claimant’s solicitors will be financially and professionally incentivised. For example:

• coroners may be reluctant to allow written statements in lieu of evidence in person (via R23).
• they will face pressure to call more witnesses, and the remit of the witnesses may expand from more senior clinicians to encompass more junior staff (“chain of care” witnesses rather than just the decision makers).
• the time clinicians will need to take away from clinical work will increase and could, at the volumes envisaged, cause resource strain.
• it will lead to more intense testing of evidence that will make the inquest more stressful and pressured for clinicians.
• We may see more defensive behaviour from coroners to avoid challenges to decisions.
• There is a risk that inquests could become quasi-litigation processes taking up far more time and resource than previously.

Potential impact for private care providers

Hillsborough Bill will establish a legal duty of candour on public servants and authorities. The Bill also specifies that the duty of candour in the context of inquiries and investigations also applies to others with “relevant public responsibility”. The Bill defines this as including any person involved in an incident, or particular events with health and safety duties, towards members of a public, or any person carrying out duties as a “service provider” under a direct contract with a public authority.

The Bill’s provisions will therefore also apply to private providers who provide services commissioned by the NHS. 

While the consultation does not comment specifically on whether legal aid funding will be allowed in those cases where the care is state funded albeit provided by a private provider, following on from the above Bill provisions, the proposed Legal Aid reforms are likely to apply in these situations. Private care providers are likely therefore to also experience a step-change in inquest exposure, driven by increased family representation, more adversarial scrutiny, and system-wide accountability trends.

Many deaths involve care delivery by both NHS and private providers. Coroners routinely examine commissioning decisions, contractual arrangements and handovers between NHS and independent sector providers. Private providers are therefore also likely to be scrutinised as part of the system, even if not the primary organisation with relevant public responsibility.

As set out above, inquests are likely to become more complex, the result for private providers being they could face higher litigation-style exposure within inquisitorial proceedings.

All providers will be under increased pressure to ensure equivalent legal representation or risk reputational harm or adverse findings, causing increases for private as well as NHS providers in legal defence costs with potential knock-on effects for premiums or coverage.

Potential impact for domiciliary care providers

Domiciliary care remains one of the most critical pillars of adult social care in England, enabling millions of individuals to receive support within the familiarity and comfort of their own homes. The Office for National Statistics projects that the population aged 85 and over will double by 2045. Recent government reforms signal a move towards greater integration between health and social care.

The NHS provides domiciliary care through NHS Continuing Healthcare and for those recipients who don’t qualify for NHS funding, care may be funded through local authority support, self-funding or using benefits.

For the same reasons as set out above, domiciliary care providers could therefore also be impacted by the Bill and legal aid changes.

Practical steps

All Providers will need to identify early which cases are likely to attract legal aid, engage Article 2, involve public authorities. These cases should be escalated internally and resourced differently. 

More active case management will be required, such as early submissions on scope, witness numbers, proportionality. Also, increased engagement and relationships with coroners’ offices. Without this, there is a risk of uncontrolled expansion of the hearing.

Timeframes

The consultation will close on 19 June and the government’s response will be published by the autumn. The government expects the bill to receive Royal assent this autumn. Intervention through secondary legislation will be needed to make the required changes to the legal aid system.

At the time of writing, the Health Bill 2026 has just been published and Wes Streeting has resigned. Do contact us if you have any legal concerns during this time of colossal change in our healthcare sector.