Domestic violence gateway not unlawful, says High Court

On Friday last week, the High Court gave judgment in  Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice [2015] EWHC 35 (Admin), a challenge to the evidence requirements (contained in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012) that must be met before legal aid in private family law proceedings can be granted based on the domestic violence exceptions.

Despite evidence of the impact the restrictions were having in practice, the Court found that they were lawful. The principal argument put forward was that, in making the regulations, the Lord Chancellor was acting outside the scope of the powers granted under LASPO. Lang J (with whom Fulford LJ agreed) said:

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Good news if you need NMS

The LAA has issued new guidance to its Contract Managers which may make it easier for practitioners to get more civil New Matter Starts (NMS) if they run out.

This is less of an issue than it used to be under the Access to Justice Act scheme when more Controlled Work was done; but we still hear reports from some practitioners that they have run out of NMS and when they asked their Contract Manager for more, were told that another practice in their Procurement Area (PA) still had some, so they should send the client there. This is clearly unsatisfactory from both the client’s and the practice’s point of view.

However, from 22 January 2015, whether another practice in the PA has NMS is no longer to be taken into account.

You will need to convince your Contract Manager:

  • you are unable to meet an urgent demand for your services
  • or
  • an urgent need arises because another practice has reduced or stopped providing the service
  • or
  • there is a general increase in demand for services of that type in your PA

The Contract Manager can authorise up to another 50% on top of your original schedule allocation (so if your initial allocation was 100, you can be awarded up to 50 more that year).

If you applied for a lot size in the tender that allowed you to self grant up to an additonal 50%, you cannot apply to your Contract Manager for more.

In exceptional circumstances, the Contract Manager may be able to grant additional NMS to address emergency situations.

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Filed under Actions Against the Police, Civil, Family, Housing, Immigration, Mental Health, Public Law, Social welfare

Neither compassionate nor humane

The first two reported cases of the year in the Family Court are both concerned with the difficulties litigants – not to mention practitioners, and the courts – are now faced with when trying to navigate the legal aid system. The first – about which we posted here – concerned an unrepresented father who couldn’t get legal aid despite needing to cross-examine a child who had accused him of abuse, leading to the court to order that he be funded outside the legal aid scheme.

The second case, D (A Child) (No 2) [2015] EWFC 2, chronicles the attempts of a couple faced with the adoption of their children to obtain legal aid. The Annex to the judgment, which is simply a chronology of those attempts, is more than twice as long as the judgment itself. Giving judgment, the President, Sir James Munby said (para 11):

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Court orders funding for litigant ineligible for legal aid

In what appears to be the first order made under what we called the “shadow legal aid scheme” mooted in Sir James Munby P’s judgment in Q v Q, HHJ Bellamy (sitting as a High Court Judge) has made an order that the Court Service fund an unrepresented father who would otherwise have to cross-examine a child who has made allegations of abuse at a fact finding hearing – K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1. In discussing Q v Q and making his order, HHJ Bellamy set out what he considered to be the principles to be applied, thus (para 74):

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LAA announcement on Crime tender

The LAA has announced that, following the injunction and interim relief suspending the tender, granted on 23 December, the tender is suspended.

Potential bidders cannot access the tender documentation on the Bravo portal during the period of suspension. However, documentation can still be found on the LAA’s website. This includes the final FAQs and the answers to questions submitted by the CLSA and LCCSA.

The rep bodies are appealing for funding to continue the litigation. The substantive hearing is listed for 15-16 January. You can contribute here.

If the LAA can resume the tender after the hearing, it will ensure there is a nine week tender period in total, so a new tender deadline could be from mid February, depending on the judgment.

In the meantime, the advice is to prepare for the tender to be resumed. Most firms report that drafting answers to the tie-breakers and award questions is more challenging than they anticipated and takes a considerable amount of time.

Our tips are

  • Read the IFA and FAQs and check the 2015 Duty Contract where necessary
  • Use short words
  • Don’t use words like ‘however’ and ‘therefore’
  • Use your local knowledge of the PA to strengthen your bid with real life examples
  • Use examples of what you have achieved in the past
  • Note FAQ 16.19 – you cannot cross refer between answers, each one must be complete in itself
  • Don’t repeat names in full, use initials after the first time

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Court of Appeal finds exceptional funding guidance to be unlawful

In Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622, the Court of Appeal considered the Lord Chancellor’s appeal against the High Court’s earlier decision that the exceptional funding guidance was unlawful, and that refugee family reunion was in scope of Schedule 1 of LASPO.

The Court of Appeal refused to follow the approach of the High Court either in Gudanaviciene or the earlier cases of M v Director of Legal Aid Casework [2014] in construing s10 of LASPO (the section dealing with exceptional cases. Lord Dyson MR, giving the judgment of the Court, set out the test to be applied thus:

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Filed under Civil, Immigration, LASPO, Policy

Civil tender FAQs published

The LAA today published the FAQs for the current civil tender for clinical negligence, public law and actions against the police etc contracts. Bidders will need to consider them carefully before submission of the tender.

The tender closes at noon on 23 January 2015.

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Filed under Actions Against the Police, Civil, Clinical Negligence, LASPO, Public Law