The New Handbook – coming soon

Legal Aid cover 15-16

 

The new edition of the LAG Legal Aid Handbook will be published in mid-September. With more content than ever before, it’s the only comprehensive guide to the whole legal aid scheme and is packed with case studies, checklists and practical advice. It’s right up to date, with full discussions of the latest caselaw and the recent changes to the civil merits tests. The crime chapters include a full guide to the new duty and own provider contracts starting in January 2016, and for the first time, we’ve included separate chapters on housing cases and exceptional funding.

We welcome back our collaborators Anthony Edwards (crime) and Steve Hynes (policy), and for this edition are delighted to add to the team Solange Valdez (immigration) and Richard Charlton (mental health).

For the first time, purchasers of the book will get access to a supporting website containing the full text of the Handbook, which we will keep up to date between editions – so your copy will always be right up to date. We’ll also continue to support the Handbook through our regular news updates and case reports, and our comprehensive resources page.

The 2015/16 LAG Legal Aid Handbook is available to pre-order now.

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Significant changes to merits tests from Monday

On the last day that Parliament sat before the summer recess, the Lord Chancellor laid a set of regulations making significant changes to the merits tests for civil legal aid. As the explanatory memorandum explains, this was done in response to the High Court’s judgment in IS v The Director of Legal Aid Casework & Anor[2015] EWHC 1965 (Admin). As we noted, Collins J’s criticism of the application of the merits test applied not just to exceptional funding but to in scope cases as well, and so it is that the tests have been amended.

The Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 change the prospects of success categories by amending the Civil Legal Aid (Merits Criteria) Regulations 2013. “Poor” has been re-defined as a 20% or more but less than 50% chance of obtaining a successful outcome. There is also a new category of “very poor” – that is, where prospects are less than 20%.

The general merits test is amended so that (as long as the other criteria are satisfied), representation will be granted if prospects are moderate or better as now; in addition, where prospects are borderline or poor, then representation will be granted if it is necessary to prevent a breach of Convention or enforceable EU rights, or if it would be appropriate to do so in the particular circumstances of the case, having regard to any risk that a failure to grant would be such a breach.

Similar amendments are made to the merits tests for public law cases (which for merits purposes includes homelessness), immigration, public law children, private law children, domestic violence and other family cases.

The amended merits tests apply to all cases where a merits determination is made on or after 27 July 2015, and so this will include emergency cases where you grant funding (if you have the power to do so). It also applies to appeals and reviews of refusals where the original determination was made before that date but the appeal or review will be carried out after it.

The explanatory memorandum confirms that the Director is appealing the decision in IS (and has been given permission) and says that, depending on the outcome of the appeal, the merits tests may be revisited again. But that will be some months away, and in the meantime this represents a welcome relaxation of the tight controls over prospects of success that have been applied so far.

The memorandum also notes that the change has been made on an emergency basis and that it has not yet been possible to amend the guidance used by LAA caseworkers or published on the LAA website. It may be that awareness of this change doesn’t filter down to LAA decision makers immediately and so it would be wise to cite the specific regulations if you are applying for legal aid in a borderline or poor case. It would also be sensible to have regard to what was said in IS and Gudanaviciene in applying for legal aid in a borderline or poor case. In essence, where Article 6 or 8 is engaged, unless an unrepresented litigant is able to present his case effectively and without obvious unfairness legal aid should be granted. It will be necessary to set out in any application why this is the case.

UPDATE: The LAA has now issued guidance on how to make applications in borderline and poor cases

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High Court says exceptional funding regime unfair and unreasonable

As we noted last week, the High Court has given judgment in the challenge to the exceptional funding scheme, IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin).

The administration of the scheme

In a lengthy, detailed and comprehensive judgment, Collins J noted a series of problems with the scheme as it has been implemented by the LAA:

  • The crucial test for whether exceptional funding should be granted, as laid down by the Court of Appeal in Gudanaviciene, is “whether an unrepresented litigant is able to present his case effectively and without obvious unfairness” (para 24);
  • Even after Gudanaviciene, the success rate for applications is very low (para 29);
  • The forms are unnecessarily complex, repetitious and do not reflect the right test for whether funding should be granted (para 56, para 80);
  • The forms require legal assistance to complete. The LAA should make available a form that can be filled in by an unrepresented applicant (para 54);
  • Consideration should be given to making Legal Help available for solicitors to make initial enquiries, decide whether an application is justified, and make it (para 57);
  • The revised Lord Chancellor’s Guidance, issued in response to Gudanaviciene, still does not give effect to it and places too many restrictions on when funding should be granted (paras 66 to 71);
  • “The belief that because courts and tribunals have to deal with litigants in person legal representation can be refused is one which must be very carefully applied. It should only be used to refuse an application if the issues are truly relatively straightforward” (para 71);
  • In cases where “a judge seized of the material proceedings has requested” representation “because otherwise a fair hearing will not take place… it is difficult to see that save in a rare case to fail to comply with the judge’s request [to grant exceptional funding] would be justified. It is not generally appropriate for a caseworker who is not apprised of the full circumstances to second guess the judge’s view. There must be a very good reason indeed for such a refusal.” (para 72);
  • The LAA’s urgent applications procedure is not satisfactory and the absence of a mechanism for issuing an emergency certificate is unreasonable (para 78);
  • The scheme “is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS’s case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal.” (para 79);
  • “The system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the very essence of the right of access to a court.” (para 93)

Family cases

A particularly useful passage for family lawyers runs through an analysis of recent cases in which the family courts have drawn attention to the difficulty of deciding cases without legal aid, and concludes:

  1. It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

Merits tests

After a discussion of relevant caselaw, particularly in the ECtHR, Collins J concluded:

  1. There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist. If a case involves issues of fact which will depending on the court’s findings determine the outcome, it must be obvious that the ability to challenge apparently unfavourable material and to cross examine adverse witnesses effectively may turn the case in a party’s favour. Accordingly, what has to be assessed is not what the present material when untested may indicate but whether if competent cross examination or legal submissions are made the result may be favourable. It is not for the LAA to carry out the exercise which the court will carry out, in effect prejudging the very issue which will be determined by the court. I recognise that there will be cases which it will be possible to say that whatever may be achieved by competent representation the result is likely to be unfavourable. The lengthy and detailed refusals which have been exhibited by the various witnesses have tended to carry out what I regard as the impermissible approach. The removal of the borderline cases from those that can succeed on merits grounds seems to me to be unreasonable.
  2. Mr Chamberlain has relied on the observation of the court in R(G) that “the cases demonstrate that Article 6.1 does not require civil legal aid in most or even many cases. It all depends on the circumstances”. That may be true of the cases in which a breach of Article 6(1) or the procedural requirements of Article 8 were considered. But I do not think the court was making a judgment which would apply to all applications. As was said, the circumstances of each case will be determinative and there can in my view be no doubt that the way in which merits have been approached has been flawed.

This passage is particularly significant because it criticises the way that the LAA applies the merits tests, but also the tests themselves, which are set out in regulations. The finding about prospects of success goes to the heart of the way that the merits tests for all types of funding, including those that are in scope, are set out in regulations and implemented. If this part of the judgment survives an appeal, it is likely to have a significant impact on the way funding is assessed in all cases, not just those which are out of scope and so covered by the ECF regime.

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What a week

A week (and it’s only Wednesday) of significant developments on several legal aid fronts:

Exceptional funding

The High Court (Collins J) gave judgment today in IS v The Director of Legal Aid Casework and another [2015] EWHC 1965 (Admin), the Public Law Project’s challenge to the exceptional funding system. This case was about the operation of the scheme as a whole, which, in a long and detailed judgment Collins J found was not operating lawfully or as it should. We’ll have a more detailed post in due course, but for now it is worth quoting the conclusion:

  1. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
  2. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
  3. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.

This evening, the Lord Chancellor has issued a further Notice to the Director in response to the judgment, reminding caseworkers to have regard to it. Further amendments to the scheme will be required in due course.

More information about today’s case can be found on the website of the Public Law Project, which has done an excellent job in challenging the flaws and injustices inherent in the way the exceptional funding scheme has operated since LASPO was passed, through this and other cases and through its support project.

Crime action update

Meanwhile, the Criminal Bar Association announced the result of its ballot – a vote in favour of supporting the solicitors’ action by reinstating “no returns” and not accepting cases where legal aid was granted on or after 1 July. The CBA executive is meeting this evening to decide how to take the action forward.

The result was announced a few minutes before the Lord Chancellor, Michael Gove, gave evidence to the Justice Select Committee (watch here; see also the Gazette’s report). If his strategy was to seek to divide and rule, it may have backfired given the outcome of the CBA vote. His further attempts today to reassure the Bar while overlooking solicitors seem merely to have fired them up.

 

Domestic violence and abuse evidence requirements

On Friday 17 July, amending regulations were giving effect to the MoJ’s previously announced revisions to the domestic violence gateway for family law come into force. Reg 2(5) of the Civil and Criminal Legal Aid (Amendment) (Regulations) 2015 add a new Reg 31 (7A) to the Civil Legal Aid (Procedure) Regulations 2012. This has the effect of dis-applying Regs 33 and 34 of the Procedure Regs (the regulations which prescribe what evidence of abuse is required) for applications for representation (including amendments) where there has already been a determination (not withdrawn) that the individual qualifies for Family Help (Higher). In other words, this means that it will no longer be necessary to provide up to date evidence when applying to amend a certificate to cover a final hearing, and certificates should no longer be withdrawn even where the evidence is by that time outside the two year limit.

Further amendments, also coming into force on Friday, amend the evidence requirements so that convictions can be taken into account even if they are spent, providing they are no more than two years old at the date of the application, and to reduce the refuge accommodation requirement down from 24 hours to any length of time at all (see Reg 2(6) of the 2015 Amendment Regs, amending the amendments to the Procedure Regs inserted by Regs 2 and 3 Civil Legal Aid (Procedure) (Amendment) Regulations 2014.

Incidentally, if that seems complicated. it is, and it is so because the LAA no longer publishes a complete and up-to-date codification of the legal aid rules as it used to with the Funding Code. Instead the rules are contained within regulations – but no consolidated set of regulations is published either on the LAA website or on legislation.gov.uk. This means that, as the scheme evolves over the years since LASPO was passed, the only way to understand it is to trace amendments back through several sets of regulations – just three, in this case, but more in others. We are in danger of reaching the point at which the legal aid scheme becomes, through piecemeal amendment, incomprehensible.

Prison law and appeals tenders

A reminder that the tender for prison law and appeals work closes next week, at noon on the 21 July. This is only for organisations that want a specialist prison law and / or appeals contract; providers who tendered for an own or duty crime contract don’t need to apply. More information about the tender and a set of FAQs can be found on the LAA website.

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LAA annual report 2014-15

The LAA’s recently published annual report shows how much less money has been spent on securing legal advice and representation for the poorest people in England and Wales. There was an overall net reduction in expenditure of £244 million (all figures in £000), a further decrease from 2013-14, which was the first year of the LASPO scope cuts.  The reasons for the increase in crime higher were given as higher numbers of sitting days and more pages of prosecution evidence in more complex cases.

Funding type                                                          2014-15               2013-14

Civil legal help                                                       112,165                 129,776

Civil representation                                             510,212                  693,527

Crime lower                                                           332,578                 367,304

Crime higher                                                          586,457                 553,677

Central funds                                                          44,238                    89,070

The costs of legal aid administration reduced by £3.1 million, when calculated on a cash basis; although total administration costs rose by £3.3 million, largely due to the development of the widely criticised CCMS system for civil applications and bill processing, which will now not become mandatory until February 2016.

Key milestones noted include:

  • Sustained monthly above target levels for processing civil applications (97% in 20 working days)
  • Quicker processing of civil bills (99% in 25 days)
  • Reject rates for civil bills brought down to 9.2% (against a 15% target)
  • Call waiting times for the civil certificated helpline below 2 minutes 48 seconds
  • Abandoned call rate for the civil certificated helpline 10.47% (target 12%)

In relation to internal issues, the LAA:

  • Launched a management skills programme for their staff
  • Increased participation in their staff survey to 89%
  • Had lower staff sickness than the civil service average (7.1 days against 7.6 days)

Plans for the future include:

  • Concluding the legal aid change programme
  • Making CCMS compulsory
  • Finalising the transfer of crime application processing from HMCTS
  • Developing crime online billing
  • Improving telephone answering and support for digital working by providers
  • Making the LAA a better place to work

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Applying for legal aid for contempt

Following the judgment in Brown v London Borough of Haringey [2015] EWCA Civ 483 (our post here), the LAA has issued new guidance on applying for legal aid to represent those accused of contempt of court. As McCombe LJ said in Brown, this is criminal legal aid – even where the proceedings are in the civil courts – and so an application for a criminal representation order will be necessary.

Applications are made to the Nottingham office of the LAA, using form CRM14. If your firm doesn’t have a criminal contract, you will also need to apply for an individual case contract (ICC). Criminal legal aid for contempt is not means tested.

There is a guidance document for general contempt cases, and a separate one for applications for contempt cases in breach of injunctions made under Part 1 Anti-Social Behaviour Crime and Policing Act 2014.

Claims are made using form CRMCLAIM11 and the payment rates depend on the venue in which the contempt proceedings are heard. The LAA’s guidance unhelpfully refers to the 2013 Regulations “as amended” but doesn’t set out what the amendments are, where they are to be found, or acknowledge that an amended version of the 2013 Regulations isn’t available anywhere to the best of our knowledge.

These are the applicable payment rates:

There is an upper costs limit of £1,368.75 (£1,237.50 from 1 July) that can only be exceeded with prior approval from the LAA.

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New exceptional funding guidance published

The Lord Chancellor has published revised guidance on exceptional funding in non-inquest cases to take into account the judgment of the Court of Appeal in  Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (see our post here). While it is welcome that the guidance has finally been updated, it is disappointing that it has taken six months.

Meanwhile, the High Court is hearing the Public Law Project’s systemic challenge to the exceptional funding scheme. More information about that case can be found on PLP’s website.

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