Many of our readers with an interest in housing legal aid will have seen the excellent article in this month’s Legal Action, “Sorting myths from facts over housing cases” by Sara Stephens and Jan Luba QC. Many of the citations in the article were to the legal aid reform FAQs issued when LASPO first came into force in 2013, but which are no longer available on the LAA website since it migrated to the gov.uk domain. Fortunately we saved a copy, and they are available here (final version) and on our LASPO Resources page, which also includes the two earlier versions.
A few months ago, we reported the judgment of Sir James Munby P in the cases of Q v Q, Re B and Re C. In Re C, a private law case, the father was accused of raping the mother. His representation in the private family law proceedings was not within the scope of the legal aid scheme – even though it would result in the possibility of him cross-examining the mother (the alleged victim of his rape) in person. Munby P set out his view that it may be necessary in some cases, where legal aid was not available, for other means of funding representation to be made available, even if that meant it being paid for out of the court service budget. But he didn’t make such a direction, because the father had an outstanding application for exceptional funding.
In a new judgment handed down last week, (Re C (A Child) (No 2)  EWFC 44) Munby P gave an update. Following his intervention (and despite earlier difficulties), the LAA have now granted the father exceptional funding, subject to a contribution. He therefore did not need to direct that the father’s representation be funded from another source. But he took the unusual step of appending to his judgment the written submissions of counsel for the mother, Lucy Reed, arguing that her client could not have a fair trial, and her Article 6 rights would be breached, if representation was not granted to the father. The ongoing delay, caused by delays in considering the father’s application, was also in breach of her (and the child’s) Article 8 rights. It was also said that subjecting her to cross-examination by the father would of itself be inhuman or degrading treatment in breach of Article 3. While it was now academic in this case, and so Munby P made no decision, it is useful to see the arguments that were put.
Finally, Munby P thanked the various lawyers who had appeared pro bono in the case at different times. But as he said, quoting himself in an earlier case, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”
In a response to a question from Karl Turner, MP for Kingston Upon Hull East, on November 11, Chris Grayling said that following the recent consultation updated proposals will be introduced ‘very shortly’.
We will post more information as soon as we can.
Our thanks to Garden Court North for drawing this case to our attention. The LAA has recently granted exceptional funding for an application to set aside an injunction banning persons unknown from begging in Leeds city centre. GCN’s website reports:
Exceptional case funding has been granted by the Legal Aid Agency to apply to set aside Leeds City Council’s injunction obtained under S222 Local Government Act 1972 against persons unknown on behalf of a man who it has been sought to commit to prison.
Leeds City Council obtained the injunction / restraining order from “begging” in Leeds City centre against “persons unknown”, even though a number of the alleged beggars, including our client, are known to Leeds City Council. Our client was then served with the injunction after it had been obtained despite being later described in Leeds City Council’s own evidence as a known and prolific beggar.
The committal has been adjourned pending this application to set aside and will be challenged on the basis that:
- The Court did not have power to make it as there are statutory remedies that should have been used.
- It was an abuse of process not to name those it knew and alleged to be begging.
- In any event the criteria for an injunction restraining a criminal offence or public nuisance are not met and the injunction fails to consider the personal circumstances of the individuals concerned and subverts the prohibition on the making of bye-laws without the permission of the Secretary of State.
After a lengthy struggle to obtain funding, exceptional funding was granted (on 5th November 2014) to challenge the injunction itself.
As always, we would be pleased to hear of other grants of exceptional funding, and to publicise them for the benefit of others making similar applications.
In Sisangia, R (on the Application of) v Director of Legal Aid Casework  EWHC 3706 (Admin) the High Court has clarified the requirements for funding claims of false imprisonment. They are within scope by virtue of para 21 of Part 1 of Schedule 1 of LASPO, which provides:
21. Abuse of position or powers by a public authority
(1) Civil legal services provided in relation to abuse by a public authority of its position or powers.
(2) Sub-paragraph (1) is subject to-
(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs … 3 … of that Part …
(3) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence.
(4) For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission –
(a) is deliberate or dishonest, and
(b) results in harm to a person or property that was reasonably foreseeable
(5) In this paragraph –
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services).
Para 3 of Part 2 says that claims for the torts of assault, battery or false imprisonment are out of scope, but those exclusions are dis-applied by para 21(5), meaning that those torts can be pleaded as part of a claim against a public authority for abuse of powers.
The LAA’s position was that for an application to be granted, it must be shown that the act or omission complained of was deliberate or dishonest and resulted in foreseeable harm, and that there must also be an abuse of position or power – that more than simple negligence is required. It said that both the act itself (in this case, an arrest) and the absence of lawful authority behind that had to be deliberate or dishonest – that in the case of unlawful arrest and false imprisonment it was necessary to show that the arrest was deliberate or dishonest and so was the lack of lawful authority – that the arresting officer action deliberately or dishonestly arrested knowing there was no legal power to do so, intending to abuse his powers.
Dingemans J held that para 21(4) was a complete definition, not a minimum requirement. If its requirements are made out, then that will be enough to show that there was an abuse of position or powers. Nothing further will be required. Only the act had to be deliberate or dishonest. The arrest was deliberate, it resulted in harm and the harm was foreseeable. It need not be also shown that there was also bad faith or dishonest motivation or that the arresting officer acted knowing he had no power to do so.
This is a helpful decision and should make the granting of funding in cases under para 21 more likely in the future.
Resolution, the Law Society and LAPG have spent many hours in meetings with the LAA, trying to secure improvements to CCMS (the LAA’s civil certificate client and cost management system). The LAA believes the system is functioning adequately but we hear that many practitioners encounter problems.
Some simply despair and cannot face adding yet more unbillable time to their day by reporting the problems to the helpdesk. We also know that a significant number have decided to wait until the system becomes mandatory next year. Unfortunately, unless the LAA has evidence that the system isn’t working effectively, they will be able to press ahead.
Just to remind organisations which want a new Family mediation contract, and existing providers who want to open new outreach offices, that they must submit their applications by noon tomorrow.
More information, including the most recent answers to frequently asked questions, can be found here.
Existing providers who want to continue as they are from 1 February 2015 do not need to do anything now.