LASPO review – still much to do

The Ministry of Justice published its analysis of the impact of LASPO in February. Although it acknowledges that the Legal Aid Sentencing and Punishment of Offenders Act 2012 damaged access to justice in England and Wales, the scale of any improvements is disappointingly modest. The government committed to spending only £8 million – a tiny fraction of the amount cut from the legal aid budget since 2013. At the All Party Parliamentary Group meeting on 27 February, Lucy Frazer QC MP (Under Secretary of State for Justice) stated that there would also be additional expenditure on some of the initiatives which had been announced; but this was not quantified.

There are some glaring ommissions – for example failing to extend legal aid for inquests or provide any legal aid to assist the ‘Windrush’ generation. The list of concrete proposals with dates attached is to be welcomed. They seem more likely to be implemented than the more ambitious list of initiatives with no target dates; but only time will tell.

2019

  • Expand scope to include separated migrant children in immigration – by 2019
  • Non-means-tested legal aid for parents/people with parental responsibility who wish to oppose applications for placement orders in public law proceedings – by summer 2019
  • Test changes to improve triage and signposting by the Civil Legal Aid telephone service – by summer 2019
  • Implement a campaign to improve awareness of legal aid – by autumn 2019
  • Expand scope to include special guardianship orders – by autumn 2019
  • Pilot and evaluate the expansion of legal aid for early advice in a specific area of social welfare law – by autumn 2019
  • Review whether the exceptional case funding scheme can be simplified – by the end of 2019
  • Enhance provision for litigants in person and increase funding to the litigants in person support strategy to £3 million for the next two years

2020

  • Renove the mandatory telephone gateway in Debt, Discrimination and Special Educational Needs – by spring 2020
  • Review the legal aid means test – by summer 2020
  • Review crime legal aid fee schemes – by summer 2020
  • Conduct a review of regulatory and administrative requirements passed on to providers and streamline where possible – by the end of 2020

No specific timetable

  • Work with the Law Society to explore an alternative model for family legal aid
  • Consult on proposals to provide separate guidance for families on legal aid for inquests
  • Undertake a pilot to explore how signposting can be better co-ordinated
  • Pilot, test and evaluate holistic legal support hubs ot support early resoltion of legal problems
  • Work across government to reduce preventable demand
  • Foster a culture of innovation and use data more effectively
  • Set up a Legal Support Advisory Network to make use of external expertise to shape research and evaluation

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The Law Society Future of Law lecture: the future of justice and the justice system

Carol Storer reports back on the inaugural lecture of The Law Society’s 2019 thought leadership seminars with Lucy Frazer QC MP, Parliamentary under Secretary of State at the Ministry of Justice

Christina Blacklaws, President of The Law Society, introduced the first lecture of this year’s series of thought leadership seminars and welcomed Lucy Frazer QC MP, Parliamentary under Secretary of State at the Ministry of Justice (MoJ).

Christina referred to the government post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which came out earlier this month. Legal aid is a lifeline for some of the most vulnerable people in society. Hundreds of thousands became ineligible when LASPO came into existence. The ramifications of the Act are being felt across public life.

The review was very comprehensive. The proposals to improve the legal aid system are the first positive proposals in the last twenty years. The Law Society hope that the changes will make it easier for ordinary people to qualify for legal aid and will work with the MoJ on proposals eg the means test and Christina flagged up the lack of profitability impacting on the viability of practices delivering legal aid work.

The Law Society fully supports working with MoJ on the increasing use of technology and currently partner with Barclays and others in a LawTech panel chaired by Christina and set up by government but industry led.

Lucy Frazer thanked The Law Society for their input into the review and thanked others in the room who had contributed.

The minister stressed the importance of the legal system, the rule of law and that the justice system is renowned across the world. The law is steeped in tradition but must embrace modernism. People recruit online, date online, send millions of messages by WhatsApp and Messenger. The law needs to embrace the changes.

Areas where the MoJ is promoting technology include court reform.  The minister referred to her early life at bar – where once barristers received briefs in pink tape by post, they now receive emails and the pace is much greater – updates are sent sometimes daily.

There is an ambitious £1 billion investment in court reform to modernise with online services and digital working. The technology is designed around the needs of users and the aim is to be proportionate. Already there are online systems for probate, divorce and some road traffic offences. Over 100,000 people have interacted in this way.

Examples:

  • A supplier owed under £10,000 can sue and settle online. People can defend online up to this figure as well. Feedback is very positive.
  • Divorce petitions can be issues online. The reject rate is down from 40% to 1%.
  • Online social security tribunal judges able to contact participants.
  • Video facilities will be used more. These reduce the need to travel.
  • HMCTS has piloted video hearings in the tax tribunal.

The minister confirmed that there will always be a need for a physical court but the sector must seize the opportunities presented by technology.

How to best support individuals? Last month the MoJ launched its support programme.

Examples:

  • The Legal Advice Centre’s Cornwall Video Chat Service which provides remote advice in Cornwall.[v] There is also a webcam platform. Clients can make contact from their phone or computer. They can photo documents and send over.
  • Advicenow pulls together the best advice resources and everything is written in plain English. There are eg template letters etc. The aim is to empowers users.
  • There is an app to help PIP cases. It identifies the points to be flagged up and what the result should be.
  • Barclays LawTech innovation – she spoke with them yesterday. LawTech companies can eg test products. They are working on smart contracts.
  • There is a pilot for better ways to signpost people to the best advice. Already this has been proactive in some areas eg child arrangements and out of court settlements.
  • She has been talking to Mencap about their Chatbot project. The first phase will be completed in April.
  • MoJ want Lawtech to thrive. The Lord Chancellor set up the panel Christina chairs.
  • Money has been provided for innovation and projects involving LawWorks and Islington Law Centre. There has been investment in Legal Beagles a free online forum.
  • In the region of £600,000 was provided to the SRA to work on technological solutions for small businesses.
  • They have provided funding for improving digital resource for separated families.

Lucy Frazer stressed that technology is a servant not a master. Last year the MoJ funded £1.6 billion in legal aid funding. It is imperative that this support continues. The LASPO review was informed and evidence based. There are commitments on scope and to improve legal aid.

Examples:

  • Reform how to obtain exceptional case funding.
  • Changes to legal aid for guardianship cases.
  • Changes to the means test. There will be a pilot on expanding early advice for their legal problems. Money has to be spent effectively.

The minister stressed the need to expand global links. An illustration is the need to build judicial links internationally and she applauded the work already being carried out.

The government will continue to encourage tech solutions and innovative solutions.

There were several mentions of the Legal Education Foundation (LEF) which has funded a number of the innovative projects discussed.

Questions and Answers

Q Eileen Pereira, PSU, raised the journeys of LIPs. How can the MoJ prevent duplication and waste of resources?

A The minister said this was a good point eg Citizens Advice and Shelter doing work on this. The government is offering £5million. People will bid and across government, officials will evaluate projects. In that way, the government will know what people are doing and will share information. They will hold a seminar for users, Lawtech companies, law centres etc. and bring people together so they know who is working on what.

Q Natalie Byrom, LEF – it is good that there is evidence-based decision-making. She asked about evaluation.

A The evaluation of the court reform programme is on a day to day basis. The MoJ keep tweaking the systems based on feedback. And there will be a panel evaluating reform. HMCTS is now considering the criteria for evaluation and will announce when the evaluation will take place in due course.

Q Stephen Davis, Tuckers – The Law Society heat map shows that the average age of duty solicitors is 47. Fees have reduced. There is an issue about long term viability. The MoJ has failed to secure tenders in social welfare work. Has the MoJ sufficient expertise to ensure the viability of the profession?

A The minister recognises the need for a viable profession for solicitors and barristers. The profession needs to be attractive for recruitment and retention. The review was published. They read the TLS response, all other responses and met many representative bodies. They have started the next stage of the review process. Social welfare law – it is important to work out how users access advice and they recognise that face-to-face solutions are important. The MoJ will pilot face-to-face advice possibly housing and compare with tech solutions.

Q Jenny Beck, co-chair LAPG – there is a problem as to how to gather data from practitioners and MoJ. You cannot draw the invisible. Thousands cannot access and digital solutions are not appropriate. Concern about evidence gathering.

A  The minister thanked LAPG for input. She accepts that there are evidence gaps. There has been the assessment and there is an action plan. They did acknowledge the lack of data and will collect what they can:

  • by analysis of pilots. How affect clients? They will also capture the effect on other departments.
  • the court reform evaluation will monitor client journey eg failure rates, how many cases on what subjects and results.

They are conscious of the need to collect data. But some issues are not driven by data eg what are the perceptions of fairness? MoJ has had round tables to understand what vulnerable clients feel and with support groups who support vulnerable people.

Q Sara Plover, city lawyer said that many firms in the city are doing pro bono work – what more does the MoJ want?

A The minister felt it was not her job to say. The MoJ would be happy to co-ordinate. MoJ could help set up partnerships. Christina said the legal aid community was very grateful so offered to talk further to pro bono providers.

Q Emily Weidner, The Law Society – the divorce applications on Christmas Day. Was that really good?

A The MoJ want to make it easier for people to take cases forward. As regards family initiatives, the government is about to respond to no fault divorce.

Q David Marshall, Anthony Gold asked about the evidence from a paper by economists Fenn & Rickman referenced in the Part 2 response that there had been about a 20% fall in damages paid by defendants in clinical negligence cases post-LASPO (that is before any deduction of success fees from damages).

A The minister did not directly address that.  She said that most respondents thought the Part 2 reforms were working well, with the exception of concerns as to how DBAs were working in practice, and that there was no evidence of any fall in claims numbers and took that to mean that access to justice had been retained, but that it was difficult to assess beyond that. She did not deal directly with the point about damages, nor with why this hard quantitative evidence had not informed the policy.

Q Mona, trainee at Lovells – it can be difficult for people to use app-based systems. How is the MoJ tackling this?

A The minister has been to tribunals,  is liaising with HMCTS. It would help if departments get decisions right first time. They want people not to have to go to court. But if they do, then first-tier tribunal judges can review the documentation and make early decisions. The process is being tried now so should improve issues. There has been recruitment to appoint more judges.

For those who think technology is not the answer she gave the example that many young people contact the Samaritans by text rather than ring.

Q Carol Storer, Chair of The Law Society’s Access to Justice Committee asked about now – legal aid and courts – some people are enduring terrible experiences – what is the MoJ doing now as opposed to in the future? For example, people who need advice now with nowhere to go or people involved in court cases in person. They may go to court and there is nowhere to get any help if court offices are closed

A Don’t dismiss £1.6bn being spent on legal aid. What is the best way to help people and at what stage? LASPO review proposes imminent change.

Q Lord Mackay – asked about the quality of judiciary.

A The judiciary are very important. The MoJ need to work with the profession to attract more applicants.

Q David Hodson, International Family Law Group. All family jurisdictions. We say mediation must be voluntary. Other jurisdictions have or are looking at compulsory mediation. Should the MoJ?

A The minister has met many mediation organisations and are working with them.

Q Dr Natalie Byrom – can research community do more? Lots of people if moved from court process to mediation may not be able to get result they should. How monitor?

A There is a fantastic team at the MoJ and she welcomes support ideas and help. They are doing a lot of work on family law eg:

  1. Public family law working with another MP. Cross-government working is essential.
  2. The domestic abuse bill is going through Parliament now.
  3. There has been a second reading in parliament of the FGM private members bill.

Christina Blacklaws thanked the minister and urged people to talk to her and The Law Society staff if anyone wants to be involved in any of this work.

 

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LAA gets new power to backdate funding

Following the successful challenge in R (Duncan Lewis Solicitors Ltd) v Director of Legal Aid Casework and the Lord Chancellor in October 2018, the LAA has announced that it will get new powers to backdate funding under legal aid certificates in urgent cases from 20 February 2019. The challenge was to a refusal by the LAA to backdate funding in an urgent immigration judicial review case to the date of the application where legal action had to be taken very quickly, even though the solicitors had made the application as promptly as possible.

The backdating power is likely to benefit clients needing to challenge decisions by public authorities where delegated functions are not available. However, the LAA will provide more guidance in due course before the new power comes into effect.

The amendments to the Legal Aid (Procedure) Regulations 2012 which will bring this change into force can be found here.

The LAA will be closing its ‘out of hours’ service as a result of this new power. It has stressed that this change will not affect delegated functions which will remain available where appropriate. There is more information here.

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Updated guidance for civil legal aid applications

The Legal Aid Agency (LAA) published updated guidance on who qualifies for civil legal aid on its website last week (11 January 2019).

Resources available on the site include guides to scope, merits and means, as well as links to the relevant regulations. The civil legal aid calculator tool has links to the relevant forms. The LAA is encouraging practitioners to use the online calculator rather undertaking manual calculations.

Other information available via links on the LAA site include further useful statutory instruments, clarification on immigration funding for trafficking cases and leaflets aimed at advice providers.

The LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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LAA speeds up prior authority applications in CCMS

This post is by Jane Pritchard, consultant with Elawvate and author of the CCMS chapter in the Handbook.

This week, the LAA have issued two news items about CCMS.

The first update is headed “speeding up dual stage applications”. There is no new process here. Instead this is about getting the evidence requirements right when you choose which application to make. As we say in the Handbook, if you can make a single stage emergency application rather than dual stage you should use that process. Don’t forget however that if you are likely to need to amend your application before a substantive one is granted, the dual stage application enables you to make amendments to scope and limitation – in which case that process might be better.

There appears to be an issue with nullification of applications where evidence is unavailable and or not submitted to the LAA within the 5 working days allowed for submitting the substantive application. This update confirms that no certificate will be nullified where use of delegated functions can be justified by the evidence submitted with the emergency or substantive applications. Of course, the more information provided with the substantive application the better, even if it is a summary of all actions taken to obtain the evidence and the justification for the use of delegated functions based on the evidence available at the time.

The second news update is a change to process which all providers will welcome. It is now possible to upload supporting documentation when you make an application for prior authority at the point of making the application. This cuts out the need for the LAA to send a request to upload information and then for you to respond to that request – which delays the grant of prior authority. The CCMS quick guide on the LAA website has full details of how to submit an application attaching the evidence. The guide can be found here.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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New housing court duty tender opens

Following the collapse of the last tender, found unlawful by the High Court, the LAA extended the contracts of existing providers. However, in four areas existing contract holders were unable to continue, so the LAA is tendering for replacements. The affected areas are:

  • Barnet
  • Bodmin and Truro
  • Grimsby
  • Winchester

The tender closes on 26 November at 9am and the IFA can be found here.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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Legal aid back in Parliament this week

This week is Justice Week – the replacement for pro bono week – and the campaign group More United has secured a debate in Parliament on Thursday. Our co-editor Sue James wrote about it in this week’s Gazette.

Elsewhere in Parliament this week, the budget may have signalled the beginning of the end of austerity – but not for justice, as planned cuts to the MoJ budget remain in place.

Today saw the latest meeting of the legal aid all Parliamentary group (APPG). Amongst the speakers was the legal aid minister, Lucy Frazer, who gave an update but little detail about the progress of the LASPO review, expected to report by the end of the year.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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