The government revealed its final proposals for legal aid reform today. There has been some – but not very much – movement from the original proposals. The full response to consultation, and impact assessment, is on the MoJ website, as is the government press release. The full text of the Bill is available on the Parliament website.
The key announcements on scope are:
Cases and proceedings retained within the scope of legal aid.
ii) asylum support where accommodation is claimed;
iii) claims against public authorities (other than judicial review and other similar remedies), concerning a significant breach of human rights, or an abuse of position or power;
iv) claims arising from allegations of abuse and sexual assault;
v) community care;
vi) debt (where the client’s home is at immediate risk), including involuntary bankruptcy and orders for sale of the home;
vii) domestic violence and forced marriage proceedings;
viii) family mediation;
ix) housing matters where the home is at immediate risk (excluding those who are “squatting”), homelessness assistance, housing disrepair cases that pose a serious risk to life or health and anti-social behaviour cases in the county court;
x) immigration detention;
xi) appeals to the Special Immigration Appeals Commission
xii) international child abduction (including orders both to recover a child and those to prevent international abduction);
xiii) international family maintenance;
xiv) mental health, including mental capacity issues currently in scope;
xv) Special Education Needs cases (currently within scope)
xvi) private family law cases involving domestic violence and private law children cases involving child abuse – the definition of domestic violence is wider than in the original proposals;
xvii) public law cases (judicial review and other similar remedies) other than representative actions and certain immigration and asylum judicial reviews);
xviii) public law children cases;
xix) registration and enforcement of judgments under European Union legislation;
xx) representation of children in rule 16.2 (and 16.6) private law children cases;
xxi) miscellaneous proceedings: confiscation proceedings, injunctions concerning gang related violence, Independent Safeguarding Authority Appeals (care standards), Legal Help at Inquests, proceedings under the Protection from Harassment Act 1997, and quasi criminal proceedings;
xxii) discrimination cases that are currently within scope (claims relating to a contravention of the Equality Act 2010);
xxiii) environmental cases;
xxiv) European Union cross border cases; and
xxv) appeals to the Court of Appeal and Supreme Court, and references to the European Court of Justice, where the area of law to which the appeal relates remains in scope.
Cases and proceedings removed from the scope of legal aid.
i) asylum support (except where accommodation is claimed);
ii) clinical negligence;
iii) consumer and general contract;
iv) Criminal Injuries Compensation Authority cases;
v) debt, except in cases where there is an immediate risk to the home;
vi) employment cases;
vii) education cases, except for cases of Special Educational Needs;
viii) housing matters, except those where the home is at immediate risk (excluding those who are “squatting”), homelessness assistance, housing disrepair cases that pose a serious risk to life or health and anti-social behaviour cases in the county court;
ix) immigration cases (non-detention);
x) miscellaneous (specified matters): appeals to the Upper Tribunal from the General Regulatory Chamber of the First- tier Tribunal, cash forfeiture actions under the Proceeds of Crime Act 2002, legal advice in relation to a change of name, actions relating to contentious probate or land law, court actions concerning personal data, action under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, and legal advice on will-making for (i) those over 70 (ii) disabled people (ii) the parent of a disabled person and (iv) the parent of a minor who is living with the client, but not with the other parent, and the client wishes to appoint a guardian for the minor in a will;
xi) private family law (other than cases where domestic violence or child abuse is present);
xii) tort and other general claims, and
xiii) welfare benefits.
There are no changes to criminal scope.
The telephone gateway will initially be restricted to debt (where it remains in scope), Special Educational Needs, discrimination and community care. Exceptions will apply in emergencies and where the client’s problem has previously been assessed by the gateway as requiring face to face advice; detained clients; and children. The effectiveness of the gateway will be reviewed before any decision is taken to extend it to other areas of law. There will also be a phased expansion of the existing voluntary telephone advice service to all areas of law and a pilot on extending it to offer paid for advice.
On eligibility, the government has decided to means test capital for clients on passporting benefits; to extend the £100,000 subject matter of the dispute disregard cap to all levels of service, and to increase contributions as set out in the consultation.
On fees, there are cuts to both criminal and civil fees, including the implementation of a 10% across the board cut to civil and family fees. All revised fees are published in a single document, with crime first and civil and family from page 51 onwards.
On experts, the existing benchmark rates will be codified, subject to a 10% reduction, and further work will be done on a longer term framework for expert remuneration. The new expert fees are set out at page 71 of the fees document.
There will be a Supplementary Legal Aid Scheme into which 25% of damages (other than for future care and loss) recovered in legal aid cases will be paid to provide an additional funding stream for general damages claims and exceptional cases.
The Legal Services Commission is to be abolished and its functions exercised by a civil servant designated as the Director of Legal Aid Casework, within the MoJ.
There is a huge amount to be digested and, as always, the devil will be in the detail. Over the coming days, weeks and months we will endeavour to keep you up to date with key developments and post more detailed analysis of the reforms.