The statutory framework
The Legal Aid, Sentencing and Punishment of Offenders Bill talks not about “civil legal aid”, but “civil legal services”. They are defined in clause 7 of the bill, where “legal services” means
- providing advice on how the law operates in particular circumstances;
- providing advice and assistance in relation to legal proceedings;
- providing advice and assistance in relation to the prevention of disputes about legal rights or duties or the settlement or resolution of disputes;
- providing advice and assistance in relation to enforcement of decisions.
“Advice and assistance” expressly includes representation and mediation.
“Civil” simply means not criminal.
However, civil legal aid will only be available to an individual if for the type of services described in Schedule 1 of the bill and if the Director of Legal Aid Casework has determined that the individual qualifies for the services. There is also limited provision for exceptional cases.
Types of services
Schedule 1 of the bill defines the scope of civil legal aid. The Schedule is in 3 parts, Part 1 listing all the proceedings that are in scope, Part 2 those that are out of scope, and Part 3 the venues in which advocacy services can be provided.
So the task of determining whether a particular case is or is not in scope is not straightforward. First you need to consider the list in Part 1; if it is not there, it is out of scope. But Part 1 (unless expressly stated in the relevant paragraph of Part 1) is subject to Part 2, which lists proceedings that are expressly excluded. So some or all of the case could still be excluded even if it is listed in Part 1. Advice and assistance will only extend to advocacy if the particular venue is listed in Part 3.
To take an example, the government’s initial consultation appeared (it wasn’t entirely clear) to propose taking housing cases for unlawful eviction out of scope. The consultation response now says that they have decided to leave unlawful eviction within scope. So, paragraph 27(1) of Part 1 of Schedule 1 says that civil legal services in relation to the eviction from the individual’s home of the individual or others are in scope. So far so good. But many such cases also involve a claim for damages both for the eviction itself, plus for example claims for trespass to goods or damage to property. Both are excluded under Part 2; so in future victims of unlawful eviction could apply for an injunction to get back into the property, but would go uncompensated for all their belongings that ended up in a skip.
So what is in scope? See our summary, and we will be taking a more detailed look at particular areas of law in the coming days.
Cases otherwise excluded from scope may be funded as excluded services, subject to means and merits, if:
- it is necessary because failure to make services available would be a breach of Convention rights or EU law;
- it is appropriate to make services available as failure to do so risks such a breach; or
- the services are advocacy at an inquest into the death of a member of the client’s family and there is a wider public interest justification
Determination by the Director
The Director of Legal Aid Casework – or his staff – determines qualification for legal aid. The Director is a civil servant in the Ministry of Justice and in effect the replacement of the LSC. Clause 10 of the bill allows the Lord Chancellor to make regulations setting out means and merits criteria, which the Director must follow in deciding whether to grant funding in individual cases. The Lord Chancellor must not give directions in relation to individual cases (clause 4). There are a list of factors listed in the clause that the Lord Chancellor must consider in setting merits criteria:
- cost benefit;
- availability of resources;
- the appropriateness of applying those resources, having regard to present and likely future demands for civil legal services;
- the importance of the matter to the client;
- the nature and seriousness of the act, omission, circumstances or other matter in relation to which services are sought;
- the availability of services other than through legal aid;
- prospects of success;
- conduct of the client in connection with the services sought or an application for them;
- conduct of the client in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties;
- the public interest
The bill specifically states that the criteria must “reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”. Does this create something approaching a presumption of mediation rather than representation?
This list is similar to that in s8(2) Access to Justice Act for the current scheme, but points 5, 8 and 9 are new (though the latter appear in the existing Funding Code criteria). This clause does not create the successor to the Funding Code, but it does create the factors the Lord Chancellor must have regard to when drawing up the successor Code.
Point 5 appears to reflect the government’s view, underpinning the reform programme, that only certain types of case are sufficiently serious to justify legal aid. That is why whole areas of law have been cut from scope (see above). If it was just about a threshold of seriousness, for example excluding small claims cases, that could be done under 1 and 4, as now. So why is point 5 there as well? Is the government’s judgement that some cases – liberty, roof over the head – are more important than others – benefits disputes, damages claims – to be extended to those cases remaining in scope? Are we going to see cases ostensibly in scope refused because they are not sufficiently “serious”? Presumably nature and seriousness is to be measured against other cases, not in their effect on the client, since point 4 deals with importance to the client.
The bill also makes provision (clause 20) for regulations dealing with financial eligibility for services, and includes provision for some services to be provided without regard to means – as happens now in, for example, child care and mental health detention cases. The eligibility regulations have not yet been published, and we will deal with the detail of the proposals in this area in the next post.
Costs and the statutory charge
The bill in effect replicates the existing costs protection, costs awards and statutory charge regime, though much of the detail is delegated to regulations yet to be published.
Provision of services
A key clause in the bill is clause 26. This says that the Lord Chancellor’s duty to make legal aid available does not include a duty to make it available in a way of the client’s choosing. Nor must it be provided by a person or firm of the client’s choosing. The clause specifically says that the Lord Chancellor may discharge his duty by arranging for services to be provided by telephone or other electronic means. This is therefore statutory authority for the telephone gateway, and is not limited by any question of for example the circumstances of the client or their case, so the gateway can in future be extended beyond the four initial areas (special educational needs, community care, debt and discrimination).
Therefore, the effect of the clause is that, while legal aid must be made available, it need not be made available in a way or by a provider of the client’s choice.