Legal aid reform (6) – civil and social welfare law

Much of social welfare law has been removed from scope altogether, or severely restricted.

  • Education cases – special educational needs cases remain in scope; everything else is removed. SEN cases will be required to go through the mandatory telephone gateway.
  • Mental health – cases under the Mental Health Act 1983 and the Mental Capacity Act 2005 are in scope, with the exception of the creation of lasting powers of attorney and the making of advance decisions.
  • Community care – this category remains in scope, though the full extent of it is defined in paragraph 6 of Schedule 1 of the bill in a more specific way than in the current category definitions. Instead of a discursive description – “services or facilities in the community, in residential or nursing accommodation and/or hospital” – the bill lists a series of statutory provisions under which cases may be brought. If it is not on the list, it is out of scope – though there is power to add further provisions by regulation. Community care cases will be required to go through the telephone gateway.
  • Judicial review is in scope even where the substantive area of law is not, provided the action has the potential to benefit the client, a member of their family or the environment (this re-imposes the restriction overturned in the Maya Evans case)
  • Habeas corpus is in scope.
  • Actions against public authorities for abuse of power or position, but not for clinical negligence, and only where the alleged act is deliberate, dishonest and resulted in harm that was reasonable foreseeable are in scope
  • Actions against public authorities for claims in tort or other damages claims where a significant breach of Convention rights is alleged, but not for clinical negligence are in scope
  • Housing or debt cases concerning court orders for sale or possession of the home or eviction from the home are in scope, but not where there are no grounds for arguing that the client is occupying otherwise than as a trespasser and their occupation began as a trespasser (this is the “squatters” exemption that has dominated discussion of the legal aid proposals in the tabloids). This is subject to Part 2 of Schedule 1 of the bill, which excludes a number of types of case even if Part 1 keeps them in scope. Relevant exclusions here include allegations of assault and trespass to goods land or property, which may be part of the claim in unlawful eviction cases, and welfare benefits issues, which will often be relevant in possession proceedings. The government has so far been oblivious to the argument that, where rent arrears are caused by benefits problems – often housing benefit – it is an essential part of the case to resolve the underlying cause as well as represent the client in the possession proceedings.
  • Bankruptcy orders are in scope where the client is being (or was) made bankrupt on the application of someone else and the estate includes their home.
  • Homelessness – services under Part 6 or 7 Housing Act 1996 to an individual who is homeless or threatened with homelessness are in scope
  • Housing disrepair is in scope but only where there is a serious risk of harm to the health or safety of the client or a member of their family, and where services are provided with a view to securing the removal or reduction of the risk. So actions to compel the landlord to make repairs are in scope, but not damages claims. Presumably if repairs are carried out part-way through a case and the action becomes one for damages only, legal aid will be withdrawn.
  • Anti-social behaviour cases are in scope where they concern orders under s1B, 1D or 1G Crime and Disorder Act 1998, or an injunction under s153A Housing Act 1996, as are gang-related injunctions under Part 4 Policing and Crime Act 2009
  • Protection from harassment injunctions are in scope
  • Victims of sexual offences are entitled to civil legal aid in relation to the offence, including actions for personal injury, negligence, assault, battery, false imprisonment, breach of statutory duty and breach of Convention rights by a public authority, but not criminal injuries compensation scheme applications.
  • Some Proceeds of crime Act cases remain in scope
  • Injunctions for nuisance remain in scope where environmental pollution is alleged
  • Equality Act cases remain in scope but will be required to go through the telephone gateway.
  • Cross-border disputes within the EU remain in scope.

The above list is exhaustive (apart from areas covered in our previous posts on family and immigration) and therefore if an area of law or type of proceedings is not on the list, it is out of scope. These include welfare benefits – all services in relation to benefits, allowances, payments, credits or pensions under any social security enactment are out of scope. The sole exceptions are judicial review and allegations of breach of the Equality Act. Other areas removed wholesale include clinical negligence, employment (except Equality Act cases) criminal injuries compensation and consumer and contract.

Scope cuts will come into effect following the passage of the bill and a tender process for new contracts, so not before autumn 2012 at the earliest.

Eligibility has been cut across all areas of social welfare law, and our post on eligibility gives more details. No implementation date has yet been announced.

Fees have also been cut by 10% with effect from 3rd October 2011 (February 2012 for housing under family and housing contracts). The fees schedule sets out the changes to individual fees, but the broad structure of the payment regimes remains unchanged. The revised fees start at page 50 of the schedule. Enhancements in hourly rates cases will be capped at 50% in the County Court and 100% in the High Court and above, with the proviso that there will be no pro rata reduction below that – so a case that currently attracts 30% enhancement now will get 30% in future, but a case that currently gets 60% will in future get 50%.

Barristers’ fees will be codified, also from October, and the fees can be found at page 67 of the fees schedule.

Expert fees will be codified and reduced by 10%, with provision for exceptional cases, and there will be further work on moving to a system of fixed and graduated fees for experts in the longer term. The full table of expert rates can be found at page 72 of the fees schedule.

There is to be a telephone gateway. The gateway will be the only way for clients to access advice in certain areas of law – they will not be allowed to get face to face advice or use a provider of their choice. The gateway will decide whether the case can be dealt with over the phone and if so the client will only be able to get telephone advice; if the gateway decides that face to face advice is required, it will make a referral. What face to face providers will be left to refer to – given that most of their cases will be swept into the gateway – is not clear.

The 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.


Filed under Advocacy, Civil, Costs, Legal aid bill, Social welfare

2 responses to “Legal aid reform (6) – civil and social welfare law

  1. Pingback: Weekly round up | Legal Aid Handbook

  2. Pingback: Legal aid reform (1): overview | Legal Aid Handbook

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