Transforming legal aid: what the government now propose

So Chris Grayling has now made his statement to the Commons (Hansard text of the debate here). The full response is here, and there is much to be read and digested. Practitioners – both civil and criminal – will need to consider all the proposals very carefully. In many cases there is limited time before implementation, and they have the potential to have a very significant effect on your work. What is also clear is that the campaign against both elements is far from over; there could be more change yet.

Key announcements are (see our post here for the initial proposals):

Civil legal aid

• The residence test will go ahead as proposed via secondary legislation in early 2014, but with the following further exceptions and clarifications:
  • the asylum seeker exception will include those seeking advice on asylum issues – answering a concern that advice on fresh claims would be excluded unless the Home Office accepted the fresh claim
  • the residence test will not apply to:
    • those challenging detention (such as immigration detention)
    • victims of trafficking, domestic violence and forced marriage – but not generally, only where their status as one of those persons qualifies them for services under Schedule 1 LASPO (for example, a person with a housing problem who is also a trafficked person will not be able to rely on their trafficking history to access housing legal aid if they would otherwise fail the residence test, but they would be able to access the services specifically for trafficked persons in para 32 of Part 1 of Schedule 1)
    • child care and protection of children cases
    • cases before the Special Immigration Appeals Commission
    • some judicial review cases in relation to certification under sections 94 and 96 Nationality Immigration and Asylum Act 2002
  • successful asylum seekers will have to show 12 months lawful residence not from the date of their asylum grant, but from the date of the application
• Conditional funding for the permission stage of judicial review will go ahead, but with LAA discretion to pay in cases that settle pre-permission. There will be a further consultation on how this will operate.
• Prison law will be removed from scope as proposed. The government have added all proceedings before the Parole Board where the Board is considering whether to direct release, and advice and assistance in relation to sentence calculation, back into scope as well.
• Borderline cases will be removed as proposed
• Fixed fees (and hourly rates in escape fee cases) in childcare cases will be reduced by 10% as proposed. New fee tables are here, and will apply from April 2014.
• As proposed, rates for civil (non-family) barristers will be reduced to the rates payable to solicitors for advocacy, travel, etc. New fee tables are here and will apply from “later this year”.
• The 35% uplift for Upper Tribunal immigration and asylum cases will be removed as proposed. New fee tables are here and will apply from “later this year”.
• Expert fees will be reduced by 20% (with the exception of neurologists, neuroradiologists, neonatologists and housing disrepair surveyors). Interpreters will be paid the same rates as now in London but reduced by 12.5% out of London. New fee tables are here and will apply from “later this year”.

Criminal legal aid

• There will be no price competitive tendering and client choice will be maintained
• However, the government still want market consolidation through competition. There will be two contracts. One, for own client work only, will be awarded to any firm that passes the quality threshold. A second, for duty work, will be subject to competition with a restricted number of contracts per area. Contracts can only be awarded to single legal entities, but these could be firms, ABSs, joint ventures, etc. Agency work will be allowed, including by those who do not themselves have a contract (in effect allowing consortia, with the contract held by one lead firm).
• Procurement will start early next year, with contract awards in late 2014 or early 2015 and new contracts operational from spring 2015
• Procurement areas will be based on the 42 CJS areas, but with a further split into 9 areas in London and other splits in large rural areas, making about 60 areas in total. None should be more that 1 1/2 hours by car across.
• Duty contracts will be restricted geographically, and firms will only be able to do duty work in areas in which they have a duty contract (unless a case moves across boundaries). Further work is to be done on how many duty contracts there will be per area. They must be large enough to be “sustainable in their own right”, and duty work will be allocated equally between successful bidders.
• Prison law and appeals will not be bundled in with mainstream criminal contracts and providers will be able to apply for contracts to do that work only.
• Fees will be cut by 17.5%, with 8.75% in early 2014 and a further 8.75% from the start of new contracts in spring 2015. VHCC fees will be cut by 30%. There will be a single national police station fixed fee of £200.64 per case. There will be a single Magistrates Court fixed fee (with an escape threshold leading to hourly rates) of £321.05 regardless of the type of case. There will be a simpler LGFS for cases with PPE of less than 500, and the same LGFS (subject to the 17.5% cut) for above 500PPE cases.
• There are two options for a revised AGFS, set out in detail in chapter 4 of the new consultation paper
• Contracts will last four years (with an option for a further year)
• There will be interim payments for ongoing cases introduced and further work on improving cashflow will be carried out
• The criteria for QCs and multiple advocates will be tightened, and decisions on applications made by Presiding Judges
• Crown court legal aid will be limited, as originally proposed, to those with a household disposable income below £37,500, subject to exceptional hardship provisions.
• The PDS will continue to be protected from competition

Further consultation

The further consultation is limited to the crime proposals above. The civil are final decisions. The consultation closes on 18th October 2013 and you can respond here.