Category Archives: Family

by | April 24, 2020 · 5:37 pm

Legal aid scope changes from 15 May 2020

From 15 May 2020, the existing Civil Legal Aid Procedure Regulations 2012 will be amended to enable more people to receive advice, representation and mediation funded under legal aid.

Domestic abuse

The supporting documents acceptable as evidence of domestic abuse are extended as follows:

Schedule 1 (14) “A letter from an independent domestic violence advisor confirming that they are providing or have provided support to A.”

Schedule 1 (15) “A letter from an independent sexual violence advisor confirming that they are providing or have provided support to A relating to sexual violence by B.”

Schedule 1(17)
(1) A letter from an organisation providing domestic violence support services.
(2) The letter must confirm that it –
(a)   is situated in the United Kingdom [formerly restricted to England and Wales];
(b)   that the organisation has been operating for an uninterrupted period of six months or more; and
(c)   provided A with support in relation to A’s needs as a victim, or person at risk, of domestic violence
(3) The letter must contain –
(a)   a statement to the effect that, in the reasonable professional judgement of the author the letter, A is, or is at risk of being, a victim of domestic violence;
(b)   a description of specific matters relied upon to support that judgement;
(c)   a description of the support provided to A; and
(d)   a statement of the reasons why A needed that support.

Note that the LAA removed the requirement for such letters to be on letterhead during the COVID-19 Pandemic on 9 April.

Schedule 1 (20) “A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom as a victim of domestic violence [formerly under Paragraph 289B of the Immigration Rules].”

Mediation

The applicant for Family Mediation no longer has to attend the mediator’s premises in person if the mediator decides it is not necessary.

Alternatively, if the applicant cannot attend in person for a good reason, they can authorise someone else to attend on their behalf. The application form still needs to be completed and documentary evidence of financial eligibility must still be provided. See the Civil Legal Aid (Procedure) (Amendment) Regulations 2020 SI 439, reg 7 for more information.

Education, Discrimination, and Owner occupiers facing loss of their home

The mandatory route to legal aid through the Civil Legal Aid telephone service will no longer apply from 15 May 2020. Members of the public will be able to use the telephone service if they wish; but they will be free to use a local provider with a contract if they would prefer to do so.

Local providers with a Housing contract will be able to advise/represent owner occupiers facing loss of their home due to default on secured loans falling into the Debt category.

All Housing contracts include a notional four Legal Help matter starts for Debt matters. These can be increased to six by the contract holding organisation, after they have notified their Contract Manager. If they need more matter starts, they can apply for them (Standard Civil Contract Specification paras 1.21–1.24).

Education Local providers with a contract in this category will be able to advise/represent in special educational needs cases.

Local providers with Discrimination contracts will be able to advise on discrimination cases, even where they would normally be out of scope, e.g. employment.

Inquests Legal help for inquests can be backdated where the Director of Legal Aid disapplies financial eligibility limits in relation to the application.

Vicky Ling
24 April 2020

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by | April 17, 2020 · 2:20 pm

Law Society responds to LAA domestic violence changes

Last week, The Law Society criticised the government’s new guidance on domestic violence injunctions during the COVID-19 crisis, echoing the complaints made on this website on 6 April (post reproduced below). A day later, on 9 April, the government updated its guidance on injunctions, along with the guidance document Evidence Requirements for Private Family Law Matters.

Today, The Law Society welcomed the changes to the domestic violence evidence requirements guidance, but claimed that they do not go far enough. They are calling for solicitors to be given the power to certify that an individual is a victim of domestic abuse during the crisis. The Law Society’s statement on the matter is contained in the box below.

Changes to the ‘domestic violence gateway’ for legal aid

The Legal Aid Agency (LAA) has expanded how domestic violence requirements may be evidenced to make it easier for victims of domestic and child abuse to access legal aid during this difficult period.

The following changes will apply to the guidance in relation to evidence of both domestic violence and child abuse:

  • removing the need for evidence to be submitted on letter headed paper where required
  • allowing additional evidence types to be submitted via email
  • allowing solicitors to provide the LAA with an email documenting that they have spoken to a member of the police and received confirmation that the perpetrator did receive a caution for a domestic violence/child abuse offence, or that the perpetrator is involved in ongoing criminal proceeding relating to a domestic abuse/child abuse offence

We welcome these changes but feel they do not go far enough. We’re continuing to make the case to government that solicitors should be able to certify that an individual is a victim of domestic abuse during the crisis.

Read more (PDF, 812 KB)
Read more about help offered to domestic abuse victims

 

Legal Aid Handbook post from 6 April:

New guidance on domestic violence injunctions

On 3 April 2020, the government issued the guidance ‘Applying for a domestic violence (Family Law Act) injunction for unrepresented applicants’.

These are the steps:

  1. Fill in an application form to apply for a Family Law Act injunction.
  2. You will also need to provide a signed witness statement with your name and date, and include a statement of truth.
  3. If you don’t want the respondent to know your contact details, you must also fill in form C8 and the court must have contact details for both you and the respondent in order to set up a telephone or video hearing.
  4. Please check whether your local family court is open. If your local court is currently closed, contact the nearest open or staffed court. Telephone and email contact details can be found on court and tribunal finder by entering your post code.
  5. The court will contact you with hearing arrangements, by email if you have an email address.
  6. Most injunction hearings will take place by telephone. Court staff will arrange a telephone conference and notify you and the respondent, unless the hearing is without notice to the respondent. In some circumstances, the judge may make an order on paper without a hearing. If you are unable to make a telephone or video hearing, for example, because the respondent is in the same property, include this information in your email to the court.
  7. The court will also arrange for the injunction application and any order made to be delivered to the respondent.

Practitioners have raised serious concerns about the proposals.

Jenny Beck of Beck Fitzgerald, co-chair of LAPG, a member of The Law Society Family and Access to Justice committees, and a family law expert said:

This is of little help, I’m afraid. Victims should be put in the position where they can make one call/email to a properly funded support organisation that can help them for free. Making that single call will be hard enough for many.

The numbers murdered by a partner or ex-partner are set to rise dramatically. Already they have doubled from two women murdered every week to four during lockdown. China saw a threefold increase in domestic abuse.

The current response from the government appears to be one of acceptance that this is an inevitability, rather than of prevention.

The guidance just sets out the current process, with the additional burden of navigating a telephone hearing. There is no recognition of the way that trauma and terror collude to make even a straightforward process complex, let alone this one.

Ringfenced funding should be set aside for frontline support organisations to act quickly and refer cases to lawyers to do all the admin, prep and hearings on a  non-means-tested basis for this emergency period.

I’m absolutely terrified about the likely consequences for women and children unless we have a properly funded and co-ordinated approach to protection. The abuse is happening right now, today. The response needs to be effective and immediate.

Cris McCurley of Ben Hoare Bell, a member of the UN/CEDAW Shadow report writing working party, a member of The Law Society Access to Justice committee, and a family law expert said:

A letter has been sent to the Home Secretary and Prime Minister by the Women’s Resource Centre seeking adequate ring-fenced funding to cope with what it a well-acknowledged rise in not only domestic abuse, but femicide. At a time when victims will feel most alone, advising to do-it-yourself is not a credible option. What about the women for whom English is not their first language, or women with disabilities?

Alison Lamb, CEO of RCJ Advice which delivers FLOWS in partnership with Rights of Women and over 65 domestic abuse-accredited legal aid providers, hopes women will use CourtNav FL401, which offers both advice and guidance when completing injunction applications, and links with a legal aid provider with a track record of domestic abuse work.

Carol Storer, interim director of Legal Action Group said:

The government must do so much better than this. Anyone thinking of taking any step in this situation would find it hard to navigate this procedure.

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by | April 6, 2020 · 1:10 pm

New guidance on domestic violence injunctions

On 3 April 2020, the government issued the guidance ‘Applying for a domestic violence (Family Law Act) injunction for unrepresented applicants’.

These are the steps:

  1. Fill in an application form to apply for a Family Law Act injunction.
  2. You will also need to provide a signed witness statement with your name and date, and include a statement of truth.
  3. If you don’t want the respondent to know your contact details, you must also fill in form C8 and the court must have contact details for both you and the respondent in order to set up a telephone or video hearing.
  4. Please check whether your local family court is open. If your local court is currently closed, contact the nearest open or staffed court. Telephone and email contact details can be found on court and tribunal finder by entering your post code.
  5. The court will contact you with hearing arrangements, by email if you have an email address.
  6. Most injunction hearings will take place by telephone. Court staff will arrange a telephone conference and notify you and the respondent, unless the hearing is without notice to the respondent. In some circumstances, the judge may make an order on paper without a hearing. If you are unable to make a telephone or video hearing, for example, because the respondent is in the same property, include this information in your email to the court.
  7. The court will also arrange for the injunction application and any order made to be delivered to the respondent.

Practitioners have raised serious concerns about the proposals.

Jenny Beck of Beck Fitzgerald, co-chair of LAPG, a member of The Law Society Family and Access to Justice committees, and a family law expert said:

This is of little help, I’m afraid. Victims should be put in the position where they can make one call/email to a properly funded support organisation that can help them for free. Making that single call will be hard enough for many.

The numbers murdered by a partner or ex-partner are set to rise dramatically. Already they have doubled from two women murdered every week to four during lockdown. China saw a threefold increase in domestic abuse.

The current response from the government appears to be one of acceptance that this is an inevitability, rather than of prevention.

The guidance just sets out the current process, with the additional burden of navigating a telephone hearing. There is no recognition of the way that trauma and terror collude to make even a straightforward process complex, let alone this one.

Ringfenced funding should be set aside for frontline support organisations to act quickly and refer cases to lawyers to do all the admin, prep and hearings on a  non-means-tested basis for this emergency period.

I’m absolutely terrified about the likely consequences for women and children unless we have a properly funded and co-ordinated approach to protection. The abuse is happening right now, today. The response needs to be effective and immediate.

Cris McCurley of Ben Hoare Bell, a member of the UN/CEDAW Shadow report writing working party, a member of The Law Society Access to Justice committee, and a family law expert said:

A letter has been sent to the Home Secretary and Prime Minister by the Women’s Resource Centre seeking adequate ring-fenced funding to cope with what it a well-acknowledged rise in not only domestic abuse, but femicide. At a time when victims will feel most alone, advising to do-it-yourself is not a credible option. What about the women for whom English is not their first language, or women with disabilities?

Alison Lamb, CEO of RCJ Advice which delivers FLOWS in partnership with Rights of Women and over 65 domestic abuse-accredited legal aid providers, hopes women will use CourtNav FL401, which offers both advice and guidance when completing injunction applications, and links with a legal aid provider with a track record of domestic abuse work.

Carol Storer, interim director of Legal Action Group said:

The government must do so much better than this. Anyone thinking of taking any step in this situation would find it hard to navigate this procedure.

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by | March 3, 2019 · 8:25 pm

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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by | September 3, 2018 · 9:02 pm

A turbulent August

The summer is usually a quiet time; not so this year. There has been much going on, both in civil and crime, so here is a round up of recent events.

Two more JR losses

The MoJ and LAA have lost two more judicial reviews, both lost because of deficiencies in policy making and in the fairness of the LAA’s approach – making three in recent months (following the housing court tender) where the High Court has been seriously critical of MoJ / LAA failings.

In The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin), Leggatt LJ and Carr J quashed the recent changes to LGFS. Although critical of the Law Society’s conduct of the litigation, their strongest words were saved for the conduct of the MoJ consultation, which was found to be not open and transparent, in particular because the underlying analysis was not only withheld but concealed. The analysis itself was statistically flawed and could not be relied on. And, in respect of the Lord Chancellor’s argument that these failings did not prejudice the fairness of the consultation, the court said that “It is difficult to express in language of appropriate moderation why we consider these arguments without merit”.

Ames, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2250 (Admin) is a case about the quantum of counsels’ fees in a criminal VHCC. As part of the negotiations, the LAA relied on figures produced by its internal “calculator”, but refused to disclose the calculator or any other policy or guidance it used for setting the amounts of reasonable work and the fees payable. The court pointed out that for all other fee schemes, the rates of pay and the basis of calculating fees were published in regulations. It found that the failure to disclose it was irrational and in breach of a duty of transparency and clarity to those whose fees were to be determined by it, a failing compounded by a further failure to engage with the arguments counsel seeking payment made, and mistakes in the LAA’s own calculations. The court directed the calculator and associated guidance to be disclosed.

New civil contracts start 1 September – or do they?

Organisations awarded civil contracts from 1 September 2018 were, in many cases, left in considerable doubt about whether they’d be able to continue as the LAA failed to upload contracts for signature for some successful bidders. Unless the contract has been uploaded by the LAA, and then accepted and executed, you do not have a valid 2018 contract and will not be paid for work done from 1 September 2018 (except under the remainder work provisions of the old contract).

There was no public announcement of what organisations in this position should do in the run up to the start date. LAPG was in constant contact with the LAA and kept its members up to date as best as it could (any legal aid lawyers not members of LAPG really should be). But it was not until late on Friday evening, just before the midnight end of the old contract, that the LAA announced that it was creating a special seven day emergency contract. It has issued further guidance on Monday – if your organisation is affected, make sure you check Bravo regularly and have uploaded everything the LAA has asked for. The LAA has said that organisations operating under the emergency contract will not be able to apply for certificates through CCMS, so you should either wait until your full contract is confirmed, or – if the work is urgent – call the LAA on 0300 200 2020.

New civil guidance

The LAA has begun the process of updating its guidance to take account of the 2018 contract – so far the costs assessment guidance and the escape cases handbook have been updated.

AGFS consultation

As part of its deal with Bar that led to the calling off of action earlier this year, the MoJ promised to re-work the AGFS scheme and invest a further £15million into it. The MoJ opened a consultation into the detail of how this would be done – it closes on 28 September.

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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by | July 7, 2018 · 11:06 am

New LAG Legal Aid Handbook

We’re delighted that the new Handbook, 2018-19 edition, will be published at the end of this month.The new edition is fully revised and updated and packed full of useful advice, hints and tips and guidance. It’s the only fully comprehensive guide to the whole legal aid scheme, described by some readers as the ‘bible on legal aid’.

This edition welcomes a new general editor joining Vicky and Simon, Sue James. Sue needs no introduction to legal aid lawyers as a leading housing lawyer and the recipient of a LALY lifetime achievement award.

Anthony Edwards returns to edit the crime sections, and his vast experience and knowledge makes that section indispensable for criminal lawyers.

Returning contributors Steve Hynes and Richard Charlton have updated their chapters on policy and mental health. For this edition we have brand new content of interest to all civil legal aid lawyers from a range of expert practitioners:

  • Leading costs lawyer and chair of the ACL legal aid group Paul Seddon has revised and greatly extended the civil costs chapter
  • Simpson Millar solicitor and LALY nominee Silvia Nicolaou Garcia has contributed a brand new chapter on community care
  • Consultant and IT expert Jane Pritchard has written a detailed guide to using CCMS

Bigger and better than ever and fully up to date including the 2018 contracts, the Handbook is the one book no legal aid lawyer can afford to be without. Pre-order your copy now from the LAG Bookshop

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by | July 7, 2018 · 10:38 am

New LAA position statement on statutory charge

Family practitioners will be aware of a difficulty with the application of the statutory charge in some cases. Failings by a local authority towards have led to damages being sought on behalf of the child under the Human Rights Act.However, where this is done within the care proceedings it meant the damages would be swallowed up by the statutory charge which recovered the cost of the care proceedings. A line of cases confirmed the proper approach was to bring the damages claim separately to the care proceedings. Although this would mean a separate legal aid certificate, there was still an issue around the extent to which these were connected proceeding within s25 LASPO, meaning the statutory charge would still bite to recover the costs of the care proceedings. See Chapter 5 of the Handbook for more.This issue has come to court again in the recent case of Northamptonshire County Council & Anor v The Lord Chancellor (via the ire County Legal Aid Agency) [2018] EWHC 1628 (Fam). Francis J noted that the LAA has now agreed to publish an updated statement of its position in these cases. Although it has not yet done so, the LAA’s position statement in this case is attached to the judgment and can be viewed here. It says

[If] HRA damages are obtained outside of the care or other family law proceedings (e.g. within separate civil proceedings, or by means of a settlement outside of the care or other family law proceedings), only the legal aid expenditure incurred in respect of pursuing an HRA claim will be treated by the LAA as provided in connection with it. If the LAA is asked to give an early indication as to whether the statutory charge will apply to any HRA damages in these circumstances, it will request undertakings from the provider and counsel in the care proceedings that they will not make a claim for costs in respect of any HRA work carried out as part of the care or other family law proceedings. Once the undertakings have been received, the LAA will be able to confirm that the statutory charge will not extend to the legally aided care costs. Note that, unless a certificate or amendment to a certificate specifically authorising an HRA claim has been granted, there could be no valid claim for such costs in any event.

For the avoidance of doubt, legal aid expenditure in relation to the HRA claim will form a statutory charge in respect of any damages or costs recovered in the settlement of that claim, to the extent that a claim is made for costs from the LAA.

The LAA now clearly accepts that – provided proceedings are separate – the HRA damages will not be used via the statutory charge to recover the costs of the care proceedings. However any legal aid costs in the HRA claim will. Such cases will often be unsuitable for a CFA and the costs protection afforded by a legal aid certificate will be needed. Even if costs are awarded in the event of a successful claim they will not cover the legal aid only costs and perhaps not part of the substantive work. This leaves practitioners with the invidious choice of not claiming perhaps significant costs, or seeing them recouped from their child client’s damages. However this position seems as far as the law can go in these situations. Whether it is just for the state to recover costs from damages awarded to a child client for HRA breaches by the state is essentially a political and policy question, and perhaps one the forthcoming LASPO review may address.

UPDATE 11 July: The LAA has now published the statement on its guidance page here

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by | April 28, 2018 · 6:25 pm

LAA amends contracts for GDPR

The LAA has amended all current contracts in order to meet the requirements imposed by the General Data Protection Regulation (Regulation (EU) 2016/679) and the Law Enforcement Directive (Directive (EU) 2016/680), being implemented under Part 3 of the Data Protection bill. Amendments regarding the GDPR apply from 25 May 2018. Amendments relating to the Directive apply from 6 May 2018.

There are some detailed obligations. The LAA require you to notify them within 5 business days if you receive the following in relation to LAA or shared data:

  • A data subject request
  • A request to rectify, block or erase personal data
  • A complaint or other communication about your (or the LAA’s) handling of data
  • A communication from the Information Commissioner

You must also indemnify the LAA if it is fined because you fail to comply with the legislation.

You can find more information here.

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by | April 9, 2018 · 4:39 pm

New Civil Keycard Issued Today

This afternoon the LAA issued a new civil keycard, keycard 54, containing revised eligibility limits. The main change appears to be a small reduction in dependant’s allowances.

It is unfortunate that the keycard was not issued until the afternoon of the day it came into force. You may wish to check any grants, particularly of Legal Help and CLR, made today to confirm the client is eligible.

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by | April 3, 2018 · 10:37 pm

2018 Civil Contracts Update

Just before Easter, the LAA released some more information about the 2018 civil tender process.

The failed discrimination tender will be re-run, though in the education category existing providers have agreed to continue, so no re-tender will be necessary.

In housing the LAA has failed to secure court duty provision in Cornwall. In 39 procurement areas, no or only one compliant bid for face to face contracts was received, so the LAA will be re-tendering in late April 2018. These areas include the whole of the South West of England beyond Bristol and Somerset, much of northern England outside the major urban areas and parts of the Midlands. Meanwhile, the Law Centres Network has been given permission to judicially review the court duty tender process as a whole, with a hearing listed for next month.

In family, there were 7 areas with no or one bidder, and 6 in immigration.

The full list of areas that will be re-tendered can be found in Annex A of the LAA’s update, here.

This level of procurement failure is unprecedented in legal aid. The initial tender exercise failed to find any successful bidders in two whole areas of law – education and discrimination – and leaves many areas of the country without meaningful access to legal aid in other areas. It is a further development of a process of market failure which has been underway for a long time, accelerated by LASPO, where in many places it is no longer viable to continue legal aid work. It is difficult to see how a repeated tender exercise – based on the same scope restrictions, payment rates, and contract terms – will yield a significantly different outcome. Last week Community Law Partnership, a top firm of housing lawyers in Birmingham, tweeted a typical case of a family turned away from housing assistance and only housed after a threat of judicial review. The entire thread sums up the value of the work they and others like them do – and ended with a reminder of why there are ever fewer who can.

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