Category Archives: LASPO

Scope news

News of a couple of recent cases where the scope of legal aid has been an issue:

Firstly, some welcome news via the Court of Protection Handbook blog (another site supporting a LAG book, and invaluable for practitioners in that field). It is a report from Bindmans confirming that the LAA has conceded that a claim for damages under the Human Rights Act made in the Court of Protection is in scope under para 22 of Schedule 1 of LASPO. More here.

Secondly, another in the list of cases where the family courts have identified loopholes in the funding arrangements for care cases. In JC (Discharge of Care Order : Legal Aid) , Re [2015] EWFC B39, a father was refused legal aid to be represented on an application by the local authority to withdraw discharge of a care order. While such matters are in scope, they are not covered by the non-means non-merits provisions, and the father didn’t qualify on means. HHJ Hammerton said:

      In terms of the provision of legal aid it is impossible to rationalise the distinction between defending an application for a care order and defending an application for the withdrawal of permission to discharge a care order, when both applications are made by the local authority. The outcome being sought by the local authority is the same, namely the removal of the child from his parent. However the application made within original care proceedings will attract non-means tested public funding whereas the application to withdraw a discharge of a care order will not.
      The lack of legal representation inevitably causes an imbalance in the effective presentation of the cases advanced by the parties. When, as here, the subject matter is grave and emotive, the absence of representation is particularly inappropriate and unfair.

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Court of Appeal says exceptional funding regime is lawful

The Court of Appeal has given judgment in the case of Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464, the Director’s appeal against the judgment of Collins J in the High Court that the exceptional funding regime was inherently unlawful.

Laws LJ gave the main judgment, with which Burnet LJ agreed. He said that there were clear flaws in the operation of the scheme which had resulted in unfairness in individual cases. But it is necessary to look at the range of cases, and more than error in individual cases is required; unfairness – to a high threshold – must be shown in the scheme itself. He said that it is important to distinguish a bad scheme and one that is operated badly. And a judge must be careful not to stray into matters of underlying policy.

All sides accepted that there had been flaws in the operation of the scheme. Improvements were needed. But the evidence supplied of experience of use of the scheme was of limited value and unreliable. Significant improvements had been made since Gudanaviciene, showing that both the LAA and providers were on a learning curve. That there was a low number of applications, and a low success rate, didn’t of itself show that the scheme was unfair, and the resources available to legal aid are limited. Collins J hadn’t shown how his individual criticisms of the scheme added up to systemic unfairness, and it was Laws LJ’s “impressionistic” judgment that they didn’t. Neither did he or Burnet LJ consider the merits test or the Lord Chancellor’s Guidance to be unlawful.

Dissenting, Briggs LJ said that he would find the scheme unlawful. Although he agreed with much of what Laws LJ had said, he found that a key feature of the scheme was that its complexity was such that legal assistance was required. As there was no payment available for unsuccessful applications, and such a low success rate, it is uneconomic for lawyers to take part it in it. That is an inherent flaw in the scheme. A learning curve might help those applications that are made, but is no answer to those that aren’t.

Comment

The views of the majority are not wholly persuasive. They recognise a number of powerful criticisms of the operation of the scheme and the injustice that has resulted in individual cases. But all to often that is dismissed or disregarded – even though Laws LJ readily admits that the Court didn’t read all the evidence – and where it is not it is explained away or the Director’s response accepted. The thrust of the majority view appears to be that the scheme is badly operated, but not quite bad enough of itself to be unlawful. But the conclusion that the whole is less than the sum of the parts does not convince.

Wider implications

Following Collins J’s finding in the High Court that the merits test was unlawful, the Lord Chancellor introduced a new merits test. This reversed the exclusion of borderline cases, and extended legal aid to poor (but not very poor – i.e. less than 20% prospects of success) cases. That change applied not just to exceptional cases but to in scope cases as well; now that the Court of Appeal has found that the previous iteration of the merits test was not unlawful, it may be that this wider merits test will be withdrawn. It remains to be seen whether the case will go on to further appeal.

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Initial certificate limits increased

The LAA has announced that it is increasing the default costs limit on certificates in family cases to £5000. This doesn’t apply to emergency certificates – that limit remains at £1350 (though you have a delegated function to increase that to up to £10,000 to do further urgent work).

More on the LAA website here.

Meanwhile the LAA has amended its guidance for situations where there is a show cause notice. The old guidance suggested costs were not claimable in such situations – that was true of Access to Justice Act cases but not LASPO cases. Under LASPO, if the show cause is removed it as if it never existed and all work is claimable. Well done to the Association of Costs Lawyers for pushing the LAA to correct the guidance.

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Domestic abuse evidence requirement extended to five years

The Court of Appeal recently decided that the existing domestic abuse gateway to private law family legal aid was unlawful because:

  • It only permitted evidence within the last two years;
  • It had no mechanism for proving financial abuse.

In a written statement to Parliament today, the minister gave the government’s response. 

It has laid new regulations, coming into force on Monday 25 April, extending the two year period to five years, and including provision for financial abuse. It will also review the needs of victims of domestic abuse with a view to developing “evidence based” replacement regulations in the long term.

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Supreme Court finds residence test unlawful

The Supreme Court began hearing the residence test appeal on Monday. Most unusually, at the end of day one of a two day hearing, the Court gave its decision – that the test is unlawful because it is outside the powers granted to the Lord Chancellor by LASPO. It’s not yet clear whether the second day will go ahead to consider whether it is also discriminatory. The Court will give reasons in due course.

This is a very welcome result, and our congratulations to the Public Law Project and its representatives for bringing the case. As we said when the draft regulations were first published the test is not only directly and deliberately discriminatory, it would also have the practical effect of barring access to legal aid for many who would be eligible but unable to prove it.

But it’s important to remember that this doesn’t necessarily mean the end of the residence test. There’s clear political will to introduce it, with the Prime Minister himself reportedly committed to it as part of the government’s response to the Iraq armed forces cases. Today’s hearing showed that the test can’t be implemented via statutory instrument using the LASPO powers. But it could still be brought in by primary legislation – and that would be harder still to challenge.

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Lord Chancellor agrees to review of legal aid for trafficking victims

LASPO made legal aid available for victims of trafficking to bring compensation claims against those who exploited them, for example as employment matters, even though such claims would otherwise be out of scope – see paras 32 and 32A of Part 1 of Schedule 1 of LASPO.

However, when LASPO came into force, the LAA didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case.

2013 Civil Contracts gave contract holders the right, under their schedules, to start just 5 miscellaneous Legal Help cases each year. Later versions of the contract haven’t improved the situation.

The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. It’s hard to go straight to a certificate – either for investigative or full representation – without carrying out at least some preliminary work under Legal Help first. These are not straightforward or simple cases. The categorisation of them as “miscellaneous”, and the limiting of the numbers of such cases per year, put an effective barrier in the way of cases being taken on.

So the Anti-Trafficking and Labour Exploitation Unit – ATLEU – sought judicial review. Permission was granted by Blake J, who said

It is arguable that the absence of any tender scheme for specialist legal assistance for victims of trafficking and labour exploitation in employment, the limit of miscellaneous matter starts to 5 per annum that any holder of a civil contract may bring and the absence of employment claims within the scope of LASPO together amount to a breach of the duty to make legal aid available to victims of trafficking.

The case was listed for trial last week, but shortly beforehand the Lord Chancellor offered a review of the effect of these provisions, and so the case settled.

The review, to be carried out by the MoJ and LAA, is to identify:

  1. whether there are barriers to access to legal aid;
  2. if so, what are the causes; and
  3. what steps need to be taken to ensure adequate and effective access to Legal Help

The focus of the review is on access to Legal Help and the ability to assess whether to bring a claim, rather than on the ability to do so (which would be funded by a certificate). The review will be carried out urgently, to report by June, and the report will be published. Ministers will implement any recommendations as soon as practical thereafter.

Our thanks to ATLEU and their representatives for bringing this important case to our attention. ATLEU was represented pro bono by Freshfields and Shu Shin Luh of Garden Court. As part of the settlement, the MoJ will pay a £12,000 pro bono costs order to the Access to Justice Foundation.

 

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Residence test hearing expedited

Readers of this blog will know what a serious threat the residence test would be to access to justice. We last covered developments here.

We understand that Public Law Project’s challenge to the residence test has now been expedited by the Supreme Court and will be heard by a panel of seven justices on the 18th and 19th of April 2016. PLP is being represented by Bindmans, who will only be paid if the case is successful. Should they lose, PLP’s liability for the Lord Chancellor’s costs have been capped at £15,000.

PLP is continuing to raise money to pay the Lord Chancellor’s costs if ordered to do so. You can find out about how to donate here.

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Residence test to go to Supreme Court

The Supreme Court announced today that it has given permission to appeal in the case of R (on the application of The Public Law Project) v The Lord Chancellor (our report of the Court of Appeal decision here).

This is the first LASPO case to get this far, and so will be of considerable interest. It may give the Court the opportunity to resolve the various views of the statutory purpose of LASPO, an issue in many of the High Court and Court of Appeal cases, and one we discussed here.

The Lord Chancellor hasn’t yet laid regulations to implement the residence test, though it was reported that the Prime Minister wanted it done by the summer. It is to be hoped that that won’t now happen, pending the Supreme Court’s decision.

 

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Court of Appeal says domestic violence evidence requirements unlawful

In Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, the Court of Appeal found that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, as amended, was unlawful because it frustrates the statutory purpose of LASPO.

Reg 33 is the regulation which sets out the strict evidential criteria that applicants for legal aid have to meet to qualify for legal aid because of domestic violence. This is important because most private family law is now out of scope, unless it can be shown that the applicant is a victim of domestic violence. Reg 33, often known as the domestic violence gateway, sets out the evidence that must be produced by an applicant to demonstrate that she (as is most often the case) is such a victim. The regulation is strictly drawn; only evidence of the type set out is permitted, and then only (with the exception of criminal records and proceedings) when it dates from no more than 24 months before the application.

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Court of Appeal restricts funding for actions against the police etc

We reported in 2014 on the case of Sisangia, R (on the Application of) v Director of Legal Aid Casework [2014] EWHC 3706 (Admin). The LAA had been interpreting para 21(4) of Part 1 Schedule 1 of LASPO to require there to be a credible allegation of dishonesty or bad faith before it would grant an application for funding to bring a challenge on the grounds of abuse of position by a public authority. This restrictive interpretation seriously limited the scope of cases that could be funded. Dingemans J held that it wasn’t the right interpretation; all that had to be shown was that the act was deliberate, not that it was dishonestly motivated.

The case has now come before the Court of Appeal – see Director of Legal Aid Casework v The Queen On the Application of Sunita Sisangia [2016] EWCA Civ 24. Giving judgment Lewison LJ (with whom Elias and Christopher Clarke LJJ agreed) reversed the judgment of Dingemans J. He said that the wrong interpretation of para 21(4) had been adopted. The purpose of para 21 is to provide a gateway to legal aid – even if the case gets through that gateway, it must still pass the means and merits tests. Whether or not the conduct complained of was dishonest or merely deliberate, it must still amount to an abuse of position. Lewison LJ then went through various arguments that had been put before concluding that “abuse of power” is

a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is. (para 30)

Comment

This is a not particularly helpful judgment. It restricts the scope of what will be funded under para 21, but doesn’t do so in a way that gives any degree of certainty about what is or is not to be funded. It’s clear that what will be required is something more than a mere allegation of tortious conduct or other unlawfulness. The conduct complained of must amount to an abuse of position or power; but what that is will depend on the individual case and the allegations made. The LAA’s previous interpretation that dishonesty is always required would seem to go too far, but Dingemans J’s view that as long as the act was deliberate it was enough didn’t go far enough.

 

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