Earlier this month in a written statement the Justice Minister Lucy Frazer announced the government’s intention of reinstating non-asylum immigration legal aid for unaccompanied children.
Doing so would require a statutory instrument amending Schedule 1 of LASPO, which can’t be done during the summer recess.
So the MoJ has now issued guidance that, pending amendment of LASPO, exceptional funding should generally be granted in these cases.
The written statement says:
I wish to inform the House that I have decided to lay an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to bring immigration matters for unaccompanied and separated children into scope of legal aid.
Under current legislation, legal aid is available in all asylum cases – for all age groups – and immigration cases where someone is challenging a detention decision. Legal aid for other immigration matters is available via the Exceptional Case Funding (ECF) scheme, which is intended to ensure legal aid is accessible in all cases where there is a risk of breach of human rights.
Following a judicial review brought by the Children’s Society, we have examined both the evidence presented as part of the case and our data on applications for funding. Based on the distinct nature of the cohort in question, and of our data regarding them, I have decided to bring these cases into the scope of legal aid to ensure access to justice.
The new guidance says
In the interim period before the amendment is made, those representing unaccompanied and separated children should apply for legal aid via the exceptional funding scheme.
In order to provide clarity to legal aid practitioners and caseworkers, the following is to be considered guidance under section 4 of LASPO:
- Caseworkers ought to operate on the basis that there is a strong presumption that under Article 8 of the European Convention on Human Rights unaccompanied or separated children (children under the age of 18 who have been separated from both parents) require legal aid in relation to non-asylum immigration matters
- In light of this presumption, applications by or on behalf of unaccompanied and separated children in relation to non-asylum immigration matters need not be supported by detailed evidence in relation to issues relating to vulnerability and ability to participate in proceedings without legal aid (as this will be presumed).
This is welcome guidance which should ensure that applications are now very likely to be granted pending the full restoration of these cases to scope. Our congratulations to the Children’s Society and Islington Law Centre for bringing the judicial review which led to this rare reversal of a LASPO scope cut.
Following discussion with representative bodies, the LAA has amended the crime contract in respect of the 14 hour rule for duty solicitors. The amendments come into force on 23 July. With effect from that date the scope of what can be included in the 14 hour rule has been widened to include
- Work under the contract – such as police station and Magistrates Court work
- LGFS and AGFS work
- Work under the armed forces legal aid scheme
- Work under a court appointment for cross-examination of witnesses
- Privately funded criminal defence work which would come under one of the above headings but for the client being ineligible for legal aid or otherwise electing to pay privately
Where you rely on private work you will need to have consent from your client for the LAA to check what work was done for the purposes of monitoring compliance with the rule. If consent is not given or not sought you cannot rely on this work. This is a positive change which goes some way to broaden the scope of the 14 hour rule. Many practitioners and representative bodies welcomed the principle of ensuring that duty work is only done by those genuinely engaged in the work for the firm benefitting from it. However the narrow drafting of the rule, and some inconsistencies of approach by contract managers, has caused some difficulty in practice. However, while it broadens the scope of what can be counted towards the 14 hours, the change does not affect how the 14 hours are measured. It continues to require an average of at least 14 hours work per week on qualifying work, measured on a rolling monthly basis. Practitioners have expressed concern about the impact of this rule, and its potential discriminatory effect, on those with different working patterns – such as carers, and parents who do not work during school holidays.
As we reported here, the High Court quashed the LAA’s decision to re-configure the boundaries of court duty schemes and tender based on the larger scheme areas. It found the basis for the plan to be so lacking in evidence as to render the decision irrational. As a result the LAA has now announced that it has cancelled the tender. Any bidders previously notified of a successful outcome will not now be awarded a contract. Although the announcement does not set out next steps, we understand the LAA has now written to existing providers offering a one year extension to 30 September 2019. The work will be based on the 2013 contract specification, not the new 2018 specification.The purpose of the one year extension is said to be
to enable a review of relevant policy and to provide the time needed to prepare and run a new procurement exercise for these services.
Existing providers who wish to continue will be required to have a 2018 contract in housing and debt. It is not clear what provision the LAA has put in place where the existing contract holder has not bid for a 2018 contract, which would mean they cannot continue and therefore there is no provider to continue the existing scheme until September 2019.
The High Court has quashed the LAA’s tender for housing court duty possession schemes in R (Law Centres Federation Limited) v Lord Chancellor  EWHC 1588 (Admin). The Law Centres Federation argued that the decision to reduce the number of contracts available by increasing the size of scheme areas to cover multiple courts was irrational and in breach of the public sector equality duty.
Andrews J was heavily critical of the LAA and MoJ’s approach to decision making, in particular the gathering of evidence. She found that a series of questionable assumptions without data had been made, and the position of the representative bodies mis-represented. Submissions to ministers were “woefully inadequate” and necessary enquires had not been carried out. As a result, the minister making the decision was misled and not properly briefed, and consequently reached a decision no minister, properly briefed and in possession of all the facts, could reasonably have reached.
It is not yet known whether the Lord Chancellor will appeal or what action the LAA will take to ensure schemes can operate beyond September 2018 now that the tender process awarding new contracts has been quashed, with existing providers already given notice of termination. We will report developments.
Following the decision of the Court of Appeal in Howard League for Penal Reform & Anor, R (On the Application of) v The Lord Chancellor  EWCA Civ 244, new regulations have come into force returning some prison law cases to the scope of legal aid.
The Criminal Legal Aid (Amendment) Regulations 2017, in force on 21 February 2018, bring the following types of case back in:
- Advice and representation for pre-tariff reviews for life and indeterminate sentence prisoners before the Parole Board;
- Reviews of classification as a category A prisoner;
- Placement in close supervision and separation centres within prisons.
These cases are funded as criminal legal aid, using advice and assistance and advocacy assistance. The usual means tests apply and payment is the same as for the prison law cases currently in scope. Amended criminal contracts have been issued and there are revised CRM3 and CRM18a forms on the LAA website. The LAA has said it will continue to accept old forms until 31 May 2018.
Congratulations to the Howard League and the Prisoners Advice Service, which have brought this change about following three years of litigation. It is a rare example of the scope of legal aid widening post-LASPO.
Filed under Crime, LASPO, Policy
The LAA has announced that it is terminating the tender for CLA telephone contracts in the education and discrimination categories because “insufficient compliant tenders” were received, meaning there would not be enough successful bidders to run the service.
As there are currently only a very small number of contract holders, this suggests that there were no or very few bidders prepared or able to deliver the new contracts due to start later this year.
Education and discrimination are gateway exclusive categories – all cases must go through the telephone service and there are no separate face to face providers – all face to face services are carried out by the telephone contract providers, if they deem it necessary.
It is not clear what the future of education and discrimination services will be. The LAA says it will discuss next steps with affected organisations.
But if there are currently no providers willing to bid, or no providers able to demonstrate they can provide services of sufficient quality at an acceptable price, it is hard to see how that will change between now and October, when the new contracts were due to start.
The MoJ decided in 2012 to move education and discrimination services to the gateway with a small number of contracts. At the time many warned that there were significant risks with this approach. Numbers using the service have been lower than expected throughout. And there was concern that such a reduction in the provider base meant that there was no slack if contract holders pulled out or were unable to continue. It appears that fear has also been realised. Hopefully there is enough time for the MoJ and LAA to rethink before education and discrimination legal aid disappears altogether.
Filed under Civil, LASPO, Policy