Category Archives: Policy

legal aid: what the manifestos say

The major parties have now published their manifestos for the forthcoming general election. This is what they have to say about legal aid.

Conservative party

The Conservative manifesto says:

  • Publicly-funded advocates will have specialist training in handling victims before taking on serious sexual offences cases.
  • To ensure that the pain and suffering of the Hillsborough families over the last twenty years is not repeated, we will introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests
  • We will strengthen legal services regulation and restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the armed forces

Labour

The Labour manifesto says:

  • Labour will immediately re-establish early advice entitlements in the Family Courts. The shameful consequences of withdrawal have included a requirement for victims of domestic abuse to pay doctors for certification of their injuries. Labour’s plans will remove that requirement. At the same time, we will legislate to prohibit the cross examination of victims of domestic violence by their abuser in certain circumstances.
  • We will reintroduce funding for the preparation of judicial review cases. Judicial review is an important way of holding government to account. There are sufficient safeguards to discourage unmeritorious cases.
  • We will review the legal aid means tests, including the capital test for those on income-related benefits.
  • Labour will consider the reinstatement of other legal aid entitlements after receiving the final recommendations of the Access to Justice Commission led by Lord Bach.

Liberal Democrats

The Lib Dem manifesto says the party will:

  • Conduct an urgent and comprehensive review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act on access to justice, particularly funding for social welfare appeals, and domestic violence and exceptional cases
  • Secure further funding for criminal legal aid from sources other than the taxpayer, including insurance for company directors, and changes to restraint orders.

UKIP and the Green Party make no mention of legal aid in their manifestos.

 

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New Handbook published

The new edition of the Handbook has now been published and pre-order copies are being dispatched. You can order your copy from LAG here.

This book is an invaluable companion and essential reading for all legal aid practitioners, from caseworkers to senior partners. The authors have expertly pulled together information that is not currently available in one place providing the only single volume guide to the criminal and civil legal aid scheme.

‘… admirably clear on some very tricky points. There should be at least one copy in every office where legal aid work is carried out.’ Carol Storer, director, LAPG.

‘I wish I could say “this book is never off my desk” but the truth is my copy of LAG Legal Aid Handbook always appears to be on someone else’s … Essential reading for all practitioners seeking to provide a first class service to clients in a post-LASPO world.’  Phil Walsh Partner/Practice Manager, Miles & Partners LLP.

The  LAG legal aid handbook 2017/18 gives practical, step by step guidance on conducting cases, getting paid, advocacy, financial and contract management, performance monitoring and quality standards and an overview of recent policy developments. There are separate chapters on all the major areas of law covered by legal aid and sections devoted to litigators and advisers, advocates and managers.

This edition has been updated to include:

•  full coverage of the new 2017 crime contract

•  latest changes and updates to the civil scheme

•  discussion of current case law and hot topics in legal aid practice

•  hints, tips and practical advice from how to manage a contract to navigating CCMS

•  specialist chapters on billing, crime, public family law, private family law, housing, mental health, immigration and exceptional funding

•  a dedicated section for advocates

•  guidance on managing legal aid work and tendering for contracts

•  a full round up of the latest policy developments

The only comprehensive guide to the whole legal aid scheme, the new edition features chapters written by expert contributors Anthony Edwards, Richard Charlton, Steve Hynes, Solange Valdez-Symonds and Katie Brown. The LAG legal aid handbook 2017/18 is packed full of case studies, checklists and practical tips. It provides clear and easy to follow guidance on the ever more complex legal aid system and is essential reading for everyone involved in legal aid from new caseworkers to experienced lawyers and managers.

 

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Latest legal aid statistics published

 

The LAA has published its latest quarterly statistics, for October to December 2016, and they make grim reading.

  • Legal Help cases have fallen 14% compared to the same quarter last year, though civil certificates increased by 5%;
  • Crime has also fallen – with lower work down by 6% and higher by 4%. The effect of suspending the April 2016 fee cut meant that lower spend rose by 1%;
  • Mediation cases fell by 14% compared with the same period last year;
  • Total spend on crime in 2016 was £861million, and in civil £676million, of which £527million was family;
  • The collapse of non-family civil legal aid continues, with mental health down 5%, immigration down 24% and housing down 12% since last year;
  • Exceptional funding applications increased by 43%, and 58% of applications were granted – over half in immigration.

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The new Handbook – coming very soon!

The brand new edition of the LAG Legal Aid Handbook will be published at the beginning of April. Fully revised and updated, this edition features

  • full coverage of the new 2017 crime contract
  • latest changes and updates to the civil scheme
  • discussion of current case law and hot topics in legal aid practice
  • hints, tips and practical advice from how to manage a contract to navigating CCMS
  • specialist chapters on billing, crime, public family law, private family law, housing, mental health, immigration and exceptional funding
  • a dedicated section for advocates
  • guidance on managing legal aid work and tendering for contracts
  • a full round up of the latest policy developments

The Handbook is edited by Vicky Ling and Simon Pugh, and features contributions from a range of subject experts including Anthony Edwards, Steve Hynes, Richard Charlton, Solange Valdez-Symonds and Katie Brown.

You can pre-order your copy now by e-mailing: direct.orders@marston.co.uk or phoning: 01235 465577, or by clicking here.

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Filed under Actions Against the Police, Advocacy, Articles, Civil, Clinical Negligence, Community Care, Costs, Crime, Family, Handbook, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare

New consultation on changes to legal aid means tests

The MoJ is consulting on making changes to the means tests for civil and criminal legal aid. Currently universal credit is a passporting benefit for all levels and types of legal aid. However, as roll-out continues and more people receive it, the MoJ proposes changing that.

Universal credit replaces a range of benefits, not all of which are passporting. Maintaining universal credit as a passporting benefit would therefore bring into passporting people who would not be passported before – such as those in receipt of tax credits or housing benefit but not income support or jobseekers’ allowance. The government estimates that would cost £14million per year in increased legal aid.

It is therefore proposing amending the passporting rules so that only those in receipt of universal credit and no household earnings would be passported. Other recipients who earn any money outside universal credit would have to go through the full means test and potentially pay contributions. The housing element of universal credit would be disregarded in the same way that housing benefit is now – so that only net housing costs are included in the assessment.

The consultation can be found here, and closes on  11 May 2017.

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LAA clarifies potential use of embarrassment clause

The 2017 crime contract contains a controversial clause in the standard terms. Clause 2.2 says:

You shall ensure that neither you nor any of your Affiliates embarrasses us or otherwise brings us into disrepute by engaging in any act or omission which is reasonably likely to diminish the trust that the public places in us, regardless of whether or not such act or omission is related to your obligations under this Contract. Any operation of this Clause is subject to our obligation to act as a responsible public body and any sanction must be proportionate.

Practitioner groups and others were concerned at the chilling effect of the clause and its potential to deter legitimate criticism of the LAA given that breach may lead to contract termination. Acting for Tuckers and Ben Hoare Bell, the Public Law Project sent a letter before action threatening judicial review. PLP has announced that the LAA has responded, saying it is

prepared to consider revising Clause 2.2 and/or making a statement to provide greater clarity for legal aid providers regarding the ambit of the clause, including but not limited to the fact that as a public body the Legal Aid Agency would not seek to rely on the clause to stifle criticism of, or challenges to, the Legal Aid Agency, the Lord Chancellor, or wider government.

You can see the letter before action here and the reply here.

 

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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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