Tag Archives: advocacy

Duty crime contracts – more information

The LAA has published some more information about how the tender and the contracts themselves will work. In some ways the information raises as many questions as it answers but it also clarifies some important issues. There are two documents:

1. 2015 Duty Provider Crime Contracts Update

This sets out 8 key bidding rules:

  1. There will be a fixed number of equal sized contracts in each procurement area
  2. An organisation can only make one bid as an applicant organisation in a procurement area
  3. An organisation can only be included in two bids per procurement area
  4. An organisation can only be included in two bids per procurement area, ie as an applicant organisation once and a delivery partner once, or twice as a delivery partner
  5. The maximum number of organisations in a single bid for a procurement area is four, ie one applicant organisation and up to three delivery partners
  6. Within a bid, the applicant organisation must deliver the largest share of the work
  7. An applicant organisation must deliver a specified percentage of the total value of the contract – 30% in rural areas and 45% in urban areas
  8. A delivery partner must not deliver more than 40% of the value of work in a single bid

The document goes on to set out points to consider if bidding with a delivery partner, which emphasise that all the risks sit firmly with the applicant organisation – even as far as being responsible for the peer review result of a partner.

It provides example scenarios in which organisations may consider bidding with others as delivery partners

  • Geographical coverage
  • To gain a key member of staff with expertise which would attract more points in the as yet unpublished scoring scheme
  • To allow very large organisations up to 140% of work in a procurement area

Financial assessment

Applicant organisations will have to submit financial information which will be assessed by a qualified financial professional based on key ratios from their accounts. New organisations will have to submit cash flow forecasts.

Expansion capacity assessment

Organisations bidding for contracts that are valued at more than twice their current value or are new entities will be subject to more detailed financial assessment.

They will be able to designate a ‘main bid’ and an ‘expansion bid’. If assessed as being able to deliver their main bid, it will be protected, rather than all bids being rejected due to expansion.

2. Example Duty Rotas

  • Each procurement area will have a separate duty scheme.
  • Outside London, the schemes will include a number of police station schemes and court schemes
  • In London, the schemes will be made up of ‘a police station scheme and/or a court scheme’. This will undoubtedly give London firms much food for thought as schemes within the London area could be markedly different from each other. However, we will not know until the tender is actually published, which makes it very difficult to plan
  • Providers on rotas will receive an equal share of duty slots – the LAA sets out some examples of how these could work

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Catch LAPG’s conference early bird deal

The LAPG conference will take place in London on 10 October. As usual, it features speakers from the LAA, MOJ, and Law Society amongst others, to bring you the very latest developments in legal aid. In addition, leading practitioners will provide workshops to help you run your legal aid practice successfully. Workshops include; family, social welfare law, recent developments in JR and exceptional funding, best practice in recruitment, working with interns, maxmising costs in civil and crime, Young Legal Aid Lawyers.

There will also be a debate on who and what will survive the unprecedented changes which continue to affect all categories of law. Recent conferences have sold out – can you afford to miss this opportunity to get completely up to speed in just one day? If you can get to London the night before, the pre conference dinner (£66.00 per head) is a good chance to catch up with colleagues and network with new people. LAPG can put you in touch with members who can offer overnight accommodation, so you won’t have hotel expenses.

But hurry – the early bird conference deal (£174 inc VAT for LAPG members and £234 for non members) is only available until 12 September. Book using the conference flyer which can be downloaded here.

 

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

A shadow legal aid scheme?

The gradual judicial erosion of government legal aid policy (see also Gudanaviciene and R (PLP) v SSJ) continued today when the President of the Family Division gave his judgment in Q v Q [2014] EWFC 31.

Sir James Munby pointed to the “drastic reduction in the number of represented litigants in private law cases. The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly”. He set out the facts of Q v Q, and the other cases of Re B (a child) and Re C (a child), giving a single judgment for all three cases.

In Q v Q, a private law case, the father was seeking contact with the child. He is a convicted sex offender, and when expert reports said that he represented a risk to the child, his (pre-LASPO) legal aid was discharged on the merits. The result was that there was no funding:

  • for documents to be translated for the father, who did not speak English;
  • for half of the expert’s fee for attending court (being a jointly commissioned expert, the mother’s legal aid would only cover half the fee)
  • for representation of the father

and the father had no means to pay for it himself.

In Re B, also a contact application, the mother was legally aided but the father was not. It seems (though this is not spelt out in the judgment) that this is because she was eligible for funding despite the LASPO cuts because it was alleged that the child had been raped by the father.

In Re C, the unrepresented father applied for contact (he was represented through the Bar Pro Bono Unit for this hearing). The mother was legally aided, because there was an allegation that he had raped her.

Sir James Munby summarised the issues thus:

The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court. (para 43)

attendance of experts at court

Sir James Munby held (paras 56 and 57):

If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost.

In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS. It is, after all, the court which, in accordance with FPR 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.

legal advice

Sir James Munby discussed the problems of an unadvised litigant, particularly one accused of a criminal offence, who risked giving incriminating answers in evidence. But he reached no conclusion in this respect.

representation in court

Sir James Munby noted that s31G(6) Matrimonial and Family Proceedings Act 1984 says:

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

He considered that this placed a duty on the court, and concluded that the guardian or child’s solicitor could not put questions on behalf of another party.

What then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?

In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS. (paras 78 and 79).

three caveats

Sir James Munby stressed that:

  • he was only considering private law family cases. In public law cases, there may be an argument that the local authority should fill the funding gap; he left that for another case.
  • such orders as he was contemplating are orders of last resort and should only be made by, or in consultation with, a High Court or Designated Family Judge.
  • These cases concerned allegations of sexual assault and rape. A similar approach may be appropriate in cases of serious non-sexual assault, and in less serious cases. Everything will depend on the facts of the case.

Subject to outstanding applications for exceptional funding in both cases, Sir James Munby concluded that the second half share of the expert’s attendance in Q v Q, and representation of the father in Re C, would have to be borne by HMCTS.

comment

This is a very significant judgment. The courts, in particular the family courts, have been expressing disquiet at the impacts of LASPO for some time – both on the volume of unrepresented litigants, and the difficulty of doing justice in individual cases where one party is unrepresented but the other is not.

But this is the first time that a court has contemplated funding representation of a litigant directly. The President has created a framework whereby an impecunious litigant whose case is outside the scope of LASPO can nevertheless be represented, funded by the Court. “Legal aid” for those outside the scope of legal aid. Although this judgment is limited to private family law cases with serious allegations made against the unrepresented party, and relies on a family statute to create the duty on the court, there may well be similar arguments to be made in other types of cases – and numerically speaking, family cases are by far the most impacted by LASPO.

Sir James concluded by saying that “the Ministry of Justice, the LAA and HMCTS may wish to consider the implications”. However, it is hard to see what they can immediately do about it. The MoJ were invited to intervene in the case but decided not to do so – the President quoted extensively from the Minister’s letter to him, which in essence said “we’re not prepared to pay for expert evidence or cross-examination so you will have to manage without it”. Sir James chose to do so by requiring HMCTS to pay instead – which means that the MoJ will still ultimately foot the bill. And because it chose not to intervene or apply to be joined, it isn’t a party and so can’t appeal.

 

 

 

 

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Old civil forms now accepted up to 1 September

Further to our recent post, the LAA has issued an update earlier today which states that although the new legal aid forms will be available on 4 August, it will still be acceptable to use the old forms until the end of the month.

Pre 4 August paper forms received on or before 5pm on 5 September but signed and dated before 1 September 2014 will still be acceptable.

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Legal aid – tell the NAO what you think but be quick

The National Audit Office is currently undertaking a study into whether the government’s civil legal aid reforms can be considered to represent value for money. The report will go to the respected Public Accounts Committee later this year. The NAO says that the views of the providers of legal aid services will form an important part of the study.

It is seeking your views through a short online survey, which will close on Friday 25th July 2014. It should take 15-20 minutes to complete and all responses will remain strictly anonymous. You can find the survey here.

UPDATE: The closing date has been extended to 1st August.

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MOJ to appeal residence test JR result

Further to our post yesterday, the MOJ has indicated that it intends to appeal. At 11.56 am on Tuesday July 15 2014, the MOJ tweeted ‘Following today’s judgement on the JR of the civil legal aid residence test, @MOJGovUK intends to appeal’  Link here

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Family Court bundle payments from 31 July

The MOJ has published new regulations to implement a revised scheme in respect of Court bundle payments. It undertook a short consultation exercise, which showed that the clear preference of respondents was to link the bolt-on to the Advocate’s bundle rather than the Court bundle.

Accordingly, this is the basis of the new scheme, subject to controls concerning documents which are served and ‘necessary to the case’, which the MOJ felt were required. The Civil Legal Aid (Remuneration) (Amendment) (No4) Regulations 2014 can be found on our LASPO Resources page in the list of civil regulations.

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