Tag Archives: eligibility

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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“Shadow legal aid scheme” blocked by Court of Appeal

In what we called the development of a “shadow legal aid scheme”, the President of the Family Division, Sir James Munby, said in Q v Q that in certain circumstances the Court could order that a party not eligible for legal aid be funded by HMCTS. In the first use of that power, HHJ Bellamy, in K & H, ordered that representation of a father be funded where serious allegations had been made against him and where he would otherwise have to cross-examine in person the child who made the allegations.

The Lord Chancellor appealed that decision, and the Court of Appeal has today given judgment – Re K & H (Children) [2015] EWCA Civ 543 (case now on Bailii, and the judgment can also be downloaded from the Coram Childrens Legal Centre website – CCLC, and the Association of Lawyers for Children, intervened in the case).

Giving judgment, the Master of the Rolls Lord Dyson said that there was no such power:

31. As the judge acknowledged, LASPO provides a comprehensive code for the funding of litigants whose case is within the scope of the scheme.  It is a detailed scheme.  I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO.  The court must respect the boundaries drawn by Parliament for public funding of legal representation.  In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

37. For these reasons, I consider that section 1 of the 2003 Act does not give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings. The provision of legal services cannot be described as coming within the scope of the duty to ensure that there is an efficient and effective system to support the carrying on of the business of a court.

41.The fact that costs associated with court hearings are on occasion met by HMCTS pursuant to the Lord Chancellor’s general duty under section 1 of the 2003 Act (to ensure that there is an effective and efficient system for the carrying on of the business of the family court) is not material to the funding of legal representation.

42. Most (if not all) of the considerations which I have mentioned above in relation to section 1 of the 2003 Act also lead me to conclude that section 31G(6) of the 1984 Act cannot be invoked to require the Lord Chancellor to fund legal representation to a litigant who does not qualify for legal aid because he does not satisfy the means test. Ms Whipple makes these further points which I accept.  First, section 31G(6) derives from section 73 of the Magistrates’ Courts Act 1980 which itself derives from the identical provision in the Magistrates’ Court Act 1952.  It enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness.  It cannot, on any plain reading, be interpreted as giving the court power to order funding of legal representation for a party.

43. Secondly, on a plain and natural interpretation of the language of section 31G(6), it is predicated on the party not being represented. If the party were to become legally represented, section 31G(6) would fall away.

44. Thirdly, the way in which “cause to be put” has historically been applied in practice is that the justices’ clerks in the magistrates’ courts could be asked to put questions to a witness on behalf of a party, where it was not possible for the party themselves to do so. Following the reorganisation of the Family Court, the justices’ clerks are now available to perform this function in any part of the Family Court and not only when magistrates are hearing the matter.

45. It follows that I respectfully disagree with what the President said at para 79 of his judgment in Q v Q. It would seem that he did not have the benefit of the detailed submissions which have been made to this court.

46. I conclude, therefore, that the judge had no power to make the order that he made and I would allow the appeal on the first ground. It is not therefore necessary to deal with the other grounds of appeal.  But I should say in relation to the second ground that I did not understand it to be contended by anyone that the imposition of a means test is of itself contrary to the Convention (it plainly is not).  I propose to say nothing on the question whether the judge was wrong to conclude that the father could not afford to pay for his legal representation (the third ground).  We heard a good deal of argument on the fourth ground of appeal, viz that, unless the judge’s order were to stand, there would be a violation of the article 6 rights of the father and the article 6 and 8 rights of K and H.  In deference to counsel’s submissions and in view of the importance of the issues raised, I propose to say something about this ground of appeal.

Dyson MR therefore went on to consider the Convention rights issues. But he concluded that, in most cases questioning by the Judge or by a Justice’s Clerk (who can be made available even in a case not heard by Magistrates) would be sufficient and not a breach of Article 6 or 8 – and that it would be sufficient in this case. He conceded that in some very complex and serious cases that would not be appropriate, and such a case might amount to a breach. He called for there to be a statutory scheme created to allow for the appointment of a legal representative in such cases.

Comment

This judgment firmly puts to rest the idea, proposed by Munby P and first implemented by HHJ Bellamy, that cuts to legal aid can be circumvented in appropriate cases by finding funds from some other source. The courts simply don’t have the power to require public funds to be spent in that way when there is a comprehensive statutory scheme which provides for cases which can – and cannot – be funded. That might, in some cases, result in a breach of Article 6 or 8. A fall-back statutory scheme in such cases would be useful – and the interveners in this case have called for one to be enacted. But it needs to be a statutory scheme, and it would be surprising if there is significant political appetite for creating what would amount to a second legal aid scheme to fill (some of) the gaps left by cuts to the first.

The government is likely to argue that the exceptional funding scheme is there to cater for cases where a lack of funding would breach Article 6 or 8. It is worth noting that the father in K & H was not in any event a victim of the LASPO cuts – he was financially ineligible, and so would never have got legal aid, even if LASPO had never been enacted. So he could not have got exceptional funding, which is means tested. As Dyson MR pointed out, the ECtHR has said that the imposition of a means test is not incompatible with Article 6.

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Neither compassionate nor humane

The first two reported cases of the year in the Family Court are both concerned with the difficulties litigants – not to mention practitioners, and the courts – are now faced with when trying to navigate the legal aid system. The first – about which we posted here – concerned an unrepresented father who couldn’t get legal aid despite needing to cross-examine a child who had accused him of abuse, leading to the court to order that he be funded outside the legal aid scheme.

The second case, D (A Child) (No 2) [2015] EWFC 2, chronicles the attempts of a couple faced with the adoption of their children to obtain legal aid. The Annex to the judgment, which is simply a chronology of those attempts, is more than twice as long as the judgment itself. Giving judgment, the President, Sir James Munby said (para 11):

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Court orders funding for litigant ineligible for legal aid

In what appears to be the first order made under what we called the “shadow legal aid scheme” mooted in Sir James Munby P’s judgment in Q v Q, HHJ Bellamy (sitting as a High Court Judge) has made an order that the Court Service fund an unrepresented father who would otherwise have to cross-examine a child who has made allegations of abuse at a fact finding hearing – K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1. In discussing Q v Q and making his order, HHJ Bellamy set out what he considered to be the principles to be applied, thus (para 74):

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New child care deductions for students

The LAA has announced that the deduction in respect of child care costs now applies to people studying outside the home as well as people who are working.

Clients will need to provide information regarding child care costs when applying for legal aid, whether via the Agency in respect of a full representation certificate, or via a practitioner when applying for Legal Help.

Practitioners will need to bring this to the attention of any client who may be eligible for reduced contributions due to the new deduction as they can request a review. Also, clients who have recently been found ineligible but who could benefit, should be advised to re-apply.

A new keycard has also been issued to take account of benefits uprating and the new deduction.

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MOJ publishes exceptional case funding stats

The MOJ has published statistics on the number of cases funded under the exceptional case provisions in s10(3) of LASPO. These allow funding in a case that would normally be outside scope but where the particular circumstances mean that the client’s human rights would be breached if funding were not granted.

There were 1,151 applications between April and December 2013 (rather fewer than the government’s forecast of around 6,000), of which 35 have been granted. 21 were in respect of inquests, 8 in family, 3 in immigration and one each for housing,  an inquiry/tribunal or ‘other’. The government’s view, as expressed recently in the Lords by Lord Faulks, is that these statistics are not a cause for concern, and the system is working as intended.

The Public Law Project has some useful resources on its website to assist in making applications. They also run a helpline to assist with queries on exceptional case funding and civil legal aid more generally – 0808 165 0170. It is open from 10-11 am every weekday except Thursday.

 

 

 

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Legal aid reform announcement today

Later today the Lord Chancellor will make a statement in the Commons setting out the next stage in the government’s Transforming Legal Aid proposals. Already published is a letter from him setting out some of what will be announced, and a response to the initial consultation and a further consultation paper is expected.

From what we know so far, it seems:

  • price competitive tendering will not happen
  • Crime fees will be cut by 17.5%, half in 2014 and half in 2015
  • There will be two crime contracts, one allowing unlimited own client work and one allocating duty slots to firms, but breaking the link between individual duty solicitors and slots
  • There will be an independent review of advocacy in crime and work to save costs elsewhere in the system
  • The civil proposals, including removing the right to legal aid in most cases for prisoners, cuts to judicial review, the residence test and cuts to fees for childcare work, seem likely to go ahead as proposed
  • When published, we will post the consultation documents and bring you more detail. But it seems that whatever happens today will not be the end of the matter; there will be more campaigning, more debate and more challenges to come. Whether PCT was ever a serious proposition, or as some have suggested a straw man allowing administrative cuts to be brought in more easily, it has succeeded in uniting all parts of the profession as perhaps never before. And it must be remembered that what will go ahead, even without PCT, will be devastating. It is seriously questionable whether crime and family practitioners can absorb more fee cuts and stay viable. And the civil proposals, largely it seems unchanged, remain a fundamental concern to the rule of law by depriving groups of people of access to the courts no matter how they are treated by the state and others.

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