Tag Archives: exceptional cases

by | November 12, 2014 · 8:41 pm

Exceptional funding grant – injunction brought by local authority

Our thanks to Garden Court North for drawing this case to our attention. The LAA has recently granted exceptional funding for an application to set aside an injunction banning persons unknown from begging in Leeds city centre. GCN’s website reports:

Exceptional case funding has been granted by the Legal Aid Agency to apply to set aside Leeds City Council’s injunction obtained under S222 Local Government Act 1972 against persons unknown on behalf of a man who it has been sought to commit to prison.

Leeds City Council obtained the injunction / restraining order from “begging” in Leeds City centre against “persons unknown”, even though a number of the alleged beggars, including our client, are known to Leeds City Council.  Our client was then served with the injunction after it had been obtained despite being later described in Leeds City Council’s own evidence as a known and prolific beggar.

The committal has been adjourned pending this application to set aside and will be challenged on the basis that:

– The Court did not have power to make it as there are statutory remedies that should have been used.

– It was an abuse of process not to name those it knew and alleged to be begging.

– In any event the criteria for an injunction restraining a criminal offence or public nuisance are not met and the injunction fails to consider the personal circumstances of the individuals concerned and subverts the prohibition on the making of bye-laws without the permission of the Secretary of State.

After a lengthy struggle to obtain funding, exceptional funding was granted (on 5th November 2014) to challenge the injunction itself.

James Stark and Joe Markus of GCN are instructed by Rhiannon Jones of Lester Morrill Solicitors .

As always, we would be pleased to hear of other grants of exceptional funding, and to publicise them for the benefit of others making similar applications.

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by | October 1, 2014 · 8:15 pm

LAA updates guidance manuals

There have been a series of amendments and additions to LAA guidance materials recently:

Links to the latest versions of all documents can be found on our Resources page.

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by | September 2, 2014 · 8:17 pm

Legal aid in welfare benefits cases

Our thanks to Nick Whittingham for drawing to our attention a case involving Kirklees Law Centre, which was refused legal aid to appear at an oral hearing of the Upper Tribunal in a welfare benefits case. It continued to represent the appellant pro bono, as did counsel Tom Royston. The decision is reported at JC v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 16: coping with social engagement) [2014] UKUT 352 (AAC)

In a three judge decision – the panel including Charles J, the Upper Tribunal president and a First Tier Tribunal president – the Tribunal regretted the refusal of legal aid and set out a series of factors it invited the LAA to take into account when considering future applications (see para 63):

More generally we take this opportunity to invite the Legal Aid Agency in other cases where a three judge panel of the Upper Tribunal (AAC) has been convened to hear an appeal to take account of  the following:

i)                 Paragraph 3(a) of the Senior President’s Practice Direction relating to the composition of that tribunal and thus the reasons why the Senior President or the Chamber President can direct a three judge panel.  They are that: “… the matter involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate …” for there to be a three judge panel.

ii)                These directions are not made lightly.  When they are the legal issues involved will be of that nature, the appeals will involve individuals and the Secretary of State and decision making will be greatly assisted by written and oral argument.

iii)               The role of the Upper Tribunal (AAC) in setting precedent and thus consistency of decision making by First-tier Tribunals in respect of claims for benefits, and thus the wide impact of its decisions on cases heard by First-tier Tribunals.

iv)               The great advantage of resolving differences between decisions of single Upper Tribunal judges by a decision of a three judge panel.  This is based on the long standing practice that three judge panel decisions will be followed by both the Upper Tribunal and the First-tier Tribunal.  That practice avoids the need for such differences between single judges to be determined by the Court of Appeal and so greatly reduces the number of appeals to that court.

v)                The fact that the above points indicate that the grant of legal aid in cases to be heard by a three judge panel is likely to be of great assistance to the Upper Tribunal in resolving difficult and important issues of law that, subject to further appeal to the Court of Appeal, will create precedent and thereby assist in the correct determination of a large number of other cases by the Department and First-tier Tribunals.

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by | August 28, 2014 · 2:09 pm

Latest exceptional funding statistics released

The MoJ has today released the latest figures on exceptional funding applications, covering the period April to June 2014. They show:

  • 209 applications were made, 61 review requests were lodged, and 211 determinations made
  • 12 applications were made by applicants direct, the remainder by solicitors acting on their behalf
  • 21 applications were granted, of which 14 were for inquests, 4 for family cases and 3 for immigration.
  • 153 were refused, 35 rejected, 2 withdrawn and 59 cases were awaiting a decision at the end of the period.

It is perhaps too early for Gunadaviciene to have any impact on the rate of grants; the continuing low figures for non-inquest cases would suggest as much – perhaps unsurprisingly since judgment was only handed down in mid-June. The figures for the next quarter will be interesting.

We would be glad to hear of any successful applications and are happy to publish details on this site to assist other practitioners with their applications – see here for our report of two recent housing grants.

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by | August 18, 2014 · 6:56 pm

Successful exceptional case funding applications

We have been tweeting some useful resources from Carol Storer at LAPG and Tom Royston of Garden Court North to help practitioners making applications for exceptional case funding.

We can now bring you news of some successful applications thanks to the Travellers Advice Team (TAT) at the Community Law Partnership.  They were assisted by Joe Markus and James Stark of Garden Court North.

If at first you don’t succeed

The case concerned a Romani Gypsy client who had been trying to obtain planning permission for her one caravan site. She was barely literate and did not understand the complexities of planning law. Her case had to go to a Public Inquiry and she was not able to represent herself. The TAT applied for exceptional case funding on her behalf.

The LAA argued that the client could represent herself with assistance from a member of her family and refused exceptional case funding. The TAT applied for a judicial review of the decision, which was unsuccessful. However, they lodged a second JR application and shortly thereafter the LAA decided to grant exceptional case funding after all.

Anti social behaviour, demotion of tenancy and loss of home

This client faced demotion of her tenancy due to the anti social behaviour of her son from the age of 7 to 13. The client’s position was that her son suffered from a disability and she could not control him without better medical support. It appeared that demotion of the tenancy was being sought to make it easier for the local authority to evict the client and her family as the local authority would not then need to prove a ground for possession.

The LAA refused legal aid on the basis that demotion of tenancy is out of scope for legal aid. The TAT wrote a judicial review pre-action protocol letter arguing that a) demotion of tenancy would result in loss of home and so the client was within scope but also b) that even if the case was out of scope, the client met the conditions for exceptional case funding. The LAA agreed to grant exceptional case funding but did not provide reasons for its assertion that demotion of tenancy cases are outside scope.

We hope these examples are helpful to other practitioners and would be interested to hear from others about their successful applications (or should we say blow by blow accounts of their successful battles) and share them via the blog.

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by | July 24, 2014 · 8:17 pm

LAA guidance on refugee family reunion cases

Six weeks after the High Court ruled that it was in scope of LASPO, the LAA has finally issued some guidance for practitioners.

Immigration contract holders can open matter starts for this work – and will be paid for it even if the MoJ appeal is successful. (Edit – it appears from the note on the LAA site that, if the appeal is successful, funding will stop at that point, even if partway through a case, but will not be retrospectively withdrawn).

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by | July 1, 2014 · 6:30 pm

Exceptional cases: High Court widens scope of LASPO and declares guidance unlawful

The High Court recently gave judgement in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin).

The judgement is long and detailed, but repays reading in full, and includes a detailed discussion of the scope of s10 LASPO exceptional cases and the extent to which legal aid should be available in cases outside the scope of Schedule 1. It also finds, contrary to what has been said by the MoJ and LAA to date, that refugee family reunion is in fact in scope.

s10 provides that:

“(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) … is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.”

Collins J concluded that, in respect of the test in 10(3)(a),

Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent. It may for example not be necessary to grant legal aid for more than advice, particularly as the obtaining of advice from a competent solicitor may save further cost by persuading the individual that he has no case or enabling him to present his application in a way which enables the decision maker or court to deal with it expeditiously and without the cost incurred in seeing whether a litigant in person does have valid points. (para 44)

He concluded that the test of “certainty” referred to by Coulson J in M v Director of Legal Aid and Casework [2014] EWHC 1354 (Admin) was the wrong approach; what was required was a high level of probability of a breach.

Collins J went on to consider the s10(3)(b) test in the context of Article 8 ECHR immigration cases, which were the cases before the Court. He concluded that the Lord Chancellor’s Guidance on Exceptional Funding (Non-Inquests) was wrong because it set too high a threshold for the grant of funding. It failed to recognise that Article 8 applies in immigration cases, and carries with it procedural requirements that must be followed even if Article 6 is excluded. (para 51)

Collins J left for consideration in other cases whether the exceptional cases regime breached the Equality Act 2010 and whether it erected unacceptable practical obstacles.

Refusal of legal aid was quashed in all 6 cases. In some, Collins J left it to the a Director to re-consider, in others he directed that legal aid should be granted. Most interesting in the wider context was the case of B, considered at paras 98 – 114.

B is an Iranian refugee who was granted asylum in 2013. She then applied for refugee family reunion with her husband and son. Her solicitors applied for legal aid, and in the alternative exceptional funding, to cover advice and assistance with the claim.

The LAA refused legal aid on the basis that it was outside the scope of Schedule 1 LASPO, and refused exceptional funding because it would not be impossible for her to present her claim and her cousin could help her with English.

Collins J decided that refugee family reunion IS within the scope of LASPO, since para 30 of part 1 of Schedule 1 says “rights to enter and remain…arising from the Refugee Convention” are in scope. “A person who is recognised as a refugee has a right conferred by the Immigration Rules for family unity. As a matter of ordinary English, that right arises from the Convention since the Convention enabled that person to achieve the status of refugee.” (para 105). Parliament had not unequivocally decided to remove family reunion from scope, and so it is in. If this survives any appeal, it is highly significant – both in terms of of the numbers of immigration cases now back in scope, but also because of the approach which could be applied to the interpretation of other parts of Schedule 1.

This is an important judgement which will have implications beyond just immigration cases. Pink Tape has a discussion of the judgement and some thoughts on how it can be used in out of scope family cases, and there will be other areas where it may apply. However, it will almost certainly be the subject of an appeal, and it remains to be seen what the Court of Appeal will make of it.

 

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by | June 24, 2014 · 5:43 pm

MoJ publishes annual legal aid statistics

The MoJ published the annual legal aid statistics today. These are the first that show the effect of a full year of LASPO – and the effects are stark. They include

  • a reduction of 50% in the overall amount of Legal Help matters started
  • a fall of 80% in the number of social welfare cases (both LH and certificate) – including a fall of 45% in housing
  • a fall of 60% in the number of family cases, and 40% in the number of family mediations
  • 1520 applications for exceptional funding – but just 69 grants, of which 53 were for inquests
  • the number of civil legal aid providers has halved since 2008, and the number of crime providers has fallen by 16% over the same period
  • in 2012-13 there were 870 NfP legal aid providers. In 2013-14 there were just 95 – a fall of 90%.

The figures also show an ongoing fall in expenditure – the total crime spend has fallen £200 million in two years, to £900 million – the lowest for at least 8 years. And this is before any of the recent cuts to crime scope and rates have taken effect. Similarly, civil expenditure is down £150 million to £800 million – the lowest since 2007 – and this will include many cases started before the scope cuts took effect. Next year’s expenditure is likely to show a steep drop, following this year’s plummeting case start numbers.

 

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by | June 1, 2014 · 1:16 pm

Exceptional case funding

Exceptional case funding under s10 of LASPO was designed to provide advice and representation to people whose human rights are breached or at risk; but whose cases are outside the scope of legal aid as set out in schedule 1 of the Act. However, an astonishingly small number of cases have actually been funded. 1083 cases were determined by the LAA from April – December 2013 (inclusive), of which 35 were granted. 21 of these were for inquests, 8 in Family, 3 in Immigration, 1 in Housing, and 2 ‘other’.

Judgements in recent cases add to the pressure which has been applied by the Public Law Project (PLP) in its ‘IS’ judicial review.

PLP’s challenge

In April, Ousely J ordered that the systemic elements of the case, relating to the operation of the exceptional funding scheme, should be dealt with in a separate hearing. The issues in the ‘IS’ case itself, relating to article 8 in the immigration context, were heard together with five linked cases by Collins J in May. Judgment is expected in the week commencing 9 June.

Meaning of exceptional

Paragraph 58 in the judgment in M v Director of Legal Aid Casework and Ors [2014] EWHC 1354 (Admin) helpfully clarifies that a case does not need to be highly unusual or very much out of the ordinary to qualify for exceptional case funding. You can read a transcript here. The word ‘exceptional’ refers to a case that is an exception to the general regime of the Act.

The case also highlights how important it is for practitioners to address the standard merits criteria as well as the criteria for s10 funding, and indicates that the LAA should consider the exceptional case criteria in all such applications, even where it considers the standard merits test is not met.

Exceptional case funding in family cases

JG v The Lord Chancellor and Ors [2014] EWCA Civ 656 is an important case in relation to legal aid funding for experts. The COA decided that the then LSC was wrong to refuse to pay the whole of the cost of an expert’s report where it was considered to be genuinely the child’s report alone. You can read a transcript here.

We understand that James Turner QC has suggested that the discussion of article 6 and article 8 rights in the judgment may be a ‘toe in the door’ for exceptional case funding in other family law cases where a party cannot represent him/herself effectively and so legal aid may be required to provide access to justice.

Help with exceptional funding cases

PLP has some funding to help practitioners and members of the public make applications for exceptional case funding. You can find more information here.

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by | March 14, 2014 · 9:30 am

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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