Tag Archives: exceptional funding

LAA withdraws direct contacts

The LAA has announced that it will no longer be possible to contact the immigration, exceptional funding and civil high cost cases teams direct. For the next two months direct calls to those teams using existing numbers will be diverted to the main customer service number. After that time they will stop working altogether and you will need to dial customer services direct. It says this is to “simplify” contacting the LAA and to divert resources towards casework.

Affected numbers are:

  • National Immigration and Asylum Team – 020 3334 5900
  • High Cost Cases Brighton – 01273 878870
  • High Cost Cases London – 0203 334 5750
  • Exceptional Case Funding Team – 020 3334 6060

The main customer service number is 0300 200 2020.

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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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Court of Appeal says domestic violence evidence requirements unlawful

In Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, the Court of Appeal found that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, as amended, was unlawful because it frustrates the statutory purpose of LASPO.

Reg 33 is the regulation which sets out the strict evidential criteria that applicants for legal aid have to meet to qualify for legal aid because of domestic violence. This is important because most private family law is now out of scope, unless it can be shown that the applicant is a victim of domestic violence. Reg 33, often known as the domestic violence gateway, sets out the evidence that must be produced by an applicant to demonstrate that she (as is most often the case) is such a victim. The regulation is strictly drawn; only evidence of the type set out is permitted, and then only (with the exception of criminal records and proceedings) when it dates from no more than 24 months before the application.

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New exceptional funding application form

The LAA has revised and simplified the application form for exceptional funding, following criticism of it and the process in the case of  IS v The Director of Legal Aid Casework & Anor[2015] EWHC 1965 (Admin) (our post here). The form itself is shorter and simpler, and now asks only for information supplementing that in the APP1 to which it is to be attached.

There is now a section for applying for Legal Help to fund the making of an application for exceptional funding. This should be of some help in allowing practitioners to make more applications – though the making of an application for Legal Help to fund the making of an application is still unfunded, unless funding is granted. This means that there is still a significant risk element, and it is questionable whether that is enough to answer the High Court’s criticisms in that respect.

There is also now a procedure for urgent cases, with a commitment to deal with them within 5 working days rather than the usual 20 – see the provider information pack for more.

The Lord Chancellor’s Guidance has yet to be revised even though the judgment in IS was several months ago. The LAA said it would happen “very shortly” two weeks ago.

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Significant changes to merits tests from Monday

On the last day that Parliament sat before the summer recess, the Lord Chancellor laid a set of regulations making significant changes to the merits tests for civil legal aid. As the explanatory memorandum explains, this was done in response to the High Court’s judgment in IS v The Director of Legal Aid Casework & Anor[2015] EWHC 1965 (Admin). As we noted, Collins J’s criticism of the application of the merits test applied not just to exceptional funding but to in scope cases as well, and so it is that the tests have been amended.

The Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 change the prospects of success categories by amending the Civil Legal Aid (Merits Criteria) Regulations 2013. “Poor” has been re-defined as a 20% or more but less than 50% chance of obtaining a successful outcome. There is also a new category of “very poor” – that is, where prospects are less than 20%.

The general merits test is amended so that (as long as the other criteria are satisfied), representation will be granted if prospects are moderate or better as now; in addition, where prospects are borderline or poor, then representation will be granted if it is necessary to prevent a breach of Convention or enforceable EU rights, or if it would be appropriate to do so in the particular circumstances of the case, having regard to any risk that a failure to grant would be such a breach.

Similar amendments are made to the merits tests for public law cases (which for merits purposes includes homelessness), immigration, public law children, private law children, domestic violence and other family cases.

The amended merits tests apply to all cases where a merits determination is made on or after 27 July 2015, and so this will include emergency cases where you grant funding (if you have the power to do so). It also applies to appeals and reviews of refusals where the original determination was made before that date but the appeal or review will be carried out after it.

The explanatory memorandum confirms that the Director is appealing the decision in IS (and has been given permission) and says that, depending on the outcome of the appeal, the merits tests may be revisited again. But that will be some months away, and in the meantime this represents a welcome relaxation of the tight controls over prospects of success that have been applied so far.

The memorandum also notes that the change has been made on an emergency basis and that it has not yet been possible to amend the guidance used by LAA caseworkers or published on the LAA website. It may be that awareness of this change doesn’t filter down to LAA decision makers immediately and so it would be wise to cite the specific regulations if you are applying for legal aid in a borderline or poor case. It would also be sensible to have regard to what was said in IS and Gudanaviciene in applying for legal aid in a borderline or poor case. In essence, where Article 6 or 8 is engaged, unless an unrepresented litigant is able to present his case effectively and without obvious unfairness legal aid should be granted. It will be necessary to set out in any application why this is the case.

UPDATE: The LAA has now issued guidance on how to make applications in borderline and poor cases

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High Court says exceptional funding regime unfair and unreasonable

As we noted last week, the High Court has given judgment in the challenge to the exceptional funding scheme, IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin).

The administration of the scheme

In a lengthy, detailed and comprehensive judgment, Collins J noted a series of problems with the scheme as it has been implemented by the LAA:

  • The crucial test for whether exceptional funding should be granted, as laid down by the Court of Appeal in Gudanaviciene, is “whether an unrepresented litigant is able to present his case effectively and without obvious unfairness” (para 24);
  • Even after Gudanaviciene, the success rate for applications is very low (para 29);
  • The forms are unnecessarily complex, repetitious and do not reflect the right test for whether funding should be granted (para 56, para 80);
  • The forms require legal assistance to complete. The LAA should make available a form that can be filled in by an unrepresented applicant (para 54);
  • Consideration should be given to making Legal Help available for solicitors to make initial enquiries, decide whether an application is justified, and make it (para 57);
  • The revised Lord Chancellor’s Guidance, issued in response to Gudanaviciene, still does not give effect to it and places too many restrictions on when funding should be granted (paras 66 to 71);
  • “The belief that because courts and tribunals have to deal with litigants in person legal representation can be refused is one which must be very carefully applied. It should only be used to refuse an application if the issues are truly relatively straightforward” (para 71);
  • In cases where “a judge seized of the material proceedings has requested” representation “because otherwise a fair hearing will not take place… it is difficult to see that save in a rare case to fail to comply with the judge’s request [to grant exceptional funding] would be justified. It is not generally appropriate for a caseworker who is not apprised of the full circumstances to second guess the judge’s view. There must be a very good reason indeed for such a refusal.” (para 72);
  • The LAA’s urgent applications procedure is not satisfactory and the absence of a mechanism for issuing an emergency certificate is unreasonable (para 78);
  • The scheme “is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS’s case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal.” (para 79);
  • “The system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the very essence of the right of access to a court.” (para 93)

Family cases

A particularly useful passage for family lawyers runs through an analysis of recent cases in which the family courts have drawn attention to the difficulty of deciding cases without legal aid, and concludes:

  1. It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

Merits tests

After a discussion of relevant caselaw, particularly in the ECtHR, Collins J concluded:

  1. There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist. If a case involves issues of fact which will depending on the court’s findings determine the outcome, it must be obvious that the ability to challenge apparently unfavourable material and to cross examine adverse witnesses effectively may turn the case in a party’s favour. Accordingly, what has to be assessed is not what the present material when untested may indicate but whether if competent cross examination or legal submissions are made the result may be favourable. It is not for the LAA to carry out the exercise which the court will carry out, in effect prejudging the very issue which will be determined by the court. I recognise that there will be cases which it will be possible to say that whatever may be achieved by competent representation the result is likely to be unfavourable. The lengthy and detailed refusals which have been exhibited by the various witnesses have tended to carry out what I regard as the impermissible approach. The removal of the borderline cases from those that can succeed on merits grounds seems to me to be unreasonable.
  2. Mr Chamberlain has relied on the observation of the court in R(G) that “the cases demonstrate that Article 6.1 does not require civil legal aid in most or even many cases. It all depends on the circumstances”. That may be true of the cases in which a breach of Article 6(1) or the procedural requirements of Article 8 were considered. But I do not think the court was making a judgment which would apply to all applications. As was said, the circumstances of each case will be determinative and there can in my view be no doubt that the way in which merits have been approached has been flawed.

This passage is particularly significant because it criticises the way that the LAA applies the merits tests, but also the tests themselves, which are set out in regulations. The finding about prospects of success goes to the heart of the way that the merits tests for all types of funding, including those that are in scope, are set out in regulations and implemented. If this part of the judgment survives an appeal, it is likely to have a significant impact on the way funding is assessed in all cases, not just those which are out of scope and so covered by the ECF regime.

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What a week

A week (and it’s only Wednesday) of significant developments on several legal aid fronts:

Exceptional funding

The High Court (Collins J) gave judgment today in IS v The Director of Legal Aid Casework and another [2015] EWHC 1965 (Admin), the Public Law Project’s challenge to the exceptional funding system. This case was about the operation of the scheme as a whole, which, in a long and detailed judgment Collins J found was not operating lawfully or as it should. We’ll have a more detailed post in due course, but for now it is worth quoting the conclusion:

  1. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
  2. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
  3. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.

This evening, the Lord Chancellor has issued a further Notice to the Director in response to the judgment, reminding caseworkers to have regard to it. Further amendments to the scheme will be required in due course.

More information about today’s case can be found on the website of the Public Law Project, which has done an excellent job in challenging the flaws and injustices inherent in the way the exceptional funding scheme has operated since LASPO was passed, through this and other cases and through its support project.

Crime action update

Meanwhile, the Criminal Bar Association announced the result of its ballot – a vote in favour of supporting the solicitors’ action by reinstating “no returns” and not accepting cases where legal aid was granted on or after 1 July. The CBA executive is meeting this evening to decide how to take the action forward.

The result was announced a few minutes before the Lord Chancellor, Michael Gove, gave evidence to the Justice Select Committee (watch here; see also the Gazette’s report). If his strategy was to seek to divide and rule, it may have backfired given the outcome of the CBA vote. His further attempts today to reassure the Bar while overlooking solicitors seem merely to have fired them up.

 

Domestic violence and abuse evidence requirements

On Friday 17 July, amending regulations were giving effect to the MoJ’s previously announced revisions to the domestic violence gateway for family law come into force. Reg 2(5) of the Civil and Criminal Legal Aid (Amendment) (Regulations) 2015 add a new Reg 31 (7A) to the Civil Legal Aid (Procedure) Regulations 2012. This has the effect of dis-applying Regs 33 and 34 of the Procedure Regs (the regulations which prescribe what evidence of abuse is required) for applications for representation (including amendments) where there has already been a determination (not withdrawn) that the individual qualifies for Family Help (Higher). In other words, this means that it will no longer be necessary to provide up to date evidence when applying to amend a certificate to cover a final hearing, and certificates should no longer be withdrawn even where the evidence is by that time outside the two year limit.

Further amendments, also coming into force on Friday, amend the evidence requirements so that convictions can be taken into account even if they are spent, providing they are no more than two years old at the date of the application, and to reduce the refuge accommodation requirement down from 24 hours to any length of time at all (see Reg 2(6) of the 2015 Amendment Regs, amending the amendments to the Procedure Regs inserted by Regs 2 and 3 Civil Legal Aid (Procedure) (Amendment) Regulations 2014.

Incidentally, if that seems complicated. it is, and it is so because the LAA no longer publishes a complete and up-to-date codification of the legal aid rules as it used to with the Funding Code. Instead the rules are contained within regulations – but no consolidated set of regulations is published either on the LAA website or on legislation.gov.uk. This means that, as the scheme evolves over the years since LASPO was passed, the only way to understand it is to trace amendments back through several sets of regulations – just three, in this case, but more in others. We are in danger of reaching the point at which the legal aid scheme becomes, through piecemeal amendment, incomprehensible.

Prison law and appeals tenders

A reminder that the tender for prison law and appeals work closes next week, at noon on the 21 July. This is only for organisations that want a specialist prison law and / or appeals contract; providers who tendered for an own or duty crime contract don’t need to apply. More information about the tender and a set of FAQs can be found on the LAA website.

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