Family practitioners will be aware of a difficulty with the application of the statutory charge in some cases. Failings by a local authority towards have led to damages being sought on behalf of the child under the Human Rights Act.However, where this is done within the care proceedings it meant the damages would be swallowed up by the statutory charge which recovered the cost of the care proceedings. A line of cases confirmed the proper approach was to bring the damages claim separately to the care proceedings. Although this would mean a separate legal aid certificate, there was still an issue around the extent to which these were connected proceeding within s25 LASPO, meaning the statutory charge would still bite to recover the costs of the care proceedings. See Chapter 5 of the Handbook for more.This issue has come to court again in the recent case of Northamptonshire County Council & Anor v The Lord Chancellor (via the ire County Legal Aid Agency)  EWHC 1628 (Fam). Francis J noted that the LAA has now agreed to publish an updated statement of its position in these cases. Although it has not yet done so, the LAA’s position statement in this case is attached to the judgment and can be viewed here. It says
[If] HRA damages are obtained outside of the care or other family law proceedings (e.g. within separate civil proceedings, or by means of a settlement outside of the care or other family law proceedings), only the legal aid expenditure incurred in respect of pursuing an HRA claim will be treated by the LAA as provided in connection with it. If the LAA is asked to give an early indication as to whether the statutory charge will apply to any HRA damages in these circumstances, it will request undertakings from the provider and counsel in the care proceedings that they will not make a claim for costs in respect of any HRA work carried out as part of the care or other family law proceedings. Once the undertakings have been received, the LAA will be able to confirm that the statutory charge will not extend to the legally aided care costs. Note that, unless a certificate or amendment to a certificate specifically authorising an HRA claim has been granted, there could be no valid claim for such costs in any event.
For the avoidance of doubt, legal aid expenditure in relation to the HRA claim will form a statutory charge in respect of any damages or costs recovered in the settlement of that claim, to the extent that a claim is made for costs from the LAA.
The LAA now clearly accepts that – provided proceedings are separate – the HRA damages will not be used via the statutory charge to recover the costs of the care proceedings. However any legal aid costs in the HRA claim will. Such cases will often be unsuitable for a CFA and the costs protection afforded by a legal aid certificate will be needed. Even if costs are awarded in the event of a successful claim they will not cover the legal aid only costs and perhaps not part of the substantive work. This leaves practitioners with the invidious choice of not claiming perhaps significant costs, or seeing them recouped from their child client’s damages. However this position seems as far as the law can go in these situations. Whether it is just for the state to recover costs from damages awarded to a child client for HRA breaches by the state is essentially a political and policy question, and perhaps one the forthcoming LASPO review may address.
UPDATE 11 July: The LAA has now published the statement on its guidance page here
Funding for private family law cases is generally only available where the applicant for legal aid can show that they are a victim of domestic abuse, or where they can show that the aim of the proceedings is to protect a child at risk of abuse from a third party (such applications are in scope because of Paras 12 and 13 of Part 1 Schedule 1 of LASPO; see also Chapter 6 of the Handbook). Until the successful challenge to the original regulations by Rights of Women, there was a requirement that the evidence in support of the application had to be no more than 2 years old. Following the litigation, that was extended to 5 years.
From Monday 8 January 2018, the five year limit is removed. The existing evidence requirements are also removed, and replaced with a new Schedule 1 of the Procedure Regulations. When the Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017 come into force, acceptable evidence (for civil legal services to be provided to an adult (A) in relation to a matter arising out of a family relationship between A and another individual (B)) will include:
Domestic abuse – para 12 Part 1 Schedule 1 LASPO cases
- Evidence that B has been arrested for a relevant domestic violence offence.
- A relevant police caution for a domestic violence offence.
- Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded.
- A relevant conviction for a domestic violence offence.
- Evidence of a court order binding over B in connection with a domestic violence offence.
- A domestic violence protection notice issued under section 24 of the Crime and Security Act 2010 against B.
- A relevant protective injunction.
- An undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) by B provided that a cross-undertaking relating to domestic violence was not given by A.
- A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by B.
- An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B.
- A letter or report from an appropriate health professional confirming that that professional, or another appropriate health professional—
- (a)has examined A in person; and
- (b)in the reasonable professional judgement of the author or the examining appropriate health professional A has, or has had, injuries or a condition consistent with being a victim of domestic violence.
- A letter or report from—
- (a) the appropriate health professional who made the referral described below;
- (b) an appropriate health professional who has access to the medical records of A; or
- (c) the person to whom the referral described below was made;
- confirming that there was a referral by an appropriate health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence.
- A letter from any person who is a member of a multi-agency risk assessment conference (or other suitable local safeguarding forum) confirming that A, or a person with whom A is in a family relationship, is or has been at risk of harm from domestic violence by B.
- A letter from an independent domestic violence advisor confirming that they are providing support to A.
- A letter from an independent sexual violence advisor confirming that they are providing support to A relating to sexual violence by B.
- A letter from an officer employed by a local authority or housing association (or their equivalent in Scotland or Northern Ireland) for the purpose of supporting tenants containing—
- (a) a statement to the effect that, in their reasonable professional judgment, a person with whom B is or has been in a family relationship is, or is at risk of being, a victim of domestic violence by B;
- (b) a description of the specific matters relied upon to support that judgment; and
- (c) a description of the support they provided to the victim of domestic violence or the person at risk of domestic violence by B.
- A letter from an organisation providing domestic violence support services.
- The letter must confirm that it—
- (a) is situated in England and Wales;
- (b) has been operating for an uninterrupted period of six months or more; and
- (c) provided A with support in relation to A’s needs as a victim, or person at risk, of domestic violence.
- (3) The letter must contain—
- (a) a statement to the effect that, in the reasonable professional judgement of the author of the letter, A is, or is at risk of being, a victim of domestic violence;
- (b) a description of the specific matters relied upon to support that judgement;
- (c) a description of the support provided to A; and
- (d) a statement of the reasons why A needed that support.
- A letter or report from an organisation providing domestic violence support services in the United Kingdom confirming—
- (a) that a person with whom B is or was in a family relationship was refused admission to a refuge;
- (b) the date on which they were refused admission to the refuge; and
- (c) they sought admission to the refuge because of allegations of domestic violence by B.
- A letter from a public authority confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment).
- A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom under paragraph 289B of the Immigration Rules.
- Evidence which the Director is satisfied demonstrates that A has been, or is at risk of being, the victim of domestic violence by B in the form of abuse which relates to financial matters.
Protection of children – para 13 Part 1 Schedule 1 LASPO cases
- Evidence that B has been arrested for a child abuse offence.
- A relevant police caution for a child abuse offence.
- Evidence of relevant criminal proceedings for a child abuse offence which have not concluded.
- A relevant conviction for a child abuse offence.
- A relevant protective injunction.
- A copy of a finding of fact made in proceedings in the United Kingdom of abuse of a child by B.
- A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that the child was assessed as being, or at risk of being, a victim of child abuse by B (or a copy of that assessment).
- A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that a child protection plan was put in place to protect the child from abuse or a risk of abuse by B (or a copy of that plan).
- An application for an injunction described in paragraph 5 of this Schedule made with an application for a prohibited steps order against B under section 8 of the Children Act 1989 which has not, at the date of the application for civil legal services, been decided by the court.
Withdrawal of legal aid
The rules on when the Director can withdraw a grant of legal aid have also been revised. The new rule (a revised Reg 42(1)(k) of the Procedure Regulations) says legal aid may be withdrawn where the evidence relied on was:
- a conviction for an offence and that conviction has subsequently been quashed;
- evidence of ongoing criminal proceedings and those proceedings have subsequently been concluded without a conviction;
- evidence described in paragraph 7 of Schedule 1 or paragraph 5 of Schedule 2 where—
- (a) the order was obtained without notice to the respondent; and
- (b) that order has subsequently been set aside by the court;
- evidence described in paragraph 7 of Schedule 1 where the application for a domestic violence protection order has been made under section 27 of the Crime and Security Act 2010() but has been unsuccessful on account of the conditions set out in section 28 of that Act not having been satisfied;
- evidence described in paragraph 1 of Schedule 1 where no charge is brought for the domestic violence offence (within the meaning of Schedule 1) and the Director is satisfied that it is unlikely that such a charge will be brought;
- evidence described in paragraphs 16 to 18 of Schedule 1 and a public authority has confirmed in writing that it is satisfied—
- (a) there has not been domestic violence between A and B; or
- (b) A was not at any time at risk of being the victim of domestic violence
- evidence described in paragraph 1 of Schedule 2 where no charge is brought for the child abuse offence (within the meaning of Schedule 2) and the Director is satisfied that it is unlikely that such a charge will be brought;
- evidence of an application described in paragraph 9 of Schedule 2 and that application has subsequently been withdrawn or refused,
unless there is some other form of evidence which would also justify a grant of legal aid.
The new evidence requirements are not backdated. They will only apply to Controlled work applications signed from Monday 8 January onward. Licensed Work applications signed from Monday 8 January will be made under the new rules, but those signed before that date and received by the LAA before 5pm on 15 January will be treated under the old rules. Grants of emergency representation made before 8 January will be treated under the old rules even if the 5 day notification is received by the LAA after 8 January.
This is a helpful development. Although the requirement to obtain evidence is still in place – with all the practical difficulties that causes – the widening of the range and age of what constitutes acceptable evidence should help make legal aid available more widely than before.
The manner of the change is also a helpful development. We have been saying for some years now – in the Handbook, on this site and elsewhere – that the current system of amending the scheme is not fit for purpose. Post-LASPO, most of the significant rules are no longer in LAA documents, but in primary and secondary legislation. Amendments to the rules are made via amendments to the legislation. Neither the MoJ nor the LAA make consolidated versions of the regulations available, and nor does the legislation.gov.uk website. That means – unless you have the sort of subscription legal research tool that is unaffordable to most legal aid lawyers – the only way to work out the current rules is to cross-reference the original and amending regulations. The civil legal aid merits tests, for example, are not publicly available – unless you read four sets of regulations side by side, manually amending them as you go (or unless you buy the Handbook!). The MoJ and LAA should urgently make available – and keep up to date – a single consolidated version of all the key legal aid regulations. It cannot be right that the fundamental basis of the scheme is obscure to practitioners – and impenetrable to the public using it. It hasn’t yet gone that far, but removing the previous much amended sections of the Procedure Regulations and replacing them with a single up to date Schedule is a welcome step in the right direction. In the meantime, links to all the regulations and other resources can be found on our Resources page.