by Simon |
October 2, 2015 · 8:37 am
The LAA has announced changes to some civil forms, which become mandatory from 1 November. The affected forms are:
APP and CW3A forms cannot be used before 1 November, and any forms signed or dated from 1 November onwards must be the new ones. Forms signed before 1 November must be submitted by 30 November. The CLAIM forms can be used before 1 November. Equivalent changes to CCMS will be made before 1 November. Preview versions of the new forms can be found on the pages for each form on the LAA website.
by Simon |
July 25, 2015 · 9:25 pm
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  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)
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:
- 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.
After a discussion of relevant caselaw, particularly in the ECtHR, Collins J concluded:
- 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.
- 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.
Filed under Civil, Family, Housing, Immigration, LASPO, Policy, Social welfare
Tagged as civil, exceptional cases, exceptional funding, forms, LASPO, legal aid, merits
by Simon |
March 17, 2015 · 6:18 pm
The LAA has published preview copies of new forms in force from 1 April 2015. Not all forms are changing – you can see the full list on the LAA website here. In crime, only the LF3 is new. There is a new “counsel matrix” form for listing all fees paid to counsel in family cases.
The LAA says
The above civil claim forms and the controlled work forms are mandatory from 1 April 2015 but may be used now. However, we will not reject for using a previous version of the above forms unless there is a secondary reason for doing so
But the new LF3 must used from 1 April. Old forms signed after that date will be rejected. Old forms signed before 1 April will be rejected if not submitted before 30 April.
All forms, both new ones and those not changing, may be found here.
by Simon |
September 29, 2014 · 1:17 pm
Our thanks to Colin Henderson for drawing to our attention the following passage from FAQs released following the LAA’s recent provider reference group meetings:
Can the LAA reconsider what level of additional financial information is asked for from passported clients?
We have recently reviewed this and changed the evidence required to one month’s worth of bank statements in relation to civmeans 2 cases.
We’ve also reminded caseworkers of the discretion available when dealing with applications from vulnerable clients, e.g. those who are homeless.
We need to ask about third party finances where the client may be supported by a third party but, again, the caseworker should exercise discretion, taking the relevant circumstances into account.
Reducing the evidence requirement from three to one month’s worth of bank statements is welcome, as it should significantly reduce the bureaucracy and problems with obtaining evidence associated with legal aid applications. However, we would advise approaching it with some caution. The latest version of the means form itself (see page 13) still requires three months statements, not one. And experience suggests that changes of this type often take some time to filter down to front-line caseworkers. The safest approach would seem to be to submit three months where you can, and where you can’t submit one month and quote the above passage.
Filed under Actions Against the Police, Civil, Clinical Negligence, Community Care, Family, Housing, Immigration, Mental Health, Public Law, Social welfare
Tagged as applications, civil, forms, means
by Vicky |
September 4, 2014 · 4:53 pm
Just to remind people, further to our previous post, that time is fast running out to submit pre-4 August forms. Completed paper forms, submitted by post, signed and dated before 1 September 2014, will be accepted by the LAA as long as they are received on or before 5pm on 5 September.
From 1 September 2014, the new forms are mandatory.
Filed under Civil, Family, Housing, Immigration, Mental Health, Public Law
Tagged as advocacy, civil, costs, family, forms, housing, immigration, mental health
by Vicky |
July 31, 2014 · 5:17 pm
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.
by Vicky |
July 30, 2014 · 10:09 am
There will be a new FAS Advocates Attendance Form EX506, to be used for all hearings starting 31 July 2014. Unfortunately, HMCTS does not provide forms in advance of the date they are to be used; but from tomorrow, it will be available via the Court Service Form Finder.
From 31 July, the bundle bolt on fee will be claimed by reference to the Advocates Bundle, not the Court Bundle. The LAA has provided a training module and workbook which provide more information about what is required to justify a bundle payment here.
by Simon |
July 29, 2014 · 6:05 pm
Practitioners should note that the bulk of the civil legal aid forms are changing with effect from next week. The new forms can be found here (UPDATE: all forms can now be found on gov.uk here). Following the successful JR, it appears references to the residence test that were on the draft forms have been removed.
Old versions signed on or before 3rd August will be accepted up to 31st August, but any signatures dated from 4th August should be on the new forms.
UPDATE 31st July: The LAA has now said it will accept old versions provided they are signed before 1st September and received by 5th September.
Filed under Civil, Community Care, Family, Housing, Immigration, Mental Health, Public Law, Social welfare
Tagged as audit, civil, contracts, forms, legal aid
by Simon |
March 16, 2014 · 6:33 pm
The LAA postponed the roll-out of CCMS for civil providers earlier this year, following extensive and detailed criticism of the system by representative bodies and firms involved in the pilot.
There is still no news on when the system will be implemented, but this week the LAA put an item on its website asking practitioners to do more online training. It doesn’t say when roll-out will happen, merely that notice will be given. Interestingly, it does say – for the first time publicly – that roll-out will be voluntary. It was always the LAA’s intention that it would be mandatory, and a power was added to civil contracts allowing use of the system to be required. This therefore seems to be a significant concession, and perhaps an admission that – following the major problems highlighted by pilot providers – it has something of a credibility problem.
by Simon |
February 17, 2013 · 2:27 pm
The LSC have published a preview of the legal aid forms that will apply from 1st April. The civil ones are here, and the crime ones here.
Old forms should be used up to 1st April, and the new ones from 1st April onwards. The LSC will accept old forms signed pre-1st April up to 30th April, with the exception of civil application forms. As the transitional arrangements make clear, civil applications signed before 1st April must be received before 5pm on 8th April for legal aid to be granted under the old scheme.
Practitioners dealing with civil certificated work will therefore need to be careful to ensure forms are submitted on time and correctly; if a form is rejected and a re-application is required, and the re-application is not received until after 8th April there is a risk that the case will have gone out of scope in the meantime and the client will not get the legal aid they would have been entitled to had the form not been rejected. A provider who makes a mistake on an application with the result that the client can no longer get legal aid will be in a difficult position.
For more on the new legal aid scheme, see our LASPO Resources page, follow us on Twitter @legalaidhbk or pre-order the new Handbook by emailing email@example.com
Filed under Civil, Crime
Tagged as civil, crime, forms, LASPO