Tag Archives: Funding Code

New Point of Principle

With thanks to LAPG‘s very useful update emails, this is the text of a new Point of Principle which has been decided by the Costs Appeal Committee:

If a third party signs a Legal Help form at the direction of the client (the client being unable so to do in person for reasons of health or disability), either in his own name or that of the client, that does not invalidate the form as long as there is sufficient evidence on the file (such as an attendance note) to demonstrate that the form was properly executed  by that third party with the client’s approval

It is surprising that this got as far as a PoP, given that this situation is very clearly allowed for (see for example Funding Code Procedures B3). But it is useful to have it re-stated and to be reminded that evidence of the client’s authorisation is required.

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2013 Contracts – what we know so far

As we reported last week, the LSC has put a lot of material on the CLA (telephone services) tender pages of its website. Some of this is only relevant to the CLA tender, but much of it is also relevant to how face to face contracts will operate from next April. So what is there?

  • The category definitions, which set out what work you will be able to do in each category of law. Since there will be no tolerance work, and each category is exclusive (meaning you must have a contract in the category to work in it), the definitions are important. They have changed, but in quite subtle ways, since the last version was published a couple of months ago. If you are planning on tendering for a contract next month, you will need to know what work you will be able to do (and what work you do now but can’t in the future). This document will tell you.
  • The merits regulations (in draft) replace the Funding Code Criteria and set out the tests for granting legal aid. They are similar, but not identical, to the Funding Code and again repay analysis.
  • The procedure regulations (draft) replace the Funding Code Procedures, and again are similar but not identical.
  • Of vital importance to family lawyers, the first clear policy statement setting out what and how evidence of domestic violence will be acceptable to demonstrate eligibility for legal aid in private law cases
  • A policy statement on connected matters, replacing the old “mixed cases” rule, which basically confirms that where you have a case that is both in and out of scope, you will only be able to do the in-scope part. For example, in a housing possession case where the arrears are caused by housing benefit problems, you will be able to represent your client in the housing proceedings but not do any work on the benefit problems (or not be paid for doing so, at any rate).
  • A policy statement on the new financial eligibility rules
  • Transitional arrangements setting out how cases started under the current rules and continuing under the new ones will be dealt with.
  • The CLA contract specification, which is partly concerned with how telephone cases will be dealt with but also contains details on managing face to face cases (both legal help and certificate), since education and discrimination contracts will be mixed phone and face to face. It is therefore a useful preview of the forthcoming face to face specification and again will help you assess what work you can do in the future.

The Advice Services Alliance have been running training on where we have got to with the legal aid reform programme. They have now posted the training notes online and they are a very useful summary (accurate as at 13th August) and well worth reading both to bring yourself up to date and in preparation for the forthcoming tender round.

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Legal aid reform (2) – civil legal aid framework

The statutory framework

The Legal Aid, Sentencing and Punishment of Offenders Bill talks not about “civil legal aid”, but “civil legal services”. They are defined in clause 7 of the bill, where “legal services” means

  • providing advice on how the law operates in particular circumstances;
  • providing advice and assistance in relation to legal proceedings;
  • providing advice and assistance in relation to the prevention of disputes about legal rights or duties or the settlement or resolution of disputes;
  • providing advice and assistance in relation to enforcement of decisions.

“Advice and assistance” expressly includes representation and mediation.

“Civil” simply means not criminal.

However, civil legal aid will only be available to an individual if for the type of services described in Schedule 1 of the bill and if the Director of Legal Aid Casework has determined that the individual qualifies for the services. There is also limited provision for exceptional cases.

Types of services

Schedule 1 of the bill defines the scope of civil legal aid. The Schedule is in 3 parts, Part 1 listing all the proceedings that are in scope, Part 2 those that are out of scope, and Part 3 the venues in which advocacy services can be provided.

So the task of determining whether a particular case is or is not in scope is not straightforward. First you need to consider the list in Part 1; if it is not there, it is out of scope. But Part 1 (unless expressly stated in the relevant paragraph of Part 1) is subject to Part 2, which lists proceedings that are expressly excluded. So some or all of the case could still be excluded even if it is listed in Part 1. Advice and assistance will only extend to advocacy if the particular venue is listed in Part 3.

To take an example, the government’s initial consultation appeared (it wasn’t entirely clear) to propose taking housing cases for unlawful eviction out of scope. The consultation response now says that they have decided to leave unlawful eviction within scope. So, paragraph 27(1) of Part 1 of Schedule 1 says that civil legal services in relation to the eviction from the individual’s home of the individual or others are in scope. So far so good. But many such cases also involve a claim for damages both for the eviction itself, plus for example claims for trespass to goods or damage to property. Both are excluded under Part 2; so in future victims of unlawful eviction could apply for an injunction to get back into the property, but would go uncompensated for all their belongings that ended up in a skip.

So what is in scope? See our summary, and we will be taking a more detailed look at particular areas of law in the coming days.

Exceptional cases

Cases otherwise excluded from scope may be funded as excluded services, subject to means and merits, if:

  • it is necessary because failure to make services available would be a breach of Convention rights or EU law;
  • it is appropriate to make services available as failure to do so risks such a breach; or
  • the services are advocacy at an inquest into the death of a member of the client’s family and there is a wider public interest justification
See clause 9 of the bill.

Determination by the Director

The Director of Legal Aid Casework – or his staff – determines qualification for legal aid. The Director is a civil servant in the Ministry of Justice and in effect the replacement of the LSC. Clause 10 of the bill allows the Lord Chancellor to make regulations setting out means and merits criteria, which the Director must follow in deciding whether to grant funding in individual cases. The Lord Chancellor must not give directions in relation to individual cases (clause 4). There are a list of factors listed in the clause that the Lord Chancellor must consider in setting merits criteria:

  1. cost benefit;
  2. availability of resources;
  3. the appropriateness of applying those resources, having regard to present and likely future demands for civil legal services;
  4. the importance of the matter to the client;
  5. the nature and seriousness of the act, omission, circumstances or other matter in relation to which services are sought;
  6. the availability of services other than through legal aid;
  7. prospects of success;
  8. conduct of the client in connection with the services sought or an application for them;
  9. conduct of the client in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties;
  10. the public interest

The bill specifically states that the criteria must “reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”. Does this create something approaching a presumption of mediation rather than representation?

This list is similar to that in s8(2) Access to Justice Act for the current scheme, but points 5, 8 and 9 are new (though the latter appear in the existing Funding Code criteria). This clause does not create the successor to the Funding Code, but it does create the factors the Lord Chancellor must have regard to when drawing up the successor Code.

Point 5 appears to reflect the government’s view, underpinning the reform programme, that only certain types of case are sufficiently serious to justify legal aid. That is why whole areas of law have been cut from scope (see above). If it was just about a threshold of seriousness, for example excluding small claims cases, that could be done under 1 and 4, as now. So why is point 5 there as well? Is the government’s judgement that some cases – liberty, roof over the head – are more important than others – benefits disputes, damages claims – to be extended to those cases remaining in scope? Are we going to see cases ostensibly in scope refused because they are not sufficiently “serious”? Presumably nature and seriousness is to be measured against other cases, not in their effect on the client, since point 4 deals with importance to the client.

The bill also makes provision (clause 20)  for regulations dealing with financial eligibility for services, and includes provision for some services to be provided without regard to means – as happens now in, for example, child care and mental health detention cases. The eligibility regulations have not yet been published, and we will deal with the detail of the proposals in this area in the next post.

Costs and the statutory charge

The bill in effect replicates the existing costs protection, costs awards and statutory charge regime, though much of the detail is delegated to regulations yet to be published.

Provision of services

A key clause in the bill is clause 26. This says that the Lord Chancellor’s duty to make legal aid available does not include a duty to make it available in a way of the client’s choosing. Nor must it be provided by a person or firm of the client’s choosing. The clause specifically says that the Lord Chancellor may discharge his duty by arranging for services to be provided by telephone or other electronic means. This is therefore statutory authority for the telephone gateway, and is not limited by any question of for example the circumstances of the client or their case, so the gateway can in future be extended beyond the four initial areas (special educational needs, community care, debt and discrimination).

Therefore, the effect of the clause is that, while legal aid must be made available, it need not be made available in a way or by a provider of the client’s choice.

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Funding Code Amendments Quashed

The Administrative Court gave judgment today in the case of R (on the application of Evans) v Lord Chancellor [2011] EWHC 1146 (Admin). This was a challenge, brought by the peace campaigner Maya Evans, to the amendments to the Funding Code introduced by government following the Legal Aid: Refocussing on Priority Cases consultation. The Code was amended to provide that certificates for Investigative Help and Full Representation would only be granted where the applicant had a direct personal interest in the proceedings. Maya Evans had previously judicially reviewed, funded by legal aid,  the actions of British officials in Afghanistan in handing over to the Afghan authorities on the basis that it would expose them to risk of torture. In the present case, Lord Justice Laws said that

It seems likely that but for Evans No 1 the situation of the detainees liable to be handed over to the NDS [Afghanistan National Directorate of Security] would never have been subject to the scrutiny of the English courts (para 3)

The effect of the Refocussing amendments was that such cases would no longer be funded by legal aid.

Maya Evans therefore brought judicial review on the grounds that the consultation was flawed because

  1. The true reason for the proposals was because of concerns of the Defence Secretary at cases funded by legal aid, but that that was not made clear in the consultation;
  2. There was no power under the Access to Justice Act 1999 to make the amendments to the Funding Code
  3. It was irrational to allow an exception for public interest challenges in environmental cases but not to at least consider other cases where the UK had international obligations

Lord Justice Laws held that there was a broad discretion under s8 of the Act to amend the Code, and that it was not irrational to exercise discretion to allow some types of cases but not others. However, he allowed the application because the concerns of the Defence Secretary at such cases were taken into account in the decision making process. He held

the consequences of an adverse result in the kinds of case to which the letter refers (including Evans No 1) exerted some influence in the promulgation of the amendments. In those circumstances a legally inadmissible consideration was taken into account, and in my judgment the amendments must be quashed for that reason (para 29).

and

Those concerns were material to the proposal, and to the decision to make the amendments. Accordingly consultees should have been informed that they were, so to speak, part of the mix. Because that was not done the consultation process was in my judgment legally defective. For this reason also I would quash the amendments (para 33).

As a result the amendments to Funding Code – criteria 7.2.4 and 7.3.4 – have been quashed. It is not yet known whether the government intends to appeal.

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