Tag Archives: judgments

Housing court duty tender cancelled

As we reported here, the High Court quashed the LAA’s decision to re-configure the boundaries of court duty schemes and tender based on the larger scheme areas. It found the basis for the plan to be so lacking in evidence as to render the decision irrational. As a result the LAA has now announced that it has cancelled the tender. Any bidders previously notified of a successful outcome will not now be awarded a contract. Although the announcement does not set out next steps, we understand the LAA has now written to existing providers offering a one year extension to 30 September 2019. The work will be based on the 2013 contract specification, not the new 2018 specification.The purpose of the one year extension is said to be

to enable a review of relevant policy and to provide the time needed to prepare and run a new procurement exercise for these services.

Existing providers who wish to continue will be required to have a 2018 contract in housing and debt. It is not clear what provision the LAA has put in place where the existing contract holder has not bid for a 2018 contract, which would mean they cannot continue and therefore there is no provider to continue the existing scheme until September 2019.

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Housing Court Duty Tender Quashed

The High Court has quashed the LAA’s tender for housing court duty possession schemes in R (Law Centres Federation Limited) v Lord Chancellor [2018] EWHC 1588 (Admin). The Law Centres Federation argued that the decision to reduce the number of contracts available by increasing the size of scheme areas to cover multiple courts was irrational and in breach of the public sector equality duty.

Andrews J was heavily critical of the LAA and MoJ’s approach to decision making, in particular the gathering of evidence. She found that a series of questionable assumptions without data had been made, and the position of the representative bodies mis-represented. Submissions to ministers were “woefully inadequate” and necessary enquires had not been carried out. As a result, the minister making the decision was misled and not properly briefed, and consequently reached a decision no minister, properly briefed and in possession of all the facts, could reasonably have reached.

It is not yet known whether the Lord Chancellor will appeal or what action the LAA will take to ensure schemes can operate beyond September 2018 now that the tender process awarding new contracts has been quashed, with existing providers already given notice of termination. We will report developments.

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Supreme Court judgment in residence test case

The Supreme Court has issued its judgment in the residence test. As we reported at the time of the hearing, the Court took the very unusual step of upholding the appeal partway through the case. It’s now given its reasons.

In The Public Law Project, R (on the application of) v Lord Chancellor [2016] UKSC 39, Lord Neuburger gave the only judgment, the other six justices agreeing. He only dealt with the first ground of appeal – ultra vires – it being agreed that, as the case won on that ground alone it wasn’t necessary to deal with the other ground (discrimination).

Lord Neuburger held that LASPO defines what civil legal aid services are to be made available by reference to the issue of law, the nature of the services and the need and ability to pay of the individual requiring the services. There is nothing in the Act that excludes groups of people on the grounds of personal circumstances or personal characteristics beyond that – such as resident status – and nothing in the Act that enables such an exclusion to be brought in using the powers given to make secondary legislation. He also noted the strong presumption in statutory interpretation that every Act applies not just to persons belonging to the territory affected by the Act, but also to “foreigners…within its territory”.

We’ve remarked before on the varying interpretations of the statutory purpose of LASPO. Lord Neuburger addressed that as well; “the purpose of Part 1 of LASPO was, in very summary terms, to channel civil legal aid on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and the availability of other forms of dispute resolution. The exclusion of individuals from the scope of most areas of civil legal aid on the ground that they do not satisfy the residence requirements of the proposed order involves a wholly different sort of criterion from those embodied in LASPO and articulated in the 2011 paper.” This is a helpful formulation, putting the emphasis back on targeting need rather than reducing costs.

However, although it’s now clear that the residence test can’t be brought in by statutory instrument, it still could be done by primary legislation. The previous Prime Minister, David Cameron, made clear he supported that – though no legislative plans had been announced. It remains to be seen whether Theresa May – and whoever she appoints as Lord Chancellor – agrees.

 

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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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Domestic abuse evidence requirement extended to five years

The Court of Appeal recently decided that the existing domestic abuse gateway to private law family legal aid was unlawful because:

  • It only permitted evidence within the last two years;
  • It had no mechanism for proving financial abuse.

In a written statement to Parliament today, the minister gave the government’s response. 

It has laid new regulations, coming into force on Monday 25 April, extending the two year period to five years, and including provision for financial abuse. It will also review the needs of victims of domestic abuse with a view to developing “evidence based” replacement regulations in the long term.

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Supreme Court finds residence test unlawful

The Supreme Court began hearing the residence test appeal on Monday. Most unusually, at the end of day one of a two day hearing, the Court gave its decision – that the test is unlawful because it is outside the powers granted to the Lord Chancellor by LASPO. It’s not yet clear whether the second day will go ahead to consider whether it is also discriminatory. The Court will give reasons in due course.

This is a very welcome result, and our congratulations to the Public Law Project and its representatives for bringing the case. As we said when the draft regulations were first published the test is not only directly and deliberately discriminatory, it would also have the practical effect of barring access to legal aid for many who would be eligible but unable to prove it.

But it’s important to remember that this doesn’t necessarily mean the end of the residence test. There’s clear political will to introduce it, with the Prime Minister himself reportedly committed to it as part of the government’s response to the Iraq armed forces cases. Today’s hearing showed that the test can’t be implemented via statutory instrument using the LASPO powers. But it could still be brought in by primary legislation – and that would be harder still to challenge.

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Residence test to go to Supreme Court

The Supreme Court announced today that it has given permission to appeal in the case of R (on the application of The Public Law Project) v The Lord Chancellor (our report of the Court of Appeal decision here).

This is the first LASPO case to get this far, and so will be of considerable interest. It may give the Court the opportunity to resolve the various views of the statutory purpose of LASPO, an issue in many of the High Court and Court of Appeal cases, and one we discussed here.

The Lord Chancellor hasn’t yet laid regulations to implement the residence test, though it was reported that the Prime Minister wanted it done by the summer. It is to be hoped that that won’t now happen, pending the Supreme Court’s decision.

 

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