Tag Archives: LASPO

Of residence, reviews and reverses

There was a series of press reports at the weekend, all setting out the government’s aim to introduce the civil legal aid residence test by the summer. This follows the Lord Chancellor’s win on its legality in the Court of Appeal, and is said to be being backed by the Prime Minister himself, in reaction to recent controversy about claims against British forces arising out of Iraq and other conflicts.

In a debate in Parliament this week the legal aid minister confirmed that the government does indeed intend to introduce the residence test. The LAA has told the representative bodies that it will come in by the summer. There won’t be a formal consultation on the draft regulations, but there is to be some consideration of how it will operate in practice. If the test has to be introduced at all, it is to be hoped that the burdensome checks proposed for all applicants for civil legal aid will have reduced from the last time the test was proposed.

Meanwhile, Labour’s Access to Justice Commission met for the first time this week as part of its attempt to devise a new legal aid policy. There’s an interesting blog from one of the members of the commission, the former Court of Appeal judge Sir Henry Brooke.

Finally, despite being forced to concede that it wrongly marked at least one bid, the LAA seems determined – or intends to appear so publicly – to press ahead with two tier criminal contracts. But in view of recent rumours that it might be about to back down, the Law Society has written to the minister seeking clarification.

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News miscellany

A round up of some recent news:

Mandatory CCMS roll out

The LAA has announced that CCMS won’t be made mandatory until 1 April 2016 – but the original date of 1 February stays in place for Special Children Act cases.

Legal aid statisitics

The latest legal aid statistics were published this week and made for the usual depressing reading. Crime expenditure and workload continues to fall, as does Legal Help. Two bright spots were that grants of civil certificates were up 9%, and the grant rate for exceptional funding has risen to almost half of applications – though the numbers of applications hasn’t increased on the same period last year.

Waiting for legal aid not a good reason for delay

Last week the Court of Appeal gave judgment in Kigen & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 1286, a case in which the appellants appealed against refusal to grant an extension for lodging a judicial review application. The Court made clear that delays caused by waiting for decisions of the Legal Aid Agency will no longer be an acceptable reason for delay or for the grant of an extension of time.

Moore-Bick LJ said that “It may be that, in the light of the older authorities to which I have referred, solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result. That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf. Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused.” (para 29).

Leave was granted in this case, exceptionally, because of that general impression. But the court made clear that, in future, delays in getting legal aid granted will not be a good reason for delay. There’s more analysis of this case at the Civil Litigation Brief blog.

Costs Protection in the Upper Tribunal

Free Movement has a post that’s worth reading on costs protection for legally aided clients in immigration judicial review proceedings before the Upper Tribunal.

House of Lords debates legal aid cuts again

The House of Lords debated the cuts to legal aid again last week. Once again various members set out the problems the cuts have caused, and once again the government promised a review of LASPO’s implementation but made no promise of changes. The transcript of the debate is here.

Not for profit legal aid providers

The MoJ released a survey of NfP providers this week. The survey found that the NfP sector had halved in size since the last major study ten years ago; unsurprising, perhaps, since 90% of NfP providers stopped doing legal aid work as a result of the LASPO cuts.

Earnings from crime 

The MoJ has also published a study of earnings from the Crime AGFS. It shows that average earnings have declined in recent years, from £97,000 to £90,000 for “notionally full-time” advocates. Advocacy has been protected from the recent fee cuts affecting police station and litigation work.

 

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Lord Chancellor wins appeal over residence test

In Public Law Project v The Lord Chancellor & Anor [2015] EWCA Civ 1193, the Court of Appeal reversed the decision of the High Court that the proposed residence test for civil legal aid would be unlawful. It found that such a test was within the Lord Chancellor’s powers and not unjustifiably discriminatory.

In a short and much narrower judgment than that of the High Court (which considered in detail the practical difficulties of access to legal aid the test would create), Laws LJ (with whom Kitchin and Christopher Clarke LJJ agreed) confined himself to considering whether the residence test was ultra vires LASPO, and whether its effects amounted to unlawful discrimination.

Laws LJ held that Part 1 of Schedule 1 of LASPO lists categories of law where the need for legal aid is pressing. But that does not mean that it is only open to the Lord Chancellor to restrict access to legal aid on the basis of lesser need. LASPO’s purpose is also to restrict legal aid on costs grounds, and it is open to the Lord Chancellor to remove access to the scheme on that basis. The objective of saving funds and making legal aid work more efficiently are objectives of LASPO. The residence test is within the scope of such a strategy, and within the scope of the powers permitted to the Lord Chancellor. s9(2)(b) read with s41(2)(b) of LASPO permits the Lord Chancellor to omit services for classes of individuals, and that is what the residence test does. It is not outside the powers granted by the Act.

On the issue of discrimination, it was common ground that the test is discriminatory; the question is whether it is justified. The saving of public funds is a legitimate aim, and the test is a proportionate means of achieving it. There is a distinction to be drawn between the duty of the State to ensure fair and impartial justice and a duty to fund legal representation. There is a wide discretion to decide what litigation is to be supported by public money, which is essentially a political question, and the restriction on it due to the residence test is not manifestly without reasonable foundation. Any requirement of European or human rights law for access to legal aid is met by exceptional funding under s10 LASPO.

Comment

The Public Law Project’s solicitors, Bindmans LLP, have issued a statement regretting the ignoring of evidence of the practical difficulties the test would cause. They will seek leave to appeal to the Supreme Court.

It is slightly strange that Laws LJ focussed on the statutory purpose of LASPO as being in part about controlling and reducing the cost of the scheme, and how the residence test was a lawful part of that strategy. Similarly, on discrimination, he described the legitimate aim sought as being the saving of costs.

But the residence test, according to the original consultation and impact assessment, was never about cost. It was projected to save very little. The original justification for the test – scarcely touched on by the Court of Appeal – was public confidence in the operation of the legal aid scheme. Moses LJ, in the High Court, described that as amounting to “little more than reliance on public prejudice”. Laws LJ disagreed, considering it possible for reasonable people to disagree about the merits of the test. But he didn’t address at all whether that was a legitimate aim, whether the test was a proportionate means of achieving it, or whether it fell within the statutory purpose of LASPO.

Unless the Supreme Court is persuaded to deal with any appeal quickly, the Lord Chancellor now has the power to introduce a residence test. Having the power is not, of course, the same as exercising it. The new Lord Chancellor has struck a noticeably more thoughtful and liberal tone than his predecessor. It is not too late for him to consider whether the many injustices that would result from the residence test – for those caught by it, and for those not caught who can’t prove entitlement – require it to be added to the lengthening list of Grayling measures quietly abandoned.

 

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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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Labour to review legal aid policy

The Labour party has announced that it is to carry out a review of legal aid policy, led by Lord Bach with Karl Turner MP. The party leader, Jeremy Corbyn, said:

“I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years. This has resulted in many of our fellow citizens, often the poor and marginalised not being able to get advice or representation when they are faced with legal problems such as housing, welfare benefits, debt and employment. Many vital advice services, including Law Centres, have had to close.

“Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working. Willy Bach, who is a member of the Shadow Justice Team, will also as a part of the Review look at policy choices for Labour so that Britain can once again have the prospect of a Legal Aid system worthy of our country and our legal tradition.”

Lord Back and Karl Turner are both members of Labour’s shadow justice ministerial team, headed by the shadow Lord Chancellor Lord Falconer – his recent article for the New Statesman on justice policy is also worth reading.

Karl Turner was a legal aid lawyer before entering Parliament in 2010. Lord Bach was legal aid minister in the last Labour government – his record on legal aid is mixed; although he increased financial eligibility limits for social welfare law when the financial crisis hit and fought LASPO hard in the Lords, in office he was in favour of criminal competitive tendering and as his last act as a minister pushed through a cut in crime fees.

The review is an opportunity for a fresh look at legal aid policy and was welcomed by leading legal aid lawyers

Lord Bach and Karl Turner have said that they want to hear from the professions to address the effect of the cuts, and it will be interesting to see what emerges from the review.

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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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LAA annual report 2014-15

The LAA’s recently published annual report shows how much less money has been spent on securing legal advice and representation for the poorest people in England and Wales. There was an overall net reduction in expenditure of £244 million (all figures in £000), a further decrease from 2013-14, which was the first year of the LASPO scope cuts.  The reasons for the increase in crime higher were given as higher numbers of sitting days and more pages of prosecution evidence in more complex cases.

Funding type                                                          2014-15               2013-14

Civil legal help                                                       112,165                 129,776

Civil representation                                             510,212                  693,527

Crime lower                                                           332,578                 367,304

Crime higher                                                          586,457                 553,677

Central funds                                                          44,238                    89,070

The costs of legal aid administration reduced by £3.1 million, when calculated on a cash basis; although total administration costs rose by £3.3 million, largely due to the development of the widely criticised CCMS system for civil applications and bill processing, which will now not become mandatory until February 2016.

Key milestones noted include:

  • Sustained monthly above target levels for processing civil applications (97% in 20 working days)
  • Quicker processing of civil bills (99% in 25 days)
  • Reject rates for civil bills brought down to 9.2% (against a 15% target)
  • Call waiting times for the civil certificated helpline below 2 minutes 48 seconds
  • Abandoned call rate for the civil certificated helpline 10.47% (target 12%)

In relation to internal issues, the LAA:

  • Launched a management skills programme for their staff
  • Increased participation in their staff survey to 89%
  • Had lower staff sickness than the civil service average (7.1 days against 7.6 days)

Plans for the future include:

  • Concluding the legal aid change programme
  • Making CCMS compulsory
  • Finalising the transfer of crime application processing from HMCTS
  • Developing crime online billing
  • Improving telephone answering and support for digital working by providers
  • Making the LAA a better place to work

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“Shadow legal aid scheme” blocked by Court of Appeal

In what we called the development of a “shadow legal aid scheme”, the President of the Family Division, Sir James Munby, said in Q v Q that in certain circumstances the Court could order that a party not eligible for legal aid be funded by HMCTS. In the first use of that power, HHJ Bellamy, in K & H, ordered that representation of a father be funded where serious allegations had been made against him and where he would otherwise have to cross-examine in person the child who made the allegations.

The Lord Chancellor appealed that decision, and the Court of Appeal has today given judgment – Re K & H (Children) [2015] EWCA Civ 543 (case now on Bailii, and the judgment can also be downloaded from the Coram Childrens Legal Centre website – CCLC, and the Association of Lawyers for Children, intervened in the case).

Giving judgment, the Master of the Rolls Lord Dyson said that there was no such power:

31. As the judge acknowledged, LASPO provides a comprehensive code for the funding of litigants whose case is within the scope of the scheme.  It is a detailed scheme.  I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO.  The court must respect the boundaries drawn by Parliament for public funding of legal representation.  In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

37. For these reasons, I consider that section 1 of the 2003 Act does not give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings. The provision of legal services cannot be described as coming within the scope of the duty to ensure that there is an efficient and effective system to support the carrying on of the business of a court.

41.The fact that costs associated with court hearings are on occasion met by HMCTS pursuant to the Lord Chancellor’s general duty under section 1 of the 2003 Act (to ensure that there is an effective and efficient system for the carrying on of the business of the family court) is not material to the funding of legal representation.

42. Most (if not all) of the considerations which I have mentioned above in relation to section 1 of the 2003 Act also lead me to conclude that section 31G(6) of the 1984 Act cannot be invoked to require the Lord Chancellor to fund legal representation to a litigant who does not qualify for legal aid because he does not satisfy the means test. Ms Whipple makes these further points which I accept.  First, section 31G(6) derives from section 73 of the Magistrates’ Courts Act 1980 which itself derives from the identical provision in the Magistrates’ Court Act 1952.  It enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness.  It cannot, on any plain reading, be interpreted as giving the court power to order funding of legal representation for a party.

43. Secondly, on a plain and natural interpretation of the language of section 31G(6), it is predicated on the party not being represented. If the party were to become legally represented, section 31G(6) would fall away.

44. Thirdly, the way in which “cause to be put” has historically been applied in practice is that the justices’ clerks in the magistrates’ courts could be asked to put questions to a witness on behalf of a party, where it was not possible for the party themselves to do so. Following the reorganisation of the Family Court, the justices’ clerks are now available to perform this function in any part of the Family Court and not only when magistrates are hearing the matter.

45. It follows that I respectfully disagree with what the President said at para 79 of his judgment in Q v Q. It would seem that he did not have the benefit of the detailed submissions which have been made to this court.

46. I conclude, therefore, that the judge had no power to make the order that he made and I would allow the appeal on the first ground. It is not therefore necessary to deal with the other grounds of appeal.  But I should say in relation to the second ground that I did not understand it to be contended by anyone that the imposition of a means test is of itself contrary to the Convention (it plainly is not).  I propose to say nothing on the question whether the judge was wrong to conclude that the father could not afford to pay for his legal representation (the third ground).  We heard a good deal of argument on the fourth ground of appeal, viz that, unless the judge’s order were to stand, there would be a violation of the article 6 rights of the father and the article 6 and 8 rights of K and H.  In deference to counsel’s submissions and in view of the importance of the issues raised, I propose to say something about this ground of appeal.

Dyson MR therefore went on to consider the Convention rights issues. But he concluded that, in most cases questioning by the Judge or by a Justice’s Clerk (who can be made available even in a case not heard by Magistrates) would be sufficient and not a breach of Article 6 or 8 – and that it would be sufficient in this case. He conceded that in some very complex and serious cases that would not be appropriate, and such a case might amount to a breach. He called for there to be a statutory scheme created to allow for the appointment of a legal representative in such cases.

Comment

This judgment firmly puts to rest the idea, proposed by Munby P and first implemented by HHJ Bellamy, that cuts to legal aid can be circumvented in appropriate cases by finding funds from some other source. The courts simply don’t have the power to require public funds to be spent in that way when there is a comprehensive statutory scheme which provides for cases which can – and cannot – be funded. That might, in some cases, result in a breach of Article 6 or 8. A fall-back statutory scheme in such cases would be useful – and the interveners in this case have called for one to be enacted. But it needs to be a statutory scheme, and it would be surprising if there is significant political appetite for creating what would amount to a second legal aid scheme to fill (some of) the gaps left by cuts to the first.

The government is likely to argue that the exceptional funding scheme is there to cater for cases where a lack of funding would breach Article 6 or 8. It is worth noting that the father in K & H was not in any event a victim of the LASPO cuts – he was financially ineligible, and so would never have got legal aid, even if LASPO had never been enacted. So he could not have got exceptional funding, which is means tested. As Dyson MR pointed out, the ECtHR has said that the imposition of a means test is not incompatible with Article 6.

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Legal aid for contempt in the County Court

In Brown v London Borough of Haringey [2015] EWCA Civ 483 the Court of Appeal considered the availability of legal aid for contempt proceedings in the County Court. It was considering an appeal against the committal for contempt of an elderly man who was found to have breached anti-social behaviour injunctions. In the County Court, he was unrepresented following the failure of his solicitor’s efforts to obtain legal aid.

The solicitor had applied both to the LAA, which said it was a criminal matter and to apply to the Court; and to the Magistrates Court that dealt with legal aid applications in the local area, which said it was a civil matter and to apply to the LAA.

Giving judgment, McCombe LJ analysed what he said was “disgracefully complex” legal aid legislation. The relevant analysis is set out at paras 26 to 37. McCombe LJ concluded that this was indeed a criminal matter (that is, that it fell within the criminal legal aid scheme and the solicitor needed a criminal contract). He approved the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning and anor [2013] EWHC 3390 (QB).

In cases in the Crown Court, High Court and Court of Appeal, the Court has the power to grant legal aid itself (which the Court of Appeal did, to allow Mr Brown’s representatives to be funded). But the County Court has no equivalent power. These are criminal applications which have to be made by criminal practitioners using criminal application forms. See also our posts on funding for new style anti-social behaviour injunctions here and here – this work can also be done by civil practitioners if the LAA is willing to grant an Individual Case Contract.

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