Tag Archives: legal aid reform

LASPO review finally announced 

The long-awaited review of LASPO, promised by the government within three to five years of implementation, has finally been announced.

In a written statement to Parliament yesterday, the Lord Chancellor said it would be conducted by MoJ officials, with input from interested parties, and would report by the 2018 summer recess (which would take it just beyond five years since LASPO came into force in April 2013).

The statement is here, and the accompanying memorandum is here

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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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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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Legal aid and access to justice: what the manifestos say

The main political parties have published their manifestos, and some have also made other specific commitments. We have created a new page on the site to collate manifesto pledges and commitments made – you can see the page here, and we welcome comments and links highlighting things we may have missed. We’ve also included links to other materials produced by rep bodies and others to support campaigning. We’ll try to keep it updated during the campaign.

Only the Greens promise a full reversal of the cuts. UKIP doesn’t mention legal aid at all, and the three main parties all promise reviews rather than anything specific of substance, with the exception of some specific commitments Labour has made. In summary, this is what each party says about legal aid:

  • The Conservatives promise to review legal aid so that it can “continue to provide access to justice in an efficient way”;
  • The Green Party is the only party fully to commit to reversing all legal aid cuts;
  • Labour has promised not to implement two tier contracts for criminal legal aid and to revoke the new conditional payment regime for judicial review. It will “widen access” to legal aid for victims of domestic violence, “make sure that access to legal representation” (not “legal aid”) “remains available to those who need it”, and will review the planned second fee cut in crime and the procurement of criminal legal aid generally;
  • The Lib Dems promise to review criminal legal aid and make “no further savings” without an impact assessment; carry out an “immediate review” of civil legal aid “to ensure legal aid is available to all those who need it” and develop “a strategy that will deliver advice and legal support to help people with everyday problems like debt and social welfare”
  • UKIP makes no mention of legal aid or access to justice. (UPDATE – thanks to Legal Action Group, which points out that UKIP does propose putting one trained adviser in each food bank to assist users with legal needs)

 

 

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BBC Panorama on legal aid cuts

This evening’s Panorama reported on the cuts to civil legal aid, focussing on private family law. It included interviews with the Lord Chancellor who introduced LASPO, Ken Clarke, as well as retired judges, lawyers and litigants affected by the cuts. It can be seen on the iPlayer here, and an article by the programme reporter Raphael Rowe can be seen here.

 

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MoJ re-imposes conditional payments for judicial review

On Monday, the High Court quashed the regulations which introduced conditional funding for judicial review, following its judgment that the Lord Chancellor’s decision to introduce them was irrational.

Three days later, the Lord Chancellor today laid a fresh set of regulations, which come into force tomorrow (27 March). The new regulations re-impose conditional funding in exactly the same way as before, with the exception that payment is now permitted in two more situations.

The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 provide that, for all certificates granted applied for on or after 27 March 2015, payment for judicial review work done pre-permission is conditional on one of the following:

  • the court giving permission;
  • the defendant withdrawing the decision which the JR challenges, with the result that the court refuses permission or makes no decision on permission;
  • the court orders an oral permission hearing or an oral hearing of an appeal against a refusal of permission;
  • the court orders a rolled up hearing; or
  • the court neither grants nor refuses permission and the Lord Chancellor considers it reasonable to pay remuneration in the circumstances of the case, taking into account, in particular:
    • the reason why no costs order or agreement was obtained;
    • the extent to which, and why, the outcome sought was achieved; and
    • the strength of the application for permission at the time it was filed, based on the law and on facts which the provider knew or ought to have known at the time.

This is a slight extension from the irrational regulations of the situations in which payment may be made, to add oral and rolled up hearings and cases where the defendant concedes pre-permission. Whether that is enough to stave off any future challenge to these regulations will remain to be seen.

But it is most unfortunate that the Lord Chancellor decided to slip, unannounced, these regulations out on the last day Parliament was sitting before the election, and that the Legal Aid Agency hasn’t made any announcement or done anything to publicise a change in the legal aid scheme before it comes into force.

UPDATE 27 March

The transitional provisions say that the new regulations apply to certificates applied for from 27 March. Applications signed before 27 March and received by the LAA by 5pm on 31 March aren’t caught by the new regulations, nor are applications submitted through CCMS before 27 March or grants of emergency representation made before 27 March and received by the LAA, or uploaded through CCMS, within 5 days. Existing certificates to which new JR proceedings are added on or after 27 March will be subject to the new rules.

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Legal aid cuts criticised again

The Parliamentary Joint Committee on Human Rights has released its report on UK compliance with the UN Convention on the Rights of the Child.

In a section on legal aid, which is critical of the scope cuts, exceptional funding and the residence test, it concludes:

The government’s reforms to legal aid have been a significant black mark on its human rights record during the second half of this Parliament. The two reports we agreed on the subject, at the end of 2013 and early in 2014, set out our concerns and what we feared might be the outcome of some of those reforms in terms of reducing access to justice for children. We acknowledge the few discrete areas in which the government helpfully accepted our concerns and reviewed elements of its reforms. However, the evidence we heard from the outgoing Children’s Commissioner for England and from all the NGOs we took oral evidence from provides firm grounds for a new government of whatever make-up to look again at these reforms and to undo some of the harm they have caused to children.

In a week in which Parliament is likely to dissolve ahead of the coming general election, this is a timely reminder of the effects LASPO has had, and the urgent need for a new government to review its effects – not just in respect of children, the focus of this report, but also more widely.

An election campaign gives those concerned with access to justice the opportunity to raise the profile of legal aid issues with canvassing politicians. A good place to start is LAPG’s excellent manifesto, launched last week, which sets out a range of measures a new government could adopt which would make a real difference.

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