Tag Archives: legal aid reform

JR payment regulations quashed

Today the High Court decided on the appropriate relief following the granting of the judicial review of the regulations making payment in JR cases conditional on permission being granted.

The regulations were quashed – meaning that the amendments to the remuneration regulations which provided for conditional payment have been removed. The Lord Chancellor is reported not to be intending to appeal.

This leaves the original regulations – and original payment regime – intact. The LAA hasn’t yet said how it intends to implement the ruling, but it will have to introduce some mechanism for paying for cases where no claim was made, or discretionary payment refused, because of the quashed regulations. We will post when we know more.

In the meantime, congratulations to the claimants – Ben Hoare Bell, Deighton Pierce Glynn, Mackintosh Law, Public Law Solicitors and Shelter – as well as their representatives the Public Law Project, Martha Spurrier and Martin Westgate QC, and the Law Society which supported the action financially. All took significant risks in bringing the case, and deserve the thanks of the profession for achieving this result.

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Justice Committee criticises legal aid cuts

The Commons Justice Committee published its report on the impact of the cuts to civil legal aid today.

It found

  • the cuts have failed to target help at those who need it
  • victims of domestic violence can’t get evidence they need to qualify for legal aid
  • the MoJ failed to ensure that those who need legal aid are able to access it
  • the exceptional cases scheme is failing
  • there has been a significant underspend on legal aid as a result
  • the cuts have reduced capacity among providers
  • there are more litigants in person, and more litigants who have difficulty representing themselves effectively
  • there has been a sharp fall in the use of mediation
  • the cuts have increased costs elsewhere and the MoJ can’t show that value for money

The committee’s summary of its comments on each of the MoJ’s four objectives is reproduced below, and the full report can be found here, with the oral evidence here and written evidence here.

Significant underspend

Since the reforms came into effect, there has been a significant underspend in the civil legal aid budget because the MoJ failed to ensure that those who are eligible for legal aid are able to access it. This has been partly been due to a lack of public information, including information about the Civil Legal Advice telephone gateway for debt advice, and the Committee recommends that the MoJ take prompt steps to redress this.

The Committee also concludes that the exceptional cases funding scheme has not worked as Parliament intended. It was supposed to act as a safety net, protecting access to justice for the most vulnerable. However, insufficient weight has been given to access to justice in the grant-making process and the Committee heard about a number of cases where it was surprising that such funding was not granted.

The Committee expects the MoJ to react rapidly to ensure that the scheme fulfils Parliament’s intention that the most vulnerable people are able to access legal assistance.

Necessary evidence

Although private family law was largely removed from the scope of legal aid, those who can provide evidence of domestic violence are still eligible. The Committee welcomes the MoJ’s efforts to ensure that healthcare professionals provide victims with the necessary evidence, but it remains concerned that a large proportion of victims do not have any of the types of evidence required, and about the strict requirement that evidence be from no more than 2 years ago, which the Committee considers should be a matter over which the Legal Aid Agency has discretion.

The inquiry found that the reforms have led to reduced capacity in the for-profit and not-for-profit legal advice and assistance sectors. Despite a warning from the Committee in a previous Report that advice deserts might be created, the Ministry of Justice did not carry out research into the geographical provision of legal advice before the reforms or the impact of the changes. The Committee recommends that work to rectify this should begin immediately.

Unrepresented litigants

The Government’s reforms have led to an increase in the number and a change in the profile of litigants in person: increasingly these are people who have no choice but to represent themselves, and who may thus have difficulty in doing so effectively: although many tribunals are accustomed to dealing with unrepresented litigants the courts have to expend more resources in order to assist them.

There has also been a sharp unintended reduction in the use of mediation. The Committee concludes that the end of compulsory mediation assessment, the removal of solicitors from the process and the lack of clear advice all contributed to the problem. However, the MoJ has acted swiftly to remedy this by setting up the Family Mediation Taskforce and accepting many, although not all, of its recommendations.

Value for money

The MoJ has not been able to demonstrate that it has achieved value for money for the taxpayer. Although significant savings have been achieved, efforts to target legal aid at those who most need it have focused on intervention aimed at the point after a crisis has already developed, rather than on prevention.

This has created knock-on costs, either because cases become more serious so become eligible for legal aid, such as house repossession cases, or because costs are shifted from the legal aid budget to other public services rather than reduced overall. The Committee believes that the MoJ must quantify these if it is to achieve its objective of better value for money.

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“Justice has had to be sacrificed on the altar of public debt”

Those words, a criticism of the removal of legal aid in private law family proceedings, came not from a legal aid lawyer or politician opposed to the cuts. They were said, today, by a High Court Judge. Giving judgment in MG & JG v JF [2015] EWHC 564 (Fam), Mostyn J expressed himself in unusually strong terms about the effect of a lack of legal aid on the litigants in the case before him, and more broadly.

The facts of the case are that a lesbian couple had a child fathered by a donor, who had contact with the child in his early years, until the relationship between the mothers broke down. He issued an application for contact. He is well off, if not wealthy, and the mothers are both relatively impecunious and would have been eligible for legal aid had it been available. Mostyn J considered that the interests of justice required that the mothers be represented and that the only source of funds was the father. He therefore ordered the donor father to pay the bulk of the costs of the proceedings, both his own and that of the mothers. “It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.” (para 36).

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Domestic violence gateway not unlawful, says High Court

On Friday last week, the High Court gave judgment in  Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice [2015] EWHC 35 (Admin), a challenge to the evidence requirements (contained in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012) that must be met before legal aid in private family law proceedings can be granted based on the domestic violence exceptions.

Despite evidence of the impact the restrictions were having in practice, the Court found that they were lawful. The principal argument put forward was that, in making the regulations, the Lord Chancellor was acting outside the scope of the powers granted under LASPO. Lang J (with whom Fulford LJ agreed) said:

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Crime duty tender documents now published

The LAA have now posted the following documents on their crime tenders page:

The e-tendering portal is now open and any questions must be submitted by noon on 15th December. FAQs will be published on 22nd December. The tender closes on 29th January, but outcomes will not be made known until June 2015, leaving successful bidders less than three months – over the summer – to make the necessary changes to their businesses by the start date of 1st October. There must be serious doubts as to whether this is realistic.

This is the indicative timetable:

  • Procurement process opens and available via the LAA’s eTendering portal 27 November 2014
  • Final date to submit questions about this procurement process 12 noon on 15 December 2015
  • Final ‘Frequently Asked Questions’ to be published 22 December 2015
  • Deadline for submission of Tenders 12 noon on 29 January 2015
  • Notification of outcome of Duty Provider Contract Tenders June 2015
  • Contract execution and Contract Start Date June 2015
  • Mobilisation period June to September 2015
  • Service Commencement Date 1 October 2015

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Crime duty tender opens today

The Lord Chancellor has just made a written statement to Parliament on criminal legal aid, following the recent consultation.

This is what he said:

I am today publishing the Government response to the “Transforming Legal Aid: Crime Duty Contracts” consultation published on 24 September. Copies will be placed in the Libraries of both Houses.

This consultation was specifically about the reports produced by KPMG LLP and Otterburn Legal Consulting regarding the legal aid litigator market, which helped inform decisions on the number of criminal legal aid duty contracts to be offered across England and Wales in 2015. We have thoroughly reviewed all the responses received.

As a result, the Legal Aid Agency will let 527 crime duty contracts. This has been revised from 525. The LAA is also today issuing an Invitation to Tender for those organisations eligible to apply for a 2015 Duty Provider Crime Contract. Contracts have already been awarded for own client work, the other type of criminal legal aid contract we announced in February.

To provide further help to firms in rural areas, we have decided to introduce payments for travelling times in excess of 90 minutes. We will also relax the office requirements in the split procurement areas and London to give greater flexibility. This builds on the support measures introduced earlier, such as introducing interim payments for lawyers involved in lengthy Crown Court cases and establishing a business partnering network to help practitioners with organisational and financial advice, if they need it. We have also worked with the British Business Bank to develop guidance and advice specifically for the legal aid market.

I have previously informed the House that a second fee reduction for litigators is forecast for mid 2015. The Legal Aid Agency are inviting bidders to bid on the basis that the fee reduction will take place in July, subject to the further considerations we have already said we will undertake.

The government’s consultation response is here. The ITT is not yet on the LAA website but we will post it when it becomes available.

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Sorting myths from facts over housing cases

Many of our readers with an interest in housing legal aid will have seen the excellent article in this month’s Legal Action, “Sorting myths from facts over housing cases” by Sara Stephens and Jan Luba QC. Many of the citations in the article were to the legal aid reform FAQs issued when LASPO first came into force in 2013, but which are no longer available on the LAA website since it migrated to the gov.uk domain. Fortunately we saved a copy, and they are available here (final version) and on our LASPO Resources page, which also includes the two earlier versions.

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