Tag Archives: legal aid

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.

1 Comment

Filed under Civil, Family, Housing, Immigration, LASPO, Policy, Social welfare

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.

1 Comment

Filed under Civil, Family, LASPO, Policy

Important new crime costs book published

criminal_costs

 

Our co-editor Anthony Edwards – responsible for the crime sections of the Handbook – has produced a new edition with Colin Beaumont of his book on criminal costs. Criminal Costs: Legal Aid Costs in the Criminal Courts is a comprehensive guide to the incredibly complex world of criminal costs, with full discussion of all the regulations, contracts and caselaw. It is fully up to date, including the 1 April 2016 changes, a perfect companion to the Handbook, and a vital addition to the bookshelf of any criminal practitioner. You can buy the paper copy here and the e-book here.

Leave a comment

Filed under Costs, Crime

Residence test hearing expedited

Readers of this blog will know what a serious threat the residence test would be to access to justice. We last covered developments here.

We understand that Public Law Project’s challenge to the residence test has now been expedited by the Supreme Court and will be heard by a panel of seven justices on the 18th and 19th of April 2016. PLP is being represented by Bindmans, who will only be paid if the case is successful. Should they lose, PLP’s liability for the Lord Chancellor’s costs have been capped at £15,000.

PLP is continuing to raise money to pay the Lord Chancellor’s costs if ordered to do so. You can find out about how to donate here.

Leave a comment

Filed under Actions Against the Police, Civil, Clinical Negligence, Community Care, Family, Housing, Immigration, LASPO, Policy, Public Law, Social welfare

2016 LALYs launched

The 2016 Legal Aid Lawyer of the Year awards were launched last week. The awards will be held on 7 July and nominations close on 25 April. You can download an application form from the LAPG website here. Categories this year are:

  • Children’s rights
  • Criminal defence
  • Family legal aid
  • Family mediation
  • Mental health
  • Public law
  • Legal aid newcomer
  • Social and welfare
  • Legal aid barrister
  • Legal aid firm / NfP agency
  • Access to justice through IT
  • Outstanding achievement

Nominations are invited in all except the last category, which will be awarded by the judges alone. Sadly the housing category lasted only two years before being dropped, and immigration / asylum is also missing again this year – both are included in the catch-all “social and welfare” category. Given that they are the two of the largest categories of non-family civil legal aid left (family gets two awards, three if you include children’s rights), it’s surprising to see both overlooked.

An interesting innovation this year is the crowdfunding of the newcomer award. Donations of £10 or more are invited, and all who donate will have their names included in the event programme – you can donate here.

The hard work and dedication of legal aid practitioners is recognised all too rarely. Long may the LALYs continue to celebrate both.

Leave a comment

Filed under Advocacy, Civil, Crime, Family, Housing, Immigration, Policy, Social welfare

CCMS is upon us

This is a guest post by Noel Arnold in which he shares some of his recent experiences of using CCMS.

There is less than a month to go before use of the Legal Aid Agency’s electronic working platform, CCMS, becomes mandatory in all civil categories of certificated work on 1 April.

Some of my CCMS experiences have been perfectly fine and I have thought, on occasion, that it’s not so bad after all. I have also had some utterly infuriating experiences. I am however supportive of electronic working as a concept. Those who follow me on Twitter will have seen my rants under the hashtag (#CCMSfail) I created for all to share their CCMS woes. As doomsday looms, I want to share my relatively recent experience of trying to enter the outcome of a case and then submitting a bill of costs through CCMS. This was torturous. It didn’t work and I had to make several calls to people at the LAA who themselves didn’t know what to do, had to ask someone else and promised to call me back. They didn’t, so I had to chase. I had to go through the process I was trying to complete with someone at the LAA mirroring what I was doing while on the phone with that person. This all went on for some time.

If I was making interim applications like an amendment request or completing a means review etc then I would simply have charged all that ‘wasted time’ to the file and would have certainly expected the LAA to have paid for that time when the claim for costs was assessed. In this situation the legal aid certificate was discharged; I was submitting a final bill of costs. It was now too problematic to reverse this in order to add all my wasted time into the claim for costs.

So I set about making a complaint to ho.complaints@legalaid.gsi.gov.uk. Some of the points below I dealt with in my complaint to the LAA. Some others I have set out as matters I would address if I had to do this again (which I hope would not occur):

  • Summary of all the trouble and difficulties;
  • Why I believe that it was CCMS to blame rather than any other factors;
  • That had things worked as they should have, I would have been spared wasting so much time;
  • That the LAA should make right the situation which in my view means making an ex gratia payment for the wasted time;
  • My private charge out rate is £XX, and were it not for the time I had to spend on CCMS I would have been doing fee earning work at that rate;
  • The time I wasted, plus emails and phone calls, amounted to £YY at that rate. I enclosed a schedule of time spent, not including the time it would have taken me to submit the bill had the system worked properly.

There was a period of months before I got a final response, though I chased periodically. Eventually, and I should say, much to my surprise the LAA responded and said they would make the payment but not quite the total I asked for. So I considered their response. It didn’t make sense to me. I queried this. I kindly requested the whole amount. Then a cheque came in the post for the amount the LAA said it was willing to pay. More chasing from me and then again to my surprise the LAA said it would pay the full amount I had asked for. A little later another cheque arrived.

My view is that we should embrace CCMS in the hope that it continues to improve and will work for us, the key users. Where it doesn’t we should report issues to the LAA so they are aware. We should feed information to our representative groups such as the LAPG and Resolution (first for family law). Importantly, in my view, we should not lose fee-earning time. It should be charged in full to the file. Emails should be kept and any messages posted to the LAA via CCMS printed or documented on the file and time recorded. The same goes for phone calls and all attendances and other time spent doing something on CCMS. All this should be time-recorded with case file notes prepared justifying or explaining the time spent and why. We should expect all that time to be paid by the LAA.

The LAA’s aim to introduce electronic working is laudable. I for one support the aim but any defects or inefficiencies in the system should not cause prejudice to providers and should certainly not cause any financial loss.

Noel Arnold is Director of Legal Practice at Coram Children’s Legal Centre. He is the Vice-chair of the Association of Lawyers for Children and sits on the Law Society’s Children Law Sub-committee. In July 2015, Noel became the inaugural winner of the award for ‘Children’s rights’ at the Legal Aid Lawyer of the Year Awards. The views expressed here are his own and not that of any other person or organisation. Follow Noel on Twitter @children_law

4 Comments

Filed under Civil, Costs, Family, Housing, Immigration, Social welfare

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.

 

1 Comment

Filed under Civil, Family, Housing, Immigration, LASPO, Policy, Social welfare