Tag Archives: legal aid

by | March 10, 2016 · 6:55 pm

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

Tagged as , ,

by | March 8, 2016 · 9:37 am

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

Tagged as ,

by | March 8, 2016 · 9:12 am

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

Tagged as , ,

by | February 26, 2016 · 1:40 pm

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

Tagged as , , , ,

by | February 21, 2016 · 5:39 pm

Court of Appeal says domestic violence evidence requirements unlawful

In Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, the Court of Appeal found that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, as amended, was unlawful because it frustrates the statutory purpose of LASPO.

Reg 33 is the regulation which sets out the strict evidential criteria that applicants for legal aid have to meet to qualify for legal aid because of domestic violence. This is important because most private family law is now out of scope, unless it can be shown that the applicant is a victim of domestic violence. Reg 33, often known as the domestic violence gateway, sets out the evidence that must be produced by an applicant to demonstrate that she (as is most often the case) is such a victim. The regulation is strictly drawn; only evidence of the type set out is permitted, and then only (with the exception of criminal records and proceedings) when it dates from no more than 24 months before the application.

Continue reading →

4 Comments

Filed under Civil, Family, LASPO, Policy, Uncategorized

Tagged as , , , , ,

by | February 2, 2016 · 7:06 pm

Court of Appeal restricts funding for actions against the police etc

We reported in 2014 on the case of Sisangia, R (on the Application of) v Director of Legal Aid Casework [2014] EWHC 3706 (Admin). The LAA had been interpreting para 21(4) of Part 1 Schedule 1 of LASPO to require there to be a credible allegation of dishonesty or bad faith before it would grant an application for funding to bring a challenge on the grounds of abuse of position by a public authority. This restrictive interpretation seriously limited the scope of cases that could be funded. Dingemans J held that it wasn’t the right interpretation; all that had to be shown was that the act was deliberate, not that it was dishonestly motivated.

The case has now come before the Court of Appeal – see Director of Legal Aid Casework v The Queen On the Application of Sunita Sisangia [2016] EWCA Civ 24. Giving judgment Lewison LJ (with whom Elias and Christopher Clarke LJJ agreed) reversed the judgment of Dingemans J. He said that the wrong interpretation of para 21(4) had been adopted. The purpose of para 21 is to provide a gateway to legal aid – even if the case gets through that gateway, it must still pass the means and merits tests. Whether or not the conduct complained of was dishonest or merely deliberate, it must still amount to an abuse of position. Lewison LJ then went through various arguments that had been put before concluding that “abuse of power” is

a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is. (para 30)

Comment

This is a not particularly helpful judgment. It restricts the scope of what will be funded under para 21, but doesn’t do so in a way that gives any degree of certainty about what is or is not to be funded. It’s clear that what will be required is something more than a mere allegation of tortious conduct or other unlawfulness. The conduct complained of must amount to an abuse of position or power; but what that is will depend on the individual case and the allegations made. The LAA’s previous interpretation that dishonesty is always required would seem to go too far, but Dingemans J’s view that as long as the act was deliberate it was enough didn’t go far enough.

 

Leave a comment

Filed under Civil, LASPO, Policy, Social welfare

Tagged as , , ,

by | January 20, 2016 · 8:57 pm

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.

2 Comments

Filed under Civil, Crime, Immigration, LASPO, Policy, Social welfare

Tagged as , , , ,

by | December 18, 2015 · 6:22 pm

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.

 

1 Comment

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

Tagged as , , , ,

by | November 27, 2015 · 5:47 pm

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.

 

4 Comments

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

Tagged as , , , ,

by | November 26, 2015 · 11:41 pm

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.

Leave a comment

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

Tagged as , , , ,