Tag Archives: legal aid

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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“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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Michael Gove appointed new Lord Chancellor

In the post-election reshuffle Chris Grayling has moved on from the MoJ. The new Secretary of State for Justice and Lord Chancellor is Michael Gove, the former education secretary and chief whip.

The Spectator suggests that his two key focuses will be implementing Conservative promises to replace the Human Rights Act, and to reduce both crime and the prison population. The Guardian reports that his brief will focus on “prisons, sentencing and criminal justice”. It isn’t known what views, if any, he has on legal aid, nor yet which justice minister will take specific responsibility for it in the new government.

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CCMS “not fit for purpose”

The day after the election, there is no news yet on the new team at the MoJ – there will be at least one new minister, with Simon Hughes having lost his seat and the Lib Dems going into opposition. It seems, no doubt to the delight of legal aid lawyers everywhere, that Chris Grayling has said that he wants to stay as Justice Secretary:

Whoever is in charge at the MoJ, it seems unlikely that there will be significant changes in legal aid policy or at the LAA. The Conservatives have simply promised to “review” the legal aid system, so that it can “continue to provide access to justice in an efficient way”.

A key LAA project is the roll-out of CCMS, which is due to become mandatory from October. This week, the Association of Costs Lawyers released a report on CCMS, concluding that:

  • it is fundamentally flawed, but that the LAA is in institutional denial about those flaws;
  • some functionality has been poorly implemented, and some missed altogether;
  • the system gets some of the basics wrong and ignores LAA and legal requirements.

The ACL warns that the system will lead to more inefficiencies and delays in payments, seriously affecting the cashflow of providers. Supported by the Law Society, LAPG and others, it calls on the LAA to delay implementation until the problems are fixed. Many practitioners who have used the system in the pilot and voluntary stages will know that it is currently far from providing access to justice in an efficient way.

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LALYs – deadline for nominations today

The annual Legal Aid Lawyer of the Year awards nominations close today. The ceremony is on 1st July. There are several new awards this year, and immigration is no longer a separate category. Details and a nomination form can be found on the LAPG website.

The full list of awards is:

  • Children’s rights
  • Criminal defence
  • Family legal aid
  • Family mediation
  • Housing
  • Public law
  • Social and welfare
  • Legal aid newcomer
  • Legal aid barrister
  • Legal aid firm / NfP agency
  • Access to Justice through IT

There will also be an award for outstanding achievement, though nominations are not sought for that.

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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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