Reform of Legal Aid in England and Wales: the Government Response Part 6
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This is Part 6 of the government response to Reform of Legal Aid in England and Wales. Please read the other parts for a full picture. Used under the terms of the Open Government Licence http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf.
Key issues raised in consultation
117. Responses to this question were mainly from legal practitioners, and
while the majority supported the proposal, many argued that it would only
have a practical application in a very small number of cases. It was also
argued that any potential applicant would need funding for advice on
whether such an application could be made. More detailed points made
by respondents about how the proposal would operate included:
? interim lump sums would only be viable in a small proportion of
cases where sufficient realisable assets were available for two sets
of legal fees, and this would not be an option in middle income cases
where the matrimonial home or pension entitlement are the only
assets at stake, or where the wealthier party has hidden their assets
or tied them up in a company or trust;
? unrepresented parties would not be aware that they could get an
interim lump sum and would not know how to apply for one, including
how to establish and prove their partners’ assets;
? interim lump sums may not be paid as ordered;
? the proposal could generate satellite litigation to deal with interim
lump sum orders and could increase conflict, which would have an
impact on the courts, particularly where a party is litigating in person;
? these points led to calls for legal aid for applications for interim lump
sum orders and for enforcement;
? interim lump sums would deplete the assets available to both parties
for re-housing on separation;
? there is a risk that the receiving party would litigate unreasonably
after receiving an interim lump sum;
? the statutory charge for legal aid is a better mechanism for funding,
and better enforcement of the statutory charge could ensure that the
Legal Services Commission recoups its expenditure; and
? there is potentially unfairness in making orders for costs before the
issues at stake have been determined, and the contributing party
could be left without an effective remedy if the final outcome of the
case is that the lump sum should be refunded.
35 Reform of Legal Aid in England and Wales Government Response
118. Some consultation responses called for interim lump sum orders to apply
in Schedule 1 Children Act applications for financial provision for children.
Respondents, including the Family Justice Council, called for interim lump
sum orders to be available for purposes other than for legal costs, such
as for accommodation or to repay pressing debt (for example, where
there is a threat that the home could be repossessed).
The Government response
119. The Government accepts that this reform will not apply in all cases, but
considers that it has the potential to provide a route to private funding of
legal costs in some cases currently funded by legal aid. We are not
persuaded that legal aid should be available for advice and/or
representation to apply for an interim lump sum costs order or for
enforcement proceedings because many of the issues that would arise in
respect of interim lump sum orders would be akin to those that arise in
ancillary relief cases themselves.
120. The Government therefore intends to introduce the reform largely on the
basis set out in the consultation.
36 Reform of Legal Aid in England and Wales Government Response
III Exceptional funding (question 4)
121. The consultation sought views on the proposal for a new scheme for
funding cases excluded from scope (the exceptional funding scheme).
Under the proposals in the consultation, funding would only generally be
provided where some provision of legal aid was considered necessary to
meet domestic and international legal obligations, or where there was a
wider significant public interest in funding representation at inquests.
122. Full details of the issues raised and the Government’s response is at
Annex C and are summarised below.
Key issues raised
123.Rationale: Most respondents were opposed to the proposals to remove
large areas of the law from the scope of legal aid. Many of the views
expressed on the proposed exceptional funding scheme were therefore
similar to those raised in relation to the scope changes, including
concerns about obligations under the European Convention on Human
Rights (ECHR), and the ability of the market to sustain supply of legally
aided services. These are considered under the cross cutting issues
(from paragraph 320 below).
124. Criteria: many respondents were concerned that under the scope
restrictions, legal aid would not be available for meritorious cases. They
argued that the existing criteria for exceptional funding should be retained
(or even relaxed). Some argued that the criteria for funding should take
into account the client’s capacity to represent himself or herself, and that
in complex cases, exceptional funding should be available where clients
cannot afford to pay for the necessary expert reports.
125.Specific categories: respondents argued that certain types of case
should routinely attract exceptional funding, including the most serious
clinical negligence cases; welfare benefits, in view of the introduction of
the new universal credit and the need to clarify the new rules; and many
private family proceedings and immigration matters, which often raised
issues under articles 6 and/or 8 of the ECHR.
126. Scheme operation and costs: many respondents argued that decisions
on exceptional funding should be made independently, particularly in
cases which sought to challenge the Government. Some respondents
were concerned that only very few cases would attract exceptional
funding, although others argued that so many cases would attract funding
that exceptional funding would become routine. There was also a concern
that the scheme would generate satellite litigation to challenge decisions,
and generally that the process for handling applications would be lengthy
and bureaucratic.
127. Some respondents also argued that the details of the new exceptional
funding scheme should be subject to a further consultation.
37 Reform of Legal Aid in England and Wales Government Response
The Government response
128. The Government has decided to introduce a new exceptional funding
scheme which will provide funding for excluded cases where, in the
particular circumstances of a case, the failure to do so would be likely to
result in a breach of the individual’s rights to legal aid under the Human
Rights Act 1998 or European Union law. We have also decided to retain
the existing significant wider public interest criterion for advocacy in
inquest cases, for the reasons set out in the consultation.
129. The Government recognises the concerns about the restrictions on scope
and the implications for exceptional funding. We believe that cases we
intend to retain within the scope of legal aid are those which are more
likely routinely to require funding in order to meet our legal obligations.
This is reflected by our focusing on factors such as the ability of the
individual to present their own case, the complexity of the case, and
importance of the issue at stake.
130. The proposals for exceptional funding were designed to ensure that we
meet our legal obligations to provide legal aid. In particular, the need to
consider the particular circumstances of each case, including the client’s
capacity to represent himself or herself, are well established in case law
on article 6 of the ECHR and will form a part of the criteria upon which
exceptional funding decisions are made.
131. To ensure the appropriate degree of independence and transparency, the
Government has decided that funding decisions for individuals’ cases,
including exceptional funding, will be made by the Director of the new
legal aid agency, subject to general criteria and guidance issued by
Ministers. Ministers will be prevented by statute from giving the Director
directions about funding in an individual case. We will publish details on
the operation of the exceptional funding scheme, including the application
process, in due course.
38 Reform of Legal Aid in England and Wales Government Response
IV The legal aid merits test (question 5)
132. The consultation sought views on a proposed amendment to the merits
criteria, to enable legal aid to be refused in any individual case which is
suitable for alternative funding. Full details of the issues raised and the
Government’s response are set out at Annex C, and summarised below.
Key issues raised
133. Respondents in general recognised that where alternative sources of
funding are available, they should be used, and that there was no
objection in principle. Most respondents, however, did not agree with the
proposal, and the key issues they raised were:
? it was not clear how ‘suitable’ would be defined and on what criteria
the Legal Services Commission (LSC) would base their decision.
They questioned whether funding would be available, for example, if
the case was suitable in theory for funding on a Conditional Fee
Agreement (CFA) but not in practice, or if a case was refused by one
solicitor for funding on a CFA because after their risk assessment
success prospects were less than 75 per cent;
? there was concern that in certain areas CFAs will not be available or
suitable, such as re-housing applications and welfare benefits and
debt advice;
? some respondents (including the Law Society) acknowledged that it
was acceptable for public funding to be a last resort to secure access
to justice and that where a case could be pursued on the basis of a
CFA, this was a legitimate basis on which to refuse public funding.
However, they argued that a CFA must be available in the individual
case, and on reasonable terms, and not just generally for cases of
that type;
? funding cases on a CFA under the new arrangements (following
implementation of Lord Justice Jackson’s proposals
18
) would be less
likely and in future solicitors would be less inclined than they are now
to take on meritorious but riskier cases.
The Government response
134. Most of the points raised mainly related to the criteria that the LSC, or the
successor agency, would apply to establish whether an individual case
was suitable for an alternative form of funding, rather than to the principle.
135. The Government intends to amend the merits criteria so that funding in
any individual case will be refused if it is suitable for an alternative source
of funding (as proposed in the consultation).
18
See footnote 8 above.
39 Reform of Legal Aid in England and Wales Government Response
V Litigants-in-Person (question 6)
136. The consultation sought views on the impact of the proposed changes to
the scope of legal aid on litigants-in-person and the conduct of
proceedings.
Key issues raised
137. Many respondents, including members of the judiciary, argued that the
programme of reform would lead to an increase in the numbers of litigants
representing themselves in court, and that this would have a negative
impact on the conduct and outcome of proceedings.
The Government response
138. In the consultation paper we undertook to review the research available
on litigants-in-person, and their impact on the conduct and outcome of
proceedings. The Government has completed its review, which it has
published separately today.
19
Overall the review found that the evidence
available on litigants-in-person tends to suggest a mixed impact in length
of proceedings. This was affected by case type and how active the
litigants were. It was suggested that cases took longer when the
unrepresented litigant was active but could take less time when the
litigant was inactive.
139. Litigants-in-person are already a feature of the current justice system and
the current assistance will be maintained. We will also look at ways to
better promote awareness of alternative ways of settling disputes. For
example we are working with providers of mediation services on plans to
increase awareness and use of mediation and to help people to better
understand the options available to them. Information about mediation is
currently available on the MoJ website and other online sources.
140. We do accept, even if there is no conclusive evidence of this, the
likelihood of an increase in volume of litigants-in-person as a result of
these reforms and thus some worse outcomes materialising. But it is not
the case that everyone is entitled to legal representation, funded by the
taxpayer, for any dispute or to a particular outcome in litigation. In
individual cases where the failure to provide legal aid would result in a
breach of an individual’s rights under the Human Rights 1998 or
European Union law then exceptional funding will be available.
Reform of Legal Aid in England and Wales: the Government Response Part 5
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This is Part 5 of the government response to Reform of Legal Aid in England and Wales. Please read the other parts for a full picture. Used under the terms of the Open Government Licence http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf.
76. For these reasons, we remain of the view that employment cases do not
represent as high a priority for funding, and we intend to remove legal aid
for these cases as proposed in the consultation.
Housing cases (not involving homelessness)
77. The consultation proposed removing legal aid from housing cases in
which there was not an immediate threat of homelessness.
Key issues raised: unlawful eviction
78. Many respondents queried the exclusion of unlawful eviction (where a
landlord ‘changes the locks’) from scope when it was proposed that lawful
eviction would remain in scope. Respondents argued that it was irrational
to fund lawful eviction cases, but not unlawful eviction cases where the
client would have been rendered immediately homeless.
The Government response
79. The Government agrees that legal aid should be available for cases of
unlawful eviction. We have therefore decided to amend our original
proposals so that these cases remain within the scope of legal aid. As
indicated in the section relating to debt (see paragraphs 64 to 69) we also
intend to retain legal aid in relation to orders for sale of a person’s home
as this poses an immediate risk to the home.
80. As originally proposed, we intend to exclude housing matters where the
home is not at risk, from the scope of legal aid. See Annex B for further
details.
Key issues raised: immigration where the individual is not detained
81. Most respondents were opposed to the proposal to remove legal aid for
these cases. The main points they raised were:
? immigration was a particularly complex area of law;
? there would be an inequality of arms between the state and the
individual;
? many applicants may have difficulty communicating in English;
? contrary to the assertion in the consultation document, these cases
were not just about personal choices, especially where they
concerned family life;
17
A Damages Based Agreement is a type of “No Win, No Fee” arrangement under which the
legal representative is paid a proportion of the claimant’s damages only if the case is
successful.
26 Reform of Legal Aid in England and Wales Government Response
? it could lead to an increase in the workload of the UK Border Agency
(UKBA), as applications were unlikely to be as well prepared, and in
the workload of the tribunals, as it could lead to an increase in
appeals.
82. Some also argued that the proposals would make legal aid providers
specialising in immigration and asylum matters financially unviable, with
knock-on consequences for people’s ability to access asylum legal aid.
The Government response
83. The Government’s view remains that, in general, individuals in
immigration cases should be capable of dealing with their immigration
application, and it is not essential for a lawyer to assist. Tribunals are
already designed to accommodate litigants-in-person, and interpreters
are provided free of charge.
84. The Government believes that tackling inefficiency in administrative
decision making is important. Separately UKBA is undertaking a wideranging review of its administrative processes to improve its decisionmaking, which is designed to reduce the number of challenges to its
decisions. This does not alter the need to reduce the cost of legal aid.
85. The question of whether the market is able to sustain the changes to
scope generally, and specifically in immigration and asylum matters, is
considered below (see paragraphs 298 to 308). Generally, we believe
that the market should be able to sustain the reforms to legal aid, but any
disruption to supply can, we believe, be adequately addressed through
short term measures, such as the reallocation of new matter starts to
firms outside the immediate area, or a focussed retender exercise.
Key issues raised: immigrants who are victims of domestic violence
86. Under immigration rules, someone on a spousal visa, who subsequently
finds themselves in an abusive relationship, can apply for indefinite leave
to remain under the ‘domestic violence immigration rule’. Some
respondents called for legal aid to be retained for individuals who find
themselves in this situation.
The Government response
87. The Government’s view is that these applications are generally
straightforward. They should not require specialist legal advice, even if
applicants may well benefit from practical help and assistance. While we
accept that the Government’s policy is generally to provide legal aid to
protect victims of domestic violence, these immigration cases are paper
based applications to the Home Office, and do not require the applicant
to, for example, face the alleged abuser in court.
88. Legal aid will continue to be available to all victims of domestic violence
seeking protective remedies (for example a non-molestation order)
regardless of their nationality or immigration status.
27 Reform of Legal Aid in England and Wales Government Response
Key issues raised: refugee family reunion cases
89. Many respondents argued that these cases were not about making
personal choices, but sought to reunite families fleeing oppression. They
should, it was argued, be treated in the same way as asylum cases.
Some also argued that they raised complex legal arguments.
The Government response
90. Applications to join family members are treated as immigration cases, and
are generally straightforward because they follow a grant of asylum.
Respondents argued that these cases are akin to claims for asylum but if
a person wishes to claim asylum it is open to that person to do so either
as a dependant of a primary asylum claimant or to do so in his or her own
right. Legal aid for any such asylum claim will be in scope.
Key issues raised: statelessness
91. Some responses to the consultation argued that immigration legal aid
should remain available for stateless people who wish to apply, for
example, for citizenship or for a stateless person’s travel document. They
argued that this group of people were vulnerable and that legal aid was
required to meet the UK’s obligations under the 1954 Convention on the
Status of Stateless Persons and the 1961 Convention on the Reduction of
Statelessness.
The Government response
92. The Government considers that applications such as that for a stateless
person’s travel document are straightforward and do not generally require
legal advice. The Conventions mentioned by respondents require no
more than parity of treatment between stateless persons and nationals
and legal aid in the UK is available to anyone who meets the criteria
irrespective of their immigration status.
Key issues raised: The Council of Europe Convention on Action against
Trafficking in Human Beings
93. Some respondents raised concerns that the proposals to remove legal aid
for immigration matters would breach the UK’s obligation under the
Council of Europe Convention on Action against Trafficking in Human
Beings which requires parties to provide legal aid to victims of trafficking.
The Government response
94. The requirement to provide legal aid under the Convention is not
automatic (it is with reference to the requirements of article 6 of the
European Convention on Human Rights) and is to help victims of
trafficking seek compensation rather than to make immigration claims.
95. There will be instances in which the Convention requires legal aid to be
provided to victims of trafficking to fund their claims. However, we
estimate that the volume of these cases is likely to be small and any
obligation to provide legal aid will be met by the proposed new
28 Reform of Legal Aid in England and Wales Government Response
exceptional funding scheme that will provide legal aid where failure to do
so would be likely to result in a breach of the individual’s rights to legal aid
under the Human Rights Act 1998.
96. For the reasons set out above, the Government intends to proceed with
the proposal to remove all immigration legal aid from scope other than
cases concerning immigration detention, appeals to the Special
Immigration Appeals Commission and claims for asylum.
Key issues raised: welfare benefits
97. Many respondents, particularly those from the not-for-profit advice sector,
opposed the proposal to remove welfare benefits cases from the scope of
legal aid. They argued that these cases were not simply financial claims,
but claims for minimum subsistence benefits. They also argued that these
cases were complex; that there were strict time limits for appeals against
benefits decisions; and that forthcoming reforms to benefits would
increase the need for advice. They also suggested that welfare problems,
if not addressed at an early stage, could lead to more serious problems
later, such as homelessness.
98. Some also argued that early advice in these cases, and in related matters
such as debt and housing, provided good value for money. They cited
research which suggested that the cost of providing early advice would be
recovered several times over through savings elsewhere in public
expenditure. This is considered under cross cutting issues (see
paragraphs 326 to 330 below)
The Government response
99. We do not consider that most cases before the tribunal will be sufficiently
complex, and, compared with cases involving the safety, liberty or
homelessness, we consider these cases to be a lower priority for funding.
100. The Government has considered the concerns raised about the risk that
the loss of benefits could later lead to homelessness. We intend to retain
legal aid for debt cases where the home is at immediate risk due to rent
or mortgage arrears. Where the arrears are as a result of a dispute about
welfare benefits, we do not believe that legal aid should be provided for
the welfare benefits appeal, because the tribunal is accessible without
legal assistance and because the risk of homelessness is not as
immediate. We need to prioritise need, and those facing eviction or
possession proceedings (or who are already homeless) are in greater
need. The arguments are considered from paragraph 33.
101. For the reasons set out above, it remains the Government’s view that
legal aid should be removed for welfare benefits cases, as proposed in
the consultation. However, it will be retained for judicial review of welfare
benefit decisions, and for claims about welfare benefits relating to a
contravention of the Equality Act 2010 that are currently funded, as
proposed in the consultation.
29 Reform of Legal Aid in England and Wales Government Response
Key issues raised: asylum support
102. The consultation proposed removing legal aid for asylum support cases
on the grounds that they were similar to welfare benefits cases.
Respondents to the consultation pointed out that most cases concern the
provision of housing for otherwise homeless asylum seekers (UK Border
Agency data indicate that 90% of these cases are accommodation
matters). They argued that these cases are more closely related to cases
where there is a risk of homelessness (which will remain in scope).
The Government response
103. To ensure consistency with our policy of providing legal aid where the
applicant is at risk of homelessness, we have decided to amend our
original proposals so that asylum support cases where the individual is
seeking help with accommodation should remain in scope. However,
legal aid will not be available for cases solely about financial assistance
because these are analogous to welfare benefits cases.
Miscellaneous (cases to be removed from scope)
104. The consultation proposed removing a wide range of other miscellaneous
areas of civil law. There were very few responses on these particular
categories of case and proceedings. We remain of the view that these
types of case and proceedings are generally of a lower priority, and given
the need to make substantial financial savings, legal aid is no longer be
justified.
105. The Government therefore intends to remove the following cases and
proceedings from the scope of legal aid as proposed in the consultation:
i) appeals to the Upper Tribunal from the General Regulatory Chamber
of the First-tier Tribunal;
ii) actions relating to contentious probate or land law, for example,
actions to challenge the validity of a will (including Inheritance
(Provision for Family and Dependents) Act 1975) other than in the
context of an in-scope family case;
iii) legal advice in relation to a change of name;
iv) actions concerning personal data, such as actions relating to
inaccurate or lost data or rectification of personal data;
v) legal advice on will-making for (i) the over 70s; (ii) disabled people;
(iii) the parent of a disabled person; and (iv) the parent of a minor
who is living with the client (a parent) but not with the other parent,
and the client wishes to appoint a guardian for the minor in a will;
vi) Cash forfeiture actions under the Proceeds of Crime Act 2002.
30 Reform of Legal Aid in England and Wales Government Response
Key issues raised: public interest cases
106. Legal aid is currently available for any case (except a business case)
which is normally out of scope but which raises matters of significant
wider public interest. If an excluded case is judged to be of significant
wider public interest, then it is brought back into scope for funding. The
consultation proposed abolishing the rule that brings otherwise excluded
cases back into the scope of the scheme where they are of significant
wider public interest.
107. Few respondents commented on this element of the consultation. It was
argued that this test resulted in savings when compared with granting
legal aid for multiple applications raising the same issue. One respondent
also argued that the proposals to remove large areas of law from the
scope of legal aid strengthened the arguments for funding in cases which
raised issues which had a wider public interest.
The Government response
108. Cases or categories of law have been excluded because we do not
consider them to be of sufficient importance to merit public funds, either
because there are alternative sources of funding available, or because
the procedure is simple enough that litigants can present their case
without assistance, or because the types of case are a lower priority for
funding. We do not consider that the presence of the “wider significant
public interest” factor generally justifies the provision of public funding in
cases which would otherwise be excluded. We therefore intend to abolish
the Public Interest rule, as proposed in the consultation.
109. However where a case is in scope, and the type of proceeding is
therefore a priority for funding, it is our intention that wider public interest
will continue to be a relevant feature in the merits criteria, thus allowing
the benefit to other individuals to be taken into account in the funding
decision.
Key issue raised: tort and other general claims
110. These cases are typically concerned with recovering damages, for
example tort claims for damages (or an injunction), and include, for
example, a claim for damages under the Human Rights Act 1998. The
consultation proposed that claims concerned primarily with recovering
damages would not normally justify funding and proposed to remove
these types of claim from scope in all categories of law, including those
categories that we were proposing to retain generally in scope, except for
cases that met the proposed new criteria for claims against public
authorities; and claims arising from allegations of abuse or sexual assault.
111. Few respondents commented on this specific proposal. Those
respondents who commented argued that claims brought against public
authorities were an essential means of holding the state to account.
31 Reform of Legal Aid in England and Wales Government Response
The Government response
112. The Government intends to retain legal aid for the more serious cases
and proceedings which seek to hold public bodies to account for their
decisions, such as judicial review, and the most serious claims against
public authorities where these concern a significant breach of human
rights, or an abuse of position or power. We also intend to retain legal aid
for claims against private and public parties where these concern
allegations of the abuse of a child or vulnerable adult, or allegations of
sexual assault. Other claims which are concerned primarily with
recovering damages we consider to be of lesser importance and they will
be excluded from scope. The stronger excluded claims may be suitable
for alternative funding such as a Conditional Fee Agreement. For these
reasons we intend to proceed to remove tort and other general claims
from the scope of legal aid, as proposed in the consultation.
Conclusion
113. Subject to Parliamentary approval, the Government intends to implement
its reforms to the scope of legal aid in civil and family matters as set out
above. A list of the cases and proceedings remaining in scope, and to be
removed from scope, once these reforms have been implemented, are
set out in Table 1 below.
32 Reform of Legal Aid in England and Wales Government Response
Table 1: Summary of cases and proceedings remaining in scope,
and to be removed from scope.
1. Cases and proceedings retained within the scope of legal aid.
i) asylum;
ii) asylum support where accommodation is claimed;
iii) claims against public authorities (other than judicial review and
other similar remedies), concerning a significant breach of human
rights, or an abuse of position or power;
iv) claims arising from allegations of abuse and sexual assault;
v) community care;
vi) debt (where the client’s home is at immediate risk), including
involuntary bankruptcy and orders for sale of the home;
vii) domestic violence and forced marriage proceedings;
viii) family mediation;
ix) housing matters where the home is at immediate risk (excluding
those who are “squatting”), homelessness assistance, housing
disrepair cases that pose a serious risk to life or health and antisocial behaviour cases in the county court;
x) immigration detention;
xi) appeals to the Special Immigration Appeals Commission
xii) international child abduction (including orders both to recover a
child and those to prevent international abduction);
xiii) international family maintenance;
xiv) mental health, including mental capacity issues currently in scope;
xv) Special Educational Needs cases (currently within scope)
xvi) private family law cases involving domestic violence and private
law children cases involving child abuse;
xvii) public law cases (judicial review and other similar remedies) other
than representative actions and certain immigration and asylum
judicial reviews);
xviii) public law children cases;
xix) registration and enforcement of judgments under European Union
legislation;
xx) representation of children in rule 16.2 (and 16.6) private law
children cases;
xxi) miscellaneous proceedings: confiscation proceedings, injunctions
concerning gang related violence, Independent Safeguarding
Authority Appeals (care standards), Legal Help at Inquests,
proceedings under the Protection from Harassment Act 1997, and
quasi criminal proceedings;
33 Reform of Legal Aid in England and Wales Government Response
xxii) discrimination cases that are currently within scope (claims
relating to a contravention of the Equality Act 2010);
xxiii) environmental cases;
xxiv) European Union cross border cases; and
xxv) appeals to the Court of Appeal and Supreme Court, and
references to the European Court of Justice, where the area of
law to which the appeal relates remains in scope).
2. Cases and proceedings removed from the scope of legal aid.
i) asylum support (except where accommodation is claimed);
ii) clinical negligence;
iii) consumer and general contract;
iv) criminal Injuries Compensation Authority cases;
v) debt, except in cases where there is an immediate risk to the
home;
vi) employment cases;
vii) education cases, except for cases of Special Educational Needs;
viii) housing matters, except those where the home is at immediate
risk (excluding those who are “squatting”), homelessness
assistance, housing disrepair cases that pose a serious risk to life
or health and anti-social behaviour cases in the county court;
ix) immigration cases (non-detention);
x) miscellaneous (specified matters): appeals to the Upper Tribunal
from the General Regulatory Chamber of the First- tier Tribunal,
cash forfeiture actions under the Proceeds of Crime Act 2002,
legal advice in relation to a change of name, actions relating to
contentious probate or land law, court actions concerning personal
data, action under section 14 of the Trusts of Land and
Appointment of Trustees Act 1996, and legal advice on willmaking for (i) those over 70 (ii) disabled people (ii) the parent of a
disabled person and (iv) the parent of a minor who is living with
the client, but not with the other parent, and the client wishes to
appoint a guardian for the minor in a will;
xi) private family law (other than cases where domestic violence or
child abuse is present);
xii) tort and other general claims, and
xiii) welfare benefits.
114. In addition, the rule bringing back into scope any case of wider public
interest will be abolished.
34 Reform of Legal Aid in England and Wales Government Response
II. Interim lump sum costs orders to fund legal services in
ancillary relief proceedings (Question 2)
115. The consultation sought views on the proposal to make changes to court
powers in ancillary relief cases to enable the Court to make interim lump
sum orders against a party who has the means to fund the costs of
representation for the other party.
116. Full details of the issues raised and the Government’s response are at
Annex C, and are summarised below.
Reform of Legal Aid in England and Wales: the Government Response Part 4
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This is Part 4 of the government response to Reform of Legal Aid in England and Wales. Please read the other parts for a full picture. Used under the terms of the Open Government Licence http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf.
The Government response
61. We recognise that the people making these applications might be
vulnerable,
15
having often been through a traumatic event, and that these
matters can involve more complex issues around appeals and assessing
whether the award is fair one. We also accept that these cases might
involve money for medical equipment. We consider that article 15 of the
Trafficking Convention might require exceptional funding for CICA
applications and appeals where, in the particular circumstances of the
case, the failure to do so would be likely to result in a breach of the
individual’s rights to legal aid under article 6 of the European Convention
on Human Rights.
62. We consider that generally the application forms are straightforward to
complete, and that CICA provides help and guidance for applicants to
help them put forward their claim. While appeals may be more complex,
we have to prioritise funding and we consider that these cases are
primarily money claims, which are of lower priority for public funding.
63. For these reasons, we intend to remove legal aid for Criminal Injuries
Compensation claims, as proposed in the consultation.
Key issues raised: debt (where the client’s home is not at immediate
risk)
64. The consultation proposed removing legal aid for all advice on debt
matters other than in cases of rent or mortgage arrears in which the
client’s home was at immediate risk. The majority of respondents were
opposed to the removal of any debt cases from the scope of legal aid.
15
See paragraph 6.ii) above.
23 Reform of Legal Aid in England and Wales Government Response
65. The consultation responses also identified some additional areas of debt
disputes in housing matters, which under our original proposals would be
removed from the scope of legal aid, but which would be inconsistent with
the policy to protect those whose homes were at risk.
The Government response
66. It is still the Government’s view, in view of the need to make substantial
savings in legal aid expenditure, that legal aid for debt matters where the
home is not at immediate risk is not a priority for funding. In our view,
clients in these cases need practical help rather legal advice.
67. However, to ensure a consistent approach to our policy in this area, the
Government has decided that legal aid should remain available in relation
to the following debt-related matters where the home is at risk:
? orders for sale of the home, (but not to set aside a charging order
because the home is not at risk at that stage);
? bankruptcy proceedings (including dealing with a statutory demand)
initiated by creditors where the bankrupt’s estate includes a home.
68. Other than in these cases, for the reasons set out above, we intend to
remove all other debt proceedings from the scope of legal aid.
Key issues raised: education
69. The consultation proposed removing all education cases from the scope
of legal aid. Most respondents opposed the proposal, and in particular,
many respondents objected strongly to the proposed removal of legal aid
in cases where clients were appealing about Special Educational Needs
(SEN) provision. They argued that:
? most SEN cases could be easily be brought instead as disability
discrimination claims under the Equality Act 2010, which would
remain in scope under these proposals;
? the Department for Education’s proposed reforms to SEN
procedures
16
to mandate mediation would, if implemented, settle
most disputes, which would leave only the more difficult and
intractable matters to be resolved;
? it was inconsistent with the approach to community care (which
would remain in scope) because these raised similar issues
(for example, resolving disputes about state assistance);
16
Support and Aspiration: A New Approach to Special Educational Needs and Disability.
Cm 8027, Department for Education, March 2011
http://www.education.gov.uk/consultations/index.cfm?action=consultationDetails&consultatio
nId=1748&external=no&menu=1
24 Reform of Legal Aid in England and Wales Government Response
? research shows that children with a disability are over twice as likely
as non-disabled children to live with a parent with one or more
disabilities (as defined under the legislation then in force: the
Disability Discrimination Act 1995).
The Government’s response
70. The Government is persuaded by the strength of the arguments that legal
aid should be retained for SEN cases. We have therefore decided to
modify the original proposal, so that legal aid should continue to be
available for SEN cases where it is currently available.
71. It remains our view that funding is not generally required for
representation before the First-tier (SEND) Tribunal. Legal aid will
therefore only be available, as now, for advice and assistance in relation
to Special Educational Needs matters arising under Part 4 of the
Education Act 1996, and the Special Educational Needs Tribunal for
Wales (and for representation before the Upper Tribunal). We continue to
take the view that all other education cases are a lower priority for
funding, compared with cases which involve, for example, liberty, safety,
and homelessness. For these reasons, we intend to remove them from
the scope of legal aid.
Key issues raised: employment
72. Most respondents, particularly those from the not-for-profit sector,
opposed the proposal to remove legal aid for employment matters.
73. Many argued that employment cases were not solely money claims, but
also involved important employment rights (for example, rights to
holidays, or to flexible working). They argued that claims often raised
complex and difficult issues for litigants; the employer was often
represented, and there was an inequality of arms; and where offers to
settle were made, without legal advice, clients would not be in a position
to assess whether it was a fair offer.
The Government response
74. Most employment cases are pursued through the Employment Tribunal
which is designed to be used by unrepresented litigants.
75. We accept that most people will find legal advice helpful in preparing a
case for the tribunal, and that these cases are often not only about
money. We do not consider that applicants in these cases are likely to be
particularly vulnerable (see paragraph 6.ii) above). We consider that,
given the need to prioritise resources, employment matters are of a lower
importance than cases involving life, liberty or homelessness. It is also
25 Reform of Legal Aid in England and Wales Government Response
the case that a Damages Based Agreement
17
may be made in
appropriate cases.
Reform of Legal Aid in England and Wales: the Government Response Part 3
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30. The Government therefore intends that the following circumstances will
be accepted as evidence of domestic violence or child abuse. Where
there is evidence of domestic violence, legal aid will be available for the
victim for ancillary relief or private law family and children cases. Where
16 Reform of Legal Aid in England and Wales Government Response
there is evidence of child abuse, legal aid will be available for disputes
about children for the party seeking to protect the child. Only one of these
criteria would need to be met:
i) a non-molestation order, occupation order, forced marriage
protection order or other protective injunction is either in place or has
been made in the last twelve months;
ii) there is a criminal conviction for a domestic violence offence by the
other party towards the applicant for funding or for a child abuse
offence against the person from whom the protective party is seeking
to protect the child (unless the conviction is spent);
iii) there are ongoing criminal proceedings for a domestic violence
offence by the other party towards the applicant for funding or for a
child abuse offence against the person from whom the protective
party is seeking to protect the child;
iv) the victim has been referred to a Multi-Agency Risk Assessment
Conference (as a high risk victim of domestic violence) and a plan
has been put in place to protect them from violence by the other
party;
v) a local authority has put a Child Protection Plan in place to protect
the child who is the subject of the proceedings from abuse by or
including abuse by the person from whom the protective party is
seeking to protect the child;
vi) there has been a finding of fact in the family courts of domestic
violence by the other party giving rise to the risk of harm to the
victim;
vii) there has been a finding of fact by the family courts that child abuse
on the part of the person from whom the protective party is seeking
to protect the child has occurred.
Key issues raised: child abduction cases
31. The consultation proposed keeping legal aid in scope for international
child abduction cases. However, many consultation responses (including
from the Family Justice Council and the main representative bodies)
pointed out that this would not cover steps to prevent abduction from the
United Kingdom. This is particularly important for abduction to non-Hague
Convention countries where it is much harder to recover a child once he
or she has been abducted.
The Government response
32. The Government recognises that, to ensure consistency in the
application of our policy on child abduction, we need to modify our
proposals. We have therefore decided that legal aid should be available
for an application to obtain (but not to oppose) an emergency order
specifically to prevent the abduction of a child from the United Kingdom.
However, it will not routinely be available to make an application to
remove a child from the jurisdiction.
17 Reform of Legal Aid in England and Wales Government Response
Housing: risk of homelessness, repossession, eviction, Anti Social
Behaviour Orders and housing disrepair that risks serious harm to
individual and his/her family
33. The consultation proposed retaining legal aid for cases where the client is
homeless (or threatened with homelessness) and seeking homelessness
assistance from the local authority, where they were threatened with
homelessness through possession or eviction, or where they were facing
housing disrepairs which posed a serious risk to the life or health of the
client or their family, or for Anti-Social Behaviour Order (ASBO)
proceedings brought an individual in the county court.
34. While the Government’s priority is to assist those who are homeless or
who are facing homelessness, and we therefore intend to proceed with
retaining legal aid for the matters referred to above, we do not consider it
appropriate to provide legal aid in relation to eviction where the individual
has clearly entered and remained on the property or site as a trespasser
(i.e. “squatting”). In these cases, the individual has typically taken up
residence in unoccupied residential property or non-residential property,
and the Government does not consider it appropriate for the taxpayer to
provide funding for individuals to try to resist removal where they are
clearly trespassers on private property.
35. Where individuals are homeless and in need of assistance, rather than
assisting them in defending their occupation of private property, the
Government wants legal aid to be targeted on assisting them instead to
obtain homelessness assistance from the local authority, for which
funding is being retained. The details of how such cases will be identified
are set out at Annex A.
Family Mediation
36. The consultation proposed retaining legal aid for family mediation. We
also proposed that a fixed amount of legal help would be available where
the client enters mediation, which would attract a fee of £150.
Key issues raised
37. Many respondents argued that the proposed mediation fee of £150 would
be insufficient for legal advice to support the mediation, especially in
ancillary relief cases where the issues are more complex and agreements
would need to be turned into draft court orders or contracts.
The Government response
38. It remains the Government’s view that the proposed fee is sufficient in the
majority of cases. However, we accept practitioners’ concerns that it
would not be sufficient in cases where a greater level of work is required,
such as drafting a court order in addition to advising on the mediation
agreement.
39. The Government believes that mediation is more likely to be successful in
reaching agreement and diverting cases away from court if it is supported
18 Reform of Legal Aid in England and Wales Government Response
by adequate legal advice. For this reason, we have decided that a fixed
fee of £200 will be paid where legal advice is necessary to give effect to a
mediated settlement to draft a court order setting out the terms of
settlement in finance cases.
40. This fee could be claimed in addition to the mediation fee of £150.
Proposals to remove cases from the scope of legal aid
41. Over 90% of respondents to the consultation disagreed with the
proposals to remove from the scope of legal aid those cases and
proceedings set out in the consultation. In general, the objections did not
raise issues which have persuaded us that the original proposals needed
to be changed, and we intend to pursue the reforms to scope
substantially as set out in the consultation paper.
42. However, in some cases, responses to the consultation raised issues
which have persuaded us that the original proposals should be adapted to
meet our objectives for the reform of legal aid. These changes include
retaining legal aid for: a wider range of cases where the home is at
immediate risk (involuntary bankruptcy and Orders for Sale); retaining
legal aid for Special Educational Needs cases; retaining legal aid for
cases concerning unlawful eviction; and retaining legal aid for asylum
support cases which concern accommodation.
43. The reasons are summarised below and set out in detail at Annex B.
Key issues raised: ancillary relief, and private law children and family
proceedings (where domestic violence not present)
44. While most respondents agreed that resolving these cases out of court
was preferable to court proceedings, the responses overwhelmingly
opposed the proposal to remove these proceedings from the scope of
legal aid. They argued that:
? not all cases could be successfully diverted to mediation;
? without early legal advice, fewer cases would settle, increasing the
burdens on the family courts and on other agencies, such as
Cafcass;
12
? it could lead to an increase in public family law cases;
? decisions in this area should be delayed until the outcome of the
Family Justice Review;
12
Cafcass is the Children and Family Court Advisory and Support Service, whose key functions
include safeguarding and promoting the welfare of the child in family court proceedings,
advising courts about what it considers to be in the best interest of the child in family cases,
and provide reports on welfare issues, and helping parents who cannot agree on contact and
residence agreements.
19 Reform of Legal Aid in England and Wales Government Response
? proceedings often related to financial provision and contact
arrangements for children, and children would therefore also be
affected by these proposals;
? the proposal could be in breach of the European Convention on
Human Rights (ECHR).
The Government response
45. There are a number of factors that will help to mitigate the impact of
removing legal aid from private family proceedings, including:
? the availability of legal aid for mediation and legal advice in support
of mediation, including the increased fee (see paragraphs 36 to 40
above);
? the decision to enhance the court’s powers to order one party to
divorce and related proceedings to pay an amount to the other to
enable the other to secure legal services for the proceedings
(see from paragraph 115 below and Annex D);
? other avenues of support and advice to the extent they remain
available.
46. In the longer term, the Family Justice review is considering options for a
quicker, simpler, more cost-effective and fairer system, whilst continuing
to protect children and vulnerable adults from risk of harm.
47. While the Government accepts that some private family law cases may
raise particularly complex issues, we do not believe that these cases are
routinely complex. Funding for excluded cases will be provided where, in
the particular circumstances of a case, the failure to do so would be likely
to result in a breach of the individual’s rights to legal aid under the Human
Rights Act 1998 or European Union law.
48. The Government has sought to mitigate the impact of these reforms on
children by targeting legal aid to the most serious cases:
? we have decided to extend the approach of the criteria for the
domestic violence exception so that legal aid will continue to be
available for cases involving children at risk of abuse (see
paragraphs 26 – 29 above);
? legal aid will continue to be available for international child abduction
cases, including for steps to prevent international abduction
paragraphs 31 and 32);
49. The Government will take steps, will continue to monitor the position, and
will take steps to limit the impact on the workload of Cafcass, including
issuing guidance, if necessary.
50. Many respondents argued that legal aid should be available to children
where they were separately parties to proceedings, and not just in the
circumstances set out in the consultation (where they are separately
20 Reform of Legal Aid in England and Wales Government Response
represented under (then) Rule 9.5 and 9.2A of the Family Proceedings
Rules 1991, (now Rule 16.2 and 16.6 of the Family Procedure Rules
2010)). Such cases are in fact likely to be rare. However, the Government
agrees that children are not able to represent themselves in family
proceedings, and that should such cases arise, legal aid should be
provided to them on the same basis as if they had been made a party
under Rules 16.2 or 16.6.
51. For these reasons, the Government has decided that ancillary relief and
private family law cases should be taken out of scope, with the following
significant exceptions:
i) legal aid will continue to be available for victims of domestic violence
and for the protective party in children cases where the child is at risk
of abuse;
ii) legal aid will be retained for emergency orders that seek to prevent a
child from being removed from the United Kingdom (including for
forced marriage), but not for subsequent contactor residence issues
in these cases;
iii) legal aid will also continue to be available for children who are
separately represented under Rules 16.2 or 16.6 of the Family
Procedure Rules 2010, or for a child party in any other private family
law case (legal aid will only be available for child parties in these
cases, and not for the other parties);
iv) legal aid will also continue to be available for applications under the
Conventions dealing with international child abduction.
Key issues raised: clinical negligence
52. Many respondents argued that the most complex clinical negligence
cases were unlikely to be undertaken under a Conditional Fee Agreement
(CFA), particularly if the Lord Justice Jackson’s recommendations on
CFAs were introduced following his review of the costs of civil litigation.
13
They argued that removing the more complex cases from scope would
deny people access to justice, as these cases which include, for example,
cerebral palsy and severe obstetrics cases, often required significant
upfront work, including incurring costs on expert reports, to establish the
strength and merits of a case. In such circumstances, providers were
unlikely to be willing to undertake them on a CFA, and clients were
unlikely to be able to afford to fund the investigative stage privately.
The Government response
53. Many of these concerns were also expressed in response to the
consultation on Lord Justice Jackson’s proposals on the costs of civil
13
See: http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/jackson-final-report-
140110.pdf
21 Reform of Legal Aid in England and Wales Government Response
litigation. In the Government response to the Jackson proposals,
14
made
it clear that we are aware of specific concerns in relation to the funding of
experts reports in clinical negligence cases, which can be expensive. We
announced that we were therefore making one change to Lord Justice
Jackson’s recommendations for CFA reform, to allow the recoverability of
“after the event” (ATE) insurance premiums to cover the costs of expert
reports only in clinical negligence cases. This will enable meritorious
claims, where claimants cannot otherwise afford to pay for expert reports
upfront, to continue to be brought.
54. In addition, as the Government indicated in its response, a regime of
qualified one way costs shifting will be introduced in personal injury
cases, including clinical negligence. This means that an individual
claimant is not at risk of paying the defendant’s costs should the claim fail
(except in limited prescribed circumstances), but that the defendant would
have to pay the individual claimant’s costs should the claim succeed.
55. Removing legal aid for this area will increase the number of cases which
rely on CFAs. However, under the changes being implemented to the
CFA arrangements, the ATE insurance premiums for expert reports will
be recoverable from defendants who lose in certain circumstances.
56. In our view, the removal of legal aid in this area will deliver significant
legal aid savings, whilst the changes to the CFA arrangements will reduce
the costs of civil litigation for defendants from the current disproportionate
level. For these reasons, we intend to remove clinical negligence cases
from the scope of legal aid, as proposed in the consultation.
Key issues raised: consumer and general contract
57. Almost all of the respondents to the consultation were opposed to the
removal of legal aid for these matters. They argued that some cases, for
example, professional negligence, are particularly difficult and complex,
and can require significant upfront funding to secure expert opinions.
They said that without legal aid, clients would be denied access to justice.
The Government response
58. The Government view remains that these cases are essentially claims for
money or damages, which are a lower priority for funding than cases
which involve more fundamental issues such as safety and liberty. The
stronger claims are likely to be suitable for alternative sources of funding,
such as Conditional Fee Agreements. There are also other sources of
advice available (for example, Trading Standards and Consumer Direct).
We do not consider that litigants in these cases are likely generally, as a
class, to be vulnerable (as opposed, for example, to litigants in
14
See footnote 8 above.
22 Reform of Legal Aid in England and Wales Government Response
community care cases). The factors we took into account in considering a
person’s vulnerability are set out at paragraph 6.ii) above.
59. For these reasons, we intend to remove these cases from the scope of
legal aid, as proposed in the consultation. Cases brought under the
Equality Act 2010 which arise from a consumer matter, and which are
currently within the scope of the legal aid scheme, will remain in scope.
Key issues raised: Criminal Injuries Compensation
60. Many respondents argued that while the application to the Criminal
Injuries Compensation Authority (CICA) was relatively straightforward,
legal aid also funded advice on appeals which were more complicated.
Clients for this work were victims of crime, many of whom were
vulnerable, and some disabled.
Reform of Legal Aid in England and Wales: the Government Response Part 32
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65
Transforming Legal Aid: Access to Criminal Defence Services, Kemp, V. (2010), London.
208 Reform of Legal Aid in England and Wales Government Response
pay significantly more for a guilty plea by reason of the venue in which the
proceedings take place. The Government does not believe that the
proposal affects the right to jury trial, as that remains an option for the
defendant, and the fees paid to the defence lawyers that do go to trial are
unaffected by this proposal.
23. The proposed fee per case of £565 itself has been calculated to be in line
with the average cost of an either way guilty plea in the magistrates’
court, including those paid at the higher standard fee and non-standard
fee. We therefore continue to believe that for this narrow group of cases
the fee represents adequate remuneration, including in circumstances
where the defendant changes plea or the prosecution decide to offer no
evidence at a late stage in the proceedings.
24. The Government has carefully considered all the arguments and
concerns raised by various respondents, including the concern that
enhancing the lower standard fee was inadequate. We agree that this
reform is likely to result in an increase in the number of either way cases
being heard in the magistrates’ court (which, we consider, justifies
increasing certain magistrates’ court fees as part of this set of proposals)
We accept that the original proposal did not take adequate account of
those cases where more work was required before a defendant entered
their guilty plea. For these reasons, we have decided that the higher
standard fees for either way guilty pleas should also be increased so that
these cases are remunerated at an appropriate level.
25. We therefore intend to increase the Higher Standard Fee for a guilty plea
by 8% and to scale back the enhancement to the lower standard fee to
23%. The 8% increase in higher standard fees takes fee levels to the
current upper fee limit. Any greater increase would risk the new higher
standard fee exceeding the limit at which the fee ‘escapes’ to hourly
rates, so paying more for the higher standard fee cases than some
‘escape’ cases. The 23% increase in lower standard fees means that the
overall total increase in remuneration remains the same as the original
proposal.
26. The Government notes the suggestion by the Criminal Law Solicitors
Association that some Category 2 fees should also be enhanced.
However, Category 2 fees cover contested trials as well as cases fully
prepared for trial that crack on the day of trial, and it was never our
intention to increase them. As explained in the consultation paper
(paragraph 6.18), this proposal only related to fees for guilty pleas and
cracked trials. Whilst Category 2 fees include some cracked trial fees, it
clearly would not have made sense in the context of our proposals to
increase the fees for those cases as they are already paid at full trial
rates. We would therefore like to use this opportunity to correct an error in
the original consultation paper (Annex G page 202) which suggested that
there would be a similar 25% enhancement to Category 2 fees.
209 Reform of Legal Aid in England and Wales Government Response
27. As for committal proceedings, we believe that, in practice, they are rarely
substantive hearings, usually just confirming the decisions made earlier at
the mode of trial hearing, with such papers as there are served either very
late or on the day itself. Moreover, any preparation which solicitors are
required to make will cover much the same ground as for the Plea and
Case Management Hearing in the Crown Court just a few weeks later.
There are provisions (which have not yet been commenced) in the
Criminal Justice Act 2003 that would put an end to committal proceedings
altogether. The Government is considering whether they should now be
brought into force. But the Government intends in any event proceed with
the proposal to abolish the committal fee.
28. We have noted the concerns raised by advocates about a single fee
payable only to the litigator. We have concluded that questions of whether
or not to introduce a single graduated fee will best be dealt with in the
context of competition, which will be the subject of a separate
consultation exercise later in the year. We have therefore decided to
adjust the original proposal and divide the fee into two separate fixed fees
payable for litigation and advocacy.
29. We believe that the appropriate way to establish separate fees for
litigation and advocacy is to split the single fee in line with the ratio of
payments currently made to litigators and advocates in cases that crack
following election by the defendant. This means looking at payments
under the two Crown Court graduated fees schemes and taking into
account the committal fee currently paid to litigators for the work done in
the magistrates’ court. Current expenditure
66
on this group of cases sees
64% going to litigators and 36% going to advocates. Applying those same
percentages to the proposed fixed fee of £565 + VAT provides a fixed fee
for litigation of £362 + VAT and a fixed fee for advocacy of £203 + VAT.
Fees for guilty pleas and cracked trials in the Crown Court
30. The consultation asked:
Question 25: Do you agree with the proposal to harmonise the fee for a
cracked trial in indictable only cases, and either way cases committed by
magistrates, and in particular that: (i) the proposal to enhance the fees for
a guilty plea in the Litigators’ Graduated Fees Scheme and the
Advocates’ Graduated Fees Scheme by 25% provides reasonable
remuneration when averaged across the full range of cases; and
(ii) access to special preparation provides reasonable enhancement
for the most complex cases –
66
Data from 2009/10 was used to model the impact of this proposal, and all the other criminal
proposals.
210 Reform of Legal Aid in England and Wales Government Response
(i) Enhanced fees for guilty pleas
31. There were 623 responses on proposal (i) to enhance the fees for a guilty
plea in LGFS and AGFS by 25%. Of these, 558 (90%) disagreed, and 65
(10%) agreed.
Key issues raised in consultation
32. A clear majority of respondents including the Criminal Bar Association
(CBA) were not in favour of the proposed harmonisation. As with the
previous proposal, they argued that the proposal would penalise lawyers
for the defendant’s decision on whether and when to plead guilty.
Respondents pointed out that a substantial amount of work would have
been done by both the litigator and advocate to prepare the case fully for
trial, particularly in dealing with late disclosure, and reverting to the early
guilty plea fee would be an extreme penalty. They said that where a
defendant was charged with a serious offence where the matter was
prepared for trial, but the prosecution might eventually accept a plea to a
lesser offence at the door of the court, it is quite wrong to effectively
disallow all the preparation that has been taken place by the lawyers.
33. Respondents reiterated that lawyers cannot ‘control’ plea and suggested
that if, in fact, lawyers could control plea, this proposal would lead to an
increase in lawyers advising the defendant to go to trial rather than try to
resolve matters pre-trial. It was also suggested that cases would not be
prepared properly and that it would be inappropriate to reduce fees in
cases which the prosecution drop at the last minute.
34. A number of respondents commented that cracked trials were “different
animals” to guilty pleas. They argued that many trials crack only as a
result of detailed analysis and work after the full cases had been served.
They argued that cracked trials prevented more jury trials and saved
money, and that treating them as enhanced guilty pleas across the full
range would not provide reasonable remuneration.
35. It was also argued that the proposal to increase the guilty plea fee by
25% did not provide reasonable remuneration for cracked trials, as the
work involved in a guilty plea entered a few weeks after Plea and Case
Management Hearing (PCMH) was substantially less than a guilty plea
entered at the door of the Court on the day of trial. Respondents
suggested that a more sensible proposal might be to align the process
with the Advocates Graduated Fee Scheme (AGFS) system whereby a
cracked trial fee where the trial cracks in the first ‘third’
67
is paid at a lower
rate than if it cracks in the second or final third.
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9
I Scope (questions 1 and 3)
3. The consultation asked whether consultees agreed with the proposal to
retain those categories of case and proceedings set out in the
consultation paper within the scope of legal aid (question 1); and
separately whether they agreed with the proposal to remove other cases
and proceedings from the scope of legal aid (question 3).
4. Full details of the issues raised in the consultation and the Government’s
response, are set out at Annexes A (categories retained within scope)
and B (categories removed from scope), and summarised below.
Rationale for proposed changes to scope
5. The proposals for reforms to scope were designed to refocus legal aid on
those who needed it most, for the most serious cases in which legal
advice or representation were justified. We considered from first
principles which issues should attract public funding in the light of the
financial constraints. This took into account our domestic, European and
international legal obligations, including the European Convention on
Human Rights (ECHR).
6. This examination took into account four factors:
i) the importance of the issue: cases involving the individual’s life,
liberty, physical safety and homelessness were considered to be a
high priority, as were cases where the individual faces intervention
from the state, or seeks to hold the state to account;
ii) the litigant’s ability to present their own case: considerations included
the type of forum in which the proceedings are held, whether they
are inquisitorial or adversarial, whether litigants bringing proceedings
were likely to be from a predominantly physically or emotionally
9
See footnotes 3 and 4 above.
11 Reform of Legal Aid in England and Wales Government Response
vulnerable group (for example, as a result of their age, disability or
the traumatising circumstances in which the proceedings are being
brought);
iii) the availability of alternative sources of funding: where litigants are
able to fund their case in other ways, for example through a
Conditional Fee Agreement (CFA), legal insurance, or as a member
of a trade union;
iv) the availability of other routes to resolution: in determining the priority
for certain types of case, we considered whether people might be
able to access other sources of advice to help resolve their
problems, avoiding the need for court proceedings. Examples
include, advice on welfare benefits, (housing and other benefits), or
the availability of an ombudsman scheme, or complaints procedure.
7. No one factor was determinative: in developing our proposals for reform
we balanced these major considerations.
Key issues raised: rationale
8. The Law Society and the Bar Council argued that it was not necessary to
make the proposed changes to scope, and the put forward a series of
alternative proposals designed to achieve similar levels of saving. These
are considered at Annex L.
9. The majority of respondents agreed that we had taken the right factors
into account in determining the priority of cases and proceedings, but
some respondents argued that we had not applied them correctly in
certain classes of case. We have considered these arguments and as a
result, in some cases, we have decided to modify our original proposals
to ensure that our objectives for legal aid reform are met. The details are
set out below.
Proposals to retain cases and proceedings within the scope of legal aid
10. A significant majority of respondents (nearly 80%) agreed with the
Government’s proposals to retain the categories of cases and
proceedings set out in the consultation. Generally, the Government
intends, subject to Parliamentary approval, to retain those categories of
case and proceedings within the scope of legal aid. These, together with
a list of the cases and proceedings we intend to remove from scope, are
set out at Table 1 below.
11. We have decided, in the light of responses to the consultation, to make
some amendments to the original proposals for cases remaining in scope
to ensure that our objectives for legal aid reform are met. These
amendments are in relation to certain judicial review proceedings, claims
against public authorities (other than judicial review and other similar
remedies), some debt proceedings where the client is at risk of
homelessness, housing cases concerning those who are “squatting”, the
12 Reform of Legal Aid in England and Wales Government Response
criteria for the domestic violence exception, and in proceedings to prevent
child abduction in the United Kingdom.
12. A summary of each of these changes is given below. Further detail on
these proposals and the changes is set out in the annexes below.
Key issues raised: judicial review
13. Most respondents agreed with the consultation proposal that judicial
review proceedings should remain in scope, but the sub-committee of the
Judges’ Council which responded to the consultation made a number of
detailed suggestions about how to further limit funding for unmeritorious
judicial reviews. Some of their suggestions do, we believe, have the
potential to reduce the number of unmeritorious judicial reviews brought
with the benefit of legal aid. The Judges’ Council’s response argued that
many judicial reviews in immigration and asylum cases which came
before the courts had already had at least one oral hearing on the same
issue, and that public funding should therefore be removed from these
cases or severely curtailed. The response suggested that funding should
also be removed if the case were a challenge to removal directions or
detention pending removal, on the basis that such challenges are often
designed to frustrate the removals process rather than to raise a point of
genuine merit.
The Government response
14. Although only a minority of the immigration and asylum judicial review
cases referred to by the Judges Council are funded by legal aid, we
believe that the principle of refusing funding for a case which has already
had at least one full oral hearing on the same, or substantially the same,
issue is the right one.
15. Given our aim to reduce unnecessary litigation, and to target resources to
those who need them most, the Government does not believe that public
funding is merited in these cases. We have therefore decided that legal
aid will no longer be available in this narrow group of cases. However, we
consider that there should be some important exceptions to these
exclusions principally to take into account potential changes in an
individual’s circumstances over time, and to ensure that cases where an
appeal has not already taken place are not inadvertently captured. We
also consider that challenges to detention pending removal should remain
in scope (as they relate to the applicant’s liberty).
16. The Government therefore generally intends to retain legal aid for judicial
review in immigration and asylum cases, except for:
i) immigration and asylum judicial reviews where there has been an
appeal or judicial review to a tribunal or court on the same issue
or a substantially similar issue within a period of one year, except
so far as necessary to comply with article 15 of the EU Procedures
Directive;
13 Reform of Legal Aid in England and Wales Government Response
ii) judicial reviews challenging removal directions except where there
has been a delay of more than one year between the determination
of the decision to remove a person and the giving of removal
directions.
17. However, cases falling within these categories would be subject to certain
exceptions:
? where funding is necessary to comply with article 15 of the Council
Directive 2005/85/EC on minimum standards on procedures in
Member States for granting and withdrawing refugee status (this will
apply to ‘fresh claim’ judicial reviews and cases against a certificate
issued under section 94 of the Nationality, Immigration and Asylum
Act 2002
10
); and
? where the challenge is to a certificate issued under section 96 of the
Nationality, Immigration and Asylum Act 2002.
11
Key issues raised: claims against public authorities other than judicial
review and other similar remedies
18. The consultation proposed that the claims concerned primarily with
recovering damages would not normally justify funding but that there
would be some exceptions to that general principle. One of these
exceptions was for the most serious claims against public authorities.
This typically covers tort claims of various kinds, but could also cover, for
example, a claim for damages under the Human Rights Act 1998.
19. In the consultation paper, we proposed no longer including within scope
cases against public authorities concerning allegations of serious wrongdoing because a court judgment had meant that the serious wrong-doing
criterion no longer captured the very serious cases against public
authorities that was intended. We also proposed introducing a new
criterion of “negligent acts or omissions falling very far below the required
standard of care”. Several respondents pointed out that the courts did not
recognise degrees of negligence, and that the proposed new test of
“negligent acts or omissions falling very far below the required standard of
care” was unlikely to have any impact on the cases it had been designed
to remove from scope.
The Government response
20. The Government intends to proceed to abolish the serious wrong-doing
criterion for the reasons given in the consultation paper. The Government
also accepts that the proposed new test for negligent acts or omissions
10
Section 94 allows the Secretary of State to issue a certificate preventing an appeal within the
United Kingdom in the case of an unfounded human rights or asylum claim.
11
Sections 96 sets out the “one-stop” arrangements which prevent a person from seeking to
appeal when they have already had an opportunity to put their case to an adjudicator.
14 Reform of Legal Aid in England and Wales Government Response
falling very far below the required standard of care is unlikely to have the
intended effect on limiting legal aid to the most serious cases, and in
practice would cover many of the same cases covered by the test of
serious wrong-doing. The Government considers that there is
considerable overlap between the existing criteria and that the most
serious cases will be caught by the abuse of position or power or
significant breach of human rights criteria. Therefore funding for these
(typically damages) claims against public authorities will no longer be
within the scope of the scheme unless they concern a significant breach
of human rights or an abuse of position or power.
Key issues raised: domestic violence in private law family cases
21. The consultation proposed retaining legal aid for private family
proceedings involving domestic violence.
22. Most respondents to the consultation welcomed the proposal to retain
legal aid for cases involving domestic violence. But many argued that the
criteria were drawn too narrowly. Concerns were also raised that the
proposal would lead to false allegations of domestic violence.
The Government response
23. The Government accepts that, to ensure that victims of domestic violence
are protected, the criteria for the domestic violence exception originally
proposed in the consultation need to be widened, whilst maintaining the
requirement for objective evidence of domestic violence. We have
therefore decided to accept some additional circumstances as evidence
of domestic violence, so that the criteria should target legal aid to genuine
cases without providing an incentive for unfounded allegations of
domestic violence. As with the original proposals, only one of these
criteria would need to be met:
? there are ongoing criminal proceedings for a domestic violence
offence by the other party towards the applicant for funding;
? the victim has been referred to a Multi-Agency Risk Assessment
Conference (as a high risk victim of domestic violence) and a plan
has been put in place to protect them from violence by the other
party; or
? there has been a finding of fact in the family courts of domestic
violence by the other party giving rise to the risk of harm to the
victim, but the victim has not already been granted legal aid.
24. However, the Government is concerned that one of the original criteria
proposed for the domestic violence exception, where there are ongoing
proceedings for a domestic violence order (such as a non-molestation
order or an occupation order) or forced marriage protection order, but an
order has not yet been made, could lead to false claims of domestic
violence for the purpose of securing legal aid. For this reason, the
Government has decided not to include this criterion in the domestic
violence exception.
15 Reform of Legal Aid in England and Wales Government Response
25. These criteria will be subject to the 12 month time limit set out in the
consultation paper. This means that legal aid will be available, for
example, where there has been a referral to a Multi-Agency Risk
Assessment Conference in the past 12 months, as well as where a
protective injunction or other order has been put in place in the past
12 months.
Key issues raised: child abuse
26. Respondents to the consultation also pointed out that under our proposals,
legal aid would not routinely be available in private family law cases
where a child was at risk of abuse, but the local authority was not seeking
to take the child into care (which would continue to attract public funding
under our proposals to retain legal aid in public law children cases).
The Government response
27. The Government accepts that legal aid should be routinely available in
these circumstances, provided that there is objective evidence of the risk
of abuse. We have therefore decided to extend the approach to the
criteria for the domestic violence exception in private law family cases to
provide legal aid for the party seeking to protect the child in cases where:
? there are ongoing criminal proceedings for a child abuse offence
against the person from whom the protective party is seeking to
protect the child; or
? a local authority has put a Child Protection Plan in place to protect
the child who is the subject of the proceedings from abuse by or
including abuse by the person from whom the protective party is
seeking to protect the child; or
? there is a relevant finding of fact by the courts that child abuse on the
part of the person from whom the protective party is seeking to
protect the child has occurred.
28. As with the domestic violence proposals, only one of these criteria would
need to be met. They will apply where a party to the case, or another
individual in respect of whom protection for the child is being sought, has
abused either the child who is the subject of proceedings, or any other
child (including a child of another family).
29. These criteria will be subject to the same twelve month time limit set out
in the consultation paper in relation to the domestic violence criteria so
that legal aid will be available, for example, where the child has been the
subject of a Child Protection Plan in the past twelve months, as well as
where a protective injunction had been put in place in the past twelve
months.
Reform of Legal Aid in England and Wales: the Government Response Part 1
Posted by admin
This is Part 1 of the government response to Reform of Legal Aid in England and Wales. Please read the other parts for a full picture. Used under the terms of the Open Government Licence http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf.
1. Introduction
1. This is the Government response to the consultation paper, Proposals for
Reform of Legal Aid in England and Wales.
The consultation
2. The consultation was published on 15 November 2010 and closed on
14 February 2011. We received over 5,000 responses. A list of those who
responded to the consultation is available at:
http://www.justice.gov.uk/consultations/legal-aid-reform.htm
3. The majority of responses did not support the Government’s proposals
for reform, although there was some support for particular measures. The
key issues raised in the consultation, and the Government’s response,
are summarised in this document, and full details are set out in the
annexes to this response.
4. An impact assessment and equalities impact assessment have been
published alongside this response, setting out the estimated impacts of
the programme of reform on legal aid clients and providers. These can be
also accessed at: http://www.justice.gov.uk/consultations/legal-aidreform.htm
6 Reform of Legal Aid in England and Wales Government Response
2. The case for reform
1. In May 2010, the Coalition published its programme for Government. This
included a commitment to carry out a review of legal aid. In November,
the Government published its proposals for reform in the consultation
paper: Proposals for the Reform of Legal Aid in England and Wales.
1
The
consultation set out proposals for a radical, wide ranging and ambitious
programme of reform, which aimed to ensure that legal aid was targeted
to those who needed it most, for the most serious cases in which legal
advice or representation was justified.
2. Reducing expenditure on legal aid was one of the key drivers for reform,
but irrespective of the current economic situation, the Government
believes that legal aid is, in any event, in need of fundamental reform.
Legal aid has expanded far beyond its original intentions, available for a
wide range of issues, many of which need not be resolved through the
courts. This has encouraged people to bring their problems to court when
the courts are not well placed to provide the best solutions. There is a
compelling case for going back to first principles.
3. The proposals in the consultation paper were estimated to deliver a
saving of £350 million
2
to the public purse in 2014/15 annually over the
longer term, against a scheme which now costs over £2 billion each year,
an increase of around 6% in real terms since 1997/98. It is by far one of
the most comprehensive, and expensive, legal aid provisions in the world,
second only to Northern Ireland. We spent around £39 a head on legal
aid in 2009/10, compared to around £5 a head in Spain (2008), France
(2008) and Germany (2006). Countries with similar legal systems to ours
also spend a lot less on legal aid: in New Zealand, the average cost per
head was £8 (2004).
4. There have been many attempts to reform legal aid, with over thirty
separate consultations over the last five years. This piecemeal approach
has not helped to encourage sensible resolution of disputes and conflict.
Neither has it provided a solid foundation to allow lawyers to manage their
practices stably, and the Government to manage public spending.
1
See: http://www.justice.gov.uk/consultations/633.htm
2
It should be noted that the figures in the accompanying Impact Assessment are long run,
steady state savings which take account of the continued impact of policy reform beyond the
period to 2014/15.
7 Reform of Legal Aid in England and Wales Government Response
The way ahead
5. The Government received over 5,000 responses to the consultation.
There were over 1,000 responses from solicitors, a further 800 from
barristers, and 500 from not-for-profit organisations. There were over 100
submissions from representative bodies. We also received responses
from members of the judiciary, experts and academics. A summary of the
responses to the consultation questions is at Annex M.
6. The majority of responses to the consultation did not support the
proposed reforms.
7. Some respondents, in particular the Law Society and the Bar Council,
argued that we did not need to make such significant changes to the legal
aid scheme, in particular we did not need to remove large areas of law
from the scope of legal aid. They put forward a set of alternative
proposals which they argued would deliver the same, or a higher, level of
savings.
8. Our analysis of these alternative proposals is at Annex L. In some cases,
we are already developing our wider plans for improving efficiency in the
system of justice. However, for the reasons set out in Annex L, we do not
believe that these alternative proposals represent a realistic alternative to
the reforms set out in the consultation.
9. Some respondents to the consultation raised valid concerns about our
original proposals and in some cases therefore, we have decided to
amend our original proposals where we believe this better meets our aims
for legal aid.
10. However, overall it remains our view that the legal aid scheme needs
fundamental reform to:
? discourage unnecessary and adversarial litigation at public expense;
? target legal aid to those who need it most;
? make significant savings in the cost of the scheme; and
? deliver better overall value for money for the taxpayer.
11. We therefore intend, subject to Parliamentary approval, to take forward
the programme of reform set out in this Government response.
Impacts
12. Although we have modified our programme of reform, our estimate
remains that these measures will deliver a saving of £350 million by
8 Reform of Legal Aid in England and Wales Government Response
2014/15. Full details are set out in the Impact Assessment, published
alongside the Government response.
3
The estimated potential equalities
impacts are set out in the Equalities Impact Assessment.
4
Wider Justice Reforms
13. There is therefore a strong case for reform of legal aid. But this cannot
solve all of the problems in the justice system. Alongside the plans for
legal aid, the Government is also today announcing its plans for the
reform of central funds. In the higher criminal courts,
5
where legal aid is
available to all individuals, defendants who decline legal aid and choose
to pay privately for their defence will no longer be able to recover their
costs from the taxpayer if they are acquitted. In the magistrates’ courts,
the amounts they can recover will be limited to the rates payable under
legal aid. Companies and other organisations which can insure against
criminal prosecutions will no longer be able to recover their costs from the
taxpayer if they are acquitted.
14. Legal aid reform is one part of the picture of justice reform. Another is the
Government’s efforts to promote an alternative, less adversarial,
approach to resolving many social problems that currently fall into the
hands of lawyers; and to simplify the legal system.
15. Our programme of reform includes reforms to sentencing and
rehabilitation, which have also been announced today. These are
designed to deliver a rehabilitation revolution, delivering more effective
punishments and greater payback to victims while rehabilitating offenders
to reduce crime and make the public safer.
16. Other proposals are for a series of reforms to make the procedures and
processes of the courts simpler, more transparent and more efficient, so
that we secure best value for the money we spend on them. This work
covers, for example:
? reforms to family justice, including the proposals in the interim report
of the independent Family Justice Review.
6
The review is consulting
on the proposals in its interim report;
? the proposals to balance out costs for court users and encourage the
use of quicker and cheaper alternatives to court, set out in the
consultation paper, Solving disputes in the county courts.
7
The
3
See: http://www.justice.gov.uk/consultations/legal-aid-reform.htm
4
Ibid.
5
The Crown Court and Court of Appeal, but not the Supreme Court.
6
See: http://www.justice.gov.uk/publications/policy/moj/family-justice-review.htm
7
See: http://www.justice.gov.uk/consultations/consultation-cp6-2011.htm
9 Reform of Legal Aid in England and Wales Government Response
consultation period ends on 30 June. The Government will consider
the responses and respond in due course;
? the development of an efficiency programme for the criminal justice
system, in collaboration with all of the criminal justice agencies. It is
focussed on system-wide inefficiency, to deliver a more efficient and
cost-effective system. Proposals and implementation plans to
improve the efficiency of the Criminal Justice System will be
published by December;
? implementation of Lord Justice Jackson’s reforms to the costs of civil
litigation,
8
which aims to tackle the so-called ‘compensation culture’
and create a more proportionate civil justice system.
17. We are also taking forward a programme for the modernisation of the
regulation and delivery of legal services by implementing the reforms in
the Legal Services Act 2007. This includes the introduction of Alternative
Business Structures. These new structures, which can be partly or wholly
owned or controlled by non-lawyers, will allow lawyers and other
professionals to work together in a single entity to provide legal services
(or a mixture of legal and non-legal services) to their clients.
18. These freestanding reforms will help us to move towards a simpler justice
system, where fewer individuals, businesses and public bodies are forced
to resort to formal court processes, and more people take up mediation
and other forms of alternative dispute resolution to help solve their
problems. We also expect that new ways of obtaining legal advice will
become more prevalent as the legal profession modernises and takes
greater advantage of technological advances – for example by offering
advice over the internet or via a telephone helpline.
19. Legal aid reform is independent of these wider reforms, but this outline of
the wider justice context helps to demonstrate how legal aid reform
contributes to a significant package of modernisation of the system of
justice as a whole.
8
See: http://www.justice.gov.uk/consultations/566.htm
10 Reform of Legal Aid in England and Wales Government Response
3. The programme of reform
1. This section summarises the key issues raised on specific proposals in
the consultation and the Government’s response, and highlights those
areas where the Government has decided to adapt, modify or refine its
proposals. Full details are set out in the annexes to this response.
2. An Impact Assessment and an Equalities Impact Assessment are
published alongside this Government response.