Reform of Legal Aid in England and Wales: the Government Response Part 24
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This is Part 24 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.
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See footnote 20 above.
170 Reform of Legal Aid in England and Wales Government Response
46. The risk or likelihood that a client may need Legal Representation or
Controlled Legal Representation in the future will not alone be an
exemption to the requirement to use the gateway. However, where it
becomes clear that Legal Representation will be necessary, clients will be
given the option to see a face-to-face advice provider.
47. In addition to emergency cases, the Government intends to apply the
exceptions to the requirement to use the mandatory gateway set out at
paragraph 23 above.
48. The Government believes that in the majority of circumstances the
gateway and systems in place will offer sufficient support for callers to
access the most suitable advice service. However, the needs of all callers
will be assessed on a case-by-case basis and where appropriate, callers
will be referred to a face-to-face advice service. The key consideration will
be whether the individual client is able to give instructions and act on the
advice given.
49. The Government considers that issues about equalities legislation and
anti-discrimination law are largely addressed by the many measures that
the helpline already has in place to assist all callers, including disabled
people, to access the service (see paragraph 22 for full details). Prior to
implementation, we will engage with a range of groups (including those
which represent disabled people) to identify any additional ways to
provide reasonable adjustments for callers with specific needs. There is
always a risk that some clients may not access help and advice whether
by telephone or face-to-face. We will monitor levels of people accessing
the gateway in comparison with current and future services.
50. The Government agrees that children (defined as being those under 18)
should be afforded special protection and be exempted from the need to
access advice via the gateway. Similarly, people in detention should be
exempted as at present due to the particular difficulties they may face in
freely accessing a private and secure phone line.
51. As noted above, several respondents suggested that there was
insufficient detail in the consultation document to allow for meaningful
comment. The Government addressed this concern by publishing the
document referred to in paragraph 45 above, which clarified that the
helpline would not be the mandatory single gateway for emergency cases
and set out further information on the operation of the current CLA
helpline.
52. The Government has revised the Impact Assessment to take account of
the revised reform programme, using more recent (2009/10) data. In the
analysis, we have allowed for the possibility that the average call length at
the Operator Service may increase when compared with the existing
service.
53. The Government agrees that taken together with the proposed changes
to scope, the telephone proposals will have a significant impact on current
171 Reform of Legal Aid in England and Wales Government Response
legal aid advice providers. However, the Government believes that any
concerns relating to the restriction of free trade and the potential to create
a monopoly will be addressed by the fact that contracts for both telephone
(Operator Service and Specialist) and face-to-face services will be subject
to tender processes compliant with EU regulations. The decision to limit
the initial scope of the helpline gateway to a restricted number of areas of
law will significantly reduce the impact when compared to the original
proposal set out in the consultation paper. These changes will, we
believe, also help to retain sufficient face-to-face legal aid advice services
for those clients that need them.
54. The Government recognises that there may be some benefits to local
knowledge in helping people to resolve their problems. However the
Government believes that the telephone gateway (and the CLA helpline
generally) will provide a consistent level of service to all callers
irrespective of where they are located and will be of added benefit to
those who cannot easily access face-to-face advice. In addition, even
where the gateway is the initial entry point, appropriate cases will still be
referred on to face-to-face providers where this is necessary in the
interests of the client.
55. The Government agrees that there is benefit in providing access to
services through a variety of channels (for example, telephone, on-line,
email) and we continue to examine the way in which this can best be
achieved.
56. Whether a caller is referred to a specialist telephone advisor or a face-toface advisor, a clear and consistent referral process will be used to
ensure fairness and transparency. The Government has addressed the
issues regarding the processes for signposting and referral at paragraph
32 to 35 above and intends to engage with legal aid providers further on
this issue.
57. Both the gateway provider and all specialist advice providers will be
required to have a clear complaints process that will be made available to
all callers who wish to see it. The process will make it clear how
complaints will be addressed by the individual provider and the
circumstances when a complaint should be escalated to the LSC or other
regulatory body. We will give further consideration to how requests for a
review of a decision not to refer to a face-to-face provider will be
accommodated.
Reform of Legal Aid in England and Wales: the Government Response Part 23
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This is Part 23 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.
59
It should be noted that calling the mandatory single gateway will only be the first stage in the
legal aid application process. The operator service will make an initial assessment of whether
the caller is financially eligible for legal aid and whether their problem falls within the scope of
legal aid. Specialist advice providers, whether telephone or face-to-face, will still be required
to complete the legal aid application process on behalf of the client, for example by
assessing the merits of the client’s case or seeking evidence to confirm financial eligibility
with the client.
161 Reform of Legal Aid in England and Wales Government Response
vii) problems where the advisor would need to see documentation in
order to give effective advice.
8. The quality of diagnosis and screening: many respondents had
concerns about the level of training and accreditation that call operators
would be required to meet and how ongoing quality would be monitored.
A few respondents felt that these factors would lead to an increased risk
of professional negligence and claims against the state. Many
respondents were also concerned that the nature of a telephone service
would make it more difficult or impossible to screen callers effectively, to
identify all relevant issues and to diagnose problems. Specific examples
given included checking caller identity, completion of conflict of interest
checks, identification of multiple problems and risks to the caller’s welfare
including domestic abuse or instances where a client may be acting under
duress. In addition, many respondents felt that it would be difficult to
ensure effective screening of callers to confirm financial eligibility.
9. Using a preferred advice provider: many respondents suggested that
individuals seeking civil legal aid advice should not be denied the choice
to go to their preferred provider using their preferred means of access,
particularly in instances where they had previously received help and built
up a relationship. A number of representative bodies and many other
respondents felt that this lack of client choice may possibly contravene
article 6 of the European Convention on Human Rights (ECHR). Some
respondents were also concerned that many clients may fail to seek
advice via the gateway in the future if they cannot access advice face-toface or go to their preferred advice provider.
10. Increased bureaucracy and potential delays to an individual
receiving assistance, especially in emergency cases: there was some
concern that a mandatory single gateway would lead to increased
bureaucracy and unnecessary delays to individuals receiving assistance.
This would be particularly problematic in emergency cases. There was
also concern that it would be inefficient for clients who attempted to
access help from a face-to-face provider to be told that they would
instead be required to contact the gateway. Some respondents were
concerned about whether the infrastructure of the gateway would be
adequate for the likely future demand for the service. For example, there
were concerns about whether there would be sufficient capacity within the
service to handle the necessary call volumes and what the service
opening hours would be. Respondents identified the type of cases that
should be considered as emergencies and which should not be required
to go through the gateway. These included cases where there was a risk
of harm to the individual or to their children, such as domestic violence
cases and various types of public law children cases, and cases where
legal representation would be required.
11. Equalities legislation: a number of respondents suggested that the
proposed mandatory single gateway would contravene the Equality Act
2010 and other anti-discrimination law and equalities duties.
162 Reform of Legal Aid in England and Wales Government Response
12. Appropriateness for different groups of people: a number of
representative bodies and many other respondents considered that the
difficulties that certain groups of people would face by using a mandatory
gateway would make it difficult or impossible for those groups to access
advice. This could lead to some clients failing to take action to resolve
their problems. Specific examples given included:
– younger people, including children;
– older people;
– homeless people;
– people in residential care;
– victims of abuse;
– refugees and asylum seekers;
– deaf and deafened people;
– people with learning difficulties;
– people with mental health problems, including substance abuse;
– people in detention, including prisoners and detained patients;
– Black and minority ethnic groups, including immigrants;
– people for whom English is not their first language.
13. Appropriateness for different types of cases: a number of
representative bodies and many other respondents were of the view that
the difficulties that a mandatory single gateway delivered solely by
telephone would present to some groups of people would make it
inappropriate for the gateway to deal with certain types of cases. Specific
examples included: domestic abuse cases, asylum cases, housing cases
and mental health.
14. A need for further consultation: a number of representative bodies and
individual respondents stated in their responses that they considered that
the consultation contained insufficient detail regarding the helpline
proposals for them to be able to comment fully. These respondents
suggested that a further consultation was therefore required setting out
the proposals in more detail.
15. Savings estimates and costs: many respondents were concerned that
the estimated savings from the proposals, set out in the Impact
Assessment, were overstated as the proposal for a mandatory single
gateway would lead to unnecessary additional expenditure on providing
the Operator Service, for example through duplication of costs where a
client was initially advised by the helpline and then required a referral to a
face-to-face advice provider.
163 Reform of Legal Aid in England and Wales Government Response
16. Impact on legal aid advice services market: there was a concern that
the proposals would restrict free trade and could create an unfair
monopoly. Many face-to-face advice providers were of the view that the
proposals would have a significant effect on their practices, leading to a
considerable reduction in their income and impact on their future
sustainability (this was a particular concern for the not-for-profit sector).
This would in turn reduce the availability of face-to-face advice services
for those clients that needed them.
17. Impact on existing local referral networks and loss of local
knowledge: many legal practitioners and advice providers were of the
view that the gateway would interfere with existing effective referral
networks and that the gateway would not have the benefit of the local
knowledge and contacts of face-to-face advice providers. Many felt that a
national telephone service would not be able to meet the needs of
specific local communities as effectively as existing local face-to-face
advice providers.
18. Opposition to the telephone gateway being the only entry point to
the civil legal aid system: some respondents saw benefits to a
telephone gateway, even if they did not agree that it should be
mandatory. For example, some representative bodies felt that a
telephone gateway system might offer benefits to individuals, as it would
make it easier for them to find an advice provider able and willing to take
their case. However, some respondents felt that people should also be
able to access the gateway online or by e-mail. Many respondents also
wanted face-to-face channels to be maintained.
19. Process for referring callers to face-to-face advice services,
including the need for a clear complaints procedure: many
respondents wanted more detail on how any signposting or referral to
face-to-face advice would operate in practice. Some respondents asked
how the operator would deal with a caller who wanted a level or type of
service, or referral to a named provider, that the operator did not consider
to be suitable and the process for dealing with any ensuing complaints.
Some respondents considered that an appeal process would be required.
20. Organisations working strategically with Community Legal Advice
and what form this should take: respondents put forward a wide range
of suggestions for organisations with which the Government should work
strategically to develop telephone advice services and some options for
the form that this should take. Examples of the form that such strategic
working should take included: formal input into policy implementation and
service development, facilitating referrals between gateway and other
services, and sharing of knowledge, experience and best practice.
Organisations mentioned included professional bodies such as the Law
Society and the Bar Council, not-for-profit representative groups such as
Citizens Advice and the Law Centres Federation, and local and regional
advice organisations, as well as specialist organisations such as mental
health charities, women’s organisations and other existing helplines and
not-for-profit providers.
164 Reform of Legal Aid in England and Wales Government Response
The Government response
21. In the Consultation Paper, Proposals for the Reform of Legal Aid in
England and Wales the Government proposed that the CLA helpline
should be the mandatory single gateway to civil legal aid services. The
mandatory single gateway means that if a person wants legally aided
advice in a particular area of law, he or she will be required to telephone
the helpline in order to apply for legal aid.
22. The Government agrees that a telephone gateway could in principle
present a barrier for some people applying for legal aid advice services.
However, we believe that the design of the existing CLA service and our
proposed future gateway service will ensure that these barriers can be
removed sufficiently for the effective delivery of the required service.
Some specific examples of existing adaptations to the CLA service that
will continue and will mitigate against many of the potential barriers
highlighted by respondents include:
– three-way translation services for clients with limited or no spoken
English or Welsh;
– a British Sign Language (BSL) Service available via webcam,
Minicom, and Typetalk for deaf and deafened callers;
– where clients give approval, friends, family members or other
professionals can call the service on their behalf;
– extended opening hours, including evenings and weekends, to give
callers greater choice over when to access the service, to help
ensure they can do so in comfort and in private. Both call operators
and specialist advisors will be expected to check with clients that
they can gain sufficient privacy for their call. However, callers who
are in detention will be exempted from any requirement to contact
the gateway in order to apply for legal aid;
– delivery of suitable induction and ongoing training for all call
operators to help ensure that they can effectively show empathy and
build rapport with all callers and provide additional support where this
is needed. This includes specific training on domestic abuse and
child protection issues. For details of proposed requirements for
specialist advice providers, see paragraph 74;
– various call back facilities are available to help to minimise the cost
of contacting the service. These include call operators and specialist
advisors offering to call people back, a ‘text for a call back’ service
and an online call back request service that enables callers to
request a call at a time and in a language of their choice. Where
ongoing contact is required, specialist advisors will agree the best
approach with clients. Where needed, clients are also given a direct
telephone number for their specialist advice service, so they will not
be required to go through the gateway if they need to speak to their
advisor again in the future;
– data from Ofcom suggests that very few people have no access to
either a landline or mobile phone. But in such circumstances a caller
165 Reform of Legal Aid in England and Wales Government Response
could ask someone else to call on their behalf. All callers in these
circumstances will be routinely offered an immediate call back. As
noted above there is also a facility to book a call back online through
DirectGov or text for a call back;
– finally both gateway call operators and specialist advisors will assess
the specific needs of all callers on a case by case basis and will as
appropriate refer them to a face-to-face advice service if this is
considered necessary.
23. The Government has already clarified in the document of 7 January 2011
that there will be an exception to the mandatory single gateway in cases
of emergency. In addition, the Government intends to make the following
further exceptions to the mandatory single gateway:
– cases where the client has previously been assessed by the
mandatory single gateway as requiring advice face-to-face, has
accessed face-to-face within the last twelve months and is seeking
further help to resolve linked problems from the same face-to-face
provider;
– clients who are in detention (including prison, a detention centre or
secure hospital);
– children (defined as being under 18).
24. In the event that a client visits a face-to-face provider who recognises that
the case will not be within scope for legal aid but may be eligible for
exceptional funding, the application can be made straightaway without the
client first phoning the helpline.
25. The Government has decided that the telephone helpline should be the
mandatory single gateway for applying for legal aid and has decided that
to begin with this will extend to only four areas of law. The Government
will review the implementation of the mandatory single gateway for
applying for legal aid in these four areas of law and use the outcome of
this review to determine whether the mandatory single gateway should be
expanded to other areas of law in due course.
26. The four initial areas of law are:
– debt (insofar as it remains in scope);
– Special Educational Needs cases;
– discrimination cases (claims relating to a contravention of the
Equality Act 2010);
– community care.
27. The Government is confident that implementing the telephone gateway in
the limited areas of law will enable better monitoring of the impact on
clients and providers in order to inform future decisions regarding any
potential further expansion of the gateway.
166 Reform of Legal Aid in England and Wales Government Response
28. In selecting the areas of law most appropriate for this initial stage of the
mandatory single gateway we have considered:
– whether there was any increased risk within each area of law of
clients’ needs not being met by a telephone service;
– the likely frequency of the need for Legal Representation
60
or
Controlled Legal Representation
61
in an area of law;
– the likely frequency of emergency cases in the area of law;
– whether the existing Community Legal Advice (CLA) helpline service
had any previous experience of delivering advice in the area of law.
29. For all these areas of law, we believe that it would generally be unusual
for clients to require Legal Representation, Controlled Legal
Representation or emergency advice. In addition, whilst we recognise that
all problems can be sensitive to the individual client, we believe that the
issues covered by the areas of law we have chosen are less likely to
present particular concerns when compared with other case types such
as domestic abuse or asylum cases, which were specifically raised as a
concern by many respondents.
30. The existing CLA service already provides advice in debt and education
cases, including Special Educational Needs and advice in claims under
the Equality Act 2010 across all the areas of law currently available, in
particular employment and education. The service does not presently
offer advice in community care but we believe that there are few reasons
arising from the nature of the cases currently funded by legal aid as to
why advice could not be delivered via the telephone.
31. The Government recognises that when compared with the other areas of
law chosen for the gateway there may be an increased proportion of
clients with community care problems who could fall within the groups of
clients with particular needs, and for whom telephone advice may be
inappropriate. However, we believe that the potential opportunities that
the gateway presents for streamlining the process for accessing help, the
consistency of services available to support people with specific needs,
and the safeguard that all clients will be assessed to determine whether
face-to-face advice would be more appropriate and referred on as
necessary will mitigate this.
32. As soon as it becomes clear that a caller requires Legal Representation
or Controlled Legal Representation they will be given the option of
seeking advice from a face-to-face advice provider.
60
See footnote 22 above.
61
Ibid.
167 Reform of Legal Aid in England and Wales Government Response
33. The provider of the gateway Operator Service will continue to be required
to meet appropriate quality standards. Currently they are expected to
meet the Community Legal Service (CLS) General Help Quality Mark and
the overall CLA service has achieved the Customer Service Excellence
standard.
34. The provider of the gateway Operator Service will also continue to be
required to ensure that all call operators have completed an adequate
induction programme before answering any live calls. The current
Operator Service contract specifies the initial training required and the
standard of individual performance required. This includes specific
training for dealing with callers with particular needs, and conducting the
means assessment. The operators do not simply follow a script but must
be able to demonstrate that they can identify key words or issues from a
client’s description of a problem to ensure an accurate diagnosis of their
legal problem. They are also expected to understand the different areas
of law, including those areas within each category where a Specialist
Telephone Advisor is able to advise. Additional specific training will be
required to ensure that Operators are able to determine which matters are
within the scope of legal aid.
35. Where an operator is in any doubt about whether a caller’s problem is in
scope, whether telephone advice is appropriate, or whether the caller is
financially eligible for legal aid, he or she will be referred to a specialist
advisor. The gateway operators will not offer the callers any advice
specifically tailored to their circumstances so legal qualifications will not
be a contractual requirement.
36. The current Operator Service provider is required to carry out routine call
monitoring, assessment and performance management. This includes the
regular review of calls by CLA specialists and these requirements will
continue to be included within the contract for the future gateway operator
service. The LSC will continue to monitor the performance of all contract
holders appropriately.
37. With regard to the screening of callers, the gateway operator will continue
to be expected to explore the caller’s problem to a level sufficient to
effectively refer the caller onto a suitable specialist legal advisor. Where
they have any concerns about a caller’s welfare they will be expected to
highlight this to the specialist telephone advisor and to follow relevant
protection policies (for example, the child protection policy). The gateway
provider will also continue to be expected to provide adequate training to
equip call operators to identify risks and support clients with specific
needs, including victims of abuse.
38. The gateway will continue to complete an initial financial assessment of
eligibility. Where they are assessed as eligible, callers will still need to
provide evidence of their identity (or for the person on whose behalf they
are calling) and means to both face-to-face and specialist telephone
advice providers. Some respondents were concerned that providing such
evidence to a phone service would be difficult. At present clients must
168 Reform of Legal Aid in England and Wales Government Response
submit evidence of means, usually by post, to the specialist telephone
advice provider. However, clients can receive up to two hours of advice
before this evidence is submitted. A sample of specialist provider files are
regularly audited to ensure that the rules are being applied appropriately
and action taken if they are not. The Government recognises that this is a
different approach to the one used for face-to-face advice providers who
must ensure that clients provide evidence of means before giving advice.
However, it ensures that telephone clients can access advice without
delay. It will not be the responsibility of the gateway operator service to
conduct the conflict of interest test (which will be undertaken by the
specialist telephone or face-to-face advice provider).
39. The Government firmly believes that a good quality service is offered
through the existing CLA helpline and that face-to-face contact is not
critical to providing a good quality service. Where the telephone service
operators or specialists believe that they cannot provide a quality service
without face-to-face contact they will refer callers to a suitable face-toface advice provider.
40. The Government agrees with respondents that there is some benefit to a
client receiving advice from an organisation with which they have past
experience and with whom they have already developed a relationship.
Where a caller has previously been advised by a specific CLA provider
within the last twelve months and makes a request to speak to them
again for a new issue, this will be accommodated, where possible.
Similarly the gateway will seek to accommodate reasonable requests by
callers to speak to specific types of CLA advisors, for example where a
female caller would prefer to speak to a female advisor.
41. Some representative bodies suggested that there will be lack of client
choice, which will breach article 6 of the ECHR. article 6(3)(c) of the
ECHR provides that everyone charged with a criminal offence has rights
including the right “to defend himself in person or through legal assistance
of his own choosing”.
42. The mandatory single gateway and access to specialist legal aid advice
services over the telephone will apply to civil cases rather than criminal
cases. Where it is determined that face-to-face advice would be more
appropriate for the caller they will be given a choice (where possible) of
face-to-face advice provider either from a list of suitable advice providers
or a specific suitable provider known to the client. Where a client has
previously been assessed by the gateway as requiring face-to-face
advice, having seen a specific advice provider within the last twelve
months and they would like further assistance from the same provider for
a linked problem the client will be exempted from the need to access this
advice initially via the gateway.
43. The Government does not believe that there will be any significant delay
to an individual receiving the help they need, or any increased
bureaucracy caused by the introduction of the gateway. In some cases
(for example, where a client does not know which provider will be able to
169 Reform of Legal Aid in England and Wales Government Response
help) we believe that telephone advice is likely to be quicker, even where
a referral to a face-to-face provider is required. The Government believes
that the diagnostic and routing service offered by the gateway will be of
value to many.
44. During any initial implementation there may be some circumstances
where clients may first attempt to access advice through a face-to-face
advice provider rather than directly through the gateway. We will work
closely with existing providers to communicate the actions to be taken in
these circumstances. The Law Society included a case study regarding
an instance where a child with an urgent case was referred to a telephone
specialist initially. Ultimately the client was referred to a face-to-face
provider but there was a concern that there was a delay in their receiving
the help that they needed. Given the facts of the case the client should
have been referred to a face-to-face provider at the earliest opportunity.
We are satisfied that occurrences of this nature are rare within the current
service and (as set out above) children will be exempt from the requirement
to first contact the CLA helpline in order to apply for civil legal aid.
45. The clarification issued on 7 January after the consultation was
published
62
made it clear that people with emergency cases will not be
required to access services through the gateway. We have considered
the views expressed in the consultation responses regarding a definition
of ‘emergency cases’. Many of the consultation responses suggested that
the definition of emergency cases should include many matters which we
have decided to exclude for now from mandatory single telephone
gateway, such as private family law cases involving domestic violence.
Taking into account the range of responses, as well as the current
definition of emergency cases in the LSC’s Funding Code, we have
decided that the ‘emergency cases’ exception should include the
following circumstances:
‘A client needs Legal Representation or Controlled Legal Representation
and
i) there is a need for an urgent injunction or other emergency judicial
procedure and the advisor will be required to represent the client in
person, either at a court, tribunal or other location for procedural
reasons; and
ii) there is an imminent risk to the life, liberty, or physical safety of the
client or his/her family or the roof over their heads; or
iii) any delay will cause a significant risk of miscarriage of justice, or
unreasonable hardship to the client or irretrievable problems in
handling the case and there are no other appropriate options to deal
with the risk.’
Reform of Legal Aid in England and Wales: the Government Response Part 22
Posted by admin
This is Part 22 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.
155 Reform of Legal Aid in England and Wales Government Response
Key issues raised
58. Many respondents, including members of the judiciary, argued that the
programme of reform, and in particular the scope changes, would lead to
an increase in the numbers of litigants without representation “litigants-inperson” representing themselves in court, and that this would have a
negative impact on the conduct and outcome of proceedings.
The Government response
59. In the consultation paper we undertook to review the research available
on litigants-in-person, and their impact on the conduct of and outcome of
proceedings. The Government has completed its review, which we have
published separately today.
56
60. The review found some good quality evidence, however it was limited. In
addition, much of the evidence was also from outside the UK and so is
not based on our justice system. The findings therefore provide useful
indicators of the types of motivations, problems encountered and
outcomes for litigants-in-person rather than conclusive evidence of these.
Who are litigants-in-person and what are their motives –
61. The research highlights that the term “litigants-in-person” covers a wide
range of situations. Individuals without representation may have received
varying degrees of legal advice; may have chosen to litigate or had claims
brought against them. In addition they may or may not have participated
in proceedings. The main research looking at England and Wales
remains the 2005 study conducted on behalf of the then Department for
Constitutional Affairs, Litigants in Person: Unrepresented Litigants in First
Instance Proceedings. This found that litigants-in-person were common in
civil and family cases. However many unrepresented litigants, particularly
in civil cases were inactive. While the review aimed to focus on active
participants, it was not always possible to differentiate between these
groups in the evidence.
62. While inability to afford a lawyer or lack of legal funding were identified as
reasons why parties were unrepresented, there were other reasons.
These included believing the matter was simple enough to handle on their
own, that it was unnecessary in some types of proceedings to require
legal representation and dissatisfaction with lawyers.
63. Respondents to question 6 (or to the questions on scope) suggested that
the proposals would increase the number of litigants-in-person, that cases
would take longer and that those involved would have worse outcomes.
However, the evidence provided by respondents was either anecdotal or
based on the 2005 study.
56
See footnote 19 above.
156 Reform of Legal Aid in England and Wales Government Response
Impact of litigants-in-person on case outcomes
64. The evidence from the evidence review on the impact of litigants-inperson on case duration was mixed. This was affected by the case type
and how active the litigants were. It suggested that cases took longer
when the unrepresented litigant was active but could take less time when
the litigant was inactive.
65. A number of studies investigated assistance for litigants-in-person,
presenting positive findings on litigant and court staff satisfaction where
such assistance was received. We know little about the impact of such
assistance on case outcomes however.
66. Our review found that litigants-in-person could face problems in court,
such as understanding evidential requirements. It also suggested
participants could find the oral and procedural demands overwhelming.
Research with court staff, the judiciary and other parties’ representatives
suggested they felt compensating for these difficulties created extra work
for them.
67. The weight of the evidence indicates that lack of representation
negatively affected case outcomes. There were indications that in some
cases specialist lay representatives were as effective as legally qualified
representatives. The report highlighted that we do not know how the
quality and longevity of outcomes compare for litigants-in-person to those
who are represented.
68. The review does suggest there may be adverse impacts on outcomes for
litigants-in-person but it is not always certain whether this was due to lack
of representation or case complexity. The evidence from the review does
not conclusively prove whether outcomes for people who subsequently
represent themselves as a result of these reforms will be worse than they
would have been if they were represented. However the Government
does accept, even if there is no conclusive evidence of this, the likelihood
of an increase in volume of litigants-in-person, and potentially some
worse outcomes for them materialising. But it is not the case that
everyone is entitled to taxpayer funded legal representation for any
dispute or to a particular outcome in litigation. Our new exceptional
funding scheme will mean that no one will be deprived of their
fundamental rights of access to justice. Taxpayer funded representation
has had to be targeted on priority areas.
69. Litigants-in-person are a feature of the current justice system. Some
people choose not to be legally represented because they consider it
unnecessary or that they can do a better job themselves, and others, who
may fail to qualify for legal aid on either means or merits grounds, may
feel that they are unable or unwilling to pay for representation.
157 Reform of Legal Aid in England and Wales Government Response
Current assistance available to litigants-in-person includes:
70. As has been mentioned previously litigants-in-person are a current aspect
of the justice system and there is assistance available which will continue.
Examples of the assistance (and other options available) available
includes:
– the simplification of court documents where this is possible, for
example, the simplification of divorce forms completed in April. Court
forms are available on DirectGov and from the courts;
– making guides available through DirectGov and the courts. For
example, MoJ will shortly produce a written guide in relation to
disputes between parents about the arrangements for children
following divorce or separation. This will be available through
DirectGov and the courts;
– assistance given by court staff and judges on procedures;
– additional help for those who have particular needs, for example the
availability of sign language in court;
– the principles set out in Court of Appeal decisions
57
that a litigant
who is not legally represented has the right to have reasonable
assistance from a layperson, sometimes called a ‘McKenzie Friend’;
– online forums offering support;
– low cost legal services such as on-line help to complete court forms
for a specified cost;
– increased availability of legal expenses insurance.
71. As noted above the existing system provides some assistance to litigantsin-person and we are committed to improving the system further.
72. The Government is not complacent about the risks to outcomes for
litigants in person. 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, provide
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, exceptional funding will be available. As necessary
access to justice is protected by exceptional funding, taxpayer funded
representation has to be targeted on priority areas.
57
McKenzie v McKenzie [1970] 3 All ER 1034, R v Leicester City Justices ex parte Barrow &
ors, [1991] 3 All ER 935, R v Bow County Court, ex parte Pelling [1999] 4 All ER 751.
See also Collier v Hicks (1831) 2 B & Ad 669.
158 Reform of Legal Aid in England and Wales Government Response
73. We will continue to provide assistance to litigants-in-person, such as that
mentioned above. However, the Government will encourage the use of
alternatives to court to avoid the need for people to represent themselves.
Maintaining legal aid for family mediation will provide an incentive for
parties to pursue that route. 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.
74. However, the Government recognises that further examination of the
system to support litigants-in-person is required and we intend to review
this issue.
159 Reform of Legal Aid in England and Wales Government Response
Annex D: Community Legal Advice Telephone Helpline
Introduction
1. In the consultation paper, we asked five questions about three proposed
changes to the future provision of advice and information services by
telephone. The three proposed changes were:
– Proposal 1: Establish the Community Legal Advice (CLA) helpline as
the mandatory single gateway to civil legal aid services for all areas
of law remaining in scope.
– Proposal 2: Expand the range of areas of law for which specialist
advice is offered through the CLA helpline to cover all areas
remaining in scope.
– Proposal 3: Offer callers who are ineligible or who are out of scope
access to a paid-for advice service through the Community Legal
Advice (CLA) helpline.
2. On 7 January 2011 the Government published a document entitled:
Provision of advice and information services by telephone: clarification
and background.
58
The document clarified that clients would not be
required to first ring the helpline in emergency cases and asked for views
on what would constitute an emergency case.
3. The Community Legal Advice helpline currently provides legally aided
advice and information in a number of areas of law. It is not currently
mandatory to use this helpline in order to access civil legal aid advice
services.
Establish the Community Legal Advice (CLA) helpline as the
mandatory single gateway to civil legal aid services
4. The consultation asked:
Question 7: Do you agree that the Community Legal Advice helpline
should be established as the single gateway to access civil legal aid
advice – Please give reasons.
Question 9: What factors should be taken into account when devising the
criteria for determining when face-to-face advice will be required –
Question 10: Which organisations should work strategically with
Community Legal Advice and what form should this joint working take –
58
See footnote 20 above.
160 Reform of Legal Aid in England and Wales Government Response
5. There were 1,956 responses to question 7. 69 (4%) agreed with the
proposal, 1,690 (86%) disagreed, and 197 (10%) neither agreed nor
disagreed. 1,365 respondents provided views sought in question 9, and
931 respondents made suggestions in response to question 10.
6. Responses on these questions came from a wide range of organisations,
including representative organisations, legal practitioners, and not-forprofit advice organisations. There was strong opposition to this proposal
for a mandatory single gateway across most of the responses. The
mandatory single gateway means that if a person wants legally aided
advice in a particular area of law the person will be required to telephone
the helpline in order to apply for legal aid.
59
Key issues raised in consultation
7. Access to Justice and the importance of face-to-face contact: a
widely held view was that a mandatory single telephone gateway would
restrict access to justice for those clients who would have difficulty using
a telephone based service. This could lead to some clients failing to take
action to resolve their problems. These included the following examples:
i) people who did not have easy access to a telephone (particularly a
landline);
ii) people who did not have the necessary privacy to make the call
including situations where the client was detained or lived in
residential care;
iii) people with communication difficulties, including callers who did not
speak English, had low levels of literacy, or people who lacked the
ability to express themselves or understand information given by
telephone;
iv) people who could not afford the cost of the call or would have
problems accessing call back services. Many respondents also
pointed out that call costs for mobile ‘phones can be considerably
higher than for landlines;
v) people with multiple or particularly complex problems which could be
more difficult for advisors to handle over the telephone;
vi) people with problems where the subject matter is particularly
sensitive or where they need additional emotional support;
Reform of Legal Aid in England and Wales: the Government Response Part 21
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55
Ibid.
143 Reform of Legal Aid in England and Wales Government Response
Conclusion
134. For the reasons set out in Annex A, and above, the Government intends
to retain within and remove from the cope of legal aid the following cases
and proceedings:
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 Education 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;
144 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.
135. In addition, the rule bringing back into scope any case of wider public
interest will be abolished.
145 Reform of Legal Aid in England and Wales Government Response
Annex C: Other reforms to the scope of legal aid
Introduction
1. This section considers responses to the consultation proposals on interim
lump sum orders, exceptional funding, the merits test, and litigants-inperson.
Interim lump sum costs orders to fund legal services in ancillary
relief proceedings
2. The consultation asked:
Question 2: Do you agree with 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 –
3. There were 1,417 responses to this question. 1,090 (77%) supported the
proposal, 265 (19%) disagreed, and 62 (4%) neither agreed nor
disagreed.
Key issues raised in consultation
4. Responses on this question were mainly from legal practitioners, and
while the majority supported the proposal, many pointed out 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 are 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 were 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;
146 Reform of Legal Aid in England and Wales Government Response
– 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 was a better mechanism for
funding, and better enforcement of the statutory charge could ensure
that the LSC recouped its expenditure;
– there was potentially unfairness in making orders for costs before the
issues at stake were 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;
– some consultation responses called for interim lump sum orders to
apply in Schedule 1 Children Act 1989 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 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
5. 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.
6. The Government considers that many of the issues that would arise in
applications for and enforcement of interim lump sum orders would be
akin to those that arise in ancillary relief cases themselves. For this
reason, we have decided that applications for interim lump sum orders
will not be in scope for legal aid.
7. We consider that giving the Court this power will encourage parties to
settle disputes between themselves and help to address the potential
unfairness that might arise if a party of greater means seeks to draw out a
dispute in the knowledge that the other side cannot afford the same level
of legal representation. It will be for the Court to consider whether it is
appropriate to make an interim lump sum order, taking into account the
circumstances of the case.
8. Amending court powers to enable the Court to make interim lump sum
orders for other purposes such as accommodation would not meet the
objective behind the proposal in the consultation: namely to address the
financial imbalance of the parties which may disadvantage one party in
the proceedings. It would also extend beyond the remit of the
consultation.
9. This new power would codify the operation of powers already used by the
courts in ancillary relief proceedings to make provision for legal costs as
part of maintenance pending suit. It would also extend it so as to allow for
147 Reform of Legal Aid in England and Wales Government Response
lump sums, but not so as to allow for such orders to be made outside the
context of ancillary relief. The courts have not in the past made provision
for costs as part of interim maintenance in disputes about financial
provision for children, and the Government is not persuaded that these
new powers should be available outside the ancillary relief context.
10. For the reasons set out above, the Government has decided that:
– the proposed changes to courts’ powers to make interim costs orders
in ancillary relief cases should be implemented;
– these powers should not be available for purposes other than for
legal costs, or in disputes about financial provision for children
outside an ancillary relief context; and
– applications for interim lump sum orders and their enforcement
should not be in scope for legal aid.
Exceptional funding
Introduction
11. The consultation asked:
Question 4: Do you agree with the Government’s proposals to introduce a
new scheme for funding individual cases excluded from the proposed
scope, which will only generally provide funding where the provision of
some level of legal aid is necessary to meet domestic and international
legal obligations (including those under the European Convention in
Human Rights) or where there is a significant wider public interest in
funding Legal Representation for inquest cases.
12. There were 1,506 responses to this question. 641 (43%) agreed with the
proposal, 720 (48%) disagreed and 145 (10%) neither agreed nor
disagreed.
13. There was general agreement among respondents that the UK must fulfil
its legal obligations, and that an exceptional funding scheme is better
than no legal aid provision at all. However, more respondents did not
support the proposal to change the existing exceptional funding scheme,
and objected to the narrowing of the funding criteria. A minority expressed
support or qualified support for the proposals.
Issues raised – underlying rationale for proposals
14. Most respondents opposed the proposed scope restrictions, and this set
the background for a significant number of responses about exceptional
funding.
15. Shelter Cymru argued that the scope proposals would result in a loss of
provider expertise, making it more difficult for clients to find experienced
practitioners who can identify and progress important exceptional cases.
148 Reform of Legal Aid in England and Wales Government Response
16. Some respondents (including the Public and Commercial Services Union
and the Public Law Project) disagreed with the idea that exceptional
funding should be provided only on a minimal basis to comply with the
Government’s legal obligations. The North Eastern Circuit argued that
legal obligations will change over time, and that there will be backlogs of
cases in the European Court of Human Rights as a result.
17. A range of respondents, including the Law Society, argued that proposals
for a narrow exceptional funding scheme would preclude the funding of
other deserving cases. The Bar Council and others argued that, in many
cases, clients will be unable to obtain Conditional Fee Agreements
(CFAs) because of their fundamentally commercial nature, and because
of costs recovery issues.
18. A range of respondents (including the Discrimination Law Association, the
Immigration Advisory Service and Young Legal Aid Lawyers) argued that
cases which the Government is legally obliged to fund should not be
treated as exceptional.
The Government response
19. The Government recognises that many consultees have concerns about
the proposed scope restrictions and their implications for exceptional
funding. We are aware of consultees’ concerns that the new exceptional
funding scheme should extend to the funding of excluded cases which
are meritorious but do not engage our legal obligations to provide legal
aid: for example, those cases having an overwhelming importance to the
client or which have a significant wider public interest. However, as the
consultation document stated, the scope proposals were designed to take
into account some of the considerations included in the current
exceptional funding criteria. The areas of law which will be retained in
scope reflect those that are more likely to include cases featuring these
characteristics. For example, we have retained funding for cases
involving the client’s life, liberty, physical safety or homelessness as well
as for categories of law in which cases genuinely have the potential to
yield significant wider benefits to the public.
20. The Government recognises that some consultees are concerned that
individuals will not be able to take advantage of CFA for excluded cases.
We consider that, where a CFA is available for an excluded case,
exceptional funding should not be provided. All legal aid applications, for
both in-scope and excluded cases, will be subject to the civil legal aid
merits test, which will consider the availability of alternatives to legal aid.
Where the merits test is met, the exceptional funding criteria are met, and
a CFA is not available, exceptional funding will be provided.
21. The Government recognises that some consultees have raised concerns
about maintaining a sufficient pool of legal aid practitioners with suitable
experience and expertise. Market sustainability is considered in more
detail in Annex F, but part of the Government’s approach to ensuring a
sustainable market in legally aided services includes the development by
149 Reform of Legal Aid in England and Wales Government Response
the Ministry of Justice (MoJ) and the Legal Services Commission (LSC) of
a client and provider strategy.
22. In the longer term, the Government intends to introduce competition for
legal aid services, as was proposed in Lord Carter’s review during 2006.
Initially, we intend to introduce competition in the procurement of criminal
legal aid services. We intend to consult on the detailed proposals later in
the year. Subsequently, we intend to introduce competition into the
procurement of civil and family services.
Key issues raised in consultation: exceptional funding criteria
23. A small number of respondents, including the Judges’ Council of England
and Wales, suggested that the exceptional funding criteria should be
relaxed rather than tightened, because of the scope proposals.
24. A more widely held view (reflected in the responses of the Bar Council,
the Child Poverty Action Group, the Council of HM Circuit Judges and
Shelter, inter alia) was that the existing criteria should be retained, as
they provide valuable flexibility for funding deserving cases.
25. A number of respondents (including the Association of Child Abuse
Lawyers, the Bar Council and Citizens Advice) argued that public interest
cases are a proper and necessary use of public funding which develop
the rule of law and prevent similar claims from being contested.
26. The North Eastern Circuit held that it would be inconsistent to fund
hospital death inquests on Significant Wider Public Interest (SWPI)
grounds, but not clinical negligence cases where a child has been
seriously damaged by hospital failings.
27. A small number of respondents (including Action Against Medical
Accidents, the Education Law Association and the Social Security
Practitioners Association) stated that the current scheme rarely grants
exceptional funding for certain case types, and that tightening the funding
criteria would increase difficulties in obtaining effective access to the
courts.
28. A range of respondents (including the Disability Law Service, the Law
Centres Federation and the Law Society) argued that the new scheme
must take account of the client’s capacity to represent themselves,
particularly in complex cases. The Law Society also stated that
exceptional funding should be provided where clients cannot fund the
necessary experts’ reports. They also suggested that clients who would
be financially ineligible for legal aid under the means proposals would
claim that they are denied effective access to the courts if they cannot
obtain exceptional funding.
150 Reform of Legal Aid in England and Wales Government Response
Key issues raised: specific category issues
29. Clinical Negligence: some respondents said that the new scheme must
grant exceptional funding for the most serious clinical negligence claims
(Forum of Complex Injury Solicitors). Respondents also said that
exceptional funding will not provide a safety net for these cases, and it
would be futile if the funding test requires the solicitor “to produce a
complement of reports to show the case had merit” (Action Against
Medical Accidents).
30. Welfare Benefits: respondents argued that the introduction of the
universal credit will lead to a number of Upper Tribunal cases to clarify
the new rules. These will require legal representation (Child Poverty
Action Group). If clients cannot get funding, only the Department for Work
and Pensions (DWP) will be able to advance legal arguments in welfare
benefits cases (Social Security Law Practitioners Association).
31. Family: respondents said that article 6 issues will arise in many family
matters, including finance cases, and urgent family issues cannot wait for
exceptional funding decisions to be resolved (Resolution). Many family
cases will require exceptional funding on article 8 ECHR grounds (many
solicitors and barristers).
32. Immigration: respondents suggested that overwhelming importance to
the client be retained and taken to include the right to remain in the UK
where a disproportionate breach of article 8 or other European Union law
may otherwise occur (Immigration Advisory Service).
33. Housing: respondents said that exceptional funding should cover rehousing cases that are likely to progress to judicial reviews (Association
of Women’s Solicitors).
34. Business Cases: significant wider public interest cases should be
retained, but refined to exclude business cases specifically (Social
Security Law Practitioners Association).
The Government response
35. The Government recognises that some consultees are concerned that
funding should be available for excluded cases which require legal aid in
order to meet our legal obligations. The new exceptional funding scheme
has been designed to 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.
36. The Government acknowledges that many consultees are keen to retain
the existing exceptional funding criteria. However, as the consultation
document explained, the Government has factored significant wider
public interest considerations into the scope proposals. The Government
considers that individual cases that genuinely have the potential to yield
significant wider benefits to the public are most likely to arise in
151 Reform of Legal Aid in England and Wales Government Response
categories of law which will be retained in scope (for example, claims
against public authorities). In addition, the Government has prioritised
cases which concern life, liberty, physical safety or homelessness. The
Government therefore considers that the new exceptional funding
scheme will not require the ‘overwhelming importance to the client’
criterion or the ‘significant wider public interest’ criterion for non-inquest
cases.
37. The Government recognises that some consultees are concerned that the
new scheme should take account of the individual client’s capacity, as
well as the complexity of the case. The requirement to consider these
factors is well established in case law on article 6 ECHR, and is reflected
in the ‘Jarrett complexity’ criterion which is part of the existing exceptional
funding scheme. Exceptional funding decisions will continue to take
account of these factors, among others.
38. The Government acknowledges that some consultees believe that it
would be inconsistent to retain ‘significant wider public interest’ as a
funding criterion for inquest cases but not for clinical negligence cases.
However, the Government considers that inquests, by their very nature,
are concerned with different issues than clinical negligence claims or any
other civil litigation and that the nature of the proceedings in inquest
cases is unique. In the Government’s view, providing exceptional funding
in certain inquests where the ‘significant wider public interest’ criterion is
met may help to prevent future deaths. The ‘significant wider public
interest’ criterion will be retained for inquest cases only.
Key issues raised: scheme operation and cost implications
39. A number of respondents (including the Council of HM Circuit Judges, the
Law Society, the Legal Action Group and Liberty) argued that exceptional
funding decisions must be made independently, particularly for cases
brought against the Government. It was also suggested that the judiciary
could have a role to play in recommending funding in particular cases.
40. Action Against Medical Accidents and Citizens Advice asked how the
Government’s human rights obligations would be determined in practice.
41. A small minority of representative groups (including the Bar Council Civil
Legal Aid Sub-Committee) expressed concern that the number of cases
qualifying for exceptional funding would be very low, especially compared
with the volume of cases that would be removed from scope.
42. The converse view – that so many cases would require exceptional
funding that it would become routine – was much more widespread
among respondents, who also raised issues about the practicalities of the
process. A wide range of groups (including EAGA plc, the Equality and
Human Rights Commission and the Law Society) stated that the new
exceptional funding scheme would be inundated with applications
(including those from litigants-in-person) and expressed concerns about
152 Reform of Legal Aid in England and Wales Government Response
bureaucracy, costs, delays, staffing and the handling of urgent
applications.
43. A number of respondents (including the Immigration Law Practitioners’
Association, the Judges’ Council of England and Wales and Shelter) were
concerned about satellite litigation stemming from exceptional funding
decisions, and the potential costs for legal aid and the wider justice
system.
44. A range of respondents (including the Bar Council Civil Legal Aid SubCommittee, the Law Centres Federation and the Legal Aid Practitioners
Group) expressed concerns about Legal Help. It was argued that clients
would require Legal Help to apply for exceptional funding, and that the
funding of Legal Help itself under the new scheme would mean that the
fixed fee sought would be exceeded by the cost to the provider in many
cases.
45. A wide range of groups (including the Bar Council, the Law Society and
the Legal Action Group) argued that the details of the new exceptional
funding scheme should be subject to a further consultation. In addition,
some respondents argued that the types of case which would
automatically qualify for funding should be clearly set out.
The Government response
46. Many consultees raised issues about the volume of exceptional funding
applications that might be received under the new arrangements, and the
time that would be required to process these applications. The new legal
aid agency will be processing all legal aid applications (for both in-scope
and excluded cases). The Government envisages that the process will
therefore be simpler and more streamlined than under the existing twostage exceptional funding scheme. Currently, all exceptional funding
applications are dealt with by the LSC in the first instance. While the LSC
has delegated powers to authorise funding for certain inquest cases, all
other individual cases where the LSC considers that exceptional funding
is justified are passed to MoJ for a final decision.
47. The Government understands that some consultees are concerned about
the independence of the decision-making process under the new
exceptional scheme. The Government intends that decisions on the
funding of individual cases, including cases funded through the
exceptional funding mechanism, will be taken by the Director of the new
legal aid agency, subject to criteria and guidance issued by Ministers.
Ministers will be prevented by statute from giving the Director directions
about funding in an individual case. In the Government’s view, this
achieves the appropriate level of independence in decision making on
individual cases.
48. The Government recognises that consultees are keen to know about the
details of the new exceptional funding scheme. Full details of the
operation of the scheme will be published in due course.
153 Reform of Legal Aid in England and Wales Government Response
49. The Government acknowledges the points raised by consultees about
satellite litigation. The Government anticipates that the volume of
exceptional funding applications received will increase significantly under
the new scheme, at least in the short term. In addition, it is likely that
clients who are refused exceptional funding under the new scheme will
seek to test the boundaries of the scheme through judicial reviews, which
will be retained within the scope of legal aid.
Conclusion
50. The Government has carefully considered all the arguments raised by
respondents, including the individual respondents and the representative
bodies referred to above. The Government has decided that the existing
exceptional funding scheme should be replaced with a more narrowly
drawn 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, and that consequently:
– the current “significant wider public interest” exceptional funding
criterion will be retained for inquest cases but abolished for noninquest cases; and
– the current “overwhelming importance to the client” exceptional
funding criterion will be abolished for non-inquest cases.
Merits test: availability of alternative sources of funding
Introduction
51. The consultation paper asked:
Question 5: Do you agree with the Government’s proposal to amend the
merits criteria for civil legal aid so that funding can be refused in any
individual case which is suitable for an alternative source of funding, such
as a Conditional Fee Arrangement -
52. There were 1,285 responses to this question. 387 (30%) agreed with the
proposal, 764 (59%) disagreed and 134 (10%) neither agreed nor
disagreed.
Key issues raised in consultation
53. The respondents in general recognised that where alternative sources of
funding are available this should be the first port of call. Key issues raised
by the respondents were as follows:
– it was not clear how ‘suitable’ would be defined and on what criteria
the LSC would base their decision. They queried whether funding
would be available if, for example, the case was suitable in theory for
funding on a CFA but not in practice, or if a case was refused by one
154 Reform of Legal Aid in England and Wales Government Response
– 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 (Law Society) acknowledged that it is 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 under a CFA, following implementation of Sir Rupert
Jackson’s recommendations, is going to be less likely and solicitors
will be less inclined to take on meritorious but riskier cases than they
are now.
The Government response
54. In general, there was no objection to alternative forms of funding being
explored. In disagreeing with the consultation proposal, the points that the
respondents raised were mainly about the criteria that the LSC will apply
to establish whether the individual case is suitable for an alternative form
of funding. The LSC already has a power to refuse legal aid on this basis,
and we do not therefore consider that the practical objections are
significant.
55. For these reasons, the Government has decided that the merits criteria
should be amended as set out in the consultation paper so that funding in
any individual case can be refused if it the case is suitable for an
alternative source of funding.
Litigants-in-person
Introduction
56. In the consultation document we asked:
Question 6: We would welcome views or evidence on the potential impact
of the proposed reforms to the scope of legal aid on litigants-in-person
and the conduct of proceedings.
57. 1,665 respondents offered suggestions on the likely impact litigants-inperson would have.
Reform of Legal Aid in England and Wales: the Government Response Part 20
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Key issues raised
103. Respondents were generally opposed to this proposal. The not-for-profit
sector was particularly concerned, but their views were shared by others
such as the judiciary and representative organisations of the legal
profession. Key points made by respondents were:
– respondents (particularly advice agencies) argued that these cases
were not about financial entitlement but about access to minimum
subsistence payments on which to live;
– welfare benefits legislation was extremely complex, and individuals
could not deal with these cases without assistance, and would not
realise there were tight time limits to appeal;
– appellants seeking incapacity or disability related benefits would
need access to expert medical reports to win their case and that
Legal Help paid for these reports as well as legal advice;
– respondents (including the judiciary) said that without early advice
many cases would be brought which should not be brought, and
other cases would not benefit from preparation leading to additional
tribunal costs;
136 Reform of Legal Aid in England and Wales Government Response
– lack of advice on welfare matters would mean people getting into
eviction or repossession proceedings, which would have an adverse
impact on individuals and would also cost more through housing
legal aid;
– cases of “significant wider public interest” should be retained;
– the forthcoming changes to the benefits system would mean that the
need for advice would greatly increase;
– tribunals will spend more time taking oral evidence if advice agencies
and lawyers are unable to help clients structure their submissions
with relevant evidence.
The Government response
104. The Government accepts that there are some difficult cases brought
before the tribunal concerning the complex interaction between, for
example, entitlement to benefits and nationality issues. These cases are
typically ones where legal aid currently provides representation through
the exceptional funding scheme. We do not consider that most cases
before the tribunal are this complex. Cases range in importance from
entitlement to subsistence benefits, to overpayment cases, but even so
we generally consider that the importance of these cases is low when
compared to safety, liberty or homelessness cases.
105. We recognise that benefits issues can have a knock-on impact on
homelessness, but we consider that our approach to prioritise cases
where there is a direct and immediate risk of homelessness is rational
and appropriate. Funding will be retained for homelessness matters but,
for benefits cases, the accessible and relatively user-friendly nature of the
tribunal means that applicants can generally present their case without
legal assistance. Whilst we acknowledge that respondents have told us
that other sources of advice, particularly the voluntary sector, may not be
able to meet the demand for welfare benefit services because of factors
such as local authority cuts, it remains the case that Job Centre Plus and
the Benefits Advice line will continue to be available to assist applicants.
For several years, reports by the President of the Appeal Tribunals have
shown that most welfare benefits decisions are overturned on the basis of
new factual evidence obtained orally from the appellant, rather than legal
submissions.
106. For these reasons, our intention is that these cases should be excluded
from scope, except for judicial review and claims relating to a
contravention of the Equality Act 2010.
Asylum Support
107. Legal aid is available for legal advice for applications for asylum support
under sections 4 and 95 of the Immigration and Asylum Act 1999. These
applications can be for accommodation, financial assistance, or both, for
otherwise destitute asylum seekers and their dependents, or failed
asylum seekers and their dependents.
137 Reform of Legal Aid in England and Wales Government Response
108. In the consultation, we proposed excluding these cases from scope, on
the basis that they were analogous to other welfare benefits cases.
Key issues raised
109. Respondents argued that asylum seekers were vulnerable, would need
assistance in making applications (particularly where English was not
their first language), and that if advice were unavailable, very vulnerable
individuals could be left homeless and destitute without recourse to any
form of support. They also argued that these cases were more analogous
to homelessness cases.
The Government response
110. The Government recognises that what is at stake in these applications is
often not entitlement to money, but provision of housing for otherwise
destitute asylum seekers. While applications can be for subsistence
payments, data from the UKBA shows that 90% of these applications
cover applications for accommodation. Therefore, the large majority of
these cases are closely analogous to the local authority housing cases
we intend to retain within scope (i.e. cases under Part VII of the Housing
Act 1996 covering the statutory duties of local authorities to house
homeless individuals).
111. For these reasons, we intend to retain legal aid for advice for asylum
support cases which concern applications for accommodation for
destitute asylum seekers. Asylum support applications which only
concern financial support will be excluded from scope, in line with other
welfare benefits matters.
Miscellaneous (areas to remove)
112. Legal aid is available for legal advice and representation for a range of
other matters which do not fall within the scope of other categories and
the consultation document proposed removing some of these from scope.
These cases relate to appeals to the Upper Tribunal from the General
Regulatory Chamber of the First-tier Tribunal, contentious probate
matters, legal advice in relation to a change of name, actions concerning
personal data, legal advice on will-making and cash forfeiture actions
under the Proceeds of Crime Act 2002.
113. In the consultation we proposed removing all of these areas from the
scope of legal aid.
Key issues raised
114. A limited number of respondents commented on this section. Of those
who did, the following concerns were raised:
– the withdrawal of legal help, which it was thought would be likely to
place an additional burden on the tribunal system, and cause extra
costs;
138 Reform of Legal Aid in England and Wales Government Response
– the vulnerable would be affected by removing advice for wills;
– it would be difficult for people to be able to identify issues, or argue
grounds for appeals before the Upper Tribunal;
– the Bar Council and Chancery Bar Association were concerned
about the proposal to exclude contentious probate under the
Inheritance (Provision for Family and Dependents) Act 1975. They
noted that the nature of the claims (i.e. claims made by dependants
who would often be elderly or children) meant that there would be a
risk of vulnerable claimants being denied access to justice;
– the Bar Council was content that funding for the General Regulatory
Tribunal should be removed.
The Government’s response
a) Appeals to the Upper Tribunal from the General Regulatory Chamber
of the First-tier Tribunal – This covers appeals from a number of small
tribunals:
– Charity – certain organisations and individuals can appeal under the
Charities Act 1993 against a decision of the Charity Commission.
– Claims Management Services – businesses and individuals who provide
claims management services can appeal against decisions of the claims
regulator.
– Consumer Credit – hears appeals against decisions of the Office of Fair
Trading relating to licensing and money laundering.
– Environment – hears appeals against civil sanctions made by
environmental regulators.
– Estate Agents – hears appeals under the Estate Agents Act 1979 against
decisions made by the Office of Fair Trading.
– Gambling Appeals – hear appeals by individuals or companies against
the decisions of the Gambling Commission.
– Immigration Services – hears appeals against decisions made by the
Office of the Immigration Services Commissioner and considers
disciplinary charges brought against immigration advisors by the
Commissioner.
– Information Rights – hears appeals from notices issued by the Information
Commissioner relating to freedom of information, data protection and
other issues.
– Local Government Standards in England – determines references and
appeals about the conduct of members of local authorities.
– Transport – hears appeals against decisions of the Registrar of Approved
Driving Instructors (the ‘Registrar’). These appeals concern approved
driving instructors, trainee driving instructors, and training provider
appeals.
139 Reform of Legal Aid in England and Wales Government Response
115. We intend to exclude these matters from the scope of civil legal aid. The
issues involved are, in many cases, quasi-business and financial issues.
We consider that these cases are of relatively low importance compared
to fundamental issues such as liberty or homelessness, and we do not
consider that the class of individuals involved in these cases is generally
likely to be particularly vulnerable.
52
b) 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).
116. In our view these cases are primarily about financial entitlement, which
we consider to be of a low objective importance compared to other areas
of fundamental importance, such as personal safety or liberty. Nor do we
consider that the class of individuals involved in these cases is generally
likely to be particularly vulnerable.
53
It is therefore the Government’s
intention that these cases should be excluded from scope.
117. This section of the paper also referred to applications under section 14 of
the Trusts for Land and Appointment of Trustees Act 1996. This was
interpreted by some respondents as relating to “ancillary relief” cases
involving cohabitees. However, such matters were included and dealt with
in our proposals for ancillary relief, and this section was concerned solely
with other non-family matters of trust law under that section of the 1996
Act.
c) Legal advice in relation to a change of name.
118. These cases are typically funded in the context of family proceedings. For
example, in cases where a mother seeks to change her child’s surname
to that of her new partner, and her ex-partner objects (for example,
seeking a prohibited steps order). Where the funded client was successful
in resisting the order, legal aid (Legal Help) could also cover the steps
necessary to enact the change of name.
119. We intend that these cases should be excluded from legal aid given the
lower objective importance of these matters compared to other more
fundamental matters.
52
See paragraph 6.ii) of the section on the programme of reform for the factors we took into
account in considering an individual’s vulnerability.
53
Ibid.
140 Reform of Legal Aid in England and Wales Government Response
d) Actions concerning personal data, such as actions relating to
inaccurate or lost data or rectification of personal data
120. Given the relatively low objective importance of these matters and the
need to prioritise resources our intention remains that these cases should
be excluded from scope.
e) 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 but not with the other parent, and the client wishes
to appoint a guardian for the minor in a will.
121. While the making of wills is generally excluded from the legal aid scheme,
it is currently made available in the above circumstances. While such
services may be useful, and some of the class of client covered by this
case may be particularly vulnerable,
54
we consider that the making of
wills is of lower objective importance compared to more fundamental
issues. Given the need to prioritise funds, our intention remains that these
cases should be excluded from scope.
f) Cash forfeiture actions under the Proceeds of Crime Act 2002:
122. Money may be seized by a customs officer or police officer because they
have reasonable grounds for suspecting that it is intended for use in
unlawful conduct. Such seized cash may be forfeited by order of a
magistrates’ court. The decision of the magistrates’ court may be
appealed to the Crown Court. Civil legal aid funding is available for both
the magistrates’ court proceedings and Crown Court appeal. Given that
these proceedings are essentially about preserving a sum of cash, we
continue to consider that these cases are not of as high importance and
we therefore accord them a lower priority than cases involving more
fundamental issues such as liberty or homelessness. Our intention
remains that these cases should be excluded from scope.
Public Interest Cases
123. Legal aid is available for any type of case (except business cases) which
is out of scope but which has a ‘significant wider public interest’. This
allows cases to be funded even where the benefits to the individual
litigant alone might not justify the likely costs, because they have the
potential to benefit other people.
124. We proposed in the consultation that the ‘significant wider public interest’
test should no longer be a gateway for bringing out of scope cases back
into the scope of legal aid.
54
Ibid.
141 Reform of Legal Aid in England and Wales Government Response
Key issues raised
125. Very few respondents have commented on this area. However, the
concern was raised that granting legal aid for a case with significant wider
public interest will result in cost savings, as opposed to granting legal aid
to multiple individuals on the same issue. Another respondent said that it
is necessary if such cases are generally out of scope that the exceptional
funding scheme allows for funding of such cases.
The Government response
126. We do not consider that the presence of this factor should constitute an
automatic entitlement to publicly funded legal services, particularly where
an area of law has been excluded because it is considered insufficiently
important to merit public funds, because there are alternative sources of
funding or because the procedure is simple enough that litigants can
present their case without assistance. We therefore intend to abolish the
Public Interest rule as a means of bringing back cases into scope
proposed in the consultation.
127. However where a case is in scope, and therefore the type of proceeding
is a priority for funding, it is our intention that public interest will remain as
a relevant feature in the merits criteria, thus allowing the benefit to other
individuals to be taken into account in the funding decision.
Tort & Other General Claims
128. Legal aid is available for legal advice and representation for a variety of
tort claims arising from a civil wrong, including assault; negligence;
nuisance; breach of a statutory duty; false imprisonment; and malicious
prosecution. These claims may involve a civil action between private
individuals or brought against a public authority; for example, relating to
an education or housing matter. These claims can arise in any of the
other categories of law; for example educational negligence, police
assault, false imprisonment in a mental health context. These cases are
typically concerned with recovering damages; for example tort claims for
damages (or an injunction) and would include, for example, a claim for
damages under the Human Rights Act 1998.
129. The consultation proposed that claims concerned primarily with
recovering damages would not normally justify funding and that these
types of claim should be excluded from scope in all categories of law,
including those categories that we were proposing to retain generally in
scope. The exceptions were claims relating to a contravention of the
Equality Act 2010, cases that met the proposed new criteria for claims
against public authorities and claims arising from allegations of abuse or
sexual assault where we proposed that related damages claims would
remain in scope.
142 Reform of Legal Aid in England and Wales Government Response
Key issues raised
130. Those respondents that commented on this proposal argued that claims
brought against public authorities were an essential means of holding the
state to account – for example assault or false imprisonment claims
brought against police or prisoner officers, malicious prosecution cases
brought against the Crown Prosecution Service or other prosecuting
agency (for example, Environment Agency).
The Government’s response
131. While legal aid may be of assistance in holding the state to account in
certain cases, we need to prioritise funding, and we have proposed
focusing it on other claims with special features which give them an
importance beyond money (for example, discrimination and abuse
claims), or on more serious claims against public authorities (other than
judicial review or other similar remedies) where these concern a
significant breach of human rights, or an abuse of position or powers. We
also intend to retain claims against private and public parties where these
concern allegations of the abuse of a child or vulnerable adult, or
allegations of sexual assault. We intend to retain the most serious claims
against public authorities in scope, and in stronger excluded cases,
alternative sources of funding will be available, such as CFAs. We do not
consider that litigants bringing the remaining cases are likely, in general,
to be especially vulnerable,
55
or that they will be unable to present their
own case.
132. The Government therefore intends that these cases should be excluded
from scope, as originally proposed in the consultation paper.
Inquests
133. As set out at paragraph 4.152 of the consultation paper, we intend to
repeal section 51 of the Coroners and Justice Act 2009. This would have
amended the Access to Justice Act 1999 to bring advocacy at certain
inquests into scope of the legal aid scheme. We have though decided to
retain a significant wider public interest criterion for advocacy in inquest
cases, as part of the exceptional funding test.
Reform of Legal Aid in England and Wales: the Government Response Part 19
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The Government response
63. We consider that there are a number of arguments put forward by
respondents which, when taken together, have persuaded us that current
legal aid funding for SEN matters should be retained. The main
arguments were:
– Overlap with discrimination: respondents argued cogently that
SEN disputes could almost always be recast, on the very same facts,
and going to the very same tribunal, as a claim of disability
discrimination. This is different from more general employment cases
where new facts would generally be needed to support a new
discrimination ground. Many SEN claims could be brought as a claim
under the Equality Act 2010 that the local authority had (i) treated a
disabled child like other children, thereby putting that child at a
particular disadvantage, or (ii) failed to make reasonable adjustments
in the way that it provided education for that child. Lawyer
respondents stated that they tried to steer clients away from bringing
disability discrimination cases because local authorities were much
more active in defending such claims, given the reputational risks of
conceding such claims. A rise in such claims was likely to be an
obstacle to resolving disputes constructively.
– Similarity to community care: respondents have argued that our
proposals were inconsistent because while we proposed retaining
legal aid for community care, SEN cases raise similar issues of
resolving disputes about state assistance that will enable disabled
individuals to live independent and fulfilling lives.
– Equalities: 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 then Disability
Discrimination Act 1995). Nearly 46% of disabled children had a
parent with a disability, compared to 20% of non-disabled children.
– Parents whose children have SEN are also more likely to have
substantial caring responsibilities compared to other individuals. This
126 Reform of Legal Aid in England and Wales Government Response
means that clients in these cases are more likely to have particular
difficulty in proceeding without assistance from a lawyer.
64. We have also noted that current proposals by the Department for
Education and Skills to reform SEN procedures,
48
and in particular their
plans to mandate mediation, would mean that in future the cases which
reach the tribunal would be the more complex and intractable cases
where parents may be less able to present their case effectively.
65. For these reasons, we are persuaded that legal aid should continue to be
available, as it is currently, for legal advice in preparation for the First-tier
(Special Educational Needs and Disability) Tribunal and for the Special
Educational Needs Tribunal for Wales, and for legal advice and
representation at the Upper Tribunal (and higher courts). However, we do
not consider that legal aid should be extended to cover representation at
the First-tier (Special Educational Needs and Disability) Tribunal or the
Special Educational Needs Tribunal for Wales. We consider that the userfriendly and accessible nature of the tribunal, with legal aid available for
legal advice, will mean that legal aid for representation will not generally
be necessary.
66. With the important exception of SEN cases, and claims relating to a
contravention of the Equality Act 2010, which we consider to be the
highest priorities within this category, the Government intends to proceed
with the exclusion of the remainder of educational cases. However, as
with other areas of law, we recognise the importance of being able to
challenge public authorities’ decisions on such matters via judicial review,
and this will remain in scope. Whilst we accept that legal advice is of
some assistance to individuals, including some vulnerable individuals, the
remaining educational cases are of lower priority than other matters
remaining in scope, such as safety or homelessness. Nor given the
retention of legal aid for SEN and claims brought under the Equality Act
2010, do we consider that the clients in this group of cases (usually the
parents on the child’s behalf) are likely to be particularly vulnerable,
49
or
that those parents involved will necessarily be unable to present their own
case. There may be alternative sources of help for education cases, and
CFAs may be available in damages cases.
Employment
67. Legal aid is available for legal advice on any issue of employment law,
including for assistance at Employment Tribunals, and for representation
for court employment claims (for example, breach of contract), and for
appeals to the Employment Appeals Tribunal and onward appeals. We
48
See footnote 16 above.
49
See paragraph 6.ii) of section 3: the programme of reform, for the factors we took into
account in considering an individual’s vulnerability).
127 Reform of Legal Aid in England and Wales Government Response
proposed removing legal aid from scope in all employment cases (other
than for claims brought under the Equality Act 2010).
Key issues raised
68. Respondents were generally opposed to this proposal. In the main, these
were offered by organisations from the not-for-profit sector but their views
were shared by others such as the judiciary and representative
organisations of the legal profession. Key points made by respondents
were:
– employment representative bodies and the legal profession
representative bodies argued that employment cases were not just
about money or earning potential, but also about rights such as
entitlement to holiday time, or the right to request flexible working.
These respondents argued that loss of one’s livelihood was
extremely important, and removal of employment advice could lead
to greater reliance on the welfare state;
– there was a great deal of overlap between employment and
discrimination claims, and that funding needed to be provided for
both elements of a dispute;
– employment was very complex and individuals would not easily be
able to bring cases without assistance, and they would not
understand issues such as the time limits for claims. These types of
claim are complex and steps taken by the employee to seek redress
are technical for example, grievance procedures;
– because employers were usually represented, the withdrawal of
funding to prepare cases before the tribunal would lead to even
greater inequality of arms;
– without legal aid for advice, where offers were made, individuals
would not know if they were being offered a fair sum;
– respondents were sceptical that Damages Based Agreements
(DBAs) would be available for most tribunal claims, and argued that
few legal aid clients were trade union members. While the Advisory
Conciliation and Arbitration Service (ACAS) was useful, respondents
argued that individuals needed to enter into mediation having been
advised about the merits of their claim and how to argue it;
– appeals to the higher courts will involve points of law which in
employment are complex and will not be suitable for self
representation;
– many clients seeking employment advice tend to have mental health
problems and are unable to bring their own case. If employees do
not receive advice on the merits of the case, it is likely that there will
be an increase in the number of misconceived claims made to the
tribunals.
128 Reform of Legal Aid in England and Wales Government Response
The Government response
69. Whilst we accept that legal aid is of assistance in employment matters;
that some employees find facing their employer, who may be legally
represented, daunting; and that these cases can involve wider issues
than simple monetary advantage (for example, resolving issues about
access to flexible working), on balance our view remains that legal aid
should be withdrawn in this area.
70. The majority of these claims are pursued in the tribunal which is designed
to be used by unrepresented litigants. While we recognise that clients find
advice in the preparation of their case useful, we do not consider that this
group of clients are generally likely to be particularly vulnerable,
50
and we
do not accept that the tribunal cannot be accessed or that justice cannot
be obtained, without access to legal aid for advice. We consider that
given the need to prioritise resources, employment matters are of a lower
objective importance than cases involving life, liberty or homelessness. It
is also the case that DBAs will remain available in appropriate cases.
71. We also note the consultation paper ‘Resolving Workplace Disputes’
51
which proposes that in future all cases should go to the ACAS before the
employment tribunal to try to resolve problems before lawyers are
needed.
72. For these reasons, the Government intends to remove legal aid funding
for employment cases (other than cases brought under the Equality Act
2010.
Housing – other than risk of homelessness, repossession, eviction, Anti
Social Behaviour Orders and housing disrepair that risks serious harm
to individual and his/her family
73. Legal aid is available for legal advice and representation for any housing
matter, other than business cases. We proposed the removal of all legal
aid in this category except for cases where the client was homeless (or
threatened with homelessness) and seeking homelessness assistance
from the local authority, or 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 in the county court.
Key issues raised in consultation
74. Respondents were generally opposed to this proposal. The not-for-profit
sector was particularly concerned, but their views were shared by others
50
Ibid.
51
See: http://www.bis.gov.uk/Consultations/resolving-workplace-disputes
129 Reform of Legal Aid in England and Wales Government Response
such as the judiciary and representative organisations of the legal
profession. Key points made by respondents were:
– it was irrational to fund eviction proceedings but not unlawful eviction
proceedings;
– it was wrong to fund the eviction stage, but not to provide legal
advice and assistance to people suffering the earlier stages of
harassment, trespass and wrongful breach of quiet enjoyment by
landlords;
– funding should be retained for all disrepair cases, that non-life
threatening disrepairs should be addressed early before they
become life-threatening, and that even non-threatening disrepair
could lead to children’s health being at risk, and misery for some of
the most vulnerable people;
– torts of nuisance, negligence and breach of statutory duty should be
retained for housing because these are used in situations analogous
to serious disrepair where, for example, the problem was coming
from a neighbouring property to public space (for example, leaks),
and where it was not the landlord’s responsibility;
– given the court Housing Disrepair Protocol which advised the
instructing of joint experts, legal aid was needed to pay experts to
determine the degree of seriousness of the disrepairs. They also
queried what was intended by “serious risk to life or health”. Some
respondents also argued that it was not practical to separate a
disrepair case and run separate disrepair and damages actions, and
that in practice these could not be separated;
– funding should be retained to set aside a legal charge to prevent, for
example, a charging order being placed on a property that might later
lead to an order for sale of the home;
– funding should be retained for cases about re-housing (allocation of
council homes) because the people involved in these cases were
particularly vulnerable and children might be living in unsuitable
housing;
– funding should be provided for planning appeals and eviction cases
involving gypsies and travellers because this group was one of the
most vulnerable in society;
– wrongful breach of enjoyment should be in scope as this almost
always includes a claim for an injunction pursuant to the Protection of
Harassment Act 1997;
– funding for the Housing Grants, Construction & Renovation Act 1996
should also be retained, because the Act had been repealed except
for provisions relating to disabled facilities grants, and that these
were important cases allowing people to live supported within their
homes;
130 Reform of Legal Aid in England and Wales Government Response
– landlords were unlikely to listen to tenants, Jobcentre Plus, or DWP,
and without legal advice these clients will be unable to enforce their
legal rights;
– respondents queried whether early advice would be possible or
whether eviction or possession proceedings must have been issued
before legal aid would be available;
– the alternative sources of advice cited in the consultation will not be
able to cope with the pressure of an increased workload as a result
of the legal aid proposals.
The Government response
75. Housing disrepair: We intend, as proposed in the consultation, to
exclude less serious disrepair claims from scope where the disrepair does
not pose a serious risk to the safety or health of the individual or their
family. We consider that cases of less serious disrepair are a lower
priority for funding, and given the need to prioritise, we do not intend to
retain legal aid for the less serious cases. However, we agree with
respondents that the severity of the disrepairs will not always be clear at
the outset until an expert assessment has been carried out (in line with
the Housing Disrepair Pre-Action Protocol). In these cases legal aid will
be granted where there is a credible allegation that there is a serious risk
to the safety or health of the individual or their family. This will mean that
legal aid will be available for the early stages of such cases to enable the
merits of the claim to be investigated. Where a disrepair is found not to
pose a serious risk, further funding will not be available.
76. Orders for sale: in line with our decisions in debt cases (see Annex A
and paragraphs 48 to 59 above), we intend to retain legal aid funding in
respect of an order for sale of the home, as it represents an immediate
risk to the individual’s home. However, it will not be retained to contest an
application for a legal charge, such as a charging order, to be placed on
the home. The placing of a charging order is essentially to secure an
outstanding debt and we do not consider debt as sufficiently important to
merit funding (see paragraph 52 above). However, an order for sale
presents an immediate risk to the individual’s home.
77. Other housing matters: The Government intends to exclude from scope
all other cases in the housing category (except claims relating to a
contravention of the Equality Act 2010 and judicial reviews), including,
without limitation: action to enforce a right to buy; action to enforce a right
to buy a freehold or extend the lease; actions to set aside a legal charge
or the transfer of a property; actions for damages and/or an injunction for
unauthorised change of use of premises; an action under the Housing
Grants, Construction and Regeneration Act 1996; applications for a new
tenancy under the Landlord and Tenant Act 1954; actions concerning
council house allocation; an action under the Access to Neighbouring
Land Act 1992; an action for wrongful breach of quiet enjoyment; housing
disrepair proceedings where the primary remedy sought is damages,
131 Reform of Legal Aid in England and Wales Government Response
including damages for personal injury; an action under the Mobile Homes
Act 1983 which does not concern eviction.
78. Many of these cases are about money or property, improvements to
property, or use of property, and we consider that these cases are not of
high importance when compared with cases concerning fundamental
issues such as homelessness, eviction or the immediate safety of clients.
79. While people find assistance in dealing with, for example, trespass and
wrongful breach of quiet enjoyment helpful, we have had to prioritise
funding on the most serious cases and these cases are not as serious as
eviction or unlawful eviction cases.
80. We also intend to exclude from scope nuisance, negligence and breach
of statutory duty torts for housing. While respondents have said that these
cases are analogous to disrepair cases, we do not consider that the
matters addressed through these claims are as serious as the housing
disrepair claims which pose a serious risk to life or health that we wish to
prioritise.
81. We also intend excluding from scope legal advice for planning matters as
these will generally be of lower importance than eviction or possession
cases and are heard before a relatively informal planning appeal panel.
82. We also intend to exclude from scope the Housing, Grants, Construction
and Regeneration Act 1996 concerning grants from a local authority to
make a disabled person more able to live independently in their home.
This is essentially an application for discretionary funding for a grant,
rather than in relation to the local authority carrying out a statutory
function, and we do not consider that clients will require legal assistance
to make this application.
Immigration where the individual is not detained
83. Legal aid is currently available for a variety of immigration issues,
including those relating to citizenship, leave to enter or remain in the
United Kingdom for visits, study or employment, and deportation.
84. The consultation paper proposed that legal aid for immigration
proceedings should be removed from the scope of legal aid, except
where individuals are challenging detention under immigration powers,
claims for asylum and appeals to the Special Immigration Appeals
Commission.
Key issues raised
85. Most respondents were against the proposal to remove legal aid for
immigration proceedings. The main points raised were:
– the complexity of immigration legislation, and the difficulty individuals
would have in representing themselves, especially in cases that
raised article 3 and article 8 ECHR issues;
132 Reform of Legal Aid in England and Wales Government Response
– the inequality of arms between the State and individual applicants
without legal aid;
– the fact that many applicants will have no or limited understanding of
UK law, and that English may not be the applicant’s first language;
– that many of the problems (and costs) in the system stemmed from
the decisions and processes of the UK Border Agency (UKBA);
– these cases were not about personal choice, as suggested in the
Government’s consultation document, especially where they involved
family life;
– removing legal aid would make it harder for the UKBA to consider
applications efficiently, as more applications would be poorly
presented, potentially leading to more hearings;
– there was likely to be an increase in appeals to the higher courts or
judicial reviews if legal aid was removed;
– removing immigration legal aid from scope would threaten the
viability of legal aid providers currently dealing with both immigration
and asylum. The consequence of this would be a diminution in the
quality of asylum legal aid providers;
– due to the vulnerability of the individuals involved and the issues
involved, legal aid should remain available for domestic violence
immigration rule cases;
– legal aid should also remain available for refugee family reunion
cases due to the importance of family life and the complexity of
article 8 ECHR case law;
– legal aid should remain for stateless persons, due to their
marginalisation and consequent vulnerability;
– the proposal risked breaching the Council of Europe Convention on
Trafficking in Human Beings.
The Government response
86. The Government’s view is that, in general, individuals in immigration
cases should be capable of dealing with their immigration application and
should not require a lawyer. Tribunals are designed to be accessible to
users. Interpreters are provided free of charge. Claims for asylum,
including claims under article 3 of ECHR, will remain in scope. Otherwise,
whilst it is true that immigration law can be complex, it is not generally the
case that an appellant will need to argue points of law or have any
knowledge of the law. Immigration cases are generally about whether the
facts of a particular case meet the immigration rules, and a significant
amount of guidance is produced by UKBA and others to explain what
these rules are, and how they apply.
87. The Government accepts that tackling inefficiencies in its administrative
decision making process is extremely important. UKBA has a wideranging quality improvement programme in place to continue to improve
133 Reform of Legal Aid in England and Wales Government Response
the quality of its decision-making in asylum, entry clearance and
decisions made under the Points Based System. However, this does not
alter the need for savings to the legal aid budget if the Government is to
meet its targets to reduce the deficit. The Government does not consider
that there is any evidence to show there will be a significant negative
impact on UKBA or the higher courts as suggested in consultation
responses, from the removal of legal aid in immigration cases.
88. The Government has considered the impact on suppliers, and the risks
that the market will not be able to sustain an adequate supply of providers
of legally aided services. While the Government accepts that there is a
risk of disruption, we believe that the proposed reforms are sustainable,
and that any short term disruption to services can be mitigated. Further
details are set out at Annex F.
Domestic Violence Immigration Rule cases
89. Under the Immigration Rules, someone on a spousal visa, which is valid
for a limited period of time, and who finds themselves in an abusive
relationship, can apply for indefinite leave to remain under the ‘domestic
violence immigration rule’. Under the consultation proposals, such cases
would be removed from scope.
Key issues raised
90. A number of respondents called for legal aid to be retained for these
cases, citing both the complexity of the issues and that the victim of
abuse will have been traumatised. They also refer to the Home Office
project in this area (‘Sojourner’) which they suggest will be undermined by
the removal of legal aid. The Sojourner project provides four weeks (20
working days) of money to cover essential housing and living costs for
victims of domestic violence. During this time, victims are encouraged to
complete an application for indefinite leave to remain under the domestic
violence immigration rule. Once this application is submitted to UKBA,
money for essential living costs will be provided for a maximum of 4
additional weeks (20 working days) while UKBA considers the application.
Respondents also pointed to a discrepancy between the proposed lack of
legal aid for these cases and its availability in private family law cases
where domestic violence is shown to be present.
The Government response
91. The Government’s view is that these applications are comparable to other
immigration applications, albeit that individuals need to obtain
documentary evidence of their domestic violence. Whilst individuals may
well find it difficult to fill in the forms, it is not specialist legal advice that is
required. This is something that can be addressed through guidance or
non-specialist help rather than legal aid.
92. In terms of the comparison with private family law, the Government is
seeking to prevent a victim of domestic violence from facing their abuser
in court without legal representation. In immigration cases, the victim is
134 Reform of Legal Aid in England and Wales Government Response
making a paper-based application to the Home Office, and the
Government therefore considers the situations to be different. Legal aid
will continue to be available for those seeking a civil injunction to prevent
domestic violence irrespective of their nationality or immigration status.
Refugee family reunion cases
93. Responses to the consultation pointed out that refugee family reunion
cases are not about making personal choices. The lead applicant has
been granted asylum and is seeking to reunite with his family, and these
cases also raise issues of complexity. They argued that refugee family
reunion cases should be treated in the same way as asylum claims for
the purposes of legal aid.
The Government response
94. The Government considers that applications to join family members are
immigration cases, and that they will generally be straightforward. If a
person wishes to claim asylum, it is open to them to do so either as a
dependant of a primary asylum claimant or in his or her own right. Legal
aid will be available for any such asylum claim.
Statelessness
95. This issue relates to someone who is stateless and who wishes to apply,
for example, for citizenship or for a stateless person’s travel document.
Consultation responses suggested that legal aid should remain available
due to the vulnerability of these individuals and because of the UK’s
obligations under the Convention on the Status of Stateless Persons
1954 and the Convention on the Reduction of Statelessness 1961.
The Government response
96. The Government considers that applications, such as that for a Stateless
person’s travel document, are straightforward. By making legal aid
available to stateless persons on the same basis as other applicants for
legal aid, the Government is fulfilling its international obligations. Civil
legal aid in the UK is available to anyone who meets the criteria,
irrespective of their immigration status.
The Council of Europe Convention on Action against Trafficking in
Human Beings
Key issues raised
97. Some respondents (including the Immigration Law Practitioners’
Association and Rights of Women) raised concerns that the immigration
proposals 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.
135 Reform of Legal Aid in England and Wales Government Response
The Government response
98. The requirement to provide legal aid under the Convention rules is not
automatic (it is with reference to the requirements of article 6 ECHR) and
is to help victims of trafficking seek compensation rather than to make
immigration claims.
99. 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
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.
100. For the reasons set out above, the Government intends to proceed with
the proposal to remove all immigration cases from the scope of legal aid
where the individual is not detained, making a claim for asylum or
appealing to the Special Immigration Appeals Commission.
Welfare Benefits
101. Legal aid is available for legal advice on welfare benefits matters
including appeals to the First-tier (Social Security and Child Support)
Tribunal, and Upper Tribunal. Representation is only available for onward
appeals to the High Court, Court of Appeal or Supreme Court.
102. We proposed excluding all welfare benefits matters from the scope of
legal aid (other than claims relating to a contravention of the Equality Act
2010).
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47
See footnote 8 above.
119 Reform of Legal Aid in England and Wales Government Response
under CFAs (and now DBAs). Therefore, we consider that, despite the
importance of the issues in some of these cases, the exclusion of clinical
negligence from scope is justified because there will remain a viable
alternative source of funding, enabling the targeting of limited resources
to other priority areas.
37. We accept that there may be particularly complex cases, where despite
the arrangements for funding disbursements described above, it may be
difficult to find a CFA, but the exceptional funding scheme for out of scope
cases will ensure that individual cases of this type continue to receive
legal aid 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 the Human Rights Act 1998 or European Union law. Cases
granted funding under the exceptional funding scheme in the clinical
negligence category will, as with other damages cases, be subject to the
Supplementary Legal Aid Scheme (see Annex J).
Consumer & General Contract
38. Legal aid is available for legal advice and representation for a range of
consumer matters which are principally heard in the county court. These
cases concern, for example, contracts, consumer credit and professional
negligence proceedings.
39. In the consultation, we proposed removing these cases from the scope of
legal aid (other than claims relating to a contravention of the Equality Act
2010).
Key issues raised
40. Of those respondents who commented on this aspect of the proposals,
almost all were opposed to removing these cases from scope. The key
points raised were.
– some respondents argued that consumer cases should be retained,
in particular professional negligence cases where negligence may
have resulted in serious consequences for the client;
– some respondents argued that in some professional negligence
cases clients would need expert reports to prove negligence and
without legal aid individuals would not be able to afford these;
– some respondents argued that legal aid should continue to be
available for consumer contract claims which would stop possession
claims or eviction proceedings for secured loans and for claims
relating to a contravention of the Equality Act 2010 that are brought.
The Government response
41. Having considered the responses to the consultation, we confirm our
intention to remove consumer and general contract cases from the scope
of legal aid. Whilst there are some difficult cases, in particular
professional negligence cases, these are still essentially claims
120 Reform of Legal Aid in England and Wales Government Response
concerned primarily with recovering damages, and that means that we
consider that their relative importance is generally low, compared, for
example, with issues of safety and liberty. There are other sources of
advice available in relation to consumer matters, for example, from
Trading Standards and Consumer Direct. There may be alternative non
court based solutions in some cases, for example, through regulators and
ombudsmen.
42. Although there may be exceptions, in our view the individuals bringing
these cases are not likely to be particularly vulnerable compared with, for
example, those in the mental health category (see paragraph 6.ii) above
for the factors we took into account in considering an individual’s
vulnerability). In addition, where these cases lead to an immediate risk of
losing the home, then the possession or eviction proceedings will remain
in scope for legal aid (see Housing above). We will also retain consumer
matters within scope where these concern an alleged contravention of the
Equality Act 2010 (see Discrimination above).
Criminal Injuries Compensation Authority (CICA)
43. Legal aid is available for legal advice to assist victims of crime in making
an application to the CICA. In the consultation, we proposed removing all
of these cases from scope.
Key issues raised
44. The main issues raised by respondents to the consultation were:
– respondents from the legal profession and some members of the
judiciary pointed out that while the initial application might be simple,
legal aid also assisted clients in any appeal against the award
offered, which was not straightforward;
– victims of crime were likely to be vulnerable, disabled and
traumatised and continuing to provide legal aid would help support
victims;
– CICA awards were not simply about money, but could also be used
to fund special equipment or adaptation of homes for people disabled
or ill as a result of being a victim of crime;
– failure to provide legal aid would breach the Council of Europe
Convention on Action against Trafficking in Human Beings
(Trafficking Convention);
– the forms are complex and require articulate responses to ensure
that the client received the right compensation.
The Government response
45. We have considered the points made by the respondents that the people
making these applications may be vulnerable, having often been through
a traumatic event, and that these matters can involve more complex
issues around appeals and assessing the merit of an award (see
121 Reform of Legal Aid in England and Wales Government Response
paragraph 6.ii) in the section on the programme of reform for the factors
we took into account in considering an individual’s vulnerability). We also
accept that these cases may involve money for medical equipment.
We consider that article 15 of the Trafficking Convention may 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.
46. However in general, we consider these cases, which are financial claims,
are a lower priority than other cases, for example where the immediate
consequences of the proceedings can affect the liberty or the personal
safety of the applicant. We consider that the process for making an
application is relatively straightforward: applications can be made on-line
and by telephone: there is assistance available from the CICA; and legal
expertise will not in our view generally be required. While appeals may be
more complex, we have to prioritise funding and we consider that these
cases are primarily financial claims, which are of lower priority for public
funding.
47. We therefore confirm our intention to remove these cases from scope.
Debt: other than cases of immediate risk to the home
48. We proposed excluding debt work from legal aid, other than where the
client’s home was at immediate risk of repossession from rent or
mortgage arrears (see Annex A). Legal aid is currently available for legal
advice and representation for a range of debt matters, from negotiating
with creditors to assisting individuals to deal with their debts through a
Debt Management Plan, an Individual Voluntary Agreement, or Debt
Relief Order. While most funding in this area is for legal advice,
representation is available for individuals seeking to set aside a statutory
demand, and to obtain, resist or annul a bankruptcy order.
Key issues raised
49. The vast majority of respondents were opposed to the removal of legal
aid for any debt work. In the main, these were from organisations from the
not-for-profit sector but comment was made by others such as the
judiciary and representative organisations of the legal profession.
50. The key points made by respondents were:
– the advice agencies and also some legal representative
organisations argued that the proposal to retain legal aid for
“immediate risk to the home” cases was unclear, and that it did not
go far enough. These respondents argued that where someone was
unable to pay their rent or mortgage because they had been denied
welfare benefits, legal advisers should be able to help them by
addressing the benefits problem;
122 Reform of Legal Aid in England and Wales Government Response
– some respondents argued that any kind of debt could lead to the
home being at risk – for example where a debt was secured against
the client’s home via a charging order, that debt could lead to an
order for sale of the home (see Housing below). Some respondents
argued that early advice was necessary to challenge the charging
order as little could be done after it had been made;
– many respondents pointed to the withdrawal of other funding streams
for debt work and that legal aid was needed to ensure this vital
assistance continued to be provided;
– the requirement for the home to be at risk before legal help was
available will prevent early intervention and this is normally important
to prevent the problem becoming more serious at a later stage,
resulting in the need for state intervention;
– the removal of the Financial Inclusion Fund shows that alternative
forms of advice will not necessarily be available. This will open the
doors to unscrupulous Debt Management companies to prey on
vulnerable people and charge for services that are unaffordable to
the client;
– a bankruptcy order could lead to homelessness (where, for example,
the home was sold to settle debts) and to prevent this funding should
be available for: setting aside a statutory demand; the hearing of a
bankruptcy petition; and an application to annul the bankruptcy order;
– some respondents (for example, the Law Society) accepted that
some debt work was not really of a legal nature.
The Government response
51. We recognise that the majority of the respondents are opposed to the
removal of this category due to the impact on clients and on the not-forprofit sector. We have carefully considered the points made.
52. One concern raised by respondents was that legal aid should be retained
to contest charging orders whereby debts are secured against property.
In these cases, the home is not at immediate risk at the stage where the
charging order is made, but is at risk later when a creditor seeks to
enforce the charging order through an order for sale. We therefore
consider that funding should be retained in relation to an order for sale
because these cases present an immediate risk of homelessness, which
we consider to be the highest priority. However, we consider that legal aid
should not be available to contest a charging order. At the charging order
stage, the home is not at immediate risk, and the charging order merely
secures the otherwise unsecured debt against the property.
53. Some respondents have drawn to our attention that clients may also face
immediate loss of their home in bankruptcy proceedings where, for
example, the home may be sold to pay creditors. We recognise that there
are strong analogies to be drawn with our policy on providing legal aid
123 Reform of Legal Aid in England and Wales Government Response
where the house is at immediate risk, and on that basis there is a strong
argument for retaining these proceedings in scope.
54. As confirmed in Annex A above, we intend to retain legal aid for advice
and representation in relation to a statutory demand, or for proceedings
relating to the making or annulment of a bankruptcy order where the
individual’s estate includes their home. However, legal aid would only be
available where an individual was the respondent to a creditor’s petition,
and funding would not be available for voluntary bankruptcy. In voluntary
bankruptcy the homeowner is essentially making a decision to place his
home in the hands of the trustee, which is analogous to choosing to sell
the home to satisfy creditors.
55. We have also considered further the situation where the client’s home is
at immediate risk due to rent or mortgage arrears, and these arrears are
caused by a dispute about welfare benefits. In such cases, respondents
have urged us to allow legal aid to provide advice on the welfare benefits
dispute. We consider that because there is a user-accessible tribunal to
resolve welfare benefits problems, we do not believe that legal aid is
justified for such matters (welfare benefits are considered at paragraphs
101 to 106 below). Where the client loses their benefits appeal, and
subsequently faces action for rent or mortgage arrears that places the
home at risk, legal aid will become available to deal with the housing
dispute (for example, to negotiate with mortgage lenders), but it will not
be available for the welfare benefits matter.
56. More generally, we note the points made about the importance of early
advice. However, given the need to make substantial financial savings
within the spending review period, and to target resources on those who
need them most, we consider that debt cases where there is an
immediate risk of homelessness is the appropriate priority. Overall, we
consider that financial issues, however important to the individual, are
less important in terms of legal aid funding than fundamental issues such
as safety or liberty.
57. We also consider that many of these cases are about practical rather than
legal problems. Therefore, whilst we recognise that advice on money
management is often of clear benefit to the client, it is not necessarily an
issue which requires specialist legal advice funded by legal aid. We
recognise that many respondents told us that alternative sources of
advice will no longer be available in the future. However, on 12 February
2011, the Government announced continued funding of £27 million in
2011/12 to maintain the face-to-face debt advice programme (previously
the ‘Financial Inclusion Fund’) in Citizens Advice Bureaux and other
independent advice agencies across England and Wales.
58. The Government is working to move the future provision of debt advice
through this programme to a more sustainable footing, to ensure that
individuals can access the support they need easily and that the service
delivers the best possible value for money.
124 Reform of Legal Aid in England and Wales Government Response
59. For these reasons, the Government intends to remove debt cases from
the scope of legal aid, with the exception of cases where the home is at
immediate risk.
Education
60. Legal aid is available for legal advice on a range of educational matters
including bullying, school admissions or exclusions, assistance in
preparing for a meeting with the School Governors, or attending the
Independent Appeal Panel that deals with permanent exclusions. This
area also covers court claims concerning, for example, educational
negligence for which legal help and representation are available. Legal
aid is also available in Special Educational Needs (SEN) cases for legal
advice in preparation for the First-tier (Special Educational Needs and
Disability) Tribunal and the Special Educational Needs Tribunal for
Wales, and for legal advice and representation at the Upper Tribunal (and
higher courts). We proposed removing all legal aid in this area (other than
for claims relating to a contravention of the Equality Act 2010).
Key issues raised
61. The main issues raised by respondents to the proposal to remove
education matters from the scope of legal aid were:
– it was inappropriate to view exclusion matters as a “personal choice”
about conduct because children were below the age of responsibility,
and their behaviour might be due to special educational needs
(SEN);
– these cases tended to deal with more difficult admissions cases
where clients had moved because they were victims of domestic
violence or were travellers;
– the exclusion of education and admission matters could prevent
discrimination claims from being brought because it would take legal
advice to identify that the clients had the grounds for a discrimination
claim;
– lack of early advice would lead to additional judicial review legal aid
costs because legal aid would remain for that area;
– children involved in bullying could suffer serious physical or
psychological harm, and that children with SEN were particularly
vulnerable to bullying;
– some respondents were supportive of excluding educational
negligence cases from scope.
62. It was argued, specifically on SEN in particular that:
– SEN cases were very complex, that Legal Help did not just cover
advice but also paid for vital independent expert reports from
educational psychologists. Without legal aid, clients would be unable
to afford their own expert report to challenge the report of the local
authority;
125 Reform of Legal Aid in England and Wales Government Response
– parents of children with special educational needs were vulnerable
because they frequently had substantial caring responsibilities and
were much more likely to have SEN themselves;
– SEN claims could very easily be recast as disability discrimination
claims under the Equality Act 2010, which were remaining in scope;
– the capacity and resources of alternative sources of advice cited are
already stretched and it is unlikely they will be able to deal with a
larger workload without funding;
– children’s futures would suffer if they could not get the educational
provision they needed;
– respondents also argued that SEN cases were very similar to
Community Care cases in that these both involved obtaining from
local authorities provision for vulnerable disabled persons.
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Key issues raised
125. The majority of the respondents agreed that these cases should remain
within scope. However, they also argued that where an excluded case
had a discrimination element (for example, employment) funding should
be allowed for the excluded matter because it will not be practical to
separate the issues.
The Government response
126. We consider, in line with the proposals in the consultation paper, that
unlawful discrimination cases should be retained within scope. We have
therefore decided that funding should continue to be provided for claims
relating to a contravention of the Equality Act 2010 (at the existing levels
of service). These claims have an importance beyond a simple money
claim due to the nature of the issues at stake – addressing societal
prejudice and ensuring equality of opportunity – that on balance justifies
the continuance of funding.
127. We acknowledge that cases will arise where it will be difficult to separate
discrimination from other issues in terms of funding. Under the current
legal aid scheme, there are provisions set out under the Funding Code to
cover mixed cases, in which the case is partly in and partly out of scope.
These provisions allow funding of the whole case in certain
circumstances, and in others they allow funding for aspects of the case.
We will ensure that similar appropriate provisions are included in the new
scheme.
128. The Government therefore intends to retain legal aid for claims
concerning contravention of the Equality Act 2010 at the levels of service
where it is currently available, and to make appropriate provision for
mixed cases.
109 Reform of Legal Aid in England and Wales Government Response
Environmental Cases
129. Legal aid is available for legal advice and representation for
environmental cases. We proposed to retain environmental nuisance
claims in which an injunction is sought as relief, subject to the proposal in
paragraph 4.242 of the consultation paper to remove damages claims
from all categories of law.
Key issues raised
130. Those who replied on this area agreed that legal aid should be retained,
and that doing so was an important way for the United Kingdom to show it
was meeting its Aarhus Convention obligations.
The Government response
131. Having considered the responses to the consultation, the Government
intends to retain advice and representation for environmental injunctions
in respect of nuisance. We also intend (in line with our obligations under
EU law (the Public Participation Directive 2003/35/EC PPD)) to retain
legal aid for judicial review (see Public Law).
European Union cross-border cases
132. The ‘European Cross-Border Dispute’ directive (Council Directive
2002/8/EC) is a reciprocal agreement between EU member states which
sets out minimum common rules relating to legal aid in civil and
commercial disputes where the party applying for funding is domiciled or
habitually resident in a Member State other than the Member State where
the court is sitting or the decision is to be enforced.
Key issues raised
133. There were very few responses on this point, but those who did respond
agreed with the proposal.
The Government response
134. We intend to keep these cases in scope in order to comply with our
international obligations under European Union law.
The forum in which cases are heard
135. Legal aid is currently available for appeals to the Court of Appeal and the
Supreme Court, and for references to the European Court of Justice,
provided that the matter or issue is not excluded.
136. We proposed to reduce the availability of legal aid for these appeals and
referrals in line with the proposed of scope of subject matter i.e. that if the
case was not within the scope of legal aid in the lower courts, then it
would not be in scope in these higher courts.
110 Reform of Legal Aid in England and Wales Government Response
Key issues raised
137. Most responses did not directly address this point, which they instead
raised in the context of the proposals to remove particular areas from
scope or in general points about the ability of litigants-in-person to
conduct proceedings, especially on points of law. Responses generally
opposed legal aid not being available for onward appeals, particularly for
respondents, and particularly where their opponent might be the state,
and particularly where the appeal was on a point of law. Immigration
appeals were offered as an example where all three of these
characteristics might feature.
The Government response
138. We consider that the fact that these cases are before a higher court does
not automatically outweigh other considerations. Where these cases
involve matters which generally will be out of the scope of legal aid, they
will be a lower priority for funding.
139. Therefore funding for appeals to the Court of Appeal and Supreme Court
and references to the European Court of Justice will only be within the
scope of legal aid when the appeal or reference arises in an area of law
which is itself in scope.
Conclusion
140. A summary of the cases and proceedings the Government intends to
retain in scope, and to remove from scope, is set out at the conclusion of
Annex B to the Government response.
111 Reform of Legal Aid in England and Wales Government Response
Annex B: Cases and proceedings removed from the scope of
legal aid
Introduction
1. The consultation asked:
Question 3: Do you agree with the proposals to exclude the types of case
and proceedings listed in paragraphs 4.148 to 4.245 of the consultation
document from the scope of the civil and family legal aid scheme. Please
give reasons.
2. There were 3,749 responses to this question. 103 (3%) agreed with the
proposal, 3,380 (90%) disagreed, and 266 (7%) neither agreed nor
disagreed.
3. Although a significant majority of responses disagreed with the proposals,
the Government remains convinced that reform is necessary to avoid
unnecessary litigation, reduce the cost of legal aid and deliver better
overall value for money. We therefore intend substantially to implement
the reforms to scope proposed in the consultation. The key issues raised
by respondents, and the Government’s response, are detailed below.
4. In some cases, responses to the consultation raised issues which have
persuaded the Government to amend or refine our original proposals in
order to ensure that our objectives for legal aid reform are met. Full
details are also set out below.
5. We also proposed (paragraph 4.148) continuing to exclude areas of law
which are currently excluded from the scope of the scheme, including
personal injury, damage to property, defamation or malicious falsehood,
boundary disputes, conveyancing, the making of wills, trust law, company
or partnership law and business cases. The Government intends to
continue to exclude these areas because the issues are of low
importance, when compared with other cases concerning, for example,
fundamental rights such as life or liberty, and in many cases (for example,
personal injury) alternative sources of funding are available, such as
Conditional Fee Agreements.
6. We also proposed continuing to exclude from scope advocacy before the
coroners’ court and most tribunals. We intend to continue to exclude
these areas because of the ease of access and the more user-friendly
nature of most tribunals (as opposed to courts), and because of the
inquisitorial non-adversarial nature of inquests. We also intend, as
proposed, and for the same reasons, to repeal section 51 of the Coroners
and Justice Act 2009 which would have extended advocacy to certain
inquests. Advocacy for inquests may be available under the exceptional
funding scheme. Further details are set out at paragraph 133 and in
Annex C.
112 Reform of Legal Aid in England and Wales Government Response
Ancillary relief and private law children and family Cases (where
domestic violence not present)
7. Legal aid is currently available for legal advice and representation in
disputes concerning the division of financial assets on the dissolution of a
relationship. This includes financial provision on divorce, claims by
cohabitants for interests in property, and claims under the Inheritance
(Provision for Family and Dependents) Act 1975. These can include
disputes about the marital home or other assets, and involve, for
example, applications for property adjustment, periodical payments, lump
sums, or pension sharing orders.
8. Legal aid is also currently available for advice, representation and
mediation in a range of disputes arising from relationship breakdown. This
area of law covers a range of proceedings relating to children and
families. These include:
– orders for child contact and/or residence (including rule 16.2/16.6
cases);
– parental responsibility orders;
– prohibited steps or specific issue orders;
– parenting orders;
– family maintenance;
– divorce, judicial separation, nullity and dissolution of civil partnership;
and
– international child abduction.
9. In the consultation, we proposed that all legal aid other than for family
mediation services should be excluded from the scope of the scheme for
all ancillary relief cases other than those where domestic violence is
present. We also proposed to exclude private law children and family
matters where domestic violence was not present from the scope of legal
aid for all levels of service other than mediation (except for international
child abduction, which we proposed would remain in scope, and the
representation of children in Rule 9.5 and 9.2A cases (now rules 16.2 and
16.6);
Key issues raised in consultation
10. Responses to this proposal from individuals, legal practitioners,
representative bodies, the judiciary and most other stakeholders were
almost entirely negative, other than for a general agreement that
resolving cases out of court is preferable to court for all concerned.
Respondents argued that:
– only a limited number of family cases would be diverted into
mediation, due to the nature of the issues involved;
– many legal aid clients are vulnerable, and will need assistance to put
their case;
113 Reform of Legal Aid in England and Wales Government Response
– there would be a reduction in access to justice – some people will be
put off taking a meritorious case to court. Others will still bring their
case to court but have worse outcomes. Both would have knock-on
consequences beyond the individual – particularly on children, but
also on the welfare state;
– there will be an increased burden on the family courts. Poor cases
will not be filtered out due to lack of early legal advice, and fewer
cases will settle without lawyers’ involvement. As a result there will
potentially be more cases going to court, with a greater percentage
involving litigants-in-person, which in turn will take longer and be less
likely to settle;
– there will also be increased burdens on Cafcass due to the increased
reliance by judges on them in the absence of legal aid;
– the timing should be reconsidered: legal aid reforms should wait for
the Family Justice Review proposals and be implemented in tandem
in order to avoid disjointed policy;
– there would potentially be an increase in public law cases, and
therefore in the number of children taken into care, because private
law proceedings are often used as an alternative to public law cases;
– a smaller number of representative bodies and individual responses
suggested that the proposals risked breaching both article 6 and
article 8 of the European Convention on Human Rights.
11. Respondents also raised specific issues in relation to private law children
cases, including the importance of ensuring safe and equitable contact
arrangements, the potential for interim care orders to arise during private
law proceedings where the parents are unrepresented, and the difficulty
that unrepresented litigants would have in making applications, putting
forward their case and dealing with issues such as enforcement of orders
and jurisdiction questions.
12. In relation to ancillary relief cases, respondents raised the importance of
protecting the financial interests of the vulnerable, including children, and
the difficulty that unrepresented litigants would have dealing with financial
arrangements of greater complexity such as pension sharing and
constructive trusts, and dealing with issues such as disclosure (especially
where one party is uncooperative) and preventing the dissipation of
matrimonial assets.
13. Some respondents also argued that the private family law proposals
would have a disproportionate effect on children and suggested that the
impacts of the proposals on children should be specifically considered.
Some respondents also argued that the private family law proposals
would have a disproportionate impact on women.
114 Reform of Legal Aid in England and Wales Government Response
14. Other concerns included:
– the availability of legal aid in private family law cases involving
allegations of child abuse;
– how experts would be instructed and their reports paid for in private
law family cases, and how litigants without representation would test
their evidence;
– the availability of legal aid for the prevention of international child
abduction, as well as after it has occurred, and for the removal of
children within the UK;
– legal aid for children who are parties to proceedings other than under
Rule 9.5 or 9.2 of the Family Proceedings Rules 1991, such as
looked after children who are searching for, or applying to have
contact with, siblings who are not looked after.
The Government response
15. The Government accepts that certain features of private family law, and
particularly ancillary relief cases, may be complex in some instances.
However, we do not consider that these cases are routinely as complex
as other areas, and legal aid will remain available for exceptional cases
where it is required as a result of our domestic or international legal
obligations, including article 6 of the European Convention of Human
Rights. The Government also needs to prioritise its resources, and does
not consider most private family law cases as high priority for legal aid
compared with cases, for example, involving homelessness, domestic
violence or liberty.
16. Many people currently choose to represent themselves in court, and the
courts therefore already have to deal with litigants-in-person. The
Government considers that certain factors will mitigate the impact of the
proposals on access to justice for litigants-in-person. There is a fuller
discussion of this cross-cutting issue in Annex C. These factors include:
– the evidence on the impact of litigants-in-person on case duration is
mixed,
– there is current assistance available to litigants-in-person,
– the availability of legal aid for family mediation will continue and we
will work with providers to increase awareness,
– the Government will examine the system to support litigants-inperson as part of the post-implementation review and will report the
findings to Parliament.
17. The Government accepts some of the concerns raised about private
family law cases which are brought as an alternative to public family law
cases. As a result, we have decided to retain in scope legal aid for the
protective party in private law children cases involving child abuse (see
paragraphs 44 to 48 of Annex A).
115 Reform of Legal Aid in England and Wales Government Response
18. The making of an interim care order at a private family law hearing is a
relatively unusual step taken only where the judge considers it necessary
to protect a child. The parents would be able to apply for legal aid to
challenge the interim care order, as public family law cases will remain
within the scope of legal aid.
19. The Government considers that the impact of the proposals on children
will be mitigated by targeting legal aid on the highest risk cases – those
involving domestic violence and child abuse (see paragraphs 37 to 48 of
Annex A), as well as continuing to fund international child abduction
cases (paragraphs 74 to 81 of Annex A) and child parties in private family
law cases (paragraphs 25 to 30 below).
20. Concerns about cases involving child abuse are addressed in Annex A,
the impact of litigants-in-person on the courts is covered in Annex C and
the equality impacts of the reform programme are set out in the Equalities
Impact Assessment.
46
We intend to take steps, including through
guidance, to limit the impact of the reforms on Cafcass, and to monitor
the scale of any impact. The Government considers that legal aid should
be available for expert reports in cases remaining in scope. This means
that a proportion of the costs of expert reports may remain available in
cases involving domestic violence or child abuse, and in cases where
there is a child party.
21. The Family Justice Review is a separate and independent programme of
work from legal aid, and it is looking at the whole system of family justice.
The legal aid proposals are not dependent on the outcome of the review
but complement the aims of the Review, for example, by encouraging
mediation.
Prevention of child abduction cases
Key issues
22. The consultation document proposed keeping legal aid in scope for
international child abduction cases. Consultation responses argued that
this would not cover steps to prevent abduction and that legal aid should
be available to prevent ‘abduction’ within the UK, as well as to locate a
child within the UK.
The Government response
23. The Government notes that preventing abduction is a particularly
important concern in cases of abduction to non-Hague Convention
countries where it is much harder to recover a child once they have been
abducted. We have therefore decided to retain legal aid to obtain an
emergency order to prevent unlawful removal of a child from the United
46
See footnote 4 above.
116 Reform of Legal Aid in England and Wales Government Response
Kingdom. Legal aid will not however be available to oppose orders to
prevent unlawful removal taking place or to apply to take a child out of the
jurisdiction.
24. The Government does not consider that internal cases not involving a risk
of removal from the United Kingdom raise the same issues.
Disagreements over where parents should live are commonplace in
family proceedings. Furthermore, purely domestic cases do not involve
the same imperative to prevent removal of the child to avoid the
difficulties of securing return once the child is abroad and in a different
system. We do not propose to change our general approach to private
family law for these cases.
Representation for child parties in private law family cases
25. In the consultation, we proposed retaining Legal Help and Representation
for children who are separately represented under Rules 9.2A or 9.5 of
the Family Proceedings Rules 1991, which have since been replaced by
Rules 16.2 and 16.6 of the Family Procedure Rules 2010.
26. Under Rule 16.2 the judge can, in certain circumstances, make a child a
party to the proceedings if it is in their best interests. Cafcass would
normally appoint a guardian, who in turn would instruct a solicitor on the
child’s behalf. Under Rule 16.6, a child party may also need to be
represented where they are old enough and able to instruct a solicitor
directly.
Key issues raised
27. While consultation responses were supportive about continuing to provide
legal aid for children who are separately represented under rule 16.2,
some respondents argued that due to the seriousness and frequent
complexity of rule 16.2 cases all parties to them, not just children, should
have access to legal aid.
The Government response
28. While the Government accepts that some of these cases may be more
complex than routine cases, the fact that it is in the best interests of the
child to be separately represented does not necessarily mean that the
case would be so complex as to require representation for all of the other
parties.
29. The Government accepts that where a child needs to be a party to a
private family law case they should have access to legal aid. We will seek
to ensure that children are not used by adult family members who would
be better placed to be a party, as a way to get access to legal aid.
117 Reform of Legal Aid in England and Wales Government Response
30. In conclusion, for the reasons set out above, the Government has
decided that ancillary relief and private family law cases should be taken
out of scope, with the following significant exceptions:
– legal aid will continue to available for victims of domestic violence
and for the protective party in cases involving child abuse;
– 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 the contact issues in these cases;
– 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 (legal aid will only be available for child
parties in these cases, and not for the other parties);
– private law family cases will remain in scope for all child parties,
including children who are parties other than under rules 16.2 or
16.6; and
– legal aid will also be available for applications to prevent international
child abduction.
Clinical Negligence
31. Legal aid is currently available for legal advice and representation for
clinical negligence cases. The consultation paper proposed that such
cases would be removed from scope in their entirety.
Key issues raised
32. The majority view of the respondents was that clinical negligence should
not be removed from scope. Their concerns were largely as follows:
– Conditional Fee Agreements (CFAs) are unlikely to be available for
any cases which require extensive expert advice to establish liability
and causation over a period of possibly several years, for example,
cerebral palsy and serious obstetrics cases, for example, cases
involving brain-damaged babies);
– the cost of disbursements in cerebral palsy and serious obstetrics
cases tend to be very high and individuals would not be able to afford
to pay for these privately;
– some respondents urged us to retain in scope children cases
including cerebral palsy and serious obstetrics cases, because CFAs
are not available and people cannot afford to pay for expert reports
(although there are some adult cases (for example, paralysis) with a
similar profile);
– removal of legal aid for clinical negligence coupled with the Jackson
proposals to reform CFAs (which it was argued were likely to reduce
significantly the number of cases in which CFAs can be offered)
would deny access to justice for the poorest in society and the state
would fail in its duties under article 6;
118 Reform of Legal Aid in England and Wales Government Response
– at a minimum legal aid should be available for investigative work, if
not for all the claim, or it should be retained for the most vulnerable
people (for example, children);
– these proposals were contrary to the original intention of Jackson LJ
who has argued that legal aid should be maintained for clinical
negligence cases;
– removing clinical negligence from legal aid whilst reducing the
availability of no-win no-fee agreements will result in the National
Health Service becoming even less accountable to those injured
through its negligence;
– in these cases there is a fundamental inequality of arms – the doctor
will be funded and represented whereas the potential claimant will
not;
– there should be greater take-up of “before the event” insurance,
although some recognised that those most vulnerable will not have
this currently in their insurance packages due to extra costs.
The Government response
33. We recognise that respondents have voiced serious concerns about the
removal of clinical negligence from the scope of legal aid, and in
particular on the impact on cases which require substantial expert
investigation at the outset.
34. These concerns were also raised by respondents to the consultation on
civil litigation costs (Jackson). In our response to that consultation,
47
we
announced our decision to implement a range of Lord Justice Jackson’s
recommendations, including abolishing the recoverability of success fees
and “after the event” (ATE) insurance premiums associated with ‘no win
no fee’ conditional fee agreements (CFAs), increasing general damages
by 10%, and extending the availability of damages based agreements
(DBAs).
35. However, in light of the concerns that had been raised about
disbursements and clinical negligence cases in particular, we announced
that a power will be put in place (subject to Parliamentary approval) to
allow recoverability of the ATE insurance premiums to cover the cost of
the expert reports in clinical negligence cases only. The MoJ will continue
to work with the Department of Health and claimant and defendant
representatives and insurers, to ensure that joint expert reports can be
commissioned wherever possible so that ATE insurance is not necessary.
36. In our view, these changes will deter unnecessary or avoidable claims,
but will continue to allow good clinical negligence claims to be brought
Reform of Legal Aid in England and Wales: the Government Response Part 16
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Mental Health
82. Legal aid is currently available for legal advice on any mental health
matter, and representation for mental health matters heard in the county
court, such as changing a detained person’s “nearest relative” for mental
health legislation purposes, for damages claims, and for representation
before the First-tier mental health tribunal, and onward appeals.
83. Advice is currently available for any mental capacity matter and
representation is available for the Court of Protection in limited
circumstances where there is to be an oral hearing and the case will
determine the vital interests of the individual i.e. life, liberty, physical
safety, medical treatment (including psychological treatment), capacity to
marry or enter into a civil partnership, capacity to enter into sexual
relations, or the right to family life.
84. We proposed retaining these cases within the scope of legal aid, except
that tort and other damages involving mental health issues will not be
within scope unless those claims meet the criteria for “claims against
public authorities” or “claims arising out of allegations of the abuse of a
child or vulnerable adult, or allegations of sexual assault” (see separate
sections).
Key issues raised
85. Respondents agreed that funding should be retained for these cases, but
a minority also argued that funding should be retained for damages
claims arising in a mental health context, because very vulnerable
detained patients will not be able to bring such cases themselves.
102 Reform of Legal Aid in England and Wales Government Response
The Government response
86. Bearing in mind our ECHR obligations to detained persons, and the
strong support of respondents, our view remains that funding should be
retained in this area. Advice and representation in mental health and
mental capacity proceedings under the Mental Health Act 1983 and the
Mental Capacity Act 2005 will be retained in line with the scope of the
current scheme.
87. However claims involving tort or other general damages claims will be
excluded from scope except where these meet the criteria for “claims
against public authorities” or “claims arising out of allegations of the
abuse of a child or vulnerable adult, or allegations of sexual assault”. We
accept that often these clients might have greater difficulties than others
in bringing proceedings, but nevertheless, given that these are money
claims which we consider to have a lower priority than other more
fundamental matters, and for which alternative funding, such as under a
Conditional Fee Agreement, may be available, we do not consider it
appropriate for legal aid to be provided for those cases.
Public Law (Judicial Review and other similar remedies)
88. Legal aid is available for judicial review (and other similar proceedings
where a court applies the principles applicable on judicial review) and
applications for the writ of habeas corpus.
89. The consultation proposed retaining legal aid for judicial review
proceedings. However, this was subject to the proposals at paragraphs
4.148 and 4.149 of the consultation to exclude from scope categories of
case currently listed in Schedule 2 of the Access to Justice Act 1999 –
including business cases.
Key issues raised
90. The majority of the respondents agreed with retaining legal aid for this
area. However, the sub-committee of the Judges’ Council that responded
to the consultation made suggestions about how to limit further funding
for unmeritorious judicial reviews. These included a suggestion to remove
or severely curtail funding for judicial reviews in immigration and asylum
cases where there has been a full oral hearing on the merits within a
specified period or the case is a challenge to removal directions or
detention pending removal.
91. The response pointed out that of some 12,500 judicial review claim forms
issued in the Administrative Court in 2010, approximately 7,500
concerned asylum or immigration matters. In the great majority of cases,
the sub-committee stated, there had already been an adverse decision by
the Secretary of State giving rise to an unsuccessful appeal on the merits
to the Asylum and Immigration Tribunal or the First-tier Tribunal. Judicial
review in these cases it was argued, was often the second – or
sometimes the third or fourth – bite at the cherry, and that many of the
cases failed and were without merit. Whilst such cases would normally be
103 Reform of Legal Aid in England and Wales Government Response
refused at the permission stage, a significant amount of public funds and
judicial time was used up in the process.
The Government response
92. Most of the cases highlighted by the Judges’ Council are not, we believe,
brought with the benefit of legal aid. The current criteria governing the
granting of legal aid in individual cases would generally preclude such
funding. Even if the numbers of cases involved are relatively small, we
accept the principle that these cases should not receive funding, subject
to certain safeguards. 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).
93. 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;
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.
94. However, cases falling within (i) and (ii) above 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 judicial reviews of a decision of the Secretary of State not to
treat further submissions as a fresh asylum claim and cases against
a certificate issued under section 94 of the Nationality, Immigration
and Asylum Act 2002
44
); and
– where the challenge is to a certificate issued under section 96 of the
Nationality, Immigration and Asylum Act 2002.
45
95. We also intend to maintain the restriction, currently in the Legal Services
Commission’s Funding Code, which allows legal aid for judicial review
cases only where the proceedings have the potential to produce real
44
See footnote 10 above.
45
See footnote 11 above.
104 Reform of Legal Aid in England and Wales Government Response
benefits for the applicant, the applicant’s family, or the environment.
These changes to the Funding Code which were introduced by the
previous administration were recently quashed by the High Court. While
the Court found that the process followed in making these changes was
flawed, the Court did not find that the restriction itself was unlawful. Legal
aid should be focused on the highest priority cases, and because we
consider that bringing a judicial review over a matter with which you have
no personal involvement or connection will not generally be of a high
priority for funding, we intend to remove these cases from the scope of
the legal aid scheme.
Public Law children
96. Legal aid is currently available for legal help and representation in public
law children cases. This is an area of law which covers proceedings
under the Children Act 1989 where a local authority is considering
commencing, or has commenced, care and supervision proceedings in
respect of a child, proceedings for a child assessment order, or
proceedings for an emergency protection order. Other public law
proceedings include adoption proceedings under the Adoption and
Children Act 2002, and cases which are heard under the inherent
jurisdiction of the High Court (for example, wardship). The consultation
proposed keeping such cases in scope as now.
Key issues raised
97. Respondents agreed with the proposal to retain these cases in scope.
There was reference however to the need to control costs in this area,
which is within the remit of the Family Justice Review. Respondents
raised concerns about the availability of legal aid for private family
proceedings that are connected with public law proceedings, especially
where a private law remedy might provide an alternative to a care order.
The Government’s Response
98. The Government has decided to keep public law children cases within the
scope of legal aid. By keeping public law children cases in scope, legal
aid will also be available for related proceedings, such as those heard
alongside public law proceedings. We have also decided to retain legal
aid for the protective party in private law proceedings where there is
evidence of child abuse (see paragraphs 44 to 48 above).
Registration and enforcement of judgments under European Union
legislation
99. Currently the Courts of England and Wales recognise a range of family
and civil judgements which are made in other Member States of the
European Union, and legal aid is available for the registration and
enforcement of these judgements.
105 Reform of Legal Aid in England and Wales Government Response
100. In the consultation, we proposed retaining legal aid funding for the
registration and enforcement of family and civil judgements made in other
Member States of the European Union.
Key issues raised
101. Very few consultation responses commented specifically on this proposal,
but those who did agreed with it.
The Government response
102. In view of the consultation responses and the nature of these cases, the
Government will keep these cases in scope.
Representation of children in Rule 9.5 and 9.2A (now 16.2 and 16.6)
private law children cases
103. Legal aid is currently available for advice and representation for
separately represented children in private law children cases. In the
consultation, we proposed retaining Legal Help and Representation for
children who are separately represented under Rules 9.2A or 9.5 of the
Family Proceedings Rules 1991, which have since been replaced by
Rules 16.2 and 16.6 of the Family Procedure Rules 2010.
Key issues raised
104. All the consultation responses that commented specifically on this
proposal agreed with it. Some respondents argued that all parties in these
cases should be able to get legal aid.
105. The availability of legal aid for children in other private family law cases is
considered at paragraphs 25 to 30 of Annex B.
The Government response
106. The Government has decided to retain legal aid for these proceedings as
set out in the consultation.
Miscellaneous (areas to retain)
107. Legal aid is available for legal advice and representation for a range of
other matters which do not fall within the scope of other categories – these
are classified by the LSC in the “Miscellaneous” category for funding
purposes.
108. We proposed retaining some of these cases within the scope of legal aid,
namely: confiscation proceedings, injunctions concerning gang related
violence, Independent Safeguarding Authority Appeals (Care Standards),
Legal Help at inquests, Protection from Harassment Act 1997 and
quasi-criminal proceedings.
106 Reform of Legal Aid in England and Wales Government Response
Key issues raised
109. A limited number of respondents commented on this section. There were
very few comments on the Miscellaneous areas we have proposed
retaining. Respondents agreed with retaining Legal Help for inquests, but
argued that funding should be extended to cover representation.
The Government response
110. Confiscation proceedings under the Proceeds of Crime Act 2002:
Currently, legal aid is available for a range of proceedings in the Crown
Court and magistrates’ courts relating to offences under the Proceeds of
Crime Act 2002. These are in the main proceedings connected with the
confiscation of criminal assets. Civil legal aid is available principally where
the confiscation proceedings (such as an application for a restraint order
to prevent a person dealing with property) are taking place independently
from a criminal prosecution, or where the recipient is a third party who
may have a claim over the restrained assets.
111. We consider that the current funding provision for these cases should be
retained because the litigant’s assets will have been restrained by the
state, preventing them from paying privately for legal representation.
112. Injunctions concerning gang-related violence: section 34 of the
Policing and Crime Act 2009 will allow the Court to impose an injunction
on an individual if it is satisfied that the individual has engaged in, or has
encouraged or assisted, gang-related violence, and that an injunction is
necessary to prevent gang-related violence, or to protect an individual
from gang-related violence.
113. We consider that legal aid should be retained for these civil proceedings,
given the potential restrictions placed upon a person’s liberty as a result
of such an injunction. Breach of an injunction can lead to contempt of
court proceedings which, for 14 to 17 year olds, can result in a
supervision order or a detention order being made under the Crime and
Security Act 2010, and for those aged 18 years or over can result in up to
two years in prison and/or an unlimited fine.
114. Independent Safeguarding Authority Appeals: Civil legal aid is
currently available for an appeal in relation to inclusion on a list of
individuals who are considered unsuitable to work with children and
vulnerable adults or in relation to prohibiting an individual from teaching
and related activities.
115. We consider that legal aid should be retained in this area because
inclusion on this list will have a significant and lasting impact on the life
and the livelihood of an appellant who may have been included on the list
in error.
116. Legal Help at Inquests: Legal Help is currently available at inquests, and
can be used to assist bereaved families in making written submissions to
107 Reform of Legal Aid in England and Wales Government Response
the coroner (for example, a list of questions they wish him or her to ask
other witnesses).
117. We consider it appropriate to retain Legal Help for Inquests to assist the
bereaved given the importance of the issue in these cases (investigating
the cause of death of a loved one). However, we do not consider that
legal aid for advocacy is generally required given that inquests involve an
inquisitorial process rather than adversarial court proceedings.
Participants do not have to present legal arguments, and can ask
coroners to question witnesses on their behalf. However, we consider that
legal aid advocacy services should be capable of being available in
relation to inquests in some circumstances under the exceptional funding
mechanism. See Annex C for further details.
118. Protection from Harassment Act 1997: The Courts have the power,
under sections 5 and 5A of the Protection from Harassment Act 1997, to
make a restraining order, either on conviction for a violent offence or on
acquittal, where they consider that the victim needs additional protection.
119. We consider that funding should be retained for the victim in relation to
applications to vary or discharge such a restraining order on the basis
that the issues at stake are important, as the litigant’s physical safety is
potentially at risk (for example, where an ex-defendant seeks to vary or
discharge such an order). This is consistent with our general approach to
funding proceedings where an individual’s physical safety is at risk.
120. Legal aid is also available for bringing or defending injunctions against
anti-social behaviour under sections 3 and 3A of the Protection from
Harassment Act 1997.
121. The Government intends to retain legal aid in these cases for both
parties, primarily because of the potential restrictions placed on the
defendant’s liberty. In line with our approach on tort cases, damages
claims will not be funded.
122. Quasi-criminal proceedings: Civil legal aid is currently available for any
civil proceedings in which the individual may be subject to orders or
penalties which are (or which the individual is reasonably contending are)
criminal penalties within the meaning of article 6 of the European
Convention on Human Rights. Where a civil case has a penalty which has
been determined by a court to be criminal in ECHR terms, we consider
that similar considerations apply as in criminal cases, and that these
cases are a priority for funding because of the nature and severity of the
penalties which may result. We therefore intend to retain legal aid for
quasi-criminal proceedings which meet the existing strict test (including
the interests of justice test). However, we consider that it is more
appropriate that this should be provided through the criminal legal aid
scheme, rather than the civil, and we will extend the list of proceedings
covered by criminal legal aid to include these cases. Where an out of
scope case has a ‘penalty’ which has not been determined by a court to
be criminal, legal aid may be made available where, in the particular
108 Reform of Legal Aid in England and Wales Government Response
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.
Cross Cutting Issues
Discrimination
123. Legal aid is available for legal advice and representation for cases
alleging unlawful discrimination, harassment or victimisation and this can
arise in a variety of contexts from consumer to education to employment
matters.
124. We proposed that legal aid should remain available for those
discrimination claims, subject to current restrictions on scope (which, for
example, exclude funding for representation before the employment or
social security tribunals.
Reform of Legal Aid in England and Wales: the Government Response Part 15
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This is Part 15 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.
70. Legal aid is currently available for cases concerning detention under
immigration powers including bail. Legal aid is also available for advice
and representation for proceedings before the Special Immigration
Appeals Commission (SIAC).
Key issues raised in consultation
71. Most respondents agreed with the proposal. Almost all of those who
disagreed felt that it would be practically impossible to distinguish
between the underlying immigration matter and the detention matter and
that legal aid should remain available to those in detention for all
immigration matters. One respondent disagreed altogether with keeping
these cases in scope on the basis that the immigration system had been
abused.
The Government’s response
72. The Government considers that contracted legal aid providers should not
generally find it difficult to distinguish between advice related to aspects
of immigration detention or bail and the underlying immigration issue.
Providers are frequently expected to make such distinctions currently as
part of their legal aid contract obligations. We therefore do not accept the
argument that it would be impossible to distinguish between underlying
immigration matters and detention issues.
73. Given that the individual’s liberty is at stake in immigration detention and
bail cases, and the nature of the issues involved in SIAC cases, the
Government’s view is that these cases should remain in scope.
100 Reform of Legal Aid in England and Wales Government Response
International Child Abduction and Family Maintenance
74. Legal aid for legal representation is currently available under reciprocal
arrangements on international child abduction set out in the 1980 Hague
Convention,
41
the Luxembourg Convention
42
and the Child Abduction and
Custody Act 1985 which gives effect to them in domestic law, and the
Council Regulation (EC) No 2201/2003 (Brussels IIa).
43
In addition, legal
aid is available for legal help for applications to the Child Abduction Unit
for transmission to another jurisdiction.
75. Legal aid is also currently available under a number of reciprocal
agreements for international applications, appeals and enforcement
proceedings concerning family maintenance and child support, and for
international child maintenance applications.
76. In the consultation, we proposed to retain legal aid for all international
child abduction cases, and to continue to provide legal aid under
reciprocal agreements for international applications, appeals and
enforcement proceedings concerning family maintenance and child
support, and for international child maintenance applications.
Key issues raised
77. This proposal was welcomed by those respondents who commented on
it. Respondents argued that legal aid is needed in these cases due to
their importance, urgency and difficulty. There was one suggestion that
Hague Convention cases should be means tested once the case had
finished.
78. Some respondents questioned whether legal aid would be available for
the respondents in international child abduction cases. Some
respondents to the consultation also raised concerns about not providing
legal aid for advice on the jurisdiction in which to issue divorce
proceedings where there is an international element, given the potential
for different outcomes in different jurisdictions and the potentially serious
consequences of failing to get advice on financial relief.
41
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction.
42
European Convention [Council of Europe] on Recognition and Enforcement of Decisions
concerning Custody of Children and on the Restoration of Custody of Children signed in
Luxembourg on 20 May 1980. The 1980 Hague and Luxembourg Conventions apply to
persons from Contracting States.
43
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the
recognition and enforcement of judgments in matrimonial matters and matters of parental
responsibility. Brussels Ila applies to persons domiciled or habitually resident in the EU
Member State concerned.
101 Reform of Legal Aid in England and Wales Government Response
79. Respondents also argued that legal aid should be available for unlawful
removal of children from the United Kingdom. See Annex B for
consideration of this issue.
The Government’s Response
80. Under the consultation proposal, legal aid would continue to be available
for respondents in child abduction cases as it is at present. In regards to
whether legal aid should be available to answer questions on which
jurisdiction to issue divorce proceedings, the Government considers that
such cases are akin to other private family law cases, and therefore will
not generally be of sufficiently high priority to receive legal aid. Means
testing is generally governed by the requirements of the Convention or
regulation, and the Government’s position is to go no further than what is
required to meet our obligations.
81. For the reasons set out above the Government has decided that legal aid
should be retained for international child abduction and international
family cases.