Review of legal aid for inquests
Inquests offer an opportunity to investigate how a person has died. This process can be traumatic for the bereaved family. But the search to find out what happened is important in helping them to understand and make sense of their loss.
In 2017, in the light of a good deal of public criticism, the then Lord Chancellor, David Lidington MP agreed that there should be a review of the provision of legal aid at inquests. The Report Final report: Review of legal aid for inquests was published in February 2019.
In my view the title is misleading. The Report takes an overall look at the Inquest process. Only 1 of 3 chapters is actually about legal aid. The focus is on process both before a hearing and at the hearing, and the report makes recommendations about amending those processes – which obviously cost little if any money.
Chapter 2 deals with legal aid. In the course of the review, the Ministry of Justice received evidence which pointed to a number of concerns that stakeholders had regarding the provision of legal aid and the role of families in the application and inquests process. In particular, it suggested:
- the current legal aid application process might not be fully understood;
- there were difficulties in understanding the eligibility criteria for legal aid; and
- there were difficulties understanding the types of cases where funding may be available.
The Review also considered the recommendation to expand the provision of legal aid for certain types of cases – such as death in custody cases, and cases where the state are represented. This is the big-ticket item as it in those, often very controversial cases, where there can be a significant inequality of arms as between the parties to the inquest.
In relation to this point, however, the Review concludes:
Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.
So no big change. The Government says it will look at the information it gives to families. In order to address difficulties with the application process, the Government states it will look at the procedure for claiming under the Exceptional Case Funding Scheme to ensure it works as effectively as possible. It also states it will be introducing a provision for the backdating of the legal help waiver, so that all such payments can be backdated to the date of application should a waiver be granted. But these cannot be said to be substantial changes.
Given the overall approach to funding legal aid, following its Post-implementation Review of the 2012 reforms to legal aid (see this blog 8 March 2019) this conclusion is not unexpected. Nonetheless, it will be very disappointing to those who have to cope with inquests, particularly where there are significant evidential disputes as to what happened.
The Report can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf
A press release is at https://www.gov.uk/government/publications/review-of-inquests
Post Implementation Review of LASPO 2012 Part 1 (reform of legal aid)
February 2019 was a busy month for the Ministry of Justice.They published a large number of official documents relevant to the future of the English Legal System.
First up was the long-awaited post-implementation review of the legal aid changes brought about by Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), Part 1 which introducted major changes to the legal aid scheme. This is a very long document which concludes, broadly, that not much is going to change, at least in the short-term.
The key objectives of the reforms, as the Government saw them, were
- to reduce expenditure on legal aid;
- discourage unnecessary and adversarial litigation at public expense;
- target legal aid on those who need it most;
- deliver better overall value for the taxpayer.
The Review concludes, in the light of large amounts of evidence it received, that Objective 1 was successfully achieved. In relation to objective 2, the outcomes are unclear. There has been a reduction in clinical negligence litigation, now funded by Conditional Fee Agreements rather than legal aid; but family law litigation is increasing – diverting cases to mediation has not worked. The Review ‘cannot say with certainty’ whether objective 3 has been successful, as there in insufficient evidence from those outside the scope of the current legal aid scheme. They also cannot reach any conclusions regarding Objective 4.
A number of themes also emerged from the Review:
- Scope changes undermining value for money: LASPO removed many areas of early civil and family legal advice from the scope of legal aid, restricting it to the most serious cases. It is argued this lack of early intervention in social welfare and private family law generate wider costs as relatively minor legal problems can escalate and cluster into more serious problems.
- People who need legal aid cannot access it: LASPO did not substantially reform the financial eligibility requirements but lots of evidence was submitted arguing change was necessary.
- Exceptional Case Funding is not working: There were lots of criticisms over how the scheme operates.
- Fees for legal aid work are inadequate: Many practitioners, especially in criminal law, have argued this is affecting recruitment and retention, potentially creating future problems in provision.
- Increases in litigants in person generating costs: by removing funding for legal representation the volume of self-representing litigants has risen.
- Advice deserts: people may not able to access advice due to geographical remoteness, or a shortage of supply in their given area.
There was never going to be any chance that, despite the difficulties of assessing whether the objectives for the original legislation had been met and all the other issues the Review identified, the cuts made by LASPO would be restored. The Government has, however, taken modest steps which are worth noting and will be considered in future blog items.
The full report of the Review is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf
Reforming the parole board: new announcements
In April 2018 I noted here the fact that the Government was planning to take steps to reform the ways in which the Parole Board goes about its work. In March 2019, the Government has published the conclusions it has reached so far on this work. The principal features of the new approach are:
- The Government will change the Parole Board Rules to create a new reconsideration mechanism so if there is a seriously flawed decision it can be looked at again without the need for judicial review. This is the most important change in the current round of reform proposals.
- The Parole Board will publish new Standard Practice documents which will make more transparent the considerations and approaches to decision making that should normally be followed
- Improved engagement and communication with victims will be delivered through changes to the Victim Contact Scheme, the commitments in the Victims Strategy published on 10 September 2018 (see this blog November 29 2018) and a revised Victims’ Code following consultation in 2019.
- The Government will replace the current Prison Service Instruction on the parole process with a new Policy Framework which will make improvements to timeliness and efficiency as well as ensure the published instructions are up-to-date and support the other reforms.
- A new Operational Protocol between the Parole Board and HM Prisons and Probation Service will be published which will clarify and make more open everyone’s roles and responsibilities; support better joint working; and reduce duplication.
- Provision will be made in the Rules for prisoners with mental health needs and learning difficulties, who lack mental capacity, to ensure a fair hearing, including the appointment of suitable representation if necessary.
- A Rules Committee will be created to oversee future Rule changes, ensuring the rules keep pace with wider developments, with input from key stakeholders including victim representatives.
- A further Review of the Parole Board will examine the future constitution of the Parole Board and whether more fundamental reform requiring primary legislation is needed.
Further information about these proposed reforms can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775844/review-of-the-pb-rules-and-rm.pdf
A separate paper sets out in more detail how the proposed reconsideration mechanism will work. This is potentially an important change; its operation will need to be kept under review to ensure that it is an effective means of seeking reconsideration without the need for judicial review proceedings.
For further detail see https://www.gov.uk/government/consultations/reconsideration-of-parole-board-decisions-creating-a-new-and-open-system
Judicial decision making – tackling the problem of ‘cognitive bias’
When coming to decisions, we all have a tendency to reach decisions that are not entirely logical or free from bias. We should all aim to limit the effects of such biases. This is particularly important for those reaching decisions in a judicial setting. However, this is hard to do unless we know about the biasses that may exist and how they may be countered.
In a recent edition of Tribunals Journal (2018 No 2) Simon Ward – a medic who also sits as medical member of the First Tier Tribunal – discusses five major types of cognitive bias that exist when we are required to weigh evidence before reaching a decisions. He also considers techniques for countering these biasses.
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Representativeness. Similarity or resemblance to a group is used to imply representativeness of that group rather than using the real probability of membership. Applying the actual base rate rather than the perceived occurrence rate of the factor being considered, is recommended so the correct likelihood is utilised.
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Availability. Easily recalled or available memories or experiences are used to predict or estimate an outcome rather than the actual objective occurrence. Using measures to reduce reliance on memory such as reminders, prompts and checklists, is advocated so that accuracy is maintained.
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Anchoring. Salient or prominent features are preferred and given undue influence or anchored onto before evaluation is completed. Slowing down decision making to allow time to evaluate matters fully is advised so the correct weight or apportionment is applied.
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Confirmation. Information that confirms our own pre-existing expectations or beliefs is filtered and selected in preference to opposing or contradictory aspects. Actively seeking out alternative possibilities or positions is suggested so as to challenge and counter subjective, partisan or partial viewpoints.
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Optimism. Overconfident or optimistic evaluations are made of how much we know and how reliably we know it, whilst our own knowledge limits are undervalued. Comparing the current evaluation to a reference group of similar membership is recommended so as to allow calibration of the current decision
The article gives further examples of the applications of these principles and how they may be applied in practice. The lessons are, of course, important for all decision-takers, not only judges. It is an issue to which, historically, little attention has been paid in judicial training. It is very interesting that a practicing tribunal member should be seeking to share his expertise on this often misundertood issue.
The full article is at https://www.judiciary.uk/wp-content/uploads/2018/03/tribunals-journal-edition2-2018.pdf pages 2-9.
What goes on in the Commercial Court?
It used to be the case that the work of the Commercial Court and the Admiralty Court (now constituent parts of the Business and Property Courts of England and Wales) was the subject of an Annual Report. But there has been no such report for a number of years.
The lead judge of the Court, Mr Justice Teare, has now decided that the practice of providing Annual Reports should be revived. In February 2019, the first of the new series of reports, covering the year April 2017-March 2018, was published.
Although the number of cases coming before both the Commercial and Admiralty Courts is not that high, the value of these cases are often substantial. And a high percentage of the cases involve issues which have arising outside the UK. This reflects the fact that London is seen in many jurisdictions as the place where commercial disputes can and should be resolved – in turn reflecting the expertise of the major law firms based in London.
The report is available at https://www.judiciary.uk/wp-content/uploads/2019/02/6.5310_Commercial-Courts-Annual-Report_v3.pdf
The Modernisation of Tribunals – report from the Senior President of Tribunals
When he published his Annual Report in 2018, the Senior President of Tribunals promised that there would be a second report, devoted to the issue of the reform of the tribunal system, in the context of the overall courts and tribunals modernization programme.
This second report has now been published. It reports on the outcome of a consultation and a series of engagement meetings which took place around the country under the general heading of Judicial Ways of Working.
It is not an easy report to summarise, but the headline conclusions are:
- Judges will shape and lead reform in each of our jurisdictions to ensure that the rule of law is safeguarded and, in particular, that effective access to justice is improved.
- New process or the use of digital tools should never lead to less fair procedures or less effective access to justice.
- Judicial decision making should be no less open to public scrutiny than it is at present, that is, the careful balance we strike between open justice and the privacy of an individual’s personal information is maintained.
- We must ensure that systems are designed to meet the needs of the people who use them, for example how digital access is facilitated for the digitally excluded (a new service known as Assisted Digital). Different types of assistance are currently being tested.
- Tribunals led the way in the use of Case Officers before the modernisation programme began. A new generation of tribunals case workers has been trialled as part of the modernisation programme and a career structure has been developed for all ‘Authorised Officers’. Different models with differing levels of responsibility will work in each Tribunal. How and where authorised officers are used will be determined by each jurisdiction but subject to the overall protection of permissions contained in Rules and Practice Directions.
- Implementing change is a specialist task. There will be identified HMCTS managers and teams who are responsible for delivering successfully piloted projects in each jurisdiction. The Delivery of Change will depend on the agreement of an ‘end-to- end’ model for each jurisdiction.
- There is work to be done to agree the important features of the hardware and software that will be used to support us.
- Necessary funding for Digital Training has been obtained. Its provisions will be overseen by the Judicial College and judge trainers. The training will be available to judges and non-legal members and will include opportunities for authorised officers as well.
- Where video hearings are to be enhanced and fully video hearings tested, great care is being taken to make sure the system is designed with the needs of judges and users front and centre.
- The work towards a Tribunals Estates Strategy which considers each building in the Tribunals estate is an immense task but is nearly complete. The strategy and the principles which will determine how the leasehold estate is managed and how we plan for the future is expected to be agreed by February 2019. There is acknowledgement that some judges and members are currently in unsuitable accommodation; there is acceptance that provision for the Tribunals should in no way be inferior to that provided for the courts and a real desire to ensure that modernisation secures improvements to the working environment.
This is adapted from the summary in Annex E of the report, which is available at https://www.judiciary.uk/wp-content/uploads/2019/01/6.5332_JO_Modernisation-of-Tribunals-2018-Report_v3.pdf
Judicial Ways of Working
Administrative Justice Council – new website
In 2019, the Administrative Justice Council launched its new website. Go to https://ajc-justice.co.uk/ for further information.
Understanding Courts – a report from JUSTICE
In January 2019, the Human Rights Group JUSTICE published the report, Understanding Courts. It was the work of a group chaired by Sir Nicholas Blake.
The central message of the report – which builds on other reports published over the last few years by JUSTICE – is that going to court can be a confusing, intimidating and disempowering experience for lay people, whether as parties, witnesses or jurors. This is only compounded for people who are unrepresented, and for otherwise vulnerable people.
This report argues that, in the context of the current programme of reform of courts and tribunals, lay people should be put at the heart of court processes. The objective is to encourage meaningful access to justice through effective participation.
There are 41 recommendations in the report which focus on what effective participation should mean in practice. In broad outline, the key issues are that
- lay people should be informed about what will happen at their hearing through advance information provided by multiple means;
- court professionals should recognise that lay people should be their primary focus and adapt their approach accordingly;
- case management should ensure that lay people understand processes and assists with that understanding;
- legal jargon and confusing modes of address should be avoided, using plain English alternatives;
- there needs to be a change in professional culture that can otherwise exclude lay people;
- there should be appropriate adaptations to enable participation by children and those with a disability; and
- there should be support for all users who need it.
It is an interesting report, which deserves to be taken seriously. But I have the specific comments to make.
1 Tribunals have long espoused the key principles set out in this report. There is mention in this report that the user focus of tribunals needs to be brought into the court system. If this report has the effect of stopping (court) judges regarding tribunals as second class courts, rather than as first class dispute resolution forums, then it will have served a useful purpose.
2 There are many recommendations in the reports about ensuring that information provided by courts is user-friendly and up to date. This again is welcome but this is a message that has been developed on many occasions over recent years. Now is the time to get down to the hard work of developing user-friendly information and forms that really do enable individuals to improve their access to justice – using the potential of IT to the full.
3 If the change of culture recommended in the report is to be fully realise this has a significant implication for the training, not just of the judiciary, but also of court staff and other legal professionals. The recent spate of press stories about bullying judges is extremely worrying – it is hard to see how a bullying judge would have the empathy or patience to adopt the approach outlined in this report. Judges already in post will need as much training in the interpersonal skills required to change court culture as those coming new to the role.
The full report is available at https://justice.org.uk/our-work/areas-of-work/what-is-a-trial/
Resolving Housing Disputes: proposal for a Housing Complaints Resolution Service
The last two blog items have considered proposals for making the disputes resolution activities of the county court and the property tribunal in relation to housing matters work more coherently. But for many people, the very idea of going to a court (or tribunal) is daunting.
Increasingly, governments use non-court avenues for redress, where this can be done cost-effectively and in a way which promotes access to justice – in the broad sense of access to a service that will take an independent look at a dispute and resolve it. The outstanding example is in the field of financial services, where the Financial Services Ombudsman offers a dispute resolution service across the financial services sector.
In relation to housing disputes, the problem is rather different. There are a number of different complaints handlers – so many, in fact, that members of the public often don’t know which route to resolution to take.
The Government has been concerned about this issue for sometime. In January 2019, the Secretary of State announced that he would be bringing forward legislation to create a single Housing Complaints Resolution Service which will become the single port of entry – for both owner occupiers and renters – with disputes they wish to have resolved.
From broken boilers to cracks in the wall, the new Housing Complaints Resolution Service will potentially help millions by providing a straight-forward way of getting help when faced with unresolved disputes about problems with their home – such as repairs and maintenance.
One feature of the new service is that all Private Landlords – who currently do not have to belong to a redress scheme – will be required to sign up – with penalties for failure to do so.
In addition the government has announced that there will be a New Homes Ombudsman, to resolve complaints about the condition of new homes.
These changes will not happen overnight – they will require legislation. The details of the Housing Complaints Resolution Service will be developed with a new Redress Reform Working Group made up of representatives from across the sector, working with industry and consumers.
I will keep an eye on these developments as the details emerge.
For further detail, including links to background papers see https://www.gov.uk/government/news/james-brokenshire-announces-overhaul-of-broken-housing-complaints-system
Considering the case for a specialist housing court
In November 2018, the Government published Considering the case for a Housing Court: call for evidence. It sought evidence in particular from the judiciary, landlords and tenants to help the government better understand and improve the experience of people using courts and tribunal services in property cases.
It is not hard to think of other groups who might also provide useful evidence, such as lawyers, housing advisers, letting agents and other property professionals.
The Consultation made clear that, included in the ideas being considered was whether there was a case for the creation of a specialist Housing Court.
In its press release, the Government stated that it particularly sought evidence on:
- private landlord possession action process in the county court
- user experience in both the county courts and the First-tier Tribunal for property cases
- case for a new Housing Court
- case for other structural changes such as an extension of the remit of the property tribunal.
Little attention was given to the important question of whether any changes could improve access to justice. There is good evidence that many – both landlords and tenants – with potential legal disputes do not use the courts to resolve those disputes. (In relation to this, the Paper did ask whether better information might be helpful.)
The Consultation Paper indicated that there were two principal options being considered.
Either, changes might be made to the ways in which the courts and first-tier tribunal operated to ensure that between them they could deal with cases more cost-effectively and efficiently. (In essence this covered the same ground as that considered by Judge McGrath in her recommendations to the Civil Justice Council, see this blog previous item).
Or, a specialist Housing Court might be created. (The Consultation did not specifically seek views on the creation of a more broadly based Housing Tribunal on the lines of developments in Scotland. )
The Consultation Period is now closed. Decisions are awaited.
For further information on the Scottish Housing Tribunal see https://www.housingandpropertychamber.scot/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 