Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘civil legal aid

Legal support – the way ahead? How much vision?

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I have already noted the outcome of the  Post-Implementation Review of changes to the Legal Aid scheme contained in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. While the Government clearly does not want to make major changes to the scheme, the review did reveal issues to which the Government clearly feels it must respond. In February 2019 it published Legal Support: The Way Ahead – An action plan to deliver better support to people experiencing legal problems.

As a paper, it lacks the ambition or vision of other recent reports, in particular the Report of the Low Commission report on the future of legal services. But buried in the detail is a number of straws in the wind which are worth noting, even if they don’t make the heart race.

The Paper starts by repeating the point that the Government already provides ‘£1.6 billion to the most vulnerable in society to ensure that they can access legal aid’. It seems to accept, however, that there are some who – at least in some circumstances – should receive legal aid who currently do not get it. The Paper states that the Government ‘will conduct a review into the thresholds for legal aid entitlement, and their interaction with … wider criteria’. This review will be completed by summer 2020.

In the interim there will be changes to eligibility for some public family law cases, to be introduced in summer 2019.

And, whilst the review is ongoing, the Government  will continue with current arrangements to passport all recipients of universal credit through the legal aid means test.

Addressing the problem that people do not know about their entitlement to legal aid, the Government states that it ‘will ensure that more people are aware of their entitlement to legal support – and will advertise its availability’. The stated aim is to launch the awareness programme by autumn 2019 – dealing not just with legal aid, but legal support more generally.

The Government plans to make some changes to protect the most vulnerable. It will expand the scope of legal aid to include separated migrant children in Spring 2019. It also plans to bring forward proposals to expand the scope of legal aid to cover special guardianship orders in private family law by Autumn 2019.

As regards Exceptional Case Funding, the Government plans to consider, by the end of 2019, whether the process for applying for Exceptional Case Funding can be simplified, and whether decisions can be reached more quickly. It will also consider whether it is necessary to introduce a new emergency procedure for urgent matters to access Exceptional Case Funding.

By Spring 2020, the Government will amend the rules relating to the ‘mandatory telephone gateway’ so that there can be immediate access to face-to-face advice in discrimination, debt and special educational needs cases. (The telephone option is retained.)

The new Paper accepts that ensuring people can access the right legal support at the right time may help people resolve problems more efficiently and effectively. There is research evidence demonstrating how problems, if left undiagnosed and unresolved, can escalate, cluster, and lead to damaging cycles that are hard to break. However, the Government states that there is limited comprehensive research as to what works best, when, and for whom. Further, whilst it is often suggested that early intervention leads to cost savings, the financial and economic benefits of early advice are difficult to quantify with accuracy. The Government’s response to this challenge is that it wants to pilot and evaluate several different forms of early legal support.

Thus,

  • it will work collaboratively with providers to develop web-based products which bring a range of legal support tools together in one place;
  • it will improve the signposting advice and support available from the existing specialist telephone service and test enhancements to this service;
  • it will use funding to encourage the delivery of legal support through technology;
  • recognising that a comprehensive service may offer people an opportunity to support themselves, the Government will work collaboratively with the legal and advice sector to evaluate the impact of legal support hubs;
  • it will pilot face-to-face early legal advice in a specific area of social welfare law and will evaluate this against technological solutions, bearing in mind costs; and
  • it will enhance the support offered to litigants in person.

All these interventions will be researched to assess what is the best way to help and support those who need it, and whom should be assisted in the provision of legal support. The intention is that there should be outcomes from these initiatives by the end of 2019.

The Government states that it will continue to work across departments to help to improve the quality of decision-making on legal rights. It has been noted on numerous occasions that if decisions are ‘right first time’ this should reduce the need to take cases on appeal.

Key to the modernisation of the justice system is the need to ensure that forms and systems are as simple and straightforward to use as possible, and that the courts and tribunals service enables people to resolve their conflicts as quickly and early as possible. The Government wants to generate momentum in this area, but acknowledges that this is a first step.

It will be important for the Government to continue open and collaborative working with experts over the coming years, identifying and evaluating new ideas. One specific commitment is that the Government plans to set up a Legal Support Advisory Network to make use of external expertise, shape research and evaluation proposals, and potentially explore new research opportunities and collaborations.

As a nod to the problem of whether or not there will be sufficient numbers of people entering this sector of the legal services market, the Government states it will ‘support practitioners to join the legal profession and continue to deliver high quality legal support to people across England and Wales long into the future’.

Specifically there will be a comprehensive review of the criminal legal aid fee schemes and structures, to be completed by Summer 2020.

The full paper can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf

See also Press Release at https://www.gov.uk/government/news/government-sets-out-new-vision-for-legal-support

 

 

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Legal Aid – Exceptional Cases Funding – recent developments

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Following enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012,(LASPO) the scope of civil legal aid was significantly reduced. Civil legal services could only be funded under the new legal aid scheme which fell within statutorily prescribed classes of case. (See LASPO section 9 and schedule 1).

However, section 10 of the Act did provide that, in exceptional circumstances, civil legal services could be provided where

(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

The Director of Case Work has the statutory responsibility for making such decisions. In reality, the decisions are taken by case workers working within the Legal Aid Agency.

In coming to their decisions, case workers are required to take into account Guidance issued by the Lord Chancellor. (LASPO section 4.)

The Lord Chancellor was clearly anxious that, unless he was careful, the existence of exceptional funding might create a means for getting round the limitations he sought to impose on the Legal Aid scheme, which would have the effect of undermining the Government’s desire to reduce public expenditure on legal aid. Thus, in his guidance on exceptional case funding, which was published in 2013, it was stressed that, in reaching their decisions, case workers should understand that this funding ‘is to be used for rare cases’ only; ‘limited resources’ should be focussed ‘on the highest priority cases’. In relation to cases that might involve breach of Article 6 of the ECHR (right to a fair trial) the guidance stated: The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (original emphasis).

Shortly before Christmas 2014, the Court of Appeal handed down its decision in the case of Gudanaviciene . The case actually involved 6 cases which had been brought together because they raised in essence the same question – was the Lord Chancellor’s Guidance lawful? It was argued, in effect, that the terms in which the guidance had been drafted  imposed too high a threshold on applicants for exceptional funding, and that therefore the guidance went beyond the words of the Act, and were in consequence unlawful.

The Court of Appeal agreed with this argument. In the course of a long judgement, they held, in part, that

The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.

They therefore concluded that the Lord Chancellor’s Guidance was unlawful.

The question for Government was: how to respond to this judgement? There were two options: take a further appeal to the Supreme Court; or reissue the guidance and hope that the revised guidance would comply with the Court of Appeal’s interpretation of LASPO.

In the event, the Government decided on the latter course. On 9th June 2015, the Lord Chancellor published revised guidance on how exceptional case funding decisions are to be made in future. While those who drafted the revised guidance are still concerned that the provision of exceptional case funding should be kept under controi, the ‘tone’ of the document seems to have softened. Indeed the emphasis, for case workers taking decisions on these matters is whether – as the Act says, the provision of such funding is necessary.

The recent election of the new Conservative Government has clearly scotched any lingering hopes in the legal profession that there would be any major softening of policy on civil legal aid. But the revised guidance on exceptional case funding for civil legal services does represent a change in emphasis which practitioners must note and apply.

To read the judgement of the Court of Appeal in the Gudanaviciene case go to https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf

To read the revised guidance on emergency case funding (non-inquest) go to https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. This page also gives a link to the guidance relating to inquest cases.

Written by lwtmp

June 16, 2015 at 2:30 pm

What is happening to Legal Aid? Reports from the Legal Aid Agency June 2015

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Publication of the second Annual Report of the Legal Aid Agency might be thought to be an opportunity to find out in a bit more detail about what is happening to Legal Aid, following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Those expecting such information will be very disappointed. The bulk of the Annual Report details how various business targets have or have not been met during the year under review. The report is thus about administrative and operational outcomes, rather than giving a view of how citizens are (or are not) being assisted by legal aid.

The Annual Report appeared on the same day as a much shorter summary by the Director of Legal Aid of issues that had come up during the same reporting year. This is also very general in tone – though it does mention a couple of cases that went to the Court of Appeal – and is more about the process of dealing with cases than anything else.

All the details on the current operation of the legal aid scheme is now put into quarterly statistical reports. The next is due at the end of June 2015. I will report on these in due course. But I very much regret that the reporting strategy of the former Legal Services Commission – which used to run legal aid – which included the key statistical headlines and provided a commentary on how the scheme was working for the public has not been continued.

To see the 2nd Annual Report go to https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2014-to-2015

The Director of Legal Aid Case Work’s Report is at https://www.gov.uk/government/publications/director-of-legal-aid-casework-annual-report-2014-to-2015

Written by lwtmp

June 15, 2015 at 9:33 am

Civil legal aid – review of the ‘mandatory gateway’

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Legal practitioners have long argued that the only way to deliver proper legal advice and assistance is by face to face interviews with clients. With the development of new technologies, this view has come under increasing attack. It has been argued that remote contact via phone or email can often be just as effective and will often be more economical. An important research report on the issue by Alan Paterson and Roger Smith was published in 2014: see http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons

One of the fundamental changes made to the legal aid scheme as the result of the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is that, from April 1, 2013, in a number of matters that are still within the scope of the legal aid scheme, potential users of the legal aid scheme can only access the civil legal aid scheme through a ‘gateway’. Clients cannot get assistance by going direct to, for example, a solicitor.

(There are three exceptions, for those who are:

  • in detention (including prison, a detention centre, or secure hospital);
  • children (defined as being under 18); or,
  • where the matter for which they need assistance is one where the user has previously been assessed as requiring face-to-face provision, 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.)

The Gateway is delivered by the Civil Legal Advice (‘CLA’) advice helpline for England and Wales, paid for by legal aid. It provides, for people who qualify for civil legal aid, specialist legal advice, primarily by telephone, online, and by post, in relation to

  • debt,
  • discrimination,
  • Special Educational Needs,
  • housing, and
  • family issues.

It is available Monday to Friday 9am to 8pm and Saturday 9am to 12.30pm. Outside these times users can leave a message and CLA will call back within one working day.

Clients who qualify for legal aid in the first 3 Gateway categories listed above must usually receive any advice remotely. Clients who qualify in the other 2 categories of law have a choice about whether to receive any advice remotely or via a face-to-face provider.

The gateway provides  a two-tier system. At tier one, the operator will determine whether the matter is within the scope of legal aid and will also determine the financial eligibility of the client to legal aid. If both these tests are satisfied, the client is  referred to a specialist second tier advice provider. In cases that fall outside the scope, operators are training to inform people about possible alternative advice providers, e.g. in the charitable advice or third sectors.

Where a case is found to be within the scope of CLA, the client is referred to a second tier provider – a specialist who will normally provide advice remotely without a face-to-face meeting with the client.

The one exception to this is that where a client needs legal representation, arrangements will be made for a face-to-face meeting.

Because the compulsory element of the scheme was new, the Government undertook to review how the scheme was working within the first two years of its operation. In December 2014, it published the outcome of this review (and four separate research reports that were commissioned by the Government).

The broad conclusion was that, while there were matters that needed tweaking, the basic operation of the gateway was working satisfactorily,

My prediction is that, as policy evolves, there will be more use of these modes of accessing legal advice and assistance.

The Government’s view is available at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-review. Annex A gives more detail about the issues within scope. Annex B gives details about the agencies currently providing the gateway service.

The related research reports are at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-research-findings

Written by lwtmp

January 17, 2015 at 1:56 pm