Tag Archive | "The Legal Aid Agency"

Civil legal aid


Legal aid will no longer be made available for cases with poor or borderline prospects of success that may have received funding, the government has said.

Last week the Legal Aid Agency (LAA) announced that there would be a new approach to making decisions on prospects of success for ‘poor’ and ‘borderline’ cases. The LAA has changed its approach to assessing merits in civil legal aid to take account of the Court of Appeal judgment in The Director of Legal Aid Casework (DLAC) and Lord Chancellor v IS. The Court of Appeal ruled last month that the agency’s exceptional case funding scheme and merits regulations were lawful.

Although the Court of Appeal ruled in the lord chancellor’s favour, several observations were made about the government’s exceptional case funding scheme. The LAA said that the MoJ was considering what steps to take following the court’s findings.

Under the current merits criteria most cases need to pass a ‘prospects of success test’ before legal aid can be made available. The LAA said:

“The merits criteria state that the prospects of success test is met in cases with ‘poor’ prospects or ‘borderline’ cases where:

  • funding is necessary to prevent a breach of a client’s rights under the European Convention on Human Rights, or any rights of a client to the provision of civil legal aid or services that are enforceable under EU law; or
  • DLAC considers it appropriate to find that the test is met having regard to any risk of such a breach.”

The change comes as a result of the Court of Appeal finding that it is lawful for the prospects of success test to have a 50% threshold, and this does not breach a client’s rights. “As a result, we are now no longer funding any applications for civil legal aid that are subject to a prospects of success test where the prospects are assessed as poor or borderline,” the LAA said.

The LAA added: “We have also reinstated delegated functions to allow providers to refuse legal aid in cases that they assess as having poor or borderline prospects. This allows Immigration providers to refuse applications for controlled legal representation in these matters without having to revert to us first.”

The ‘Gazette’ reports the Law Society as saying that the change could mean fewer people being entitled to legal aid. “We are therefore disappointed that the Ministry of Justice decided to announce this significant change so soon after the referendum, and without consultation,” a spokesperson for the Society said.

Posted in Civil LawComments (0)

Crime Contingency Contracts


Following justice secretary Michael Gove’s January decision to scrap a controversial ‘two-tier’ contracting regime, for which firms competed to secure one of 527 duty provider contracts, replacement contracts were expected to come into force later this year.

The Legal Aid Agency (LAA) is now offering to extend current contingency contracts, which were due to expire on 10 January 2017, to 31 March 2017. Providers have until 30 June to accept the offer.

The LAA said: “This extension is needed so that we can:

  • allow the tender process and mobilisation period to be completed so providers can prepare for a new crime contract in 2017
  • ensure continuity of crime services from 11 January 2017 to the start date of the replacement crime contract Letters will be issued to all Crime Contingency Contract holders shortly. Providers will have until 23.59 on 30 June to accept the contract extension. “Any providers who do not accept the extension will retain a contract to the current end date of 10 January 2017.”

The LAA also announced that it had entered into a three week consultation with representative bodies on the content of the 2017 Standard Crime Contract on 8 June 2016. A spokesperson for the agency confirmed that the representative bodies are the Law Society, Bar Council, Legal Aid Practitioners Group and Advice Services Alliance.

As reported in the ‘Gazette’, a Law Society spokesperson said: “We are expecting the contract to be largely uncontroversial, mainly reflecting changes proposed in the draft 2015 contracts when the Legal Aid Agency drafted “own” and “duty” contracts for the two-tier arrangements.

“The Society has been working with the practitioner groups and the LAA to try to find a mechanism to mitigate the problem of “ghost” duty solicitors by tightening up the rules to ensure that only those currently active in criminal law can act as duty solicitors.”

Also quoted in the ‘Gazette’, Zoe Gascoyne, chair of the Criminal Law Solicitors’ Association, regretted the fact that the CLSA and the LCCSA were not statutory consultees. LCCSA president Greg Foxsmith said the association has “made the case for duty solicitor slots to remain with individual solicitors, rather than firms,” adding “with over 1,000 members in London desperate to know what the provisions of the proposed new contracts [are], it is bizarre that the LCCSA is not consulted but instead the Bar Council is invited to comment.”

One may ask why this last minute rush to deal with a well flagged matter. Could it be that the all consuming hustings for the referendum has led politicians, of all colours, to take their eyes off the ball of routine government business. Be grateful that we have a diligent, highly professional civil service to see that essential business is maintained.

Posted in Criminal Justice, Legal AidComments (0)

Review of legal aid for people trafficking victims


The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

LASPO made legal aid available for victims of trafficking to bring compensation claims against those who exploited them, for example as employment matters. However, when LASPO came into force, the Legal Aid Agency (LAA) didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case. Read the full story

Posted in Civil LibertiesComments (0)

Goodbye to new legal aid contracting regime


It’s a bit like the failing football manager syndrome. The chairman of the club vigorously defends the current occupant until he has a replacement lined up. Then out goes the old manager with glowing praise and thanks.

In a written ministerial statement this afternoon, justice secretary Michael Gove, having given fulsome praise to his unlamented predecessor, said he had decided ‘not to go ahead with the introduction of the dual contracting system’. He will also suspend, for a period of 12 months from 1 April, a second fee cut which was introduced in July last year.

Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.

  • An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
  • And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.

Gove said: “The dual contracting model was a carefully designed initiative from my department that aimed to meet concerns expressed by the legal profession about price competition. But over time, opposition to this model has been articulated with increasing force and passion by both solicitors and barristers.”

He said: “These arguments weighed heavily with me, but the need to deliver reductions in expenditure rapidly, and thus force the pace of consolidation, was stronger. Since July 2015, however, two significant developments have occurred.

“Firstly, thanks to economies I have made elsewhere in my department HM Treasury have given me a settlement which allows me greater flexibility in the allocation of funds for legal aid.

“Secondly, it has become clear, following legal challenges mounted against our procurement process, that there are real problems in pressing ahead as initially proposed.

“In addition, a judicial review challenging the entire process has raised additional implementation challenges.”

The Legal Aid Agency will extend current contracts so as to ensure continuing service until replacement contracts come into force later this year and more details will follow in due course.

One reason Mr Gove has earned the respect of his political opponents is his willingness to reverse many of Grayling’s least effective decisions, such as the restriction on books for prisoners, the proposed young offenders prison, the Saudi Arabia prisons deal and abolishing the much criticised criminal courts charge.

And now the demise of this half baked dual contract fiasco. What a waste of money and what a waste of time and effort. Don’t know whether to laugh or cry.

Law Society president Jonathan Smithers said: “It is clear that a competitive approach to the provision of criminal legal aid services is not appropriate. The assurance that there will be no competitive tendering in the future gives practitioners greater certainty for the future.’

LCCSA president Greg Foxsmith said: “We sincerely hope the MoJ learn lessons from this sorry affair, and we are ready and willing to work constructively with Mr Gove to replace “two-tier justice” with sustainable legal aid provision that provides justice for all.”

Posted in Criminal Justice, Legal AidComments (0)

MoJ yet again postpones legal aid contracts


You couldn’t make it up. Faced with a tidal wave of litigation over new crime duty contracts, MoJ has postponed their start date until April. There is also a contingency for a further delay should it be needed.

The Legal Aid Agency (LAA) had previously insisted that it planned to enter into the new contracts on January 11 next year, despite litigation from unsuccessful bidders. But it has now stated that both the new contracts and the fixed-fee scheme for police station and magistrates’ work will now come into effect, appropriately, on 1 April. MoJ said:”A number of unsuccessful bidders have chosen to legally challenge our decisions. There are now automatic injunctions on us proceeding with the new contracts in a number of procurement areas until those legal challenges are resolved. Our first priority is to ensure criminal legal aid remains available to those who need it and we cannot risk gaps in provision due to ongoing litigation. We have therefore taken the difficult but necessary decision to delay the implementation of the new contracts.” Read the full story

Posted in Criminal Justice, Legal AidComments (0)

Defeat in the Court of Appeal


The Court of Appeal today gave the go-ahead for the government’s controversial legal aid reforms by dismissing an appeal by the Law Society and practitioner groups.

In the words of the judgement: “In view of the rational and lawful evaluation of the consultation responses made by the Lord Chancellor, it was not incumbent on him to investigate the current underlying facts in any greater detail than he did.

The judgment concluded that the lord chancellor was rationally entitled to assess that the “admittedly broad brush approach” he adopted at the end of March 2014 in relation to costs of bidding for duty provider contracts was a reasonable one. On the process of consulting with service providers – the basis of last year’s High Court challenge – the Court of Appeal said “it was not incumbent on [the lord chancellor] to investigate the current underlying facts in any greater detail than he did.”

The Court of Appeal refused to extend an injunction suspending the tender process. The Law Society and the Associations are seeking to lodge an application with the Supreme Court for permission to appeal the Court of Appeal’s decision, and get the application heard on Monday. The injunction expires today.

Society president Andrew Caplen said: “The Court of Appeal decision is a devastating blow. We remain concerned that vulnerable people may not be able to obtain legal representation if they are accused of wrongdoing.”

Robin Murray, vice-chair of the CLSA, said; “It is a matter of enormous disappointment that the appeal brought by the Associations and The Law Society has been defeated.” Jonathan Black, president of the LCCSA, said the group was ‘gutted’ by this morning’s decision. He said: “While the appeal court has found the devastating carve-up of solicitor representation is technically legal, we and many others believe it’s immoral. We’ll do everything we can to continue the fight.”

The Legal Aid Agency has issued a statement that: “ Following the Court of Appeal’s decision today that the Duty Provider Contract tender process and consultation are lawful, the Invitation to Tender for those organisations eligible to apply for a Duty Provider Contract will continue on Friday 27 March 2015 and will close at 12 noon on Tuesday 5 May 2015.

“Now that the injunction has been lifted and the tender will continue, and we have set a new deadline for tender applications. The closing date for applications has been amended to maintain an overall nine week tender window for this stage of the procurement process. Work under this contract is now due to start on 11 January 2016.”

There was never much doubt that the lord chancellor would press ahead with his plans if he was successful in the Court of Appeal. This is a subject which is close up and personal after the many rebuffs he has received from appeal courts. Purdah will have been far from his mind. A close run thing, the statutory period for tenders of nine weeks expires just two days before election day. So it will be for the incoming administration whether or not to proceed. The Labour party has said it would abandon the contracts if elected.

The full text of the judgement Neutral Citation Number: [2015] EWCA Civ 230 can be found at:
https://www.judiciary.gov.uk/wp-content/uploads/2015/03/law-society-v-lord-chancellor-judgment.pdf

Posted in Criminal Justice, Legal AidComments (0)


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