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LAA loses legal aid contract challenge

At a hearing in the High Court last week the Legal Aid Agency’s (LAA) decision not to allow a London firm, MK Law Solicitors, to join an additional duty solicitor scheme was quashed.

The case arose out of reforms sought to be brought into effect by the Lord Chancellor to the provision of criminal legal aid. A policy of two-tier contracting was proposed to be introduced whereby criminal legal aid solicitors would be able to provide services to their own clients under an “own client contract” and separately under a “duty contract.” Awarded by competition, the duty contracts gave firms of solicitors that were successful the right to be on the duty legal aid rota in 85 procurement areas around the country.

Duty contracts allowed a limited number of firms to represent new entrants to the criminal justice system. Some 1,600 firms secured own client contracts. The intention of duty contracts for duty provider work (DPW) was to offer some 527 DPW contracts with the objective of forcing consolidation in the criminal legal aid market. It was hoped that if fewer larger firms performed DPW that service could be provided at less cost to the LAA.

The process of introducing the new dual contracts scheme was controversial and the results of the tendering process were the subject of litigation. On 28 January 2016 the Lord Chancellor announced in a written statement to Parliament that the dual contracting model was not to be proceeded with. The LAA was to extend current contracts so as to ensure continuing service until replacement contracts came into force late in 2016.

MK Law Solicitors had won 10 duty provider contracts in London, including four in north London. After the new 2015 crime contracts were scrapped, MK Law Solicitors sought to join additional duty schemes in the London Borough of Hackney and surrounding areas until replacement contracts come into force.

The judgment, MK Law Solicitors v Lord Chancellor, states that admission to the additional duty scheme was contingent on successful firms meeting certain criteria set out by the agency. The claimant’s case was that it came within the criteria set out; it was successful in the duty provider contract, had opened an office in Hackney at 2 Underwood Row, and had employed supervisors and staff to deliver criminal legal aid at its Hackney office.

The LAA said the firm was not eligible to be included in any additional duty scheme because the firm’s north London office had been operational since 2012 but this was contested. Ruling that the agency erred in its application of the criteria, Mrs Justice Patterson DBE said it was ‘clear from the evidence’ that the north London office was set up to be able to provide advice to clients if required. There was no contractual requirement that an office had to be manned and open for walk-in trade.

Patterson accepted the firm’s submission that to impose such a requirement was both irrational and a breach of contract as it had no ability to deliver criminal legal aid services from Hackney until the new contract had commenced. The firm invested further time and money to establish a fully functioning office in anticipation of the original duty contract start date. The office became fully operational in December 2015.

Patterson’s conclusion was that the evidence was sufficient to lead to a quashing order of the decision of the LAA regarding MK Law Solicitors. The full text of the judgement is at :

http://www.bailii.org/ew/cases/EWHC/Admin/2016/1194.html

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The need for a review of legal aid

The Legal Aid Act has denied justice to the most vulnerable and must be reviewed. The government is committed to a review after three years but there is mounting evidence that it should come sooner.

On people trafficking, 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. The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

The legal aid cuts have added to the strain on divorcees. Evidence gathered by Citizens Advice shows that nine out of 10 people who have gone through the family courts, under new rules that heavily restrict access to legal aid, suffer strain in their mental and physical health, working lives and finances. The system is not set up to deal with “litigants in person” (LiPs). Of those who chose to be litigants in person, 90% reported a negative impact on their everyday lives.

Three years after the government scrapped legal aid across swaths of civil law, more ‘advice deserts’ are materialising in the sectors that remain in scope. A number of areas have no cover at all. The Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

The Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. The Law Society backed the challenge brought by the Public Law Project. Society president Jonathan Smithers said: “The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society. Survivors of domestic violence should not be subjected to the over-strict tests required by the regulations as they now stand.”

The Low Commission was established by the legal education charity Legal Action Group in 2012 in the wake of the legal aid cuts to develop a strategy for access to advice and legal support in social welfare law in England and Wales. It was set up to examine the impact of legal aid cuts and develop a strategy to help ensure access to justice. It is to be wound up because of a lack of funds.

When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid. He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years.”

He went on to say: “Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working.”

Corbyn will agree with the 22 signatories, including Chantal-Aimée Doerries QC Chair of the Bar Council and Jonathan Smithers President of the Law Society, to a recent letter in the ‘Guardian’. Short and to the point it said: “We believe the legal aid reforms have had a severe impact on the ability of vulnerable people to access justice since they came into effect on 1 April 2013. We agree with the justice select committee that the cuts have limited access to justice for some of those who need legal aid the most.”

It concluded: “The government has repeatedly said it will carry out a review to assess the full impact of the legal aid changes after three years. Today we call on ministers to fulfil this commitment at the earliest opportunity. We believe it is vital for government to ensure nobody is denied access to justice based on their ability to pay.”

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Discriminatory residence test for legal aid summarily thrown out

Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

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The impact of legal aid cuts

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean “litigants in person (LiPS) achieve worse outcomes compared with their represented counterparts.”

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Some lost their jobs due to the pressure, while others got into debt due to court issues, including paying for photocopying and travelling to and from court.

Meanwhile, seven in 10 reported they might ‘think twice’ about taking a case to court themselves if they could not afford a lawyer.

The charity said it was only after people had been through the process of going to the family court that they realised the value of having a lawyer, with 70% saying that instructing a professional would have benefited their court experience. The lack of professional support has also placed intolerable pressure on the court system.

Gillian Guy, chief executive of Citizens Advice, said: “For people representing themselves in the family courts, whether in a divorce case or to keep the legal right to see their children, the workload to prepare can be unmanageable. In extreme cases people are quitting their job so they have the time to do research before going to court.

“The stress of making your case against qualified barristers and navigating complex court processes without the right guidance can make existing mental and physical health problems worse.”

In January the lord chief justice, Lord Thomas of Cwmgiedd, delivered a warning about the legal aid situation in England and Wales. “Our system of justice has become unaffordable to most,” he said. “In consequence, there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Three years after the government scrapped legal aid across much of civil law, more ‘advice deserts’ are emerging in the sectors that remain in scope. Several parts of England and Wales now have inadequate housing law cover which could give rise to potential conflicts of interest. A number of areas have no cover at all.

According to the ‘Gazette’ the Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

From the usual spokesperson for the Legal Aid Agency we learn that the ’vast majority’ of England and Wales have access to LAA-funded housing advice. “We constantly monitor the situation across the country and we are actively seeking new providers in two areas,” the spokesperson said. “Legal aid is a vital part of our justice system but we must ensure it is sustainable and fair for those who need it, those who provide services and for the taxpayer, who pays for it.”

Posted in Civil Law, Civil Liberties, Legal AidComments (0)

Legal aid residence test to be challenged

Today, the Supreme Court will begin hearing arguments in a case challenging the government’s Legal Aid residence test.

The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which is bringing the case, says that this is outside the government’s powers and also discriminatory under human rights laws.

The Ministry of Justice (MoJ) has argued that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed.

Seven justices will hear arguments in a case which insists that no minister has the power to impose such discriminatory regulations and that the residence test, which has yet to be implemented, is unlawful. The supreme court had originally planned to hear the case later this year, but it has been brought forward following justice secretary Michael Gove’s indication that he planned to begin applying the residence test from this summer.

The case has already been before the courts. In 2014, the high court struck down the regulation on the grounds that the then justice secretary, Chris Grayling, did not have the power to introduce it by means of secondary legislation. It also concluded that the residence test was excessively discriminatory.

In a unanimous decision, three senior judges declared the draft regulations then before parliament could not be enacted by means of secondary legislation. They also upheld a complaint on a second ground as part of the judicial review, that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money.

The judgment was a severe setback for the then justice secretary, Chris Grayling, and the way he was introducing wide-ranging changes without primary legislation.

However, last November the court of appeal overturned that judgment, concluding that the earlier ruling placed unjustifiable restraints on the government’s ability to control the legal aid budget. Exemptions to the residence test have had to be made for members of the armed forces serving overseas, children under one year old and asylum seekers.

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, is quoted in the ‘Guardian’ as saying: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents….The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.”

The ‘Guardian’ also reports that the children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society.

The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance.

Posted in Civil Liberties, Legal AidComments (0)

Bill for abandoned legal aid contracts

The government admits to spending more than £400,000 on an abortive attempt to impose new criminal legal aid reforms. This was revealed in response to a request made by the Gazette to the Ministry of Justice under the Freedom of Information Act.

The Gazette sought a response to three queries. The first query asked “how much money the Ministry of Justice/Legal Aid Agency spent on the procurement process for 2015 duty provider crime contracts, from 27 November 2014 (when the procurement process opened) until 28 January 2016 (when justice secretary Michael Gove announced in a written ministerial statement that he would not go ahead with the introduction of the new dual contracting system)?”

The Legal Aid Agency’s information governance team said the procurement tender process was ‘one component’ of a ‘larger’ Legal Aid Transformation (LAT) programme, for which the agency has incurred a total of £5.5m in one-off implementation costs on the ‘entire’ programme since its inception.

The programme ran from 2013/14, covering initiatives such as reforms related to prison law, restrained assets, judicial review payments, civil fees, and crime fees and competition. The £5.5m figure includes three cost categories which the agency said can be ‘separately identified as directly related to the crime tender’. These are:

– External legal fees of £13,565, associated with drafting the criminal legal aid contracts, incurred between 27 November 2014 and 28 January 2016,

– Legal support on the procurement and assessment process, which the agency said was distinct from legal work, incurred a cost of £125,933.

– Agency staff incurred a cost of £271,574.

The Gazette’s second query asked how much the Ministry of Justice had spent defending the judicial review brought by the Fair Crime Contracts Alliance and around 100 claims issued by law firms in accordance with part 7 of the Civil Procedure Rule.

The LAA went to great lengths to detail the pros and cons of revealing such information, but concluded: “We reached the view that, on balance, the public interest is better served by withholding this information under Section 31(1)(c) and Section 43(2) of the Act at
this time….In this case, we believe that releasing the information would be likely to prejudice both the administration of justice as well as the Department’s commercial interests”

The Gazette’s third query asked “What does the Ministry of Justice/Legal Aid Agency plan to do with documents from the procurement process that show the marking by the assessors and moderators of all the applicant firms’ bids?”

The LAA responded that “No specific arrangements have been made concerning this documentation. Storage/disposal of documents will be in line with the LAA’s corporate retention policies.”

The quoted figure of just over £400k must be treated with suspicion. The cost of the aborted litigation that the LAA refuses to put a figure to must have been significant. And that’s not to mention the large number of LAA staff who worked full time on this project, the very expensive road shows, the strikes and disruptions of courts and other costs.

The pig-headedness of the unlamented former Lord Chancellor will undoubtedly have cost more than any hoped for savings.

Posted in Criminal Justice, Legal AidComments (0)

Law Society submissions to the Bach Review

The ‘Gazette’ reports that the Law Society is considering how an innovation fund could help legal aid solicitors harness new technology to improve access to justice.

In a submission to the Labour party’s legal aid review, the Society said there was “scope for innovation” among solicitors to produce “bespoke technological solutions that reflect their businesses and meet the needs of their clients.”

Inevitably there are doubts whether solicitors could afford the investment required. “The Society is therefore looking into whether there might be scope for an innovation fund, whereby grant funders would make grants to firms that have ideas for ways of using technology to improve access to justice,” the submission states.

In its submission to the review, the Society identifies the Partnership Initiative Budget, which operated under the former Legal Services Commission, as a precedent. “We are still in the early stages of considering this idea, but our initial thinking is that such a fund might be generated from a combination of private, third sector and public sector sources,” the submission states.

The Society also suggests that alternative approaches to civil legal aid remuneration should be considered. “We believe it is worth looking again at the fundamental point that legal aid currently works on the basis of paying individually for each of millions of pieces of advice provided.”

The submission points out that “there is a precedent in the form of the old block contracting system for the not-for-profit sector where the provider was remunerated on the basis of caseworker hours rather than for each individual case.”

The Law Society also warned that civil legal aid cuts will result in an increase in costs to the tax payer because failure to get early expert legal advice can result in people’s problems escalating dramatically, when they could have been nipped in the bud.

Law Society president Jonathan Smithers said: “Successive governments have repeatedly cut back the legal aid budget and this review provides a crucial opportunity to consider the fundamental question of how to restore and protect access to justice for everyone in the 21st century, regardless of their economic circumstances.”

Smithers said: ‘There is an imbalance of power and knowledge when legal advice is solely available to wealthy individuals, corporations and state bodies, and not to ordinary people. There are significant cost savings for society if people can obtain expert legal advice and representation,” adding that “early legal advice can forestall an escalating sequence of problems that in extreme cases can result in issues like homelessness. Prompt intervention can also help people to find a solution that doesn’t involve the courts.”

“The current legal aid system needs reform,” he said. “The capital means test for benefit claimants and evidential burdens for domestic violence determine who qualifies for legal aid help. These are preventing victims of domestic abuse from accessing legal aid in family cases. When no other realistic option exists for someone to assert their legal rights, funding from government must be available.”

‘Technology can improve access to justice, but proposals for digital courts will not remove the need for solicitors, who play a vital role in overcoming the barriers that people face in obtaining justice,” he said.

Labour is to present the findings of Lord Bach’s legal aid review at this year’s party conference in the Autumn.

Posted in Civil Law, Legal AidComments (0)

Labour’s review of the government’s legal aid reforms

When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid.

He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years. This has resulted in many of our fellow citizens, often the poor and marginalised, not being able to get advice or representation when they are faced with legal problems such as housing, welfare benefits, debt and employment. Many vital advice services, including Law Centres, have had to close.

Read the full story

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Domestic violence legal aid time limit invalid

Last year the High Court rejected a legal challenge from domestic violence charity Rights of Women over the lawfulness of rules that require domestic violence victims to provide a prescribed form of evidence to apply for family law legal aid.

However, in The Queen (on the application of Rights of Women) v The Lord Chancellor and the Secretary of State for Justice, the Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. Read the full story

Posted in Civil Law, Law Updates, Legal AidComments (0)

“Access to justice should be considered a fundamental right” – Corbyn

Labour leader Jeremy Corbyn has called on the government to initiate an immediate review of cuts to civil legal aid.

The coalition government reduced the scope of civil legal aid through the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) and has committed to a review of the policy by April 2018.

The reforms reduced spending on civil legal aid by £300m a year, but the National Audit Office last year said the wider costs to the public sector had not been factored in because the Ministry of Justice did not anticipate how people would respond to the changes.

Read the full story

Posted in Civil Law, Legal AidComments (0)

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