Post by Colin Henderson on Apr 1, 2014 23:29:07 GMT
A couple of dates for the further destruction of civil legal aid this year have been published
After 22 April providers will only get paid on judicial review cases if they get past permission stage at the Admin Court. If they settle early, we will be paid only if the LAA consider we had good reason to do the work after reviewing our file, even though they have already agreed to grant us a certificate! Most housing/homelessness JRs do settle with the local authority maintaining they got the law right but backing down for "compassionate" or other reasons, and so no-one knows whether they will get paid on these cases. Few lawyers will want to take the risk and bad decisions will go unchallenged.
The other date is 4 August - the commencement date for the regulations imposing a 12 month residency condition on most applicants for legal aid. We have no idea what evidence of residence they will want our clients to produce - hardly any of mine have a driving licence or passport, some can't remember their NINO. Many eligible clients will give up and many with deserving and urgent cases will be refused.
Where are you promises to reverse this cruelty Sadiq Khan? Oh sorry, that's me being "naive" again isn't it?
4. Payment will continue to be paid in the same way as before 22 April 2014 for the earlier stages of a case, to investigate the prospects of strength of a claim (including advice from Counsel on the merits of the claim) and to engage in pre-action correspondence under the Pre-action Protocol for Judicial Review.
Good - often the case settles at this stage.
5. Reasonable disbursements such as expert fees and court fees (but not Counsel’s fees), which are payable will continue to be paid (even if permission is not given by the court and the discretion is not exercised).
OK we get the court fee back - there is rarely any other disbursement
6. In addition, work carried out on an application for interim relief (e.g. in accordance with Part 25 of the Civil Procedure Rules) will continue to be paid (even if, in relation to the substantive judicial review, permission is not given by the court and the discretion is not exercised).
This is the important one for housing the homeless - after interim relief is obtained the case is often over and settles. So it seems we get paid for that bit as now. Better than I thought. But if it fights on and for whatever reason your application does not get to or is not granted permission then all this nonsense applies:
7. It is your responsibility to apply to us setting out the reasons why you think this discretion ought to be exercised in your favour. You should pass on any representations received from Counsel in these matters for all certificates where you are instructed.
8. You should only make an application under regulation 5A(1)(b) once all substantive issues in the proceedings in question have been resolved. If you are intending to make an application, you should not submit detailed costs for assessment to the Legal Aid Agency (LAA) or the court until a decision on this matter has been made.
9. Where your case is being processed via the LAA’s Client and Cost Management System (CCMS) there is a new process in place to allow you to make these applications electronically. This pro forma is to be used in cases subject to these proposals where your certificate has not been applied for using, or subsequently transferred to, CCMS.
10. It is important that you provide sufficient information in your pro forma to allow us to make a decision on this matter.
11. In particular, you should address the factors set out in regulation 5A(1)(b) of the Civil Legal Aid (Remuneration) Regulations 2013 explaining why the circumstances around each mean it is reasonable for payment to be made.
12. The factors are: i. the reason why you did not obtain a costs order or costs agreement in favour of your client; ii. the extent to which, and the reason why, your client obtained the outcome sought in the proceedings; and iii. the strength of the application for permission at the time it was filed, based on the law and on the facts which you knew or ought to have known at that time.
13. If you are relying on documentation to support your application (e.g. court order, particulars of claims, correspondence dealing with costs etc.) this should be included with the completed pro forma. You do not need to send us any documents previously supplied.
Post by Colin Henderson on Jun 11, 2014 10:43:39 GMT
Housing judicial reviews might just survive, but it's looking like the residence test may well do for all of us.
The LAA's draft Guidance is out and I've uploaded it and given my reaction to it on the Zombie blog. It's not going to affect only destitute asylum seekers, etc. (although that is bad enough). In reality it amounts nothing less than a "trojan horse" (to use a topical phrase) attack on our practical ability to continue to advise any eligible clients using legal aid.
This is because the evidence required to be produced by EVERY client from 4 August will include either a current passport or a long-form birth certificate, both of which must be paid for and take weeks to order. Then there is the 12 months worth of bank or utility statements to prove 12 months residence. Our clients already have to provide various proofs of income including bank statements and many already fail at that, often because they have a package of difficulties including mental health issue, poverty and chaotic lives. This extra evidential hurdle will simply be too much for most. Those of us who depend on seeing a volume of clients to keep viable will fail to do that and our services will close. Then the MoJ will be able to imply it was because legal aid was being accessed by a load of undeserving foreigners and deserved to go. Clever stuff eh?
The Public Law Project applied for judicial review of the whole residence test in January. They tell me the hearing was in March and reserved judgement is still awaited. I have everything crossed that they win, but if they don't this will be upon us in just a few weeks.
Please do spread the word that this could be the final straw for what's left of civil legal aid.
Post by Colin Henderson on Jul 15, 2014 23:05:04 GMT
UPDATE: We're saved! The JR has done for the residence test. The Daily Heil says Grayling is "furious". Result! And the legislation has now been withdrawn, so just ignore it. Don't do the LAA training module. Don't work out how to order birth certificates for your clients. Don't worry that the Court Of Appeal might reverse the judgement. Relax - the sun is shining, its a good day and we don't see too many of them in LAA LAA land so just enjoy!
Post by Colin Henderson on Oct 17, 2015 11:57:28 GMT
Apparently Hugh "the Face" (old ilegal joke) Barrett told the LAPG conference that their appeal will be heard this coming week, judgement before Christmas. Surely it will be given short shrift. We will update when result is known.
Post by Colin Henderson on Nov 29, 2015 14:43:44 GMT
After rightly getting a proper kicking by a strong three judge High Court led by Moses LJ in his final judgement, it is sadly unsurprising to see a conservative three judge Court of Appeal led by Laws LJ reverse the decision that the legal aid residence test was a) outside the governments LASPO powers and b) so discriminatory as to be beyond the margin of appreciation the state has in making decisions on whose litigation to fund.
So unless the Supreme Court takes an interest the MoJ is free to run this out again, thereby killing off much of what little remains of civil legal aid (especially the volume legal help advice work) as clients are not usually capablE of jumping through the difficult evidential hoops proposed (current passports, birth certs, Home Office orders, etc). Will Gove do it? Of course he will! It's an easy and politically acceptable way to meet George's target of further cuts to justice spending.
Here is the response from the Public Law Project who brought the case: "Yesterday, the Court of Appeal found that the Government’s introduction of the controversial ‘residence test’ for legal aid, was lawful. This overturns a Divisional Court judgement of July 2014, which found the introduction of the test to be discriminatory and unlawful. Both courts were presided over by a panel of three judges and have considered very different aspects of the case, and come to very different conclusions. PLP is looking at options, including seeking an urgent consideration of the case by the Supreme Court of the United Kingdom before the test is implemented, and will update the community in due course." See: www.publiclawproject.org.uk/news/56/plpeus-response-to-the-court-of-appeal-judgement-in-euresidence-testey-case
And here is a good in-depth article by Oliver Carter of YLAL on the background: "The test, if implemented, will restrict public funding for legal representation in civil cases to individuals who can prove that they are lawfully resident in the UK and have been so for a 12 month period at some time in the past. Delivering the judgment of the court, Lord Justice Laws held that the introduction of the residence test by way of secondary legislation was lawful and that, although the test was discriminatory, this was justified as a proportionate measure to achieve the legitimate aim of saving public expenditure." More at: thejusticegap.com/2015/11/appeal-judges-back-legal-aid-residence-test/
Post by Colin Henderson on Jan 17, 2016 21:38:51 GMT
Residence testing of all civil legal aid should be here by the summer.
This weekend the government have been leaking questionable articles berating those who use legal aid to bring asylum claims, eg this in the Express:
Block on legal aid for illegal migrants who fight to stay ILLEGAL immigrants and failed asylum seekers are to be barred from using taxpayers’ money to support their battle to stay in the UK.
By CAROLINE WHEELER
Foreigners making claims of mistreatment against British troops will also be banned from claiming legal aid under new Government plans. A new “residence test” will see taxpayerfunded civil legal aid restricted to people who have been lawfully resident in the UK for at least 12 months at the time they apply.
A Government source said: “It is unacceptable that our troops who go abroad to protect British people are pursued through British courts with British taxpayers’ money by people who don’t even live in Britain. Nor is it right that illegal immigrants who have exhausted all avenues to remain in the UK should be able to draw upon public funds to prolong their stay in the country. The residence test will help to restore public faith in civil legal aid, assuring people it is being used in the right way and for those it is truly supposed to support.”
Legal aid data is not broken down to denote precisely which payments have been made to illegal immigrants or foreign claimants but it has been revealed that £6million has been paid out to large legal firms representing such clients since 2010. It was reported earlier this month that British taxpayers are paying more than £650,000 a week in legal aid to asylum seekers and the figures are growing in the wake of the migrant crisis, which has overwhelmed border controls across the EU. Ministry of Justice figures show that in the last financial year 34,768 cases were approved for free legal advice at a cost of £30million. The migrants crisis was highlighted in the last quarter of that financial year (January to March 2015) when £8.4million was spent on nearly 10,000 cases. This worked out at £650,000 a week for those peak three months, the highest quarterly figure for two years. Each case costs £900 on average, paying for lawyers to help asylum seekers seek permission to stay or fight refusal of asylum. rest at: www.express.co.uk/news/uk/635358/Block-legal-aid-illegal-migrants-fight-stay-UK
But I'm afraid I have to link to The Sun to get the timescale:
FOREIGNERS will be banned from claiming legal aid to sue soldiers in UK courts.
The crackdown will save taxpayers £1million a year. Illegal immigrants will also be barred from waging endless appeals to avoid deportation. Instead, a residence test will restrict civil legal aid to people who have lived in the UK for 12 months. It means failed asylum seekers, illegals and foreign residents will have to fund cases themselves.
David Cameron wants the rules in force by summer.
A Government source said: “It is unacceptable our troops are pursued with British taxpayers’ money by people who don’t even live in Britain.” An estimated £6million has been paid to big law firms representing overseas clients and deportation-dodgers in the past five years.
One firm, Public Interest Lawyers, was criticised in court for using legal aid to demand voting rights for a convicted foreign murderer. The firm also acted for Iraqis claiming UK troops unlawfully killed up to 20 civilians. A year-long, £20million public inquiry found nothing to substantiate the claims.
Legal aid minister Shailesh Vara, who will draft the rules, said: “It’s only fair that aid goes to those who have a connection with the UK.”
Post by Colin Henderson on Mar 15, 2016 10:41:50 GMT
Have just heard the Supreme Court have agreed not just to hear the residence test appeal but also expedite it and put it before a strong 7 judge court on 18 and 19 April. I'm hopeful that a majority will find a way to do justice and we get the judgement quickly.
At the moment the PLP have been ordered to pay a capped £10k costs to the Ministry of Injustice. They have obtained a further cap of £15k in the Supreme Court and need donations. I don't suggest us poor legal aid bods pay but if you are a large/rich law firm why not do the decent thing - it's small change to you.
Post by Colin Henderson on Apr 18, 2016 18:48:33 GMT
Fantastic news just in that the Supreme court has allowed the Public Law Project's appeal against the legality on the first ground of the challenge - that the Government did not have power to introduce such a draconian thing under secondary legislation.
This meant that the arguments about whether the test itself was unlawful under Human Rights/rule of law arguments didn't need to be made. Here's the Court's statement:
The issues in this appeal (see Case details ) 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 the enabling statute and - unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998. At the end of today's hearing the The Supreme Court announced that it was allowing the appeal on ground (1) and full written reasons for the decision will follow in due course.
All lawyers will realise what a knockout blow this is. I can't remember any time when summary judgement has been given by a seven judge Supreme Court on day one of an appeal - this just NEVER happens - and means they were unanimous and certain in their judgement that a residence test will need primary legislation. If the Government want to do that it will take months and be subject to more legal challenges. We wait to see whether they want to ask the SC judges whether they think that approach would still be lawful, but I suspect they don't want to hear the answer.