21.33New contracts will be issued for welfare benefits, immigration removal centres and the Housing Possession Court Duty Schemes (HPCDS). Existing contracts for actions against the police, clinical negligence and public law will be terminated early to bring them into line with contracts for other areas of civil legal aid work.

21.34Director of the Legal Aid Practitioner’s Group (LAPG), Carol Storer, believes that the move might have ‘advantages and disadvantages for practitioners. Some might prefer to apply for contracts all at the same time and know the outcome so they can plan their service, while others might prefer to stagger the applications to spread the work involved.’

21.35For most legal aid firms and not for profit organisations the contracts will stay much the same, but proposals to introduce price competition for Housing Possession Court Duty Schemes have attracted wide spread criticism. Simon Marciniak, chair of the Housing Law Practitioners Association and a partner and housing specialist at Miles and Partners, believes that ‘even under the current contracts, firms appear to run them as a loss leader to generate certificated work and they are not viable or profitable on their own.’ Marciniak also told Legal Action that it is ‘unrealistic when the rates are already so low’2February 2017 Legal Action 4. for firms to be expected to compete on price for the tenders. Over half the contracts are currently held not for profit agencies such as Law Centres.

21.36In addition to price competition, the LAA are suggesting that the current schemes should be consolidated by ‘joining courts allowing for larger and more sustainable contracts for providers.3See LAA consultation document at: https://consult.justice.gov.uk/digital-communications/housing-possession-court-duty-scheme/. The LAA consultation on its proposals ended on 17 March the results of this are expected at the end of April 2017.

21.38There has been controversy surrounding the rules on qualifying for legal aid in domestic violence cases since the then LASPO Bill was debated in Parliament. The campaign group Rights of Women successfully challenged the regulations in the Court of Appeal. The Court concluded that the requirement to produce evidence of domestic violence dated within a period of 24 months prior to the application for legal aid was unlawful. It also found that the regulation made no provision to set out the criteria to prove financial abuse. From 25 April 2016, the Government introduced changes to the Civil Legal Aid (Procedure) Regulations 2012 reg 33 which extended the time limit on evidence to five years and introduced a new provision for assessing evidence of financial abuse.

21.39Responding to this change, Jenny Beck, a family law lawyer and the joint chair of LAPG, told Legal Action that the Ministry of Justice had ‘acknowledged that it is very difficult to find evidence of financial abuse.’ She said that they ‘need to believe women who report domestic violence and to trust the professionals dealing with these cases.’

21.40Continued pressure from Rights of Women, LAPG and other organisations has appeared to result in the Government announcing the scrapping of the five-year limit.4Owen Bowcott, ‘Legal aid shake-up hands lifeline to domestic violence victims’, Guardian 23 February 2017. At the time of writing, details are not known, as the Government’s change of position was revealed in story published in the Guardian and has not been confirmed. LAG understands that the civil servants have been consulting with family specialists for sometime on revising the regulations and are committed to widening the circle of experts who can supply the necessary evidence of domestic abuse to qualify for legal aid.

21.42The Public Law Project (PLP) had brought a judicial review regarding the test which had been decided in their favour in the Divisional Court. Moses LJ and Collins and Jay JJ found that the residence test was ultra vires of the enabling power in LASPO and discriminatory.6R (Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin). The Government successfully appealed this decision. The Court of Appeal found that though the residence test was discriminatory this could be reasonable justified as a measure to save public expenditure. It also dismissed the claim that it was ultra vires to introduce the test through secondary legislation.7Public Law Project v Lord Chancellor [2015] EWCA Civ 1193.

21.43Both the parties and commentators were surprised by how short a time it took the Supreme Court to find against the Government. The case had been listed for two days, but the seven justices took less than a day to rule that the test was incompatible with LASPO.

21.44Jo Hickman, director of PLP, told Legal Action she was ‘delighted’ with the decision which she believed vindicated ‘PLP’s long-stated position as to the lawfulness of the proposed residence test.’ According to Hickman, if the test had been implemented ‘Its impact on access to justice would have been catastrophic.’ In evidence submitted to the Supreme Court it had been estimated that in many cases it would have taken up one to two hours of unpaid time for lawyers to establish that their clients met the test.

21.46However, in a surprise move Justice Minister Oliver Heald announced in the House of Commons in October 2016 that while the Government agreed with the judgment of the Court of Appeal ‘there have always been certain exceptions to the 50 per cent threshold’ and for this reason they had decided to amend the regulations and ‘make legal aid funding available for cases where the prospects of success are borderline – that is, very hard to quantify – or less than 50 per cent, but at least 45 per cent, which we call marginal.’

21.47Heald explained that the Government believed that for cases, such as those concerning domestic violence, the amendments to the regulations ‘will mean that legal aid is available in borderline and marginal cases without having to meet the additional criteria’ (as well as for cases involving a breach of the European Convention on Human Rights). The usual criteria of the merits test will continue apply to most other types of case, ie the case must usually be of overwhelming importance to the individual or, have a significant public interest. The application of this criteria means that in practice many cases will continue not to qualify.9Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016, 25 October 2016 Hansard Volume 776.