“There are too many unresolved issues that affect the ability of practitioners to work to the right standard.”
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It is a frequent lament of mine that there are too many important issues in my inbox – issues that affect the ability of practitioners to do the work necessary to the right standard to assist their clients, from accounts to wardship. It illustrates the complexity of legal aid work and, worryingly, the number of problems that are solved is tiny. Most of my folders remain open because while advances are made, there is never a time when I feel that the position has been fully resolved.
This was brought home to me when we delivered our pop-up course in Bristol at the start of November. We cover about 20 live issues but there was not a single one from our last course a few months ago (see May 2016
Legal Action 15) that we didn’t cover this time. Here are some of the categories that look as if they will run and run.
Financial eligibility
Three years ago, we tackled financial eligibility problems. We put on our website our list of questions to the Legal Aid Agency (LAA) and its responses. Vicky Ling then wrote a helpful summary, which again we publicised. She emailed me the other day, saying:
… it would help a lot if the LAA didn’t query small items of income on the bank statements of people on passporting benefits (eg a £10 gift from a family member or selling baby clothes on eBay). The letter you got from Shaun McNally in 2013 confirmed this shouldn’t be happening but people tell me it is still common.
It is worrying, three years after the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, that so many problems remain.
Escape fee cases
DG Legal’s Matt Howgate highlighted the updated
Escape cases electronic handbook, which includes links to other relevant guidance. However, he also noted that there are inconsistencies. For example, the
Escape cases electronic handbook reads (page 14, section 3.2):
In-house photocopying is generally considered to be an office overhead as are the costs of postage (including recorded delivery), stationary [sic], faxes, scanning, typing and the actual costs of telephone calls.
However, the
Costs assessment guidance reads (page 11, section 2.2 of both the
2010 and
2013 versions):
Photocopying in-house is generally an overhead expense as are the costs of postage, stationery, faxes, scanning, typing and the actual cost of telephone calls. However, see section 3.37 in relation to photocopying charges.
Sections 3.37–3.38 make clear that copying over 500 pages may cause photocopying costs to become payable. Beware incomplete guidance.
Exceptional case funding
At the course in Bristol, some successes reflected the increased number of applications that have borne fruit. In the period
April 2013 to March 2014, only five per cent of applications (70) were granted; in the period April 2015 to March 2016, that had risen to 49 per cent (655), despite a fall in applications from 1,516 to 1,344 over the same period.
Public Law Project’s legal director, Alison Pickup, told me:
… there has been a worrying decrease in applications in areas such as family law … The most likely explanation is that the system remains inaccessible, with providers unwilling to take the risk of doing a large amount of unpaid work when the chance of success is still less than 50 per cent.
Judicial review
There are always attempts to rein back what can be achieved through judicial review. The issue now is whether recent changes are affecting the number of cases that are being brought and also what has happened with requests for a discretionary payment under the recent regulations (see the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 SI No 898). In May 2016, we were told that three applications had been made since 27 March 2015 and were being processed. We await updated information.
Unrecouped payments on account
My folder on unrecouped payments on account (UPOAs) was archived, but I have been told by two members in recent days that they have had letters about old cases where the LAA is investigating. Where was the Law Society note on
Legal Services Commission v Henthorn [2011] EWCA Civ 1415? Oh yes:
here.
Conclusion
Never, ever let your guard down. You need to be on top of legislation, regulations, guidance and read the LAA Update. You could also join the
Legal Aid Practitioners Group, as we send out regular updates to members.