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“We thought problems with financial eligibility were receding, but issues from 2013 that we believed were resolved have appeared again.”
The Legal Aid Practitioners Group (LAPG) ran pop-up post-LASPO courses around the country in 2014 with the aim of bringing delegates up to date on what the world looked like following the Act. This, in turn, enabled us to receive feedback from members and non-members alike about what issues were worrying them. Matt Howgate of DG Legal and I wrote the course notes and invited people to give us topics for discussion at the course. Having resumed the courses in 2016, we have followed this model. The following comprise a selection from the 20 or so subjects that are covered in the course.
1We haven’t forgotten CCMS (the client and cost management system), which is also on the list, but was covered in last month’s Legal Action (April 2016 Legal Action 4).Inconsistency of decision-making at the Legal Aid Agency
Delegates have reported the Legal Aid Agency’s (LAA) inconsistent decision-making across a number of the issues we discuss. We thought problems with financial eligibility (both for certificated work and when legal help cases are audited) were receding, but issues from 2013 that we believed were resolved have appeared again, albeit not consistently. Variations in what evidence of domestic violence will be accepted have been reported to us again (even before the Court of Appeal in R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91 held that Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 33 was invalid).
Independent costs assessors
There is not a lot of contact with independent costs assessors (ICAs) but there is concern over their decision-making. As with other LAA decision-making, it seems that ICAs’ decisions are inconsistent and they can sometimes misdirect themselves as to what they should be considering (see R (Duncan Lewis (Solicitors) Ltd) v Lord Chancellor [2015] EWHC 2498 (Admin)). Often, they also seem to fail to give proper or detailed reasons for their decisions. We therefore spend time on the course discussing how best to frame appeals to ICAs to ensure that, as far as possible, you can encourage them to consider properly your appeal and explain their decision. We also discuss transparency regarding the legal experience of ICAs and how cases are allocated to them, something representative bodies have raised with the LAA.
Investigative representation versus full representation
Investigative representation is only available where prospects of success are unclear. It covers only the cost of investigating the merits of a potential claim. Full representation is normally only available where the prospects of success are known and are either very good, good or moderate. People have been caught out where they have gone too far under investigative representation: they have started to progress the case rather than just investigate merits. Work under investigative representation should cease on reaching the conclusion that criteria for full representation are met.
But should that work be carried out under legal help? The answer is in Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 reg 40(1). Normally, legal help should be used instead of investigative help unless there is the need for substantial investigative work. Substantial investigative work will be where:
•the solicitor will reasonably need to carry out at least six hours of fee earner investigative work; or
•disbursements together with any counsel’s fees would cost £400 or more excluding VAT.
Statistics
We also examine the reduction in the number of cases that have been opened. For example, in 2009/10, 933,815 legal help/controlled legal representation matters were started. In 2014/15, 171,558 were started. The statistics for the third quarter of 2015/16 were released at the end of March.
Contracts
Contracts are always of concern. We set out in the course notes the LAA’s headline intentions document from November 2015, which in turn sets out its plans regarding civil face-to-face contracts.
Under the 2013 standard civil contract in the family, immigration and asylum, housing and debt categories, contracts were due to expire on 31 March 2016. This period has been extended to 31 March 2018. For the 2013, 2014 and 2015 standard civil contracts, the LAA’s plan remains to align all face-to-face contracts from April 2018. New contracts for work in welfare benefits, immigration removal centres and housing possession court duty schemes will be awarded to end on 31 March 2018. All standard civil contracts (except mediation) that are due to end before 31 March 2018 will be extended through to that date. This means, of course, that any contracts that are currently set to finish after 31 March 2018 (actions against the police, clinical negligence and public law) will be ended and providers will be given the necessary contractual notice period. ■