Simon Mullings examines how work ‘at risk’ in the legal aid sector has become the new normal. Do changes brought about by LASPO, regulations and CCMS mean that the statutory duty to provide legal aid is put at risk?
Recently, I telephoned the Legal Aid Agency (LAA) to chase an exceptional case funding application. It was two weeks since I had made the application, marked ‘urgent’ as a tribunal hearing was imminent. The officer told me that the LAA had stopped paying urgent attention to applications marked ‘urgent’ because providers were abusing the system. In my case, it would try to make a decision before the hearing but I shouldn’t worry if it didn’t. I was ‘fine to do the work at risk’ because funding would be retrospective if granted after the hearing.
The LAA’s expectation that I would be grateful to ‘work at risk’ is worrying. Legal aid litigation is increasingly conducted with an element of risk to the provider and the client. The normalisation of that risk is, I argue, putting the purpose of the legal aid scheme at risk by threatening the business sustainability of providers. Clients are also put at risk. Meritorious cases to secure citizens’ rights are doubtless not proceeding because the risk is too high.
The exceptional case example above is one thing – we proceeded ‘at risk’ and won. I want to set out a more serious and long-running example of a homelessness case presenting a more extreme risk profile.
In October 2018, Mr El-Hassan lost his homelessness appeal in the county court against a decision of Sutton LBC that he was not vulnerable and therefore not in priority need for accommodation as a homeless person. The ratio of the decision was completely dichotomous to a decision in the same court on the same issue in Raufi v Islington LBC
(2018) 4 June (County Court); July/August 2018 Legal Action
45. He remains homeless. His then solicitors were not able to take the case further. Counsel advised that the case met the Civil Procedure Rules 1998 (CPR) r52.7(2) standard for a second appeal to the Court of Appeal and that the criterion in Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 reg 56(3) was met. I was asked to take the case on and I was happy to do so, partly because I have another potential second appeal case on the same point (of which more later).
The need for speed
Legal aid had to be transferred before I could apply to amend the legal aid certificate for the steps necessary to apply for permission for the second appeal. The 21-day deadline to appeal meant that, from the outset, we would have to issue ‘at risk’. Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), it has no longer been possible to grant an amendment under delegated functions on the basis of a positive counsel’s opinion (Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 39). It followed that the LAA would not make a decision within 21 days, let alone within the four days we had to issue in this case.
We therefore lodged ‘at risk’. This must be necessary in many time-critical cases that require an amendment to legal aid, and so risk to providers in these cases is in all practical effect normal. However, the risk does not stop there. Legal aid is designed to afford the client protection against an adverse costs order (LASPO s26(2)). In the early stages of an appeal, the costs risk is relatively small, but, on principle, legal aid clients should be protected from any risk. It is not clear that costs protection can be awarded retrospectively. Nevertheless, client, counsel and I agreed to proceed ‘at risk’ as to do otherwise would mean the right to appeal on this point of law of general and overwhelming personal importance was lost.
The (not) fast and the furious
The published civil processing time
for an application for amendment is generally nine working days (at the time of writing). It actually took the LAA some 30 working days to respond to the application. Even then, the response was not a decision but a request for the transcript of the judgment that was still with the county court for approval. Frustrated, we pointed out that the transcript was not needed for a decision on funding.1On a second homelessness appeal, the issue for the Court of Appeal to decide is the challenge to the homelessness review decision and not the judgment of the lower court: Mohamoud v Birmingham City Council  EWCA Civ 227 at para 24; May 2014 Legal Action 22.
That was to no avail and nothing further could be achieved with legal aid until the transcript was provided. The LAA had not only exceeded its published processing time but had then reset the clock when it requested the document. In the meantime, we had to ask the court for several extensions to the deadline to lodge the skeleton argument and appeal bundle while we tried to secure legal aid and the transcript.
Eventually, the Civil Appeal Office (CAO) told us that if we did not lodge the skeleton argument and appeal bundle, the appeal would be placed in the ominously named ‘dismissal list’ for consideration to be dismissed for breach of CPR Practice Direction 52C. The CAO said that putting the appeal at risk would ‘help us to get legal aid sorted out’. I choose to believe this advice was genuinely well-meaning but readers dealing with the LAA on a day-to-day basis will recognise the naivety of that proposition.
In the funding appeal, I asked the LAA to consider what a lawyer should do in the position in which we found ourselves at the outset of this article. We had an appeal that we believed to be of merit and importance. We knew there was no way to get funding secured in time for the 21-day deadline to appeal. The unavoidable options were to abandon the appeal or work ‘at risk’. We were in exactly the same position when we were forced to lodge the skeleton argument and appeal bundle. There has been no answer from the LAA to that question.
If this were just a one-off then the injustice to Mr El-Hassan of not pursuing the case would be unacceptable, as would the risk to my firm and counsel that the 40–50 hours of work we put in were in vain and unpaid. However, Mr El-Hassan’s case simply mirrors the very same problems that we experienced in the other case that I have with the same important point of law. Then there is the exceptional funding case also mentioned. Counsel on my other appeal has experience of taking a case through four separate funding appeals and a judicial review, all ‘at risk’, alongside the work on the appeal, itself also ‘at risk’, before getting funding to proceed. Should he and the legal team have abandoned that case because funding was not secured from the outset?
If work is not done ‘at risk’ to protect a client’s position, then that must lead to serious and significant injustice where meritorious cases are not pursued. And then there are cases where the client is eligible but, with the more hostile means enquiry regime, there is concern as to whether the LAA will accept their evidence of means or capital. Those clients are at risk of a revoked certificate and the legal costs being recovered from them, unless the solicitors agree to bear the burden of risk and waive costs. Either way, there is a disincentive to proceed with the case.
Risking it all
Clearly, there are many cases run ‘at risk’ or not run at all. This normalisation of ‘at risk’ work has come about mainly because of the LAA’s inability to make decisions in a timely manner, and that has come about for a number of reasons:
the stripping of the imprimatur of counsel’s opinion as a prompt method of vouchsafing the merits of a case;2The inference to be drawn is that the bar can no longer be trusted to assist with legal aid decisions.
•relatedly, the abolition of delegated functions to amend legal aid;
•the uselessness of the published civil processing times, where they simply don’t mean anything (see box below for details of structural delay in decision-making);
•the agency not having enough knowledgeable staff to make decisions in a timely manner; and
•CCMS (the client and cost management system) and the call-centre paradigm of doing business with the LAA (see box below).
These structural problems at the LAA have led to a cultural shift towards the normalisation of ‘at risk’ work that allowed the officer in my case to reassure me – without irony – that I was ‘fine to work at risk’.
But it is unacceptable that we should bear the risk arising from the LAA’s inability to make timely decisions. The loss of providers in the legal aid sector since LASPO is stark evidence of how precarious the sector is.3Since LASPO, the number of solicitors’ firms doing legal aid work has dropped by about a third and not-for-profit organisations by around half: Dominic Gilbert, ‘Legal aid advice network “decimated” by funding cuts’, BBC News, 10 December 2018.
Work ‘at risk’ cannot be borne without serious jeopardy to the sustainability of organisations trying to run legal aid cases.
When you put all of these matters together, it is clear that the lord chancellor, through the executive agency of the LAA, is failing in his duty to ensure that funding is available in appropriate cases (LASPO s1).
Structural problems in the LAA’s decision-making
The LAA’s internet-based client and cost management system (CCMS) has been mandatory since 1 April 2016. This has brought about many changes in the work of legal aid lawyers.
CCMS does not allow you to communicate with the LAA in any meaningful sense outside of the tick and text boxes of the computer system. Providers cannot send documents/information without the LAA sending an electronic request for them. Delay is built in.
There is a call-centre paradigm for contacting the LAA. However, it is not possible to achieve anything by contacting the LAA while a matter is within its published timescales for work.
Even outside those timescales, the telephone front line can do very little to help except to flag issues to the people making decisions. Decision-makers are insulated by the call-centre paradigm and so the import and/or urgency of the query is never directly communicated. You can never speak to a decision-maker.
The published timescales mean very little anyway. If the LAA asks for a document or information, the ‘clock’ starts all over again. Or if a case is in any way extraordinary then the timescales do not apply, likewise if CCMS is having technical issues. The LAA has no system to work within deadlines such as the 21 days to lodge a second appeal.
The normalisation of ‘at risk’ work was made official by the Civil Legal Aid (Procedure) (Amendment) Regulations 2019 SI No 130, which give ‘the director of legal aid casework … the discretion to backdate the effect of certain legal aid determinations’ (‘Civil news: backdating powers now available for civil cases’
, LAA CCMS training news, 19 February 2019). At the same time, the LAA announced that it had ‘closed its “out of hours” service. This service can no longer be used to obtain urgent determinations on emergency representation’.