Lawyers meet to ask: is there a culture of refusal and a normalisation of working at risk at the LAA and, if so, how should they respond?
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Marc Bloomfield
Senior lawyers called a meeting on 9 October to discuss the difficulty of running cases under the civil legal aid scheme. A larger venue had to be found as the original room booked could not hold the numbers who wanted to attend.
Tim Baldwin of Garden Court Chambers opened the meeting by raising practitioners’ very real concerns that the way the Legal Aid Agency (LAA) is administering civil legal aid is threatening its future, with lawyers impeded from representing their clients effectively. He fears ‘death by a thousand cuts’ of civil legal aid.
Edwards Duthie Shamash’s Simon Mullings referred to two similar cases where legal aid was refused for inane reasons. The Independent Funding Adjudicator (IFA) overturned one decision but the LAA refused to send the other case, saying it was pointless.
Birmingham firm Community Law Partnership (CLP) was running an important housing case (Samuels v Birmingham City Council [2019] UKSC 28) about the affordability of accommodation. The firm’s struggles with the LAA are set out in an article on its website (‘Terryann Samuels – the long road to the Supreme Court – struggles with the Legal Aid Agency’, 12 June 2019). There were seven refusal decisions, during which CLP worked at risk (a problem raised several times over the course of the meeting)1See also Simon Mullings’s article at July/August 2019 Legal Action 16. – if it had not done so, the case would not have proceeded to trial and the decision would not have happened.
The Legal Aid Practitioners Group (LAPG) represents legal aid practitioners in private practice and not-for-profit organisations. Its chief executive, Chris Minnoch, said there seemed to have been a change in culture at the LAA, pointing out that there is no mention of clients or access to justice in its stated priorities. He suggested that, in deciding what to do about the problems, it would be useful to understand how that culture developed. He went on to say that experienced practitioners now feel there is a hostile environment at the LAA, and questioned whether that is now programmed into the legal aid scheme. Freedom of Information requests have been drafted and LAPG has opened a survey to gather more information from practitioners (readers are encouraged to complete the questionnaire here). Timeliness and transparency issues around appeals have been raised in the survey, but he also highlighted the problem that practitioners cannot always afford taking the unpaid time to challenge decisions.
Polly Brendon, a solicitor at Public Law Project, described the various cases her organisation has brought, both system challenges and on individual issues. She set out some key considerations when challenging LAA decisions:
Have all possibilities been exhausted? Is there no alternative remedy? Will this remedy be effective in relation to the timescale?
Check all relevant regulations – can you actually challenge the decision?
Is an IFA appeal an alternative? It might be, but even if it is, it might take too long.
How do you fund the case? Category definitions mean that a judicial review can only be brought by an organisation with a public law category.
Sue James, director and housing solicitor at Hammersmith and Fulham Law Centre, outlined issues for further consideration. There are different fee schemes for each area of civil legal aid – why not simplify these? On operational issues, the number and frequency of audits can become problematic for organisations. Contract managers should take a proportionate approach in dealing with concerns. Can the Public Accounts Committee look at the audit issues and the level of refusals and delays? Should the LAA be independent rather than part of the Ministry of Justice?
Broader issues include lawyers unionising and improving the image of legal aid lawyers (Sue has, at a previous event, suggested a rebrand to ‘social justice lawyers’). In seeking to make people understand the role of civil legal aid, telling clients’ stories is crucial, she said. The public needs to understand that legal aid is not just about giving money to people accused of a crime.
There was a lot of feedback from the floor and many more proposals were made to tackle the issues raised. In the meantime, it would be really helpful for practitioners to complete the LAPG questionnaire.
 
1     See also Simon Mullings’s article at July/August 2019 Legal Action 16. »

About the author(s)

Description: Carol Storer - author
Carol Storer is interim director of LAG. She was director of the Legal Aid Practitioners Group for 10 years until November 2018.