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A look at the Legal Aid Agency’s attempts to increase access to legal aid-funded advice, representation and mediation in response to COVID-19.
Coronavirus Act 2020
As part of the emergency measures brought in by the government to respond to the coronavirus crisis, new powers have been given to the state to place certain requirements and restrictions on individuals. Appeals can be made to the magistrates’ court (Coronavirus Act 2020 Sch 21 paras 17 (England) and 61 (Wales)). Any organisation with a civil contract can make an application, which has its
own form and process. It is regrettable that legal aid to fund these challenges is only available through exceptional case funding, with its attendant uncertainty, rather than through an extension to the scope of legal aid.
Domestic abuse
There has been an upsurge in domestic abuse since the lockdown. It is in scope of legal aid without evidence of previous abuse. However, it is means-tested. Representatives of legal aid practitioner groups have been calling on the Ministry of Justice to provide non-means-tested legal aid in domestic abuse cases.
This has not been forthcoming so far, but on 9 April, the LAA made some changes to its
guidance to make evidence of domestic abuse easier to obtain, and thus provide ‘gateway evidence’ to legal aid for a range of children and finance matters. From 15 May 2020, the existing Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 will be amended to allow a wider range of acceptable evidence from agencies supporting survivors and for individuals granted leave to remain in the UK as victims of domestic violence (Civil Legal Aid (Procedure) (Amendment) Regulations 2020 SI No 439).
Mediation
We could see an increase in demand for mediation as backlogs of cases lengthen and it becomes more difficult to access the courts. In a welcome but overdue development, the LAA has removed the requirement for family mediation applicants to attend the mediator’s premises in person (Civil Legal Aid (Procedure) (Amendment) Regulations 2020 reg 7). This brings mediation more into line with the provisions of the
Standard Civil Contract 2018 for categories of law; but the civil and family law provisions remain more liberal and there is no obvious reason for this (
2018 Standard Civil Contract Specification, August 2018, paras 3.15–3.20).
Education, discrimination, owner-occupiers and inquests
From 15 May 2020, members of the public will still be able to use the
Civil Legal Advice telephone service in these categories if they wish, but it will no longer be mandatory.
Local providers with a housing contract will be able to advise/represent owner-occupiers facing loss of their home due to default on secured loans falling into the debt category. All housing contracts include a notional four legal help matter starts for debt matters. These can be increased to six by the contract-holding organisation, after they have notified their contract manager. They can make an application through the contract manager if they need more matter starts (
2018 Standard Civil Contract Specification, paras 1.21–1.24).
This may increase access to legal advice for some people and in some parts of the country, but in areas with higher house prices, owner-occupiers with equity may fall foul of the means test. Unfortunately, it appears that the eligibility review that was underway
1See Legal support: the way ahead, CP 40, February 2019, page 10. has been paused due to the COVID-19 outbreak.
From 15 May 2020, local providers with a contract in the education category will be able to advise/represent in special educational needs cases. At the time of writing, there were
18 offices listed with education contracts. In addition, 23 local providers with discrimination contracts will be able to advise on discrimination cases, even where they would normally be out of scope, eg, in employment matters.
This represents a significant increase but may well not meet the need throughout England and Wales, even with the remote delivery provisions in the
Standard Civil Contract 2018. These changes need to be well publicised in order to raise awareness that legal aid is more widely available.
Also from 15 May 2020, it will be possible for legal help for inquests to be backdated where the director of legal aid disapplies financial eligibility limits in relation to the application.