In the first of a two-part article, Peter Todd, Adam Tear and Gabriella Bettiga set out what can and cannot be appealed and what should and should not be in a statement of case.
Legal aid practitioners naturally find a refusal of funding or a substantial reduction on assessment of costs by the Legal Aid Agency (LAA) to be unwelcome, frustrating and time-consuming. Some practitioners have complained that the LAA seems to have an overly negative attitude to funding applications and that there is a ‘culture of refusal’ at the LAA.1See, for example, Owen Bowcott, ‘Homelessness lawyers complain of legal aid “culture of refusal”’, Guardian, 26 June 2019, and ‘Terryann Samuels – the long road to the Supreme Court – struggles with the Legal Aid Agency’, Community Law Partnership news release, 12 June 2019.
Practitioners have many challenges and having their judgement doubted can be upsetting, if not enraging. Inevitably, they feel undermined and their clients may be concerned.
When the legal aid scheme was originally administered by The Law Society, controls on legal aid funding were light-touch. This meant the budget for civil and criminal legal aid grew to over £2bn a year. Recently, successive governments have sought to restrict public expenditure on legal aid. We see little prospect that any forthcoming government (and certainly not this one) will significantly reduce these controls. Practitioners have to accept that strict controls are here to stay and need to be equipped with the knowledge to ensure they can still get funding when needed (and justified) for their clients. Knowing your way around the appeals process is an essential part of the legal aid practitioner’s toolkit. Arguably, however, some practitioners could do with some additional training in this area.
Practitioners can also be unfamiliar with the public servants at the LAA who process their applications. In our view, the caseworkers at the LAA sometimes have their experience and expertise underestimated. They should not be assumed to be low-skilled administrators, malevolently hostile to the grant of funding. Often, they are just as committed to representation being provided to deserving litigants as many legal aid practitioners. Some have decades of experience in specialist areas of law, have seen thousands of litigated cases, and know at least as much (if not more) than the conducting lawyer in respect of the applied law as to the likely prospects of success, likely costs or other important aspects of the case. They will, however, only know the facts that are presented to them by the practitioner.
The authors of this article were all until recently independent legal and costs adjudicators for the LAA and the co-chairs of the LAA Special Controls Review Panel in 2020. We all have experience of legal aid practice and have therefore experienced refusals ourselves. We had to go through the appeal process for our clients, including challenges by way of judicial review. We have also determined many appeals as independent adjudicators and had our decisions subject to judicial review lodged by legal aid providers. We know both sides of the process. We thought it may be helpful for practitioners to share our experience of both pursuing and determining LAA legal and costs appeals, and to share our expertise and knowledge of the process.
Not all LAA decisions are amenable to appeal. There is no appeal process against a refusal of exceptional case funding (ECF); in those cases, a practitioner can only request an internal review of a negative decision and, if unsuccessful, decide whether to challenge the decision by resorting to judicial review proceedings. Overall, we think it would be better if ECF was within the scope of independent adjudication in an appeal. These issues are well within the abilities of an adjudicator. The costs of a contested judicial review could be avoided, and confidence in the system increased.
There can be no appeals against a decision about a means assessment either, and in those cases, again, there may be resort to judicial review. This is an area that has not been subject to regular challenge, though there are numerous issues that might be. Most recently, the LAA has changed the assessment of means relating to taking into account a mortgage, following a judicial review challenge (R (GR) v Director of Legal Aid Casework  EWHC 3140 (Admin)
).2See also '"Trapped" and "imaginary" capital challenges improve access to civil legal aid.'
Appeals against assessments of legal aid providers
Not all appeals are against LAA decisions. Clients can also lodge appeals against a provider’s decision to refuse or withdraw controlled legal representation (CLR). The provider should explain to their client the appeal process, complete a CW4 form (or CW4(MH) if applicable), including the reasons for refusing CLR, and pass it to the applicant. Applicants can either give this to a new provider or complete it themselves before emailing it to the LAA, which will forward it to an independent adjudicator to determine whether the refusal or withdrawal of funding was reasonable.
It is important that the independent adjudicator receives at least the completed CW4 and the reasons why the case was refused (for example, Home Office’s notice of decision and reasons for refusing an asylum claim), otherwise they will not be able to assess the merits of the case. It is helpful for adjudicators to also have sight of the various documents pertaining to the case, such as interview records (if applicable) and statements.
Another type of appealable decision is an assessment of a provider’s costs. Escape fees cases and certificated files under £2,500 are assessed by the LAA. It is possible that on assessment a file is nil assessed or costs are reduced.
Nil assessments usually occur if the LAA caseworker concludes that the work is out of scope (ie, not within Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Sch 1) or the means test is not met. As adjudicators, we have seen files where the CW form was not present on file, or not signed by either the client or the representative. In other cases, there were mistakes in the assessment of the client’s means or the caseworker conducting an appeal was not accredited at the required level under the Immigration and Asylum Accreditation Scheme.
Costs can be reduced on individual items of work for various reasons. For example, the LAA assessor may conclude that the time claimed on a specific task is excessive, unreasonable or unjustified. Evidence of the work done, such as draft statements and a clear and detailed attendance or preparation note, is expected, especially if an unusually long time is required to complete the work. It is also crucial to have on file evidence of expenses incurred, such as interpreters’ and experts’ invoices, which should contain a breakdown of costs.
Appeals against the LAA refusal of funds in licensed matters
The most common type of appeal is against the LAA’s decision to refuse funding in certificated cases. Depending on the value and stage of the case, appeals are brought to individual adjudicators or a panel of special cases reviewers.
The statement of case
It is apparent from our experience of dealing with refused funding applications that, sometimes, practitioners have not adequately focused their minds as to what, in that particular matter, the criteria for funding actually are. It is our experience that a concise digest of the relevant criteria, and why you believe they are met, can be sufficient to move the case to a grant of funding.
We have seen practitioners wrongly assume the criteria for funding to be discretionary, or that there is a test of reasonableness of funding or whether a claim is arguable. Such applications are sadly likely doomed, and it is disappointing to see, on occasions, the frustrated applicant’s solicitor then launch into an ad hominem attack on the LAA caseworker, who may have made a competent and correct decision.
Any application for funding should be accompanied by a statement of case, which should contain a concise statement of the relevant facts. Unfortunately, many applications contain much more factual detail than is necessary, but lack any acknowledgement of what the relevant criteria for funding in that matter are and any discussion applying the relevant facts to those criteria, to examine or demonstrate whether they are fully met in that case. This makes the LAA caseworker’s (and independent adjudicator’s) job much more difficult.
All the criteria for funding must be met and addressed in applications. The outcome of a funding application will still be a refusal if 95 per cent of the funding test is met but five per cent of the criteria are not. All the criteria therefore need to be identified and examined. Do not consider only merits; you also need to think about prematurity, proportionality, attempts at complaints or alternative remedy or the other kinds of points that may trip up an application. Think hard and critically about the application, and try to identify the most contentious or weak points and address those head-on, while ensuring that you address all of the relevant points.
Solicitors making applications would be well advised to see the statement of case as an opportunity to help the LAA caseworker conclude that all the relevant criteria are met, by setting out all the criteria and demonstrating that they are all met. If the caseworker can see that all the correct criteria have been considered and demonstrated to be met, then the LAA has a statutory duty to provide the funding sought.
The second part of this article will explore criteria for funding and the appeals procedure, and provide some tips for practitioners, and will be published in April 2021.