In the second of a two-part article, Peter Todd, Adam Tear and Gabriella Bettiga explore the criteria for legal aid funding and the appeals procedure, and provide some tips for practitioners. Part 1 was published in the March 2021 issue.
The criteria for funding
It is beyond the scope of this article to detail the funding criteria for every potential case that practitioners may come across. The merits criteria are set out in the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 (as amended), and provide a clear structure for making a concise statement. Practitioners can, however, be forgiven for finding it difficult to identify what the precise criteria are: they vary according to the type of case and it can be difficult to determine them.
There is, perhaps, scope to criticise the Legal Aid Agency (LAA) for not making it easier for everyone involved in the system to work out what the relevant criteria are. LAG’s Legal Aid Handbook
is highly recommended. The criteria do change often, so it is important to stay up to date with all the ongoing amendments (see: https://legalaidhandbook.com/
The key point for practitioners to grasp, however, is that the criteria for legal aid funding are statutory. The LAA is not able to grant funding unless the statutory criteria are fulfilled; doing otherwise would be unlawful as ultra vires.
The starting point for understanding the criteria for civil legal aid post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is Sch 1 to that Act (which sets out which legal services are in scope and which are excluded). It is always worth referring to Sch 1 to make sure you give correct advice about whether a particular matter is in scope.
LASPO s4 requires the LAA to comply with guidance issued by the lord chancellor in determining whether civil legal services are to be funded. Given the mandatory nature of that guidance, practitioners should review the relevant parts of the Lord chancellor’s guidance under section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
(December 2020), as some of it may well assist the application for funding. If the guidance causes difficulties, those issues will need to be addressed. The LAA caseworker is literally bound to apply the guidance. Practitioners need to know which cases will be considered to lie outside the funding criteria, in order to advise competently.
The Civil Legal Aid (Merits Criteria) Regulations 2013 contain most of the key criteria, but they have been amended, by further regulations, seven times!1Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 SI No 772; Civil Legal Aid (Merits Criteria) (Amendment) (No 3) Regulations 2013 SI No 3195; Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014 SI No 131; Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015 SI No 1414; Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 SI No 1571; Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015 SI No 2005; and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 SI No 781.
Make sure you refer to a consolidated version of the regulations that incorporates all the subsequent amendments. Trying to patch together the original regulations is a nightmare.
Prospects of success
The Civil Legal Aid (Merits Criteria) Regulations 2013 (as amended by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 SI No 781) define seven categories of prospects of success by which cases must be classified:
1very good (80 per cent or more);
2good (60–80 per cent);
3moderate (50–60 per cent);
4borderline (‘which means that the case is not “unclear” but that it is not possible, by reason of disputed law, fact or expert evidence, to – (i) decide that the chance of obtaining a successful outcome is 50% or more; or (ii) classify the prospects as marginal or poor’);
5marginal (45–50 per cent);
6poor (below 45 per cent);
It is not uncommon for applications for funding (or accompanying opinions of advocates) to contain no clear statement as to the category by which the case should be classified, and/or no discussion or clear rationale for the choice of category. The LAA will generally accept a reasonable contention if it is made and logically justified. It will likely undermine an application if no category is chosen or if the merits category contended is obviously unsuitable. You don’t want the prospects of success classified as ‘poor’ (as funding will then be bound to be refused), so it may be worth setting out in the application why that would be the wrong category.
Remember that applications classified as borderline or marginal can still be funded in certain circumstances. You could perhaps argue that as a fallback category, if the original category is not accepted, and reason why the additional circumstances mean that the application still qualifies for funding. Applications sometimes fail to consider borderline/marginal categories at all, and therefore fail to set out the reasons why those additional circumstances would apply. (The additional circumstances might include that the case is of significant wider public interest or of overwhelming importance to the individual, or that the substance of the case relates to a breach of rights under the European Convention on Human Rights
There is always room for reasonable people, acting reasonably, to have a range of opinions, so it is worth considering in your statement of case all the potential categories and circumstances. The LAA is entitled to take its own view, so do not wrongly assume it must accept your view as correct. Exceptionally (for a substantial matter), the LAA can go so far as instructing its own independent advocate to advise as to prospects of success and take that into account in determining whether the criteria are met.
Also remember that if the prospects of success are ‘unclear’, you should apply for investigative representation rather than full representation. Similarly, don’t apply for investigative representation and contend the merits are anything other than ‘unclear’ as that makes no sense.
Practitioners should be aware that specific merits criteria apply for categories such as mental health and capacity, public law, claims against public authorities, immigration, housing and family. You should set out in the statement of case the specific criteria for the applicable category, to make sure your submissions are focused on the correct target.
When it comes to the cost/benefit criteria, some damages claims can struggle to meet the arithmetic ratios of damages to costs, particularly as the costs increase towards trial. One helpful point from the lord chancellor’s guidance (para 8.43) is that the costs incurred to date can be added to the likely damages as part of the cost/benefit equation. Say, for example, the prospects of success are moderate (50–60 per cent), likely damages are £80,000 but costs to date are £20,000 and to disposal are £25,000. It should be possible to get an increase of the costs limit from £20,000 to £25,000 because the likely damages of £80,000 plus costs to date of £20,000 mean the benefit to be gained totals £100,000 and this meets the four-to-one ratio2In a pure damages claim, the cost/benefit test requires likely damages to be at least four times costs to disposal in a claim of moderate prospects of success.
even if the costs limit is increased to £25,000. In our experience, practitioners do not always include the costs to date in the calculation and the caseworkers at the LAA sometimes do not apply this part of the guidance – it can make a difference to the outcome.
The appeals process
Appeals were originally heard at oral hearings by the ‘Area Committee’ of the Legal Aid Board. This gave scope for discussion and for new information to be elicited at the hearing. However, the process is now usually without a hearing, unless the adjudicator considers it is in the interests of justice for the individual or their lawyer to make oral representations. Cases are now dealt with by a single adjudicator unless either the LAA or the adjudicator consider the appeal is of exceptional complexity or importance such that there needs to be a panel of two or more adjudicators. Panels of adjudicators are rare and should not be confused with the Special Controls Review Panel (SCRP).
The process is governed by the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098. An applicant may initially request the LAA to conduct an internal review, where new information can be considered and a fresh decision made. The internal review may confirm the original decision or substitute a new determination. If funding remains refused, the LAA will inform the applicant of their right to appeal, within 14 days, to an independent adjudicator.
The adjudicator’s decision on prospects of success, the cost/benefit criteria, overwhelming importance to the individual, or whether or not funding should be continued, withdrawn or revoked in the light of the individual’s conduct, is binding on the LAA. Other determinations by an adjudicator are not binding on the LAA. Occasionally, the LAA may consider the adjudicator has got it wrong; however, that is very unusual and usually their recommendations will be accepted.
If it is asserted or in question as to whether or not a case has ‘significant wider public importance’ within the meaning of the funding criteria, the appeal will be reserved to be dealt with by the LAA’s SCRP. The SCRP normally involves a meeting of two or three independent adjudicators. There will generally not be any oral representations by the appellant unless the SCRP determines that it is in the interests of justice and the provider has requested it. It is therefore crucial that a clear bundle of evidence, statement of case and appeal grounds are submitted in good time to the panel (via the LAA).
There will be a meeting – normally remotely – that will be minuted by an LAA clerk and a report will be prepared by the SCRP and sent to the LAA, setting out the unanimous – or at least majority – views of the committee on the key issues in the funding criteria. The LAA will forward the decision to the applicant.
The SCRP also often considers complex or high-costs cases, multi-party actions and appeals to the Court of Appeal and/or the Supreme Court. Members of the SCRP are more experienced solicitor and barrister practitioners who have a significant record of conducting such cases. Membership has also opened up recently to CILEx members. During the recent lockdown, SCRP meetings took place on Teams. A clerk from the LAA is present to take the minutes but not to take part in the decision-making, which is entirely independent of the LAA.
Adjudicators and members of the SCRP will generally receive a bundle of papers from the LAA including the decision in question, grounds of appeal and other documents. It is helpful if the appellant’s representative produces a bundle containing the key documents. During the pandemic, electronic bundles have been used exclusively. We recommend that not every case document is included in the bundle, but that it is limited to what really matters. An indexed bundle and an essential reading list are very helpful.
It is not unknown for decisions of adjudicators and/or of the SCRP to be challenged by an unsuccessful applicant. There may be pre-action protocol correspondence exchanged with the LAA Central Legal Team. Sometimes, the LAA agrees to set aside the decision and to resolve a claim by agreeing that the matter be resubmitted to a freshly constituted panel for a new decision. Litigated challenges to decisions through judicial review are not unknown and a few happen every year.
Our experience of reviewing many refused applications is that the most common pitfalls are:
•the appellant failing to consider and address all the funding criteria, and overlooking a key aspect that is not met;
•prematurity – inadequate attempts to resolve matters prior to application;
•misapprehension of merits due to failure to consider a key legal issue identified by the LAA caseworker;
•forgetting costs/benefits by concentrating solely on the facts or the merits of the claim;
•contending for figures that would never satisfy the relevant test; and
•mis-stating the test for funding, eg, addressing in a judicial review claim whether a claim is arguable, or in an appeal only considering the chances of getting permission rather than the overall prospects of success of the appeal.
•Avoid attacking the LAA decision and particularly the decision-maker. Even if the LAA may have made an error, the appeal may still fail if the funding criteria are not met. Confine your submissions to what the relevant criteria are and whether they are met. Stay respectful and always focus on the facts and the statutory criteria.
•Often, when setting grounds of appeal, advocates complain that the LAA has not addressed every point raised in their opinion. Unless an important feature of the case has been missed, this argument is unlikely to go anywhere. It is not necessary for the LAA (or even the adjudicator/SCRP) to take issue with every single paragraph of often lengthy opinions, as long as the decision is sound and the funding criteria have been addressed.
The LAA has recently launched a new ‘application fixer service’,3‘Civil news: new civil application fixer service launched’, LAA news story, 4 February 2021.
which was developed in response to the survey run by the Legal Aid Practitioners Group4See Justice Committee inquiry: The Future of Legal Aid – evidence from Legal Aid Practitioners Group (October 2020).
and subsequently successfully run as a pilot. If you believe the LAA has made an error, email firstname.lastname@example.org
with the case reference and why you believe an error has been made, and it will review the decision based on the information submitted originally. Any new information will require an appeal. The LAA aims to review submissions within 24 hours Monday to Friday and if it agrees there has been an error, it will rectify it as soon as possible. This service is now available and may prove very useful. If there are delays in dealing with appeals, we recommend chasing it to the LAA Customer Service Team, whose Twitter service (@LAAHelpTeam
) seems highly efficient: just DM the reference and problem and the team will look into it and get back to you. This has the added benefit of avoiding the LAA’s tragic hold music, to which you’ll be subject if you try to deal with the issue on the phone.
•If things go badly wrong, use the LAA complaints process – it may assist in getting things looked at internally or addressed. The LAA complaints process has two stages, so use the second stage if the first does not resolve the issue. Appeals should not take months, so you should chase up your complaint regularly. If it is taking a long time, something has probably gone wrong.
•Make sure you know what the statutory criteria are for funding. Identify the key points and make your argument concise and focused. Arguing other points is a waste of time.
•Advocates’ opinions are often submitted with short or no additional submissions by the conducting solicitor: it’s a joint effort and a summary of a waffling opinion can be much appreciated. Sometimes this is disappointing as it is clear the advocate has not considered what the funding criteria are, or has failed to research them; instead, they may have focused, for example, on whether a judicial review is arguable. That is not relevant to the funding criteria. The conducting solicitors need to realise that the advocate has not addressed the proper criteria and ask them to address them in an amended advice, or instead provide their own submissions.
•Don’t assume that what you or your advocate say will be deferentially accepted. The LAA and/or adjudicator(s) regularly do reject the advice of providers and/or advocates as wrong and/or unlikely to succeed. SCRP members are often the leading lawyers on particular points of law and know them inside out. Make sure your argument is concisely but comprehensively reasoned and justified in a persuasive way.
•If you are aggrieved with the outcome of your application and/or appeal, consider judicial review – you might be right. No one is perfect! Be tenacious. The LAA may agree that something was not correctly considered and require it to be looked at again.
The LAA cannot grant funding applications unless it is properly demonstrated that the statutory criteria are fully met. The LAA is there to provide funding where parliament has determined it should be given.
Our experience of dealing with appeals is that sometimes the LAA is right and the practitioner has failed to appreciate the problem in their application. Naturally, however, the LAA does sometimes get it wrong and in these cases the appellant is usually successful on appeal. A freedom of information request was made to the Ministry of Justice (MoJ) for the purposes of this article as to how many legal appeals were made in the calendar year 2020 and their outcome. The MoJ confirmed that 5,756 appeals were made, of which 4,009 (70 per cent) were successful and 1,747 (30 per cent) were refused. The process of having to appeal is frustrating but all practitioners inevitably learn to deal with it, and you may learn that more time spent on applications saves time in the long run from having to appeal a decision.
We do not subscribe to the opinion that the LAA flagrantly and unreasonably refuses applications where funding should obviously have been granted. Generally, the LAA caseworkers are committed to providing representation when funding from the public purse is required. If a little bit more time and care was taken with applications, then fewer would need to go through the appeals process. However, there will always be some borderline cases that need to be reviewed and, overall, the system provides an independent oversight of the decision-making process. This independent aspect is an important guarantee that funding will be determined fairly and not in the interests of the state.