Legal Aid Reform Briefing by Resolution July 2011

Transcription

1 Legal Aid Reform Briefing by Resolution July 2011 Timetable The government published its response to its consultation on Legal Aid Reform on 21 June It can be downloaded from the Ministry of Justice website at The second reading of the Legal Aid, Sentencing and Punishment of Offenders Bill took place on 29 June and the Bill is now being considered by a Public Bill Committee. For more information go to: The Bill is likely to receive the Royal assent by April Scope cuts cases outside the scope of legal aid The government is drastically reducing the scope of legal aid. Legal aid will no longer be available for the following areas of law, subject to a new limited funding scheme for exceptional cases, see below. private family law (other than for the victim in cases where domestic violence as defined below is present and for the protective party in private law children cases involving child abuse as defined below); clinical negligence; consumer and general contract; Criminal Injuries Compensation Authority cases; debt, except in cases where there is an immediate risk to the home; employment cases; education cases, except for cases of Special Educational Needs; housing matters, except those where the home is at immediate risk (excluding those who are squatting ), homelessness assistance, except housing disrepair cases that pose a serious risk to life or health and anti-social behaviour cases in the county court; immigration cases (non-detention); miscellaneous: o appeals to the Upper Tribunal from the General Regulatory Chamber of the First- tier Tribunal, o cash forfeiture actions under the Proceeds of Crime Act 2002, o legal advice in relation to a change of name, o actions relating to contentious probate or land law, o court actions concerning personal data, o action under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, o legal advice on will-making for (i) those over 70 (ii) disabled people (iii) the parent of a disabled person and (iv) the parent of a minor who is living with the client, but not with the other 1

2 parent, and the client wishes to appoint a guardian for the minor in a will; tort and other general claims; welfare benefits. Domestic violence definition 1 Legal aid would be available for the party at risk when one of the following applies: a non-molestation order, occupation order, forced marriage protection order or other protective injunction is either in place or has been made in the last 12 months; there is a criminal conviction, or ongoing criminal proceedings, for a domestic violence offence by the other party towards the applicant for funding (unless the conviction is spent); the victim has been referred to a Multi-Agency Risk Assessment Conference (as a high risk victim of domestic violence) and a plan has been put in place to protect them from violence by the other party; or there has been a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim. Note that this does not include cases where a party has given an undertaking in respect of domestic violence. Unmarried domestic violence victims who cohabit with their partner will be subject to similar gateway rules for legal aid to establish their interest in shared property under TOLATA Cases involving child abuse - definition 2 There is a criminal conviction, or ongoing criminal proceedings, for a child abuse offence against the person from whom the protective party is seeking to protect the child (unless the conviction is spent); a local authority has put a Child Protection Plan in place to protect the child who is the subject of the proceedings from abuse by or including abuse by the person from whom the protective party is seeking to protect the child; or there has been a finding of fact by the family courts that child abuse on the part of the person from whom the protective party is seeking to protect the child has occurred. 1 Government s Response to the Justice committee s Third Report of Session CM Op cit 2

3 Exceptional Funding A new scheme will provide funding for excluded cases where the individual would have a right to legal aid under the Human Rights Act 1998 or European Union law. Decisions will be made by the Director of the new legal aid agency. Ministers will be prevented by statute from influencing the Director about funding in individual cases. Details will be published in due course. Advocacy will also be available in inquest cases which meet the current significant wider public interest criterion. Cases remaining in scope of legal aid domestic violence and forced marriage proceedings; family mediation; international child abduction (to recover a child and for an application to obtain an emergency order to prevent international abduction); international family maintenance; for the victim in private family law cases involving domestic violence and for the protective party in private law children cases involving child abuse; public law children cases; representation of children in rule 16.2 (and 16.6) private law children cases; asylum; asylum support where accommodation is claimed; claims arising from allegations of abuse and sexual assault; community care; debt (where the client s home is at immediate risk), including involuntary bankruptcy and orders for sale of the home; housing matters where the home is at immediate risk (excluding those who are squatting ), homelessness assistance, housing disrepair cases that pose a serious risk to life or health and anti-social behaviour cases in the county court; immigration detention; appeals to the Special Immigration Appeals Commission; mental health, including mental capacity issues currently in scope; Special Educational Needs cases (currently in scope); public law cases (judicial review and other similar remedies) other than representative actions and certain immigration and asylum judicial reviews); registration and enforcement of judgments under European Union legislation; miscellaneous proceedings: confiscation proceedings, injunctions concerning gang related violence, Independent Safeguarding Authority Appeals (care standards), Legal Help at Inquests, proceedings under 3

4 the Protection from Harassment Act 1997, and quasi criminal proceedings; discrimination cases that are currently within scope (claims relating to a contravention of the Equality Act 2010); environmental cases; European Union cross border cases; Appeals to the Court of Appeal and Supreme Court, and references to the European Court of Justice, (where the area of law to which the appeal relates remains in scope). Representation of children under Family Procedure Rules 16.2 and 16.6 Funding will only be available to parties other than children where they meet the requirements for Exceptional Funding. Funding for legal help in support of mediation The consultation proposed that a fee of 150 would be available. The government is now implementing an additional fee of 200, where legal advice is required to draft a court order setting out the terms of settlement in finance cases 3. Interim lump sum orders to fund legal services in ancillary relief proceedings The Court will have powers to make interim lump sum orders against a party who has the means to fund the costs of representation of the other party. 4 Note that legal aid will not be available for advice or representation in respect of obtaining or enforcing such an order. Telephone services The government is still considering whether a single telephone gateway, based on the current Community Legal Advice helpline, will be the only way to the areas of civil and family legal aid that remain in scope. If and when fully implemented, almost all clients will access legal aid services through the telephone service and would not be able to approach a face to face service direct. Clients would speak to an operator who would decide whether to refer to the second tier specialist service or whether the client needed face to face advice. The government has decided that this exclusive access route will be phased in gradually, and the results analysed to determine whether a single gateway should apply to all areas remaining in scope. The first categories to move to access via the single gateway will be: debt (insofar as it remains in scope); Special Educational Needs (SEN) cases; 3 Reform of Legal Aid in England and Wales Government Response, paragraphs 39 and 40 4 Reform of Legal Aid in England and Wales Government Response, paragraph 120 4

5 Discrimination cases (claims relating to a contravention of the Equality Act 2010); Community care Clients in emergency situations will be able to go directly to a face to face provider. When the scope cuts are implemented, welfare benefits advice will no longer be provided by the telephone service. It will continue to provide advice and representation in housing and family cases; but clients will be able to choose whether they use the telephone service or would prefer to use a face to face service. The government is still considering whether in future it should widen the scope of the telephone service. It could include referring clients outside the scope of legal aid to services that they would pay for. The legal providers would pay referral fees to the government. Financial eligibility Capital The concept of passporting benefits will be abolished in relation to capital, although it will be retained in respect of income. People on passporting benefits: Will no longer be eligible if they have disposable capital over 8,000 Will have to pay contributions if they have capital under 8,000 If someone s disposable capital exceeds 3,000, they will have to pay contributions from capital for certificated levels of work (but not for Legal Help, or Controlled Legal Representation or Family Mediation). Contributions will be 1 per 1 over the limit up to the likely cost of the case. The government proposed that people with capital over 1,000 would have to pay a capital contribution of 100 to their solicitors. This proposal will not be implemented. The government has also accepted that its proposal in respect of capital disregards 5 would not save much money and would be expensive to administer. This proposal will not be implemented. Therefore, the disregard for the first 100,000 of equity in the home will be retained, as will the 100,000 mortgage disregard. Income 5 To abolish the capital disregard in relation to equity in the home and uncap the mortgage disregard (compensated for by a waiver scheme). 5

6 In respect of certificated work, clients with disposable income of 315 per month or less do not currently have to pay contributions from income. It is proposed not to change this position; but where clients have to pay contributions, they will increase to 30% of disposable income. Family and civil fees solicitors and barristers Fees for family work will be reduced by 10% from February Fees for civil work will be reduced by 10% in October The cuts will be introduced by the LSC by way of amendment to the Unified Contract 2007 (as amended) family and family with housing or Standard Contract 2010 (civil). The government would like to impose a 10% cut to housing fees under family and housing contracts in October 2011, if this is feasible. If not, this reduction would also apply from February Uplifts which can be paid to solicitors will be capped at 100% for cases in the High Court, Court of Appeal and Supreme Court and 50% for all other courts. The 15% uplift for members of the relevant panels will be retained. The full schedule of reduced fees can be found at: Experts fees The government will codify the LSC s benchmark hourly rates, reduced by 10%. It will also develop longer term plans to reform experts fees. Alternative sources of funding The government will not take further its proposals to use the interest from solicitors client accounts to supplement the legal aid fund. A Supplementary Legal Aid Scheme (SLAS) will be implemented, under which successful litigants, funded by legal aid, would pay 25% of damages (excluding damages in respect of future care and loss) into the legal aid fund. Governance and administration The government introduced legislation on 21 June 2011 to abolish the Legal Services Commission and replace it with an executive agency of the Ministry of Justice. This will be known as the Directorate of Legal Aid Casework (DLAC). 6 Reform of Legal Aid in England and Wales Government Response, paragraph 255 6