Thoughts on the case of JA & Ors, R (On the Application Of) v The London Borough of Bexley (2019)

An examination of a Judicial Review involving the refusal of support under Children Act 1989 for a family claiming destitution.

The aproximate text of the podcast is set out below. A note of the case and the link to the judgment which is referred to is here. 

This case involved a successful Judicial Review of a decision by the London Bexley to refuse housing and subsistence payments to a mother and 3 children under the Children Act 1989. This post can also be listened to as a podcast or watched on Youtube. The references to paragraph numbers in the judgement below are to the paragraphs on the Baili report. 

The factual background was  that mother had been working and supporting her family until 2015 when she had to stop due to her immirgration status as an overstayer. This status meant that she had no recourse to public funds and was not able to claim benefits or obtain housing as a homeless person under Part 7 of the Housing Act 1996. It also meant that she was not allowed  to rent a private property herself even if she had the money with which to do so. She and the children were however entitled to be provided with accommodation and subsistence payments under the Children Act if Bexley was satisfied that they were destitute. 

For just over two years Bexley accepted that the family were destitute and provided them with housing and subsistence payments. However, in September 2017 they carried out a new assessment and decided that the mother had additional income which she had not disclosed and that the family were not destitute. They carried out a fraud investigation and in June 2018 reached a decision that the family were not destitute, the children were not therefore in need and the family were not entitled to housing or support. 

Judicial Review proceedings were  issued and led to a 2 day hearing in January 2019 and a judgment from David Casement QC sitting as a Deputy High Court Judge on 1 February. He found that the council had failed to carry out a proper assessment or investigation and that their decision was Wednesbury unreasonable so that it had to be quashed. The judgement is worth reading as it shows how an unfair and hostile assessment by a council can be challenged through attention to detail. Unfortunately it has been very common for councils to make decisions of this kind and to hope that they can successfully defend Judicial Review proceedings by repeating unfounded accusations against destitute families. 

The political background to the case lies in the creation of the hostile environment for migrants openly and unashamedly encouraged by David Cameron’s government. This built on the hostility of the previous Labour governments which had denied access to mainstream housing and support for migrants through the introduction of the Nationality, Immigration and Asylum Act 2002. Treaty obligations meant that the governments were not able to deny all support to children and leave them sleeping in the street with no food which is why accommodation and financial assistance remained available to destitute children and their families under the Children Act. 

The changes since 2002 meant that hundreds of families with children who might previously have been entitled to mainstream housing and benefits now had to seek support under the Children Act. This in turn meant that Children's Services Departments were inundated by huge numbers of applications. They struggled to deal with this flood in terms of carrying out the necessary assessments let alone providing housing and support for those families whose children were found to be in need. 

Unfortunately staff in many Children's Services Departments responded to the crisis which led to destitute families seeking assistance not by speaking out about the plight of the children but by adopting an increasingly hostile approach towards the children and their parents themselves. Lewisham council, for instance which for a long time was one of the worst when it came to the mistreatment of destitute children openly adopted a policy which it called “Robust Front Door”. This soon led to applicants being routinely branded as fraudulent and to assessments being carried out with a view to justifying the decision which had been taken to refuse assistance and to keep the front door shut. Applicants would be routinely refused support because their accounts were considered to be “plainly incredible” (an expression used by for Bexley in this case - see paragraph 36) or were accused of not cooperating with the assessment process because they were trying to hide their real comfortable incomes.

The hostile approach taken by councils towards destitute children received encouragement in 2013 with the case of R (MN) v Hackney where the council had decided that they were satisfied that the children of the family were not in need for the purposes of Section 17 of the Children Act because the parents were considered to have refused to cooperate with the assessment by not answering questions. A judicial review of the decision was dismissed. Unfortunately, I understand that the case was settled and the family were housed before the decision could be appealed. The original judgment was therefore left on the books and served as a green light for councils to slam their robust front doors in the faces of applicants. All they had to do was to complete an assessment report which concluded that the applicant parent(s) had failed to cooperate and had been dishonest. If the applicants issued Judicial Review proceedings indignant barristers reciting the allegations of fraud and bad faith on the part of the applicant would attend court. If they were lucky a busy judge might dismiss a Judicial Review challenge having concluded that Parliament had intended that local authorities should assess the facts in this sort of case such that it was not for judges to question the specialist decision making of council staff and that in any event that it seemed that the applicant had not cooperated with the assessment process. Fortunately in this case the Judge adopted an approach of subjecting the council’s decision making to an appropriate level of scrutiny. 

So lets see what actually happened in this case. 

I am not going to go into the legal framework in detail here as that would take too long. I will try and to this another time. For now though please just accept that in order for the family to be entitled to housing and subsistence payments the council had to be satisfied that they were destitute after carrying out a balanced assessment and only having regard to relevant matters.

In their decision they gave twelve reasons for this which are set out at paragraph 24. These can be summarised as being:-

  1. She had failed to provide timely evidence of the destitution claimed
  2. Her bank statements showed that she had regularly spent money on non essential items which she would not have done if she was really destitute. 
  3. Despite claiming to be separated from her ex husband and divorced she maintained a good relationship with him and he was providing support for her family.
  4. She had other sources of income such as family, friends and work. 

The mother’s challenge was based on four arguments which are listed at paragraph 3. These were that 

  1. The council’s decision was based on material errors of fact. 
  2. The council had failed to make sufficient enquiries and its decision is procedurally unfair. 
  3. The council’s decision was based on a failure to take account of relevant and material considerations and based on taking account of irrelevant matters. 
  4. The council’s decision was irrational and on the facts of the case was not one which was open to the council to take. 

A good example of these errors of fact and of taking irrelevant matters into account was that that council had relied on the fact that the mother owned an iPad. They also referred to her owning computers. The mother confirmed that she did have an iPad and a computer (only one) but she stressed that she had bought these before she was destitute when she was working. She said that the council had never asked her when they were bought but had nevertheless asserted that they were bought after she became destitute. She also pointed out that the council had failed to put a number of their concerns such as this one to her so that she might have a chance to answer them. This was the point about procedural unfairness. 

She also pointed out that the council’s assertions to the effect that she was receiving financial support from her ex husband was not based on any real evidence but was mere speculation. 

The council had also suggested that the family could be given accommodation by family and friends without any evidence to suggest this. 

In response to this the council argued that the mother was lying about the income available to her. They agued that they did not have to prove that she was receiving income from any of the sources they mentioned but that they were entitled to conclude that she was not destitute because she was not considered to have been full and frank during the investigation. The council did have to concede (see paragraph 36) that the mother had not even been asked about some of the things such as the purchase of the ipad. 

Sadly this incredibly unfair approach is not unusual. The old argument about the mother’s account being “plainly incredible” was raised. The argument usually goes along the lines that the mother has been in the UK for a long time so it is plainly incredible for her to suggest  that she does not have a support network which can provide her with housing and money. In reality I tend to find that by the time they apply to the councils destitute families have run out of people to help them and apply to the council as a last resort. The council suggested (at paragraph 43) that the council’ decision should be “looked at in the round so as to see the overall picture…”. This seems to be a request not to scrutinise the decision but to look at it in an unfocused or a superficial manner way which might lead to a prejudiced and unsupported conclusion being reached. 

The Judge was not prepared to abandon property scrutiny and observed (at paragraph 44) that something more than mere suspicion or feel is required on the part of the council before drawing inferences with potentially serious consequences for the family. He went on to conclude at paragraph 48 that the council’s decision was flawed for the reasons argued by the mother and that the decision was therefore quashed. 

Conclusion

This case is very encouraging. It shows councils cannot simply accuse people of lying and fraud without proper evidence obtained through a fair and balanced assessment process in the hope that a judge will consider their accusations in the round and not subject them to scrutiny. I hope that judgments like this will lead to an improvement in the quality of assessments by council staff. 

A final word of warning here is not to think that a Claimant in Judicial Review proceedings can run arguments such as those run here about defective decision making and expect a Judge to adopt them straight away. I suspect that a very large amount of work went into this case in terms of analysing the council’s evidence and preparing counter evidence and arguments to show what the actual position was. This worked so well that it almost makes it look easy to achieve such a great outcome. Based on my experience it must have required great effort and skill on behalf of the Clamant’s legal team to scrutinise and respond to  the council’s evidence so that the Judge was obliged to find in their favour. It could easily have gone the other way if the work had not been put in and answers to the accusations were not provided. 

Problems at Central London County Court - Update

This is an extract from the Resolver form for complaints about HM Courts and Tribunals Service

Two weeks ago I posted about problems I had been having with Central London County Court not issuing an appeal against a Possession Order or dealing with an urgent application to stay enforcement of that Order pending the outcome of the appeal. The day after I posted that I received a letter from the Court dated 30 May informing me that my appeal papers which I had sent on by email on 2 May had been received and referred to a Judge. The letter did not say anything about my application to stay enforcement.

I have also been able to speak to somebody Court. As the system showed that it was my third call and that nobody had called back the outside caller centre was able to put me through to somebody at the Court. She told me that there was nothing that could be done about my urgent application from a month earlier. This was because the papers had been referred to a Judge. I asked if somebody could not go to the Judge's office and see if this case could be moved closer to the top of the pile of cases waiting to be dealt with by the Judge. I was told that this would not be possible there were many Judges to whom papers were sent and the Court did not keep a record of which Judge a particular case was referred to. This meant that until the Judge returned the papers there was nothing that Court staff could do to progress the case.

I have made a formal complaint to the Court about the way in which this case has been dealt with and about the failure to the Court to reply to emails or phone messages. I have submitted the complaint via the Resolver service with the Court Service use. I am not very impressed with this service so far. I have provided details of my complaint and indicated how I am feeling using emoji's as requested but so far the problem is unresolved.

Meanwhile I have obtained an amendment to the Legal Funding Certificate so that I can spend a large amount of (what should be) unnecessary tax payer's money on an application to the High Court to stay enforcement there because Central London County Court have been unable to deal with the application which I made to them 6 weeks ago. In the absence of an Order from Central London County Court staying enforcement the landlord has transferred the case to the High Court for fast enforcement.

The problems with this case do not appear to be an isolated glitch amidst an otherwise efficient service. I sent another appeal to the Court on 17 May. I have heard nothing back yet despite sending an email asking for an update on 7 June.

I would be grateful if anyone else experiencing service failure type problems with the County Courts would send me the details so that I can post them on here. You can leave a comment or email at wflack63@gmail.com. I will keep the cases anonymous to maintain client confidentiality. I think that it would to have as many accounts of these difficulties in one place as possible n case people in case anyone ever needs persuading of the extent of the problem and the need for urgent remedial action.

Is The Public Sector Equality Duty A Paper Tiger When It Comes To Housing Law?

The simple answer to this question based on recent case law seems to be - Yes when it comes to possession proceedings but No when it comes to Homeless Appeals.

A paper tiger is something which appears to be strong but does not really have any power. The term was famously used by Mao Tse-Tung to describe American foreign policy in 1956. 

The Public Sector Equality Duty is set out at Section 149 of the the Equality Act 2010.  The Gov.UK Website page Equality Act 2010 Guidance states that it means that public bodies have to consider all individuals when carrying out their day-to-day work – in shaping policy, in delivering services and in relation to their own employees. It also requires that public bodies have due regard to the need to:

  • eliminate discrimination
  • advance equality of opportunity
  • foster good relations between different people when carrying out their activities

It would seem therefore that where it can shown that a tenant is suffering from a disability which might give rise to their public sector landlord taking possession against them the tenant might have a defence to the claim in that the landlord can hardly be eliminating discrimination if they are evicting someone in circumstances which amount to discrimination. Recent cases show that this is not however likely to be case.

The first weakness of the duty is that it is not a duty to take any action or desist from other actions. It is only a duty to have regard to the above matters. Thus the duty can be discharged if the landlord can show that they have had due regard to the duty but have gone on to take possession action anyway.

The second weakness is that even if the landlord cannot demonstrate that they had due to regard to the disability of the tenant before issuing possession proceedings or even later they can resolve this problem by having regard later on. This was what was held in the case of Powell v Dacorum (2019)

The third weakness is that a breach of the duty will not give rise to a defence if the landlord can show that even if they'd had due to regard to the disability of the tenant it would not have made any difference and that they would still have taken possession action anyway. This was what was held in the case of Steven Forward v Aldwyck Housing Group LTD (2019)

The approach taken in Powell and Forward was endorsed by the High Court on hearing the appeal in London and Quadrant Housing Trust v Patrick (2019)

Following these three cases there seems little prospect of success for a defence based on the Public Sector Equality Duty provided the landlord can demonstrate by the time of the trial that due regard has been had to the duty.

The ease with which the Public Sector Equality Duty can be discharged by landlords does make it appear to be a paper tiger when it comes to possession proceedings. It should however not be dismissed so quickly in other areas of housing law such as homelessness reviews and appeals. Local authorities were found to have made errors of law in failing to discharge the duty when dealing with disabled applicants in the cases of Lomax v Gosport (2018) and Kannan v Newham (2019).

The lack of bite for the Public Sector Equality Duty in possession should not actually be seen as as major problem for tenants. This is because the the Equality Act 2010 provides tenants with another more powerful weapon in the form of Section 15 of the Act which provides that a person discriminates against another if they treat them unfavourably as a result of something arising in consequence of their disability. This means that where a tenant is able to show that they have a disability which has given rise to possession action they will have a good prospect of being able to persuade a Judge that they have a good defence to the claim because it is based on unlawful discrimination. The landlord will then only be able to evict them if they can show that the discrimination is justified as a proportionate means of achieving a legitimate aim.

I hope to deal with Section 15 and when discrimination will be lawful another day but for now I will point out that the availability of Section 15 as a protection for disabled tenants means that it will generally only be in pretty much hopeless cases that the tenant has to rely on Section 149 and the Public Sector Equality Duty because they are unable to rely on Section 15. In order for the landlord to have persuaded the Court that the discrimination was lawful for the purposes of Section 15 they will have had to carry out an assessment which should meet the requirements of Section 149 and be able to show that they have had due regard. Where a Judge has held that discrimination is permissable for the purposes of Section 15 it is hard to see a Judge going on to find that the landlord has not had due regard to the issues set out in Section 149.

Section 15 does not arise as easily in homelessness cases where the council is not taking action against the applicant but has reached a decision based on consideration of their circumstances. The issues to be considered in Section 149 will therefore be of much greater importance.

Service Problems at Central London County Court

This post is to update anyone who is not already aware of the staffing shortages at Central London County Court and of the quality of service problems which arising from them.

In the case below I have not received any substantive response to my request for Central London County Court to an appeal which the Court has had for a month now since 2 May. The Court has also failed to reply to emails and telephone messages about the appeal.

On 2 May 2019 I sent papers to Central London County Court by email requesting that they issue an appeal against the Possession Order made in the Brentford County Court.  This was necessary because Brentford like many other County Courts no longer has any Circuit Judges to hear appeals from District Judges.  I included in my appeal papers a request for an Interim Order suspending enforcement of the Possession Order pending the outcome of the appeal. 

As at 28 May 2019 I had received no response from Central London County Court to my request or replies to the emails which I sent asking for an update other than standard automatic responses acknowledging receipt of my emails.  Meanwhile the landlord's solicitor informed me that he was arranging to attempt to enforce the Order through the High Court.  This meant that there was a risk of High Court bailiffs turning up at my client’s home at short notice.  I therefore telephoned Central London County Court to try and find out what could be done as a matter of urgency.  After waiting in a queue (I was number 36 the queue at the start of the call) for about ten minutes. I spoke to a member of staff who said that she would arrange for somebody to call me. 

Having heard nothing by 29 May 2019 I called the Court again.  I spoke to another member of staff.  She was able to efficiently confirm that she could see my request for an appeal on the computer system and that I had called the previous day.  She mentioned however that due to staffing levels at Central London County Court it was not expected that staff would respond for up to 4 days. She said that she did not work at Central London County Court itself but worked in another Ministry of Justice office outside London to which calls were transferred.  She said that her role was to pass messages on to Central London County Court asking them to respond directly to the callers. She said that the that if Central London County Court failed to respond to two such messages they would put the caller straight through to a member of staff at Central London County Court. She said that because of the staff shortages facing Central London County Court they were not expected to respond to a message for up to four days. I have still received no response and will therefore call back for a third time on Monday. My worry is that even then I won't be able to speak to anyone who can do anything more than pass a message on internally to someone who is supposed to be dealing with my appeal but isn't.

It is very worrying that Central London County Court is taking so very long to issue urgent court papers and routinely failing to respond to correspondence.  This is not the only case in which I have received no response to letters and emails sent to Central London County Court.  It is frustrating that Judges at Central London County Court still consider themselves entitled to impose very high standards on those appearing before them in terms of deadlines for taking steps in preparation of cases for trial or in refusing to extend deadlines or give permission to appeal out-of-time.  It would be helpful if they could recognise the difficulties which Legal Aid Lawyers face in the same way as the Courts due to funding levels nowadays and which prevent us from complying with the high standards which they still seem to consider to be appropriate when applying them to other organisations than their own.

First Podcast - Featuring Daniel Bacon

This is the first podcast I have uploaded.

The guest/co-host is Daniel Bacon of D Bacon Legal Blog

Please do not judge this first episode too harshly. We are both new to podcasting and will hopefully get better over future episodes.

In this episode we talk about the launch of this podcast and about Daniel's blog.

Links to Things Mentioned

Nearly Legal Blog
Front Line Hackney Blog

How The Legal Aid Means Test Excludes People With No Accommodation From Receiving Free Advice and Assistance

Legal Aid is supposed to be available for homeless people who need assistance in refusal by a local authority to provide them with accommodation which they are entitled to. 

The problem with the means assessment system is that a homeless person who is not receiving a passported benefit or an extremely low wage is likely to be ineligible for assistance. This is because they do not have any housing costs to be deducted from their income when calculating their disposable income.  If they had temporary accommodation which they were liable to pay rent for this rent could be taken into account but once they are homeless there is no housing cost and their disposable income goes up to a level which will often take them over the limit of £733.00 per month. 

To illustrate this; I was approached recently by a woman who had just been evicted from her temporary accommodation along with her daughter because the council had found her to be intentionally homeless. She needed help challenging this decision. Unfortunately, if she had come to see me before her temporary accommodation was cancelled she would have been eligible but once she had been evicted her wages and tax credits left her with a  monthly disposable income of £1,286.32. This took her over the eligibility limit by £553.33 which was less than her rent had been. This has the absurd effect that someone who has no accommodation and is therefore in more pressing need for the assistance is unable to get the assistance which they would have got before she lost her temporary accommodation. 

I wondered if there might be some way around this problem. I sent an email to the Legal Aid Agency’s Contact Civil Team which read:

I have recently been asked to help a homeless single parent. Who had been evicted from her temporary accommodationprovided by the council and is staying with a friend

She is working in a low paid job and would have been eligible for assistance under Legal Help up to the point when she was evicted from her temporary accommodation. However at that point she ceased to have any housing costs. This meant that the deductions from her income were reduced and her disposable income was increased above the eligibility limit.

The effect of the above is that whilst the client would have been eligible for assistance up to the point when she was evicted from her temporary accommodation she was not eligible once she had actually been evicted. I trust that you will agree that it cannot have been the intention of those who prepared the eligibility rules to exclude someone as a result of their need for assistance becoming more acute as in this case and that they should be penalised for having no accommodation which was the reason they sought assistance. Please can you let me know if there is any way in which a provider can assist a homeless person such as this under the Legal Help scheme or why it is considered appropriate for them not to receive assistance.

I received the following response. 

Legal aid is available to fund cases that are within the scope of the civil scheme (as per LASPO Act), for those who are financially eligible and whose case satisfies the merits test.  The means test is laid down in the regulations to determine who is financially eligible for funding; the limited circumstances where a waiver applies are set out in regulations 9-12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, a waiver does not appear to be applicable in this case . You have indicated your concern that the individual in question does not qualify within the income limit based on her current income and outgoings.  Your concern is noted. With any scheme which assists vulnerable people, there will appear to be ‘hard cases’ at the margin.

This response can be summarised as confirming that there is no way round the fact that someone can lose their entitlement to Legal Aid based on their means as a result of losing their temporary accommodation. It is good to know that my concern has been noted by the Legal Aid Agency but disappointing that it is not shared. I guess its not the responsibility of staff at Contact Civil to agitate for defects in system to be repaired.

I think that there is a clear need here for the means test rules to be amended so as to allow people who have no accommodation to avoid being penalised for having no housing costs. This could be achieved by treating such people in the same way that people on passported benefits are treated. The Legal Help form could ask whether the applicant is on a passported benefit and/or has no accommodation of their own. 

When Is Someone Not "Properly" In Receipt of a Passported Benefit For Legal Aid Means Assessment Purposes?

This question came up last week when I was going through the bank statement of a new client whom I proposed to advise and assist under the Legal Help Scheme. She was receiving Income Support and entitled to be treated as receiving a passported benefit for Legal Aid purposes.

What worried me when going through the bank statement was that whilst there was clear evidence of payment in of Income Support there were other payments in such as child support and some other payments. I was not sure how high the level of this additional income would have to be before somebody at the Legal Aid Agency might refuse payment for the work on this case because I was said to have failed to adequately consider whether the client was property in receipt of Income Support.

I found an explanation what properly in receipt of a passported benefit means at paragraph 4 on page 12 of the Legal Aid Agency's Means Assessment Guidance. This states:-

The passporting benefit must be currently in payment (e.g. the individual will not be passported if the benefit claim is still being processed or if payments are suspended pending a fraud investigation) and the individual must be legally entitled to the payment. If the passporting benefit is in payment but there is a suspicion that an individual may not be “properly” in receipt—e.g. representations have been made against the individual’s means or the individual’s own declarations have indicated that relevant facts such as a partner, employment, sources of income and capital etc. have not been advised to the benefit office—their legal aid claim will not be passported.

The answer would therefore appear to be whether the information provided by the client gives rise to a suspicion that they are not entitled to the passported benefit which they are receiving. Following the withdrawal of Legal Aid for Welfare Benefits work the Legal Aid Agency can not expect most of us to have a specialist eye for possible non entitlement. I think therefore that as long was we can record that we have no suspicion that the information provided by the client means that they are not entitled to the passported benefit which they are receiving we should not be at risk of not getting paid.

I think that the danger signs when looking at the bank statements or other information provided by the client will be situations such as:-

  • The client's net income for the month up to the date when they sign the Legal Help is more than the net income limit for non passported benefits  - ie £733.00.
  • The client's wages are more than the Universal Credit Work Allowances.

This is not meant to be definitive advice on this question. I would welcome any comments on here or by email to wflack63@gmail.com If anyone would like to correct what I have said or add to it.

 

List of London Organisations Who Can Carry Out Legal Aid Work On Housing Cases

I have had a list of solicitors which I give to people whose cases I can't take for a while. I have now put it on the site .  You can access it via the link at the top of the page.

I hope to add to the list so please let me know the contact details of anyone you think should be added. I can amend the list to include organisations outside London if I get the details.

At the bottom of the page is a link to the list as a Google Document which you should be able to print or copy. Please let me know if you can't.

Oh Dear....Devolved Powers Not Actually Back For Most Homelessness Children Act Judicial Reviews

Two weeks ago I posted what I thought was the good news that the Legal Aid Agency had reinstated devolved powers for solicitors to grant Emergency Legal Funding Certificates for Judicial Reviews involving homelessness children under the Children Act 1989. It turns out that this was not correct.

I was confident that devolved powers had been reinstated for Children Act cases because a member of staff at the Legal Aid Agency had telephoned me and told me that they had. This was in response to an application which I had made for the Legal Aid Agency to grant an Emergency Legal Funding Certificate. This was for a child who was sleeping on the floor of a living room with a sibling and his mother. They had all been asked to leave but they were not at risk of being put out on the street within the next 48 hours. On these facts I was advised by the caller from the Legal Aid Agency that I would be able to grant an Emergency Legal Funding Certificate myself. I passed this information on through my post.

Soon after sending out my post I received a message from the Housing Law Practitioners Association (HLPA) pointing out that although the Legal Aid Agency had stated that devolved powers had been restored they had also set conditions for exercising those powers which means that in many if not most cases it would not be possible to exercise them. These conditions can be found in the tables of delegated functions published by the Legal Aid Agency. These included  The Civil Legal Aid Procedure Regulations September 2018 which stated that Emergency Legal Funding Certificates could only be granted where the child was street homeless or at risk of street homelessness  within 48 hours. The actual wording is at the bottom of page 8. Here is a screenshot. This condition means that unless the child is on the street already or will be in 48 hours a solicitor cannot grant an Emergency Legal Funding Certificate. This will cause problems where the child is in highly unsuitable accommodation but is not on the street, or as in my case where they have been asked to leave but the person who they are staying with has agreed to allow them to stay with them whilst proceedings are issued.

The HLPA message went on to point out that another table Civil Legal Aid Financial Resources September 2018 stated that devolved powers could only be issued where the client was in receipt of a passported benefit and had savings of less than £2,000.00. As far as I am aware children cannot claim passported benefits which means that according to this rule it will not be possible to for solicitors to grant Emergency Legal Funding Certificates for any children under devolved powers even if they are street homeless or threatened with street homelessness within the next 48 hours. It won't be a problem if the client is the parent and they are receiving a passported benefit. This will of course exclude all adults with no recourse to public funds who will also be unable to claim a passported benefit.

The HLPA message stated that the above issues had been raised with the Legal Aid Agency and that clarification would hopefully be provided soon. I also telephoned the Legal Aid Agency last Wednesday and asked if somebody could ask the person who called me to check the above points and let me know if they would still advise me that I should have used devolved powers. I was able to speak to a senior case worker but not to the person who called me. I was told that I would be contacted with an answer. I had not received one by the end of the week.

I hope that the Legal Aid Agency will correct what I also hope will be recognised as errors in the above tables so that solicitors can exercise devolved powers again in respect of Children Act  Judicial Reviews. In the meantime the risk of not being paid for the work carried out means that it will be wiser for solicitors to ignore my earlier post and not grant Emergency Legal Funding Certificates ourselves but to ask the Legal Aid Agency do to do.

 

What To Do When A Client Does Not Keep In Touch

This may seem like common sense to most experienced legal case workers but I was asked the same question last week by two different people who were new to this line of work. I have therefore turned my answer into a post in case there are more people out there wondering about this issue.

The question I was asked was along the lines of, "Mr Bloggs has not been touch since I met with him two weeks ago. He has not replied to my phone messages and emails. Shall I just leave things and take no further action on this case?"

The simple answer to the question is "No. Don't just leave things.". The longer answer is that you need to take steps to ensure that you can demonstrate that you have tried to contact the client; you have warned them that their case will be closed if you do not hear from them and that you have notified them that you are taking no further action. If you do not do this you are at risk of the client re-appearing in the future complaining that they thought you were supposed to be helping them and its your fault that they have been evicted or whatever it is that has happened to them. The worst example of this is the call from the client at Court just before a hearing is about to start asking why nobody is there to represent them. If you protest at that stage that you did not know about the hearing because they had not been in touch there is a risk that they will say that they assumed you had also received notice of the hearing and were dealing with it. If they complain about you not having worked on their case after they disappeared the person dealing with the complaint will ask you for the evidence that you told them that you were not helping them. If you don't have this there is a risk that you will be found to be at fault. To avoid this I suggest that you take the following four steps.

** Note ** I  refer to sending letters in the steps below. If you have an email address for the client you might just want to send emails. I suggest that to be on the safe side you send a letter in the post and send a copy by email as well. I also suggest that you send a text message at each step as well.

I have created template text or the letters and text messages which can be found accessed via this link. 

Step 1 - Send a Letter Asking For Instructions
You should send the client a letter asking them to contact you and provide instructions. Diarise a date for 14 days later (or sooner depending on the urgency) to review the case so as to to move on to Step 2 if there is no response.

Step 2 - Send A Reminder Letter
You should send a further letter enclosing or forwarding the first letter and asking the client to provide the instructions requested. Another text message should also be sent. Set another diary date for Step 3.

Step 3 - Send A File Closure Warning Letter
If you have still received no response send a further letter enclosing the first letter and referring to that and the reminder and repeat the request for instructions. This time include a paragraph stating that if you do not hear from the client after 7 days you will close their file on the basis that they no longer require instructions and that you trust this is agreeable to them. If you are on the record as acting for them warn them that you will notify the Court and any other parties that you are no longer representing them. If they have a Legal Funding Certificate state that you will be asking the Legal Aid Agency to cancel their Legal Funding Certificate. A further text message should also be sent. Even though you gave them 7 days you should normally set diary 14 days if the matter is not urgency then move on to....

Step 4 Send A File Closure Letter
Send a final letter advising the client that you have closed your file and that you will be taking no further action in relation to their case.

If you follow these steps you should be ok. You will can rely on your copies of the letters which you have sent as showing that you had taken all reasonable steps to notify the client that you were closing their file and not working on their case.

A slight variant of the above scenario is where you have agreed to help a potential client but you have asked them to take steps such as providing you with documents or proof of Legal Aid eligibility before you actually open a file. In situation you do not have a File or Case to close. You might not even think of them as your client yet. Nevertheless the potential client may not realise this so it is best to follow a shorter procedure for that they are not left in any doubt. I suggest that a letter is sent confirming the request for instructions and/or information and stating you will not be able to take on their case without this. If they have not responded within a week a further letter should be sent advising that you are not taking the case on.