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.
This month’s Legal Action magazine reports on two instances of the Legal Aid Agency getting things spectacularly wrong as a result of its staff not knowing what they were doing.
The first concerned the way in which the Legal Aid Agency mismanaged the provision of Legal Aid to South West London Law Centres in representing Wendy Lomax in challenging the unlawful failure of Gosport BC to recognise that she was entitled to be treated as homeless for the purposes Part 7 of the Housing Act 1996. The second was the decision to cut the number of supplies able to work on the Duty Solicitor service for housing at the County Courts which led to the Legal Aid Agency losing a Judicial Review. I only have space here to talk about the first case. I would like to come back to the Duty Rota issue another time.
The Court of Appeal Judgment in the Lomax case has been widely reported as a very important decision on the issue of when somebody is entitled to be treated as homeless because their home is not reasonable for them to continue to occupy. Here is a link to the Nearly Legal post on the case. As a result of errors on the part of the Legal Aid Agency the case was nearly prevented from reaching the Court of Appeal.
When the Law Centre sought to appeal against what proved to be an incorrect County Court decision in Ms Lomax’s case the application to amend the Legal Funding Certificate was dealt with so badly by the Legal Aid Agency that the Law Centre had to take the risk of covering the costs of lodging the application to request permission to appeal to the Court of Appeal so as to ensure that Ms Lomax did not miss the 21 day time limit for doing so. The Legal Aid Agency errors in that case included:-
- Wrongly refusing the application because permission to appeal had not been applied for in the County Court.
- Wrongly refusing to consider the amendment without a transcript of the judgment. The Law Centre did not have the funding in place (because the Legal Funding Certificate had not been amended) to pay for the transcript and did not have time to apply for it.
- Wrongly deciding that Ms Lomax did not have a good prospect of success. A specialist barrister had advised that she did have a good prospect. This was simply ignored until the Law Centre were able to appeal to an independent decision maker. By then though the 21 day time limit for appealing had expired. Had the Law Centre not taken the risk of issuing the appeal without waiting for the Legal Aid Agency to amend the Legal Funding Certificate Ms Lomax might not have been able to pursue her appeal.
These errors arose against a background of a member of the public living in Dorset having to instruct a solicitor based in London due to the lack of local solicitors who could deal with the case. The Legal Aid Agency cannot be blamed for the cuts in Legal Aid which are the primary cause of the shortage of available specialist solicitors but they are in my opinion responsible for making things worse by operating in a hostile and ill informed manner. This approach leaves the Legal Aid Agency unable to recognise the errors which they make and to improve the service which they provide.
Ms Lomax’s solicitor is quoted as rightly stating that the Legal Aid Agency’s erroneous understanding of procedure was tantamount to an obstruction to the administration of justice. I would go further and say that the problem is not simply an erroneous understanding. It stems a failure by the Legal Aid Agency to adequately manage their work. Someone who knew what they were doing should have spotted what was going wrong but they didn't
The scale of the problem at the Legal Aid Agency can be seen from their response to this story which is also quoted in the Legal Action article. I set it out here in full.
“Legal Aid is available right across the country and it is imperative that those entitled have sufficient access regardless of where they live. That is precisely why reviews take place and we rapidly address any issues which arise in specific cases.”
This obvious nonsense is attributed to the anonymous Legal Aid Agency spokesperson who we usually find putting in an appearance at the end of articles like this reporting Legal Aid Agency failings. The response is nonsense because Legal Aid is not available right across the country. There are large areas such as where Ms Lomax lived where there are no solicitors available to take on a case like hers. It is of course imperative that those entitled to Legal Aid have access but the whole point here is that Ms Lomax did not have access at a critical point in her case because staff at the Legal Aid Agency wrongly refused her Legal Aid funding which she was entitled to. It is not clear from the quote whether the Legal Aid Agency have actually carried out a review of what took place in this particular case. If they did they have kept the outcome of the review and the way in which they have addressed the issues arising to themselves. The fact that the Legal Aid Agency can come up with such an inappropriate response can only mean that problems of this kind are likely to continue.
What should happen in a case like this is that a named official from the Legal Aid Agency should publicly apologise for the service provided, and explain how the errors were made. They should outline what steps will be taken to prevent errors of this kind happening again and identify who will be responsible for ensuring that those steps are taken. Recognising and taking ownership of errors is a first step towards ensuring that they are not repeated.
It looks as though the new 2018 Legal Aid Civil Contract has reinstated delegated powers so as to enable solicitors to grant Emergency Legal Funding Certificates for homeless clients who need to issue Judicial Review proceedings involving just Section 17 of the Children Act 1989.
I just found this out today after I submitted a non delegated functions application for a Legal Funding Certificate to cover a Judicial Review for a homeless child involving Section 17 of Children Act 1989 and was advised by the case worker that I could have granted the Emergency Legal Funding Certificate myself. When I said that my understanding was that Section 17 was excluded from Judicial Review delegated functions the case worker emailed me the following text which he said was copied from a list instances where solicitors can grant Emergency Legal Funding Certificates under devolved powers.
I asked for a copy of the document which this was taken from but was told that it was just from an internal Legal Aid Agency document which could not be disclosed.
I have done some digging around and have found the same list on the slide below produced by the Legal Aid Agency for Training on the 2018 Civil Contract.
This is page 39. The full set of 43 slides can be found here.
The list looks like an amended version of this older list published in 2017 so that Section 17 now appears where only Section 20 of Children Act 1989 previously appeared at the third bullet point. Here is a link to the actual site. I have included a copy in case the site is replaced soon.
This change is very helpful to people like me who often have to obtain Legal Funding Certificates to cover Judicial Reviews concerning just Section 17 of the Children Act 1989. Not being able to grant Emergency Legal Funding Certificates myself meant that I was delayed in taking urgent action by having to wait for someone at the Legal Aid Agency to consider my application. To be fair the staff at the Legal Aid Agency have usually been very quick to deal with them but it is a problem if work needs to be started at 5:30pm and it is not possible to contact the Legal Aid Agency.
I have not been able to find a specific Legal Aid document other than the training slide which says that delegated powers are available again for this work. If anyone else has found any such documents please send them to me at firstname.lastname@example.org. I suggest that people check with their Contract Managers before starting to use delegated powers again so as to be on the safe side.
I would very much appreciate any comments people have about this especially if anyone out there thinks I am wrong and that solicitors using delegated powers for Section 17 Judicial Reviews will still be at risk of not getting paid.
For some time now I have been using a Google Sheet which I created to enable me to quickly calculate whether people might be financially eligible for civil Legal Aid. It is a lot quicker than than trying to work it out with a calculator or by logging onto the the on line versions. I thought it I would share it online so other people could use it. Here is a link The link does not seem to work on mobile devices at the moment but works on my laptop.
I have included at the end of the sheet the figures from the Legal Aid Agency Key Card and the current Child Benefit rates. I have had to use the April 2015 because I could not find one for April 2016. If anyone has the 2016 Key Card please let me have a copy.
If you prefer a slower but more reliable calculator which the Legal Aid Agency are more likely to treat as proof that financial eligibility was properly calculated then you should use the Legal Aid Agency's own calculator.
Any feedback would be appreciated. Please let me know if you spot any errors or can see ways in which the Sheet can be improved.
Please do not rely on the calculator as providing definitive proof of financial eligibility it is just meant to assist people carrying out the sums.