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.