The Legal Aid Agency Need To Publicly Address Their Mistakes

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.

Delegated Legal Aid Functions Back For Homelessness Judicial Reviews Concerning Section 17 Children Act 1989

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 wflack63@gmail.com. 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.

Digital Issue of Appeals In Central London County Court

Here is a very valuable document for anyone who like me regularly issues homelessness appeals in the Central London County Court pursuant to Section 204 of the Housing Act 1996.

For years I have had to worry about ensuring that hard copies of the Court papers were received at the Court within 21 days of the date when the Section 202 Review decision letter was received. That now appears to be a thing of the past. Here is the letter as a PDF.

I am extremely grateful to Mrs Begum at the Court for providing a very detailed response to my queries about whether Appellant Notices and supporting documents can be sent to the Court by email as PDFs or whether it is still necessary for hard copies to be sent to the Court. As can be seen from her letter of 15 January, the answer is that they can as long as you have a PBA Account with HM Courts & Tribunal Service for paying the fee.

So far there has only been limited guidance available from the Courts as to what can and can't be issued digitally. Please leave a comment if you are aware of any other guidance. All I had been able to find was the Courts Email Guidance. The attached letter was sent after I had to complain after Central London County Court initially accepted and then sent back an Appeal which I had issued by sending papers by email only. I had been sending Application Notice in this way and having them issued without problems.. My complaint led to the Court agreeing to issue my appeal. As part of the complaint I asked for clarification of the Court's approach.

When I wrote to the Court I referred them to the  Bryan McGuire QC memorial lecture on homelessness given by HHJ Jan Luba QC in April 2017 (Link here) which set out at paragraph 111 a number of very useful Pointers For Appellants. These included a request to cut down on paper work and help save the rain forests. I asked for guidance on those like me who act for appellants might take up the call. I have had a further response from HHJ Luba QC in which he reminds me that Ms Begum as a court official should not be treated as stating what the actual Court procedure is but only as setting her understanding of it. He also suggested that at some point in the future the Courts will be accepting Appeal Bundles in digital format. I think that they should have started doing this some years ago but I am very glad that they are at least allowing us to issue by email.

Since receiving the above letter I have set another appeal to Central London County Court for issue without sending any paper copies. I sent an email to the address: enquiries@centrallondon.countycourt.gsi.gov.uk  which set out the following text:

Dear Sirs
I act for XXX. I attach:-
1. Appellant’s Notice and decision letters under appeal
2. Grounds of Appeal 
3. Draft Directions Order 
4. Notice of Issue of Emergency Legal Funding Certificate 
I also attach a copy of a letter dated 15 January 2018 from Ms Begum at Central London County Court confirming that Homelessness Appeals such as this can be issued by email without the need for hard copy documents to be sent. 
Please can you deduct the £140.00 from our account the reference number is PBA 0087335
Please can you issue the Appeal and place the papers before a Judge so that consideration can be made to issuing directions for the preparation of the case for hearing. Please can you send me notice of issue, hearing date and the directions Order or advise as to any reason why you are unable to do so. 
Please do not hesitate to telephone me should you wish to discuss the above.
I thank you for your assistance and look forward to hearing from you. 
Apart form an automatic acknowledgement email I have not heard back from the Court yet. I will update this post once I do.
Lastly, I have found that the Court of Appeal has a similar but not identical procedure for accepting papers for issue by email. They will accept email filing ( to the address: civilappeals.registry@hmcts.gsi.gov.uk ) but expect you to undertake to file the hard copies within 7 days. Failure to send the hard copies will lead to the appeal being rejected. My understanding though is that as long as the hard copies are received within 7 days the appeal will be treated as having been filed when the documents attached to the email were received
DISCLAIMER
I should point out that I cannot guarantee that the Court will not reject future appeals. I am not stating that the current procedure is but only what my understanding of that procedure is. To avoid rejections I suggest that anyone trying to issue an appeal in this way sends a copy of the attached letter from Ms Begum with the email so that the person receiving it is aware of the contents. I attach a copy in PDF format for downloading. Digital Appeal Letter

 

Fast Legal Aid Eligibility Calculator

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.

The Immigration Act 2014 and Local Authorities - A Still Greater Housing Role for Social Services

Part 3 of The Immigration Act 2014 is likely to come into force nationally shortly following a 6 month pilot in the West Midlands.  I won't go into detail about the Act here. Further information can be obtained from blog posts by  Nearly Legal - Tessa Shepperson - Trisan Hyatt at Invictus Chambers  and from the You.Gov website. In a nutshell, the Act provides that landlords who rent properties to tenants who do not have leave to enter or remain in the UK will be liable to be fined. This is designed to stop private landlords from renting properties to anyone who cannot show that are entitled to be in the UK.

As with previous initiatives to make like difficult for migrants this Act is likely to add to the existing burden on local authority Social Services Departments in providing assistance to those poorest members of society who are excluded from mainstream benefits and services.  It will once again fall to Social Services staff to prevent people who have children with them or have special needs from becoming street homeless. This is because Schedule 3 of the Act excludes certain tenancy agreements from those which cannot be let to persons without leave to enter remain. These include accommodation provided by local authorities.

Paragraph 7(1) excludes from the reach of the Act any agreement—

(a)under which accommodation is provided to a person as a result of a duty or relevant power that is imposed or conferred on a local authority by an enactment (whether or not provided by the local authority), and
(b) which is not excluded by another provision of this Schedule.
(2) Relevant power” means a power that is exercised for, or in connection with, a purpose of providing accommodation to a person who is homeless or is threatened with homelessness
(3) In sub-paragraph (2) the reference to a person who is homeless or is threatened with homelessness is to be read in accordance with—
(a) in relation to England and Wales, section 175 of the Housing Act 1996;
(b) in relation to Scotland, section 24 of the Housing (Scotland) Act 1987;
(c) in relation to Northern Ireland, Article 3 of the Housing (Northern Ireland) Order 1988 (S.I. 1988/1990 (N.I. 23)).

This is going to mean that overstayers or other persons who are not able to obtain private sector accommodation directly from private landlords or letting agencies and are facing street homeless are going to have to apply to Social Services for assistance. This is of course already happening where the persons not have enough money to obtain or keep a private tenancy. To these persons there will now be added those who would have been able to afford to pay for private accommodation but cannot find a landlord who is willing to take them on because of the new Act.

I say that it will be Social Services who have to do the work because staff in Housing Departments are generally able to refuse to provide any assistance where the applicant is not "eligible" for housing  due their immigration status pursuant to  Section 185 of the Housing Act 1996.   Unlike their colleagues in the Housing Department, the staff in the Social Services Department must assist these applicants even if they are excluded from receiving assistance under Schedule 3 of the Nationality, Immigration and Asylum Act 2002 where a breach of their human rights would arise if assistance was withheld. Those who might have been housed under Part 7 of the Housing Act 1996 because they have children living them will be seeking accommodation by way of assistance under Children Act 1989 and those who would have been housed due to medical conditions rendering them vulnerable would be asking for accommodation under the Care Act 2014.

Social Services Departments in many London Boroughs have already had to set up No Recourse To Public Funds teams to deal with persons facing destitution because their immigration status prevents them from receiving mainstream housing and benefits. They have to try and find housing for those applicants whom they are not able to turn away in the same way that the Housing Department can.  This already places a considerable strain on staff who only have limited resources and are unlikely to have very much housing training. Although it is common for Social Services Departments or Legal Departments to write to me saying that Social Services are not  "quasi letting agency" the Immigration Act 2014 takes them another step along the way to becoming just that.

Social Services Department staff will soon face further demands for assistance from people whose only needs are housing related in that they cannot obtain private sector tenancies or social housing. Staff will have to find landlords for these persons and arrange for a tenancy to be granted for them in a way that brings it within Paragraph 7 of Schedule 3 of the new Act.  If they are able to do so they will be acting as a filter which negates the effect of the Immigration Act 2014 by bringing the new tenancy agreement within the class of excluded agreements set out in Schedule 3 and allowing the landlord to grant a tenancy to the person because it is now provided as a consequence of a duty or power imposed or conferred upon a local authority. Alternatively, if a private landlord cannot be found they are going to have to house the applicants themselves.

A practical step for Social Services  staff might be to provide homeless persons without leave to remain who can find landlords with a letter indicating that the council will be able to assist in endorsing a request for the tenancy if necessary if the landlord were minded to grant it but for the risk of a fine under the Immigration Act 2014. Having said that it is likely that by breaking cover and having to reveal their immigration status in order to avoid homelessness an overstayer would become known to the authorities and have to stop working pending the outcome of an application for leave to remain in the UK. This is likely to cut off their income and stop them from being able to afford to pay for private accommodation themselves. As such they will be added to the large group of people facing destitution without assistance and funding from Social Services.

 

Section 204A Homelessness Appeals - No Right of Appeal At All

After reading the the Nearly Legal post this week on R (Faizi) v Brent LBC I thought I would write something about how I have found Section 204A of the Housing Act 1996 to be of no use to homeless persons trying to avoid the loss of their temporary accommodation while they appealed against a decision that they were not entitled to be housed.

The interesting thing about the Faizi case as spotted by Nearly Legal was that Hadon-Cave J refused the application for Judicial Review based on consideration of the issues which Ms Fazi had raised instead of dismissing it for the more obvious reason that she had issued proceedings in the wrong Court. This would be because she was not entitled to apply for Judicial Review as she had a right of appeal to the County Court under Section 204A of the Housing Act 1996.

After looking up the old case law I remembered that the two leading cases on Section 204A appeals were infact Judicial Reviews themselves. Those are R v Camden LBC Ex p Mohammed [1997] 30 HLR 315 and R v Brighton and Hove Council Ex p Nacion (1999) 31 HLR 1095.  This was because they concerned the exercise of the council's discretion to accommodate the applicant pending the outcome of a Section 202 Review where the challenge does have to be made by way of Judicial Review proceedings unlike the exercise of what is effectively the same discretion to house pending appeal which has to be challenged in the County Court under Section 204 of the Housing Act 1996.

Things started off alright back in 1997 with Mohammed where it was held that in considering whether to exercise its discretion to house the council should consider three questions:-

(1) the merits of the substantive case,
(2) whether there was new material on review that could effect the decision,
(3) the personal circumstances of the applicant.

After considering the facts of the the case the Court held that the decision not to accommodate pending review was unlawful. That seems fair enough.

Things took a severe turn for the worse two years later in Nacion where the Court of Appeal held that as long as the council had addressed the three questions set above as identified in Mohammed any challenge of the refusal to accommodate pending review would be almost certain to fail.

Tuckey LJ said:  “Where a council, as in this case, has obviously considered the material factors... identified in [R v Camden LBC Ex p Mohammed], it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised by coming to the High Court for judicial review and saying, as this applicant does, ‘We have an arguable case on the appeal to the County Court’. Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have ...”

In the same case, Lord Woolf MR said: “If an authority refuses even to consider exercising its discretion… then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where application for judicial review will be appropriate.”

My reading of this is that where the council can show that they have ticked the box marked "thought about it"  and have not made some gross error in doing so the Courts will not interfere with their decision. This is because the court will only consider whether the three questions have been answered and not how the council answered them.

In 2003 the Court of Appeal held in Francis v Kensington & Chelsea LBC [2003] 2 All ER 1052 that the principles set out in Nacion in relation to accommodation pending review should be applied by the County Court when considering an appeal under Section 204A and that was that. Since then I have not heard of Section 204A being of any use to anybody.  Presumably some people have won appeals which I have not heard about but you would have to be a very brave barrister to advise that a case had a good prospect of success of passing Tuckley LJ's almost impossible test. Further details of the obstacles that these cases put in the way of homeless persons can be found on this article on the Hardwicke Chambers web site from 2003. I am not aware of any cases since then which have improved the situation.

The ruling in Nacion and Tuckey LJ's and Woolf MR's comments reflect extremely badly on the judiciary. Where Parliament has created rights of review and appeal for homeless persons against decisions to deny them assistance which they are entitled to it should not be an "entirely futile" exercise and persons should not be "strongly discouraged" from asking a Judge to require a council to give effect to those rights. It is a great injustice if applicants have to become street homeless whilst waiting for a review or appeal decision to overturn an unlawful refusal to house them.

The good news is that where homeless applicants face the loss of their temporary accommodation pending review or appeal they may still get some protection from street homelessness from the Courts if they have children or if they are vulnerable on medical grounds and the council refuses them temporary accommodation. The secondary duties/powers which councils have to assist such persons under the Children Act 1989 and more gently the Children Act 2004 and Care Act 2014 are open to enforcement through Judicial Review and do not face the same restrictions as apply to Section 204A.

 

 

 

Housing And Children Law Resources

I have created a Resources Section to this site which I hope will be useful reference tool for people interested in this area of law.I have started off by focussing mainly on homelessness. I have included the main Acts, Statutory Guidance and cases.

At the moment the sections for each case are mostly limited to a link to the transcript of the judgement with the heading Summary followed by blank space. I hope to be able to work my though the cases and to update the entries with summaries and comments.

I have included a Comments facility for the cases as with blog posts so that discussion of the cases can take place. If you do have anything to say about the cases please add your comments even if I have not yet added the summary and comments. If you think I have missed out any important Statutes, Guidance or case-law please let me know and I will try to add it. Please let me have any transcripts or links if they are available on link to cases which you think should be included.

 

The Social Worker Says The Only Thing They Can Do To Help Us Is To Take The Children Into Care.

This is unfortunately something that housing lawyers hear a lot from parents who have asked for assistance from the Children's Services Department (aka Social Services) when they have been refused assistance by a Housing Department. A variation of this problem is the social worker advising that they can house the children on their own but not their parents.

Families with children often have to ask social workers for help when they face homelessness. It is easy to fall through the safety net that is supposed to be provided by the Housing Department for homeless persons. A Housing Department will usually refuse to assist a homeless applicant for anything more than a short time where they have been found to be intentionally homeless or if they have refused what is considered to have been an offer of suitable accommodation. Then there are whole swathes of people who are excluded from what is now known as mainstream housing due to their immigration status.

Most people react with understandable horror to the suggestion that the only help available to them in what is already a crisis of facing street homeless is to have their children taken into care. This is especially true when the children are babies. The parents take some persuading that the advice the social worker has given them is  wrong and are very reluctant to return to the Children's Services Department. They find it hard to believe that a social worker would tell them something so unpleasant if it was not true. I have been dealing with parents who have received this advice from staff in many different local authorities  for about 15 years now. None of them have had their children housed on their own or taken into care because a parent is homeless. For those who would like to have details available to reassure such people here are some of the reasons why this advice is wrong.

  • Section 17(3) of the Children Act 1989 states that any service provided by the authority in the exercise of functions conferred on them by this section may be provided for a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. This means that the suggestion that all that can be done is to house the children on their own is absolutely incorrect.
  • Section 17(1) (b) provides that far as it is consistent with their duty to safeguard and promote the wellbeing being of children they have a general duty  to promote the upbringing of such children by their families. This means that the social workers should be taking steps to ensure that the children are housed together with their family unless they consider that it would not be in the best interests of the child to be housed with them. The fact that the parent has been unable to prevent them from facing homeless should not come close on its own to justifying the suggestion that it would not be in the interests of a child to be housed with that parent.
  • The Statutory Guidance Working Together To Safeguard Children provides (at page 19) that good assessments by social workers should include consideration of the needs of children within their family and should involve the family. This is not compatible with the idea that the only assistance that can be provided at the end of the assessment process is to separate children from their families.

If anyone can point out any other reasons please add a comment. I am sure there are more.

Conclusion

Where families are given this advice a letter of complaint and/or a letter in accordance with the pre action protocol for Judicial Review proceedings should be sent to the council concerned asking them to confirm that they have provided this incorrect advice or to arrange a proper assessment. In my experience this leads to a quick response from a Children's Services Department manager or the Legal Department stating that the family must have misunderstood what was said and inviting the family to return to the office for a proper assessment.