Government's proposed reform of legal aid - Justice Committee Contents


3  The Government's proposed reform: scope

40.  The Government's proposed reform of the legal aid system is far-reaching and involves reducing the level of fees paid to providers, tightening the financial eligibility rules for certain categories of people, making more clients contribute to the cost of proceedings, introducing alternative sources of funding and improving efficiency and reducing bureaucracy in the administration of legal aid. However, the most controversial aspect of the reform is that regarding scope, and the removal of legal aid provision for certain types of cases or issues. While the Government is not proposing further to restrict legal aid in criminal cases it is intending to make extensive changes to the availability of legal aid in civil and family cases.

41.  The consultation paper notes that funding for legal help is available with regard to almost every area of law, other than personal injury and damage to property, conveyancing, boundary disputes, defamation or malicious falsehood, the making of wills, trust law and business cases, which are explicitly excluded. Personal injury cases are also excluded because of the availability of Conditional Fee Arrangements. The paper also notes that legal aid is available for representation at Court in relation to any case before the county court, the High Court, the Court of Appeal, the Supreme Court and for family matters before the magistrates' court (although it is not generally available for legal representation at coroners' courts nor at tribunal proceedings). The paper argues that this range of provision "is no longer sustainable financially if the Government is to meet its commitment to reduce the public financial deficit" and that it has "therefore had to make tough decision about where best to target resources".[47] In reaching those decisions, it has taken into account: "the importance of the issue, the litigant's ability to present their own case (including the venue before which the case is heard, the likely vulnerability of the litigant and the complexity of the law), the availability of alternative sources of funding and the availability of alternative routes to resolving the issue. [It has] also taken into account our domestic, European and international legal obligations".[48]

42.  While it notes that no one factor has been determinative, the consultation paper states that "taken together, they have led us to propose a revised civil legal aid scheme which focuses on those examples where the litigant is at risk of very serious consequences. Examples include facing the removal of their children, physical harm or homelessness, or where legal aid is justified to ensure a fair society through empowering citizens to hold the state to account or to meet our legal obligations...".[49] The application of these factors led the Government to conclude that some categories of issues or cases should be taken out of scope entirely, that others should remain entirely within scope, and that in some areas only the most important cases should remain in scope. Those areas to remain within scope, and those to be removed from it, are summarised below:
Category of law/type of proceeding to remain within scope
  • Asylum: the current scope of Legal Help and Controlled Legal Representation, except for advice on applications for asylum support under sections 4 and 96 of the Immigration and Asylum Act 1999
  • Claims against public authorities: claims against public authorities which concern: abuse of position of power; and/or significant breach of human rights; and/or negligent acts or omissions falling very far below the required standard of care (although where a case may be dealt with by means of an alternative source of funding, that source is to be used)
  • Claims arising from allegations of abuse and sexual assault: current scope of Legal Help and Representation
  • Community care: the current scope of advice and representation
  • Debt: only for those cases where the client's home is at immediate risk, as a result of rent or mortgage arrears
  • Discrimination proceedings: to be retained for all claims of unlawful discrimination currently within scope
  • Environmental matters: All Legal Help and Representation
  • European Union cross-border issues: All Legal Help and Representation
  • Family law (private) (ancillary relief and children and family cases): advice and representation for proceedings where related domestic violence issues can be demonstrated[50]
  • Family law (private) (domestic violence and forced marriage, international child abduction, international family maintenance, representation of children in rule 9.5 proceedings): current scope of advice and/or representation as appropriate
  • Higher courts (the Court of Appeal, the Supreme Court and European Court of Justice): only for onward appeals in categories of cases where legal aid remains in scope
  • Housing: Legal Help and Representation: for repossession cases; damages claims for disrepair, where they are brought as a counterclaim in rent arrears possession cases; appeals to the county court on points of law under section 204 of the Housing Act 1996 relating to the obligations of local authorities to those who are homeless or threatened with homelessness; action under the Mobile Homes Act 1983 where the site owner seeks eviction; housing disrepair, where the action is for a remedy other than damages and involves serious disrepair; clients challenging ASBOs in the county court, typically alongside possession proceedings, and for injunctions concerning anti-social behaviour)
  • Immigration: Legal Help and Controlled Legal Representation for claims brought by detainees that directly challenge their detention and for proceedings before the Special Immigration Appeals Commission
  • Mental health: the current provision of Legal Help and Controlled Legal Representation
  • Confiscation proceedings: the current provision of Legal Help and Representation
  • Injunctions concerning gang-related violence: to be included when section 34 of the Policing and Crime Act 2009 is commenced
  • Independent Safeguarding Authority appeals (Care Standards): the current scope of Legal Help and Representation
  • Inquests: the current provision of Legal Help, with separate criteria to be met for Representation in individual cases before the coroners' courts to be funded
  • Protection from Harassment Act 1997: the current provision of Legal Help and Representation for restraining order made under sections 5 and 5A
  • Quasi-criminal proceedings: the current scope of Legal Help and Representation
  • Public Law (principally covering the challenging of public authorities in the High Court by way of judicial review and equivalent proceedings): the current scope of Legal Help and Representation
  • Public Law (children): the current scope of Legal Help and Representation
  • Registration and enforcement of judgments under EU legislation: the current provision of advice and representation

Category of law/type of proceeding which is it proposed to remove from scope

  • Claims against public authorities: those cases which do not involve abuse of position of power; and/or significant breach of human rights; and/or negligent acts or omissions falling very far below the required standard of care. It is also proposed not to retain the rule that brings back into scope any matter for which it is argued that Significant Wider Public Interest applies
  • Clinical negligence: all Legal Help and Representation
  • Consumer and general contract: all Legal Help and Representation
  • Legal Help for the Criminal Injuries Compensation Authority: to be removed
  • Debt: all Legal Help and Representation in relation to debts such as council tax, utilities, credit card debts, fines, unsecured personal loans, overdrafts and hire purchase debts. All Legal Help and Representation for proceedings under the Insolvency Act 1986, including those relating to bankruptcy orders and Individual Voluntary Arrangements
  • Education: All Legal Help and Representation
  • Employment: All Legal Help and Representation
  • Family law (private) (ancillary relief and children and family cases): advice and representation where domestic violence is not present
  • Higher courts (the Court of Appeal, the Supreme Court and European Court of Justice): to be removed for onward appeals where the category of law would no longer remain in scope
  • Higher courts (Upper Tribunal appeals): All Legal Help and Representation
  • Housing: All advice and representation other than for homelessness and housing disrepair (non-damages) cases
  • Immigration: All Legal Help and Controlled Legal Representation other than for persons seeking release from detention or proceedings before the SIAC
  • Cash forfeiture proceedings: all Legal Help and Representation
  • Other issues funded under 'miscellaneous' category, including tort, probate matters, personal data, infringement of copyright, advice on changes of name and advice on making of wills: all Legal Help and Representation
  • Tort and other general claims where, primarily, damages are sought, but which might involve injunctions, including assault; negligence; nuisance; breach of a statutory duty; false imprisonment; and malicious prosecution: all Legal Help and Representation
  • Welfare benefits: all Legal Help and Representation
  • Applications for asylum support: advice and representation.[51]



47   The Government's Consultation Paper, pp 32-33 Back

48   Ibid, p 33 Back

49   Ibid, p 36 Back

50   See pp 178-179 of the consultation paper for the ways in which related domestic violence may be demonstrated.  Back

51   This summary is based on Annex F of the consultation paper, pp 170-194. Back


 
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