Tag Archive for 'Legal Aid'

Legal Aid enters its Bến Tre period

Published
by
NL
on 06/02/2010
in Various (non-housing)
. 4 Comments

The Ministry of Justice response to the ‘Legal Aid: Refocusing on Priority Cases’ consultation is now out, with the MoJ’s final proposals [link to pdf]. Although the responses to the consultation appear to have been pretty universally negative, the MoJ is going ahead anyway.

The report announces that ‘We share the view of Lord Justice Jackson that legal aid should remain in important areas like housing and judicial review.’ However, it appears that in order to save legal aid it has now become necessary to destroy it, bit by bit. The headline changes are:

Improve the way that cases involving human rights or public interest are handled by transferring cases that depend on these issues to receive funding to a new committee for advice on their merits. This will help to ensure that legal aid is awarded to meritorious cases.

Ensure that cases granted legal aid on the basis that the proceedings will bring benefits to others have a realistic prospect of delivering such wider benefits.

Detect fraudulent legal aid applications earlier, by checking with the unfunded opponent to ensure that the applicant is financially eligible for legal aid, with safeguards for domestic violence or urgent cases.

Tighten the funding rules for granting legal aid for judicial review cases to ensure that funding is directed towards meritorious cases.

Restrict funding for low-value damages claims brought as part of a multi-party action. This will help to ensure that limited resources are available for higher-value cases, or cases brought by individuals.

Tighten access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, with safeguards for important human rights cases.

Ensure that where legal aid funds a community action, the legal aid contribution mirrors the proportion of the affected population who are actually eligible for legal aid.

Thankfully, some of the loopier proposals have been dropped. These included:

(a) balance disadvantages and benefits in assessing public interest; (b) invite members of the public and/or public sector body representatives on to the funding committee; (c) appoint the SCU director as the Chair of the new funding committee; (d) restrict legal aid for individual low value damages claims; (e) require additional reconsideration of merits in judicial review; and (f) withdraw solicitors’ delegated powers to self-grant judicial review funding in urgent cases.

But what is left is not going to make for happy reading. Family solicitors are already quaking at the idea that there will be a two week period where the opponent gets to make representations about whether the party applying is actually eligible for legal aid (although not domestic violence or child protection/abduction cases). Cue bitter battles over financial disclosure before funding is even granted. But this is just a pilot, with the aim of a roll out to all areas. It will not apply where the client is at imminent risk of losing their home.

On funding public interest cases, the test will now be:

(i) the case has the potential to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question);
and
(ii) the case is considered on its particular facts to be an appropriate case to realise those benefits.

On public interest and special cases:

We intend to proceed to establish a ‘special controls’ regime for individual cases or types of cases which differ from the mainstream of civil legal aid cases. These cases are: (a) Multi-Party Actions; (b) appeals to the Supreme Court; (c) cases with only ‘borderline’ prospects of success which rely on significant wider public interest or significant human rights issues in order to receive funding; and (d) cases where the costs might exceed £250,000 if they proceeded to a contested trial or final hearing (or for Court of Appeal cases, to the conclusion of that appeal stage).

There will be a new Special Controls Review Panel, with one or more members from consumer groups “The panel will not make the final decision about whether funding should or should not be granted. The panel will not have the power to make the final determination of any issues, other than the legal assessment of prospects of success.” – the final arbiter being the Director of the Special Cases Unit. What this appears to mean is that Which? will be assessing the prospects of success of that Supreme Court appeal you want to bring.

Multi Party Claims where for damages only will have to be above a threshold of £5,000 damages per client, rather than the current approach of aggregating the individual claims into a lump amount.

On judicial review, the presumption of funding where permission had been granted is to be removed, apparently because the LSC was upset about not being able to assess the merits of the case for themselves, where a High Court judge had already done it. The same test will now apply pre and post permission, although the LSC will ‘give weight’ to the grant of permission in carrying out the assessment.

The Funding Code will be ‘clarified’ so that funding for judicial review will only be granted where the client is seeking a material benefit for themselves or their family. Funding will not necessarily be withdrawn ‘in a case where the client secures a satisfactory outcome, but the general issue remains unresolved’, though.

The proposal to end use of delegated powers to fund urgent judicial review claims has been dropped, partly because the LSC eventually dug up some figures showing the success rate was the same for delegated powers and non-delegated powers cases, the clear implication being that the powers weren’t being abused.

All this is intended to on the statute books by April 2010…

Print This Post Print This Post

Jackson: the waiting begins

Published
by
NL
on 14/01/2010
in Disrepair, Housing law - All, Possession and Various (non-housing)
. 5 Comments

‘What!’ I hear you say, ‘wasn’t the final Jackson report on costs released on 14 January?’

Why yes it was. All 584 pages of it. But amid the headlines about scrapping CFA success fees and recoverable ATE insurance premiums, introducing contingency fees, and of course fixed costs for the fast track, for housing lawyers it comes down to a few paragraphs which largely amount to… wait and see. Here, filleted for your ease and comfort are what look like the key bits to me.

Jackson LJ notes that housing law is a hideously complicated mess (my paraphrase), that this is likely to push up litigation costs, and that the Government proposes to do nothing about it, despite the best efforts of the Law Commission.

Chapter 26 Housing Cases Recommendations 7.1

(i) The Government should reconsider undertaking a simplification of substantive housing law, as proposed by the Law Commission in 2003, 2006 and 2008.
(ii) Where a landlord could use PCOL to issue possession proceedings but chooses to issue manually, he should only be able to recover an amount equivalent to the PCOL issue fee.
(iii) The Rent Arrears Protocol should be amended in order to set out what steps should be taken by landlords, so as to comply with their obligations under ECHR article 8.
(iv) Paragraph 24.2 of the Part 52 practice direction should be amended in order to set out what categories of documents should be lodged by the respondent in homelessness appeals and when these should be lodged.
(v) Consultation should be carried out on the proposal that where a housing claim is settled in favour of a legally aided party, that party should have the right to ask the court to determine which party should pay the costs of the proceedings.

Overall, all possession claims in the fast track should be fixed costs (as most are already) but as for the right level of fixed costs, see below…

Judicial review Chapter 30: Recommendations at 5.1

(i) That qualified one way costs shifting should be introduced for judicial review claims.
(ii) That if the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs.

Nuisance Chapter 31
Aside from the general points that there should not be recoverability of success fees or ATE insurance premiums, both civil nuisance claims and statutory private prosecutions are pretty much left alone. Of course there is no legal aid for an EPA prosecution, so any success fee would have to come out of the client’s damages as a contingency fee.

But on the big points – fast track fixed fees for disrepair claims – we are left in the dark, at least for now:

Chapter 15

6.12 The position at the facilitative meetings. The data available at the facilitative meetings were insufficient for the purpose of producing any matrix of fixed costs in respect of possession claims or HD claims. Concern was expressed by the participants that there were so many variables that fixing costs was impossible.
6.13 Housing disrepair cases. HD cases are a matter of particular concern, because claims with a value between £1,000 and £5,000 fall within the fast track. This is the only area of litigation (apart from personal injury) where, for policy reasons, such low value claims are included within the fast track.
6.14 Possession claims. In possession claims it is normally the landlord who obtains an order for costs. In my view, there would be benefits for both parties if the costs of such proceedings (where they fall outside the regime of CPR rule 45.1) were fixed. It should also be noted that in their recent report “Turning the Tide” AdviceUK, Citizens Advice and Shelter recommend that: “The Ministry of Justice should consider introducing a fixed fee regime for mortgage possession claims”.
6.15 Professor Fenn is currently exploring the possibility of obtaining further data on housing cases. He anticipates completing this exercise and providing an analysis of any such data by 31st March 2010. Subject to what the data may reveal, it is my intention to invite the submissions of both landlord and tenant organisations upon that data before recommending any matrix of fixed costs for fast track housing cases. I hope then to be in a position to recommend a matrix of fixed costs for possession claims and HD claims, drawing on the advice of the Senior Costs Judge and the CJC.
6.16 In recommending any matrix of fixed costs for housing cases, there are two matters which I shall take into account. First, lawyers who specialise in housing depend upon recovered costs in cases which they win, in order to cross-subsidise their other activities. This is because much of the work of those solicitors comprises providing advice and assistance to clients on legal aid. Legal aid rates for advice and assistance have fallen far behind inflation in recent years, although the move to standard fees may have allowed for some efficiency savings. The second matter is the availability of solicitors firms and law centres which are willing and able to undertake housing work in areas where tenants need their services: see PR [Preliminary Report PDF] paragraphs 31.2.6 and 31.5.1. It is important not to set fixed fees at a level which exacerbates that problem.
6.17 An alternative approach to low value housing disrepair claims. An alternative approach to low value HD claims might be to set up an ombudsman scheme to deal with such claims. This is the sort of area where, traditionally, ombudsman schemes have proved highly effective: see “Civil Justice in England and Wales – beyond the courts. Mapping out non-judicial civil justice mechanisms” by Dr Magdalena Tulibacka. If such a scheme is introduced and proves successful, it might then be possible to make £5,000 (rather than £1,000) the boundary between the small claims track and the fast track. This would bring HD claims into line with all other litigation apart from personal injury claims. This is not a recommendation which I make, because the proposal was not canvassed in the Preliminary Report. It is simply a matter which I raise for possible future consideration.

So, this boils down to ‘there should be fixed costs for disrepair (and possession) but we have no idea what those costs should be. We’re going to try to get some more data and tell you in a few months.’

Actually getting the data, with sufficient detail and comparison points to make it of use in the statistical number crunching, will, I humbly submit, be a nightmare. This is simply not a standardised production-line field, unlike say fast track PI. Even if the detailed figures, end points and outcomes can be obtained, I suspect (on a purely anecdotal basis, obviously) that there won’t be a neat pattern with a few outliers.

This might, just maybe, be the sound of fixed costs for fast track disrepair running out of steam as a practical proposal. Or I may be being ludicrously hopeful.

And of course, the report was commissioned by the Judiciary – the Master of the Rolls. Whether the MoJ take it and implement some or all is another matter entirely.

Print This Post Print This Post

Fixed Fees and CLACs – MOJ plan

Published
by
NL
on 04/10/2009
in Various (non-housing)
. 2 Comments

The Ministry of Justice has published its ‘Implementation Plan’ in response to the recommendations of the ‘Legal Advice at Local Level’ steering group. The plan is here [pdf]. The issue is principally the effects on NFP advice providers of the impact of fixed fee Legal help scheme and the introduction of CLACs and CLANs.

Notable are concerns that fixed fees don’t work for those dealing with particularly complex cases or difficult clients, with an action plan to consider varying the fixed fee scheme, and a study of potential pressures towards cherry-picking.

My jaw dropped at this, though:

We recommend that the LSC should take steps to monitor the impact of the establishment of a CLAC or a CLAN on other funding streams in the area, and should aim to involve other existing funders of local advice in plans for a CLAC or a CLAN wherever possible.
We recommend that the LSC monitors the impact of the establishment of CLACs on local advice providers, including the potential for future competition in the area.
Action
At the time that the Commission consulted on and published the CLS Strategy, an impact assessment was not carried out on the proposed policy to introduce CLACs and CLANs. LSC has agreed that in future a full equalities impact assessment should be carried out as part of the process of setting up a CLAC or CLAN. The EIA will be carried out at the same time as the needs analysis and will be subject to formal consultation. The outcome of this analysis will then inform the specification and performance standards for the service and again there will be consultation on that specification.

Part of the needs analysis and impact assessment will be to identify other funding streams that may be affected as part of the new service. This may be funding that is received by providers who also receive funding from the LSC and/or local authority or funding that is received by other providers. Having identified those other sources of funding, LSC will contact other funders to see what involvement, if any, they would like to have with the joint commissioning process.

So, let me get that straight. CLACS and CLANS as a policy were introduced without carrying out any impact assessment. No impact assessment on other funding streams or apparently on providers, including an Equalities Impact Assessment, has been carried out by the LSC in the setting up of any existing CLAC.

If this is truly the case, I am astonished there hasn’t been a challenge to the establishment of a CLAC or CLACS on that basis, but there we go…

Print This Post Print This Post

Intermittently exposed

Published
by
NL
on 04/06/2009
in Disrepair, FLW case note, Housing law - All and Leasehold and shared ownership
. 0 Comments

Now, this is a bit of an oddity. Mohammadi v Shellpoint Trustees Ltd & Anor [2009] EWHC 1098 (Ch) was an appeal from the Supreme Court Costs Office. It concerned when a person should have the protection from liability for costs under s.17 Legal Aid Act 1988.

Mrs Mohammadi was a leaseholder who had pursued a disrepair claim, beginning in about 1993, reaching trial on disrepair and forfeiture in 2002, at which she was successful and an appeal to the Court of Appeal, at which she was partially successful, with an order for 75% of costs overall.

Mrs Mohammadi, in the course of this litigation, had had no less than three, overlapping, legal aid certificates. Two of these were in issue:

Certificate W
This was granted on 12th September 1990, discharged on 5th November 1996, reinstated on 16th December 1996, discharged again on 23rd March 2001, reinstated again on 1st October 2001 and finally discharged on 24th July 2002.

Certificate E
This was granted on 20th October 1993, discharged on 19th June 2001, reinstated on 1st October 2001 and finally discharged on 24th July 2002.

At this point, those of us dealing with the LSC at present will be scratching our heads. A discharged certificate is ended. ‘Reinstatement’ , let alone twice, a bewildering idea. And indeed, the concept appears to have been alien to the 1989 Regulations involved here as well. But let us press on.

On 14 September 2005, the LSC had written to Mrs M, setting out this history and stating that she was not publicly funded in the periods between discharge and reinstatement. But on 6 July 2007, the LSC wrote:

One other matter needs to be added to the above information – at various times your certificates were discharged and then reinstated. I should point out that the reinstatement of the certificates following a discharge means they were deemed never to have been discharged and as far as costs protection is concerned, you would have been covered for work done within the scope of the certificates from their original issue dates (23/8/1990 and 20/10/1993 respectively) until their final discharge dates (24/7/2002 for A/N/3 and 16/4/2004 for A/N/2).

After the first discharge in Nov 1996, Mrs M’s then solicitors wrote to the other side, saying she was proceeding as a litigant in person. She appeared in person at a hearing. In December 1996, her new solicitor went on the record. In July 1999 there was a change of solicitor, and in November 1999 the other side received notice of amended certificate and change of solicitor.

After the discharge of one certificate in March 2001, Mrs M again acted in person in an application to transfer to the LVT. The other certificate was discharged in June 2001. In October 2001, the other side were served with notice of acting for new solicitors and re-instatement of both certificates. Following a hearing in May 2002, Mrs M discharged those solicitors and again acted in person at a hearing in June. She then instructed new solicitors privately and the certificates were discharged in July 2002.

The issue was whether Mrs M was a ‘legally assisted person’ for the purposes of the Legal Aid Act 1988 in the periods when the certificates were discharged.

Mrs M said that she was.

She was not “acting”, she was simply holding the line until she could find another solicitor. She was certainly not conducting litigation, she was simply appearing at hearings until she could find a new firm of solicitors to take her case, the old ones having been dismissed by her or ceased acting for her for some other reason.

She also relied on the LSC letter of July 2007 as saying she was covered throughout.

The respondents said she wasn’t:

Mrs Mohammadi was only to be regarded as a legally assisted party in the litigation within the meaning of section 17 during such period as she was in receipt of legal advice and assistance from solicitors pursuant to a legal aid certificate, that during periods between the termination of the retainer of one firm and the retainer of another firm she was not therefore a legally assisted party and that, a fortiori, during any part of those periods in which she took active steps in the proceedings as a litigant in person, she cannot have been a legally assisted party.

Held:
There was nothing in the 1989 Civil Legal Aid Regulations about reinstatement or its effects, so these were of no help.

S.2(11) of the 1988 Act defines ‘legally assisted person’ as
Any person who received, under this Act, advice, assistance, mediation or representation and, in relation to proceedings, any reference to an assisted party or an assisted party is to be construed accordingly

Though dates of discharge of certificate, or even solicitors ceasing to act would not be precise indicators of when a person would stop being an assisted party, it is certain that from the date they start to act in person they are not assisted, even if they are actively seeking representation.

Further Mrs M was not an assisted person once a firm of solicitors had informed the other side they had ceased to act. Once another solicitor served notice of acting under a certificate, she was again protected.

when a legally assisted person’s solicitors have ceased to act, without another firm being retained under a legal aid certificate, and that fact has been communicated to the opposing party, then from the moment of that communication the litigant ceases to be a legally assisted person.

‘Reinstatement’ of a certificate did not give retrospective protection for the whole period, whatever the LSC had meant in its letter of July 2007, at least as far as that involved costs protection against the other side.

Mrs M’s intentions during the relevant periods where not relevant. There was also no reason the other side should be in a state of suspense over whether there was protection or not, once they had been told a certificate had been discharged.

Mrs M was therefore liable for the proportion of the respondents’ costs for the relevant periods. The costs judge’s findings upheld, remitted for sorting some details of the relevant bills for the relevant periods.

This is perhaps of historic interest, given the replacement of the 1988 Act, but some of the general points about when a person ceases to be protected will be of continuing significance, going a bit further than Burridge v Stafford [2000] 1 WLR 927.

Print This Post Print This Post

Unsung heroes Part 2

Published
by
NL
on 25/11/2008
in Various (non-housing)
. 8 Comments

The shortlist for the Legal Aid Practitioners Group Legal Aid lawyers of the year awards is out (see previous post here), and given that housing only featured as a subset of social welfare, there is a good crop of housing lawyers in there. Not NL, of course. Sadly, my fond hopes have been spurned like those of a bride with no capital in a Jane Austen novel. Damn you all.

In the social welfare category, two of the three are housing people. Dawn McPherson of Fisher Meredith, well known for her specialist ASB work, and Mike McIlvaney of Community Law Partnership, occasional commentor here and friend of the blog in the ‘phone call every six months’ sense (sorry Mike, couldn’t resist).

In the Legal Aid Barrister category is Robert Latham of Doughty Street, and in the Young Legal Aid Barrister category are John Beckley of Garden Court and Ben McCormack of Garden Court North. All no doubt well known to many of us.

A good, nay deserved, showing by housing specialists overall. NL, naturally, isn’t going to play favourites, apart from the housing thing, of course. As far as I’m concerned, they’re all winners, and anyway its the journey that is important. (I may have caught a little too much Strictly Come Dancing). I hope they all enjoy the night with Cherie Booth QC.

Print This Post Print This Post

Unsung heroes?

Published
by
NL
on 04/09/2008
in Various (non-housing)
. 0 Comments

Under the banner of ‘Unsung Heroes’, LAPG is inviting nominations for the 6th annual Legal Aid Laywer of the year awards. The categories are

  • Criminal Defence
  • Mental Health
  • Family
  • Legal aid firm/not-for-profit-agency
  • Young Solicitor
  • Barrister
  • Immigration and Asylum
  • Social and Welfare
  • Young Barrister
  • And the Outstanding Achievement award

Nominations are to be in by the end of October and forms are available at the link above. There are some quite amusing conjunctions in the sponsorship to spot.

NL thinks we are all completely wonderful, apart from the few that aren’t. But if you know a colleague or practice whose ‘above and beyondness’ deserves a public pat on the back from Cherie Booth QC, now is the chance. I’m pretty sure housing comes under social and welfare.

Print This Post Print This Post

The value of disinterest

Published
by
NL
on 07/05/2008
in Various (non-housing)
. 0 Comments

That’s disinterestedness, not uninterestedness, should anybody who went to school after about 1990 be reading this. Does nobody really read Kant any more? But, in a rather dismal demonstration of the trope of irony, this is likely to be an outright rant on the virtues of disinterest.

While most of us were focussed on the immediate effects of the Civil Legal Aid reforms on the financial viability of the private legal aid firms and the not-for-profit sector, there is another aspect which threatens not so much the viability as the foundational values of practice in the area. It has certainly not gone unnoticed, but perhaps had fewer headlines and caused fewer concerns. What is worrying is that the evidence that this will be a bad thing is not projective, but already with us.

I’m not talking about the evidence that the fixed fee legal helps have already pushed people into cherry picking simple matters, worrying though that is. It is rather a question of the current and future funding of advice work.

The LSC’s reforms are supposedly focussed on increasing access to advice. To that end, CLACS and CLANS are proposed – centres or networks that have a virtual monopoly on legal aid  funded advice provision in the area. The idea being that clients who usually have a plurality of problems can have the full range addressed – or at least receive advice on them – in one place. This, in itself, is not a bad idea.

But CLACS and, to some extent, CLANS are supposed to receive funding from a range of sources, not least (not at all least) local authorities. For example the (as yet failed to be established) Leicester CLAC or the (on hold for years at best) Cornwall CLAN. Why is this a bad idea? Why should a decently funded ‘holistic’ advice provision be objectionable?

The answer can be found in part in a simple swap of near synonyms. In place of ‘advice’ try ‘assistance’. (In fact, this should be adopted by the LSC – in place of acts of advice, record acts of assistance). Assistance means aid in resolving or mitigating the problems. Advice merely means being told what the problems are and, at best, what the advisee might do about it themselves. It is a question of action over information.

In a few recent posts on his blog, Housed has expressed his frustrations with being a CLS funded housing advisor in a CAB. The specific source of the frustration has been that the management of the CAB, which receives local authority funding, has been reluctant to support litigation against the local authority as landlord or housing provider. (See here, and comments here, for example).

As far as I can tell, there is no suggestion that the LA has ever leant on or threatened the CAB in terms of funding in any way. There is no suggestion that the funding was given conditions or limitations. But, but, but…

Where a local authority is a major funder, it is inescapably the case that an advice provider, at least at its management level, will have relations with the local authority in mind; they will always be concerned with the attitude of the local authority to them. This will inevitably filter down, in one form or another, to the frontline. It will shape the actions the body will support or encourage, although not necessarily consciously or as a matter of policy at all.

I should be clear that some LA funded bodies can and do avoid or mitigate this pressure, but that does not mean that it will not always be there. For this reason, I don’t think that Housed’s experience is in any way an isolated or extreme example.

The principle of legal aid funding used to be to enable people to obtain independent legal advice and assistance. Note the independent. I want to be clear – advice without the will to back it up with wholehearted assistance where it is needed is next to meaningless. For those in the greatest need, improved access to advice is often a nonsense unless they can also access legal assistance that is unaffected by any other consideration. After all, very often where legal action is needed, it will be against the local authority in one manifestation or another.

The great and saving merit of private legal aid solicitors (and non-LA funded not-for-profits) is that we are disinterested. We have no interest in bringing or not bringing an action against a local authority beyond the merits of the case itself. We also have no fear or concern in bringing such a case. We are in principle, and to date in fact, beholden to nobody. We are in principle, and to date in fact, free to consider a case on its merits without any back of the mind niggles about pissing off a local authority funder or losing the favour of the local bigwigs. Our greatest virtue (apart from being bloody good lawyers) is that we genuinely don’t give a toss what the landlord/benefit provider/housing authority/local councillor thinks of us, or what financial levers they might otherwise bring to bear.

To anybody wishing to raise an objection at this point, of course this does not mean we are disinterested in any specific case we are engaged in. Our job is to represent the client’s interest. And, of course, if it is a case where costs may be obtained against the opponent, we have a direct financial interest ourselves – albeit one that the CPR (and LSC merits based funding) ensures is pretty closely tied to the merits of the client’s case.

The truly terrifying prospect, which is already with us, is that ‘advice’ replaces, rather than augments, ‘assistance’. That LA funding, whilst apparently arms-length, weighs on the mind of the advice provider and shapes, however unconsciously, what they will do for the client.

If this funding format is extended to whole regions, supplanting and replacing the independent sector, then frankly, God help any clients with a difficult case against the local authority.

We in the private/independent sector do, of course, have one huge interest; one which is not ours alone. That interest is that the LSC does not continue on the path of abandoning the principle of independent legal advice and assistance regardless of government policy – which is to say that access to the law to defend one’s legal rights should remain the prime aim of public funding.

[Edit 10/05/08] William Flack, in a response piece to this post on his blog, has suggested that my view of independent solicitors is somewhat rose-tinted. That could well be the case, but what I was concerned with in this post were the structural pressures of funding.

No doubt there are dodgy practices concerned with, shall we say, maximising the return from the Legal Services Commission. In most instances, these practices will not actually affect the client – in civil matters at least – although the pressure to string things out may. (There may also be an issue when bringing cases against private individuals or bodies – will there be the money for a costs award when the claimant wins?).

However, this is different to funding issues which impact on not only what type of matter can be handled but, most importantly, against whom a case will be taken. In that respect, the independent solicitor is in a more disinterested position.

Print This Post Print This Post

Falling property and other news

Published
by
NL
on 20/04/2008
in Various (non-housing)
. 0 Comments

Labyrinth and MinotaurThis week’s award for literalism goes to William Lyttle. Mr Lyttle, apparently not realising that ‘fall’ and ‘collapse’ are usually metaphors when applied to property, spent 40 years excavating a labyrinth of tunnels under his Hackney property. Mr Lyttle, the Daedalus of east London, was this week ordered to pay Hackney Council £300,000 for the cost of making the property safe, after they evicted him in 2006. Mr Lyttle’s excavations had previously caused a 15 foot abyss to appear in the pavement outside the house. Mr Lyttle remains subject to an injunction to keep him from his subterranean labours.

The Shelter strike is back on, sadly. Shelter staff are due to strike on Thursday 24 April and Friday 25 April. Details here (hat-tip to Housed for the link). A Shelter staffer has left a comment on this blog about developments.

In linked news, concerning as it does LSC funding for not-for-profits, the Mary Ward pro-bono unit is facing closure. The pro-bono unit was supported by the main LSC-funded law centre, but the effect of the fixed fee scheme has been to slash the funding of the Law Centre, so there is no spare cash. Tellingly,

the director told volunteers that because the legal aid caseworkers are working with reduced funds, the centre is having to prioritise simple, short matters and turn away people with complex legal problems.

This is exactly what everyone warned would happen with the funding changes. Sadly, this won’t be the last story of this kind.

Print This Post Print This Post

Law Society v LSC settlement

Published
by
NL
on 02/04/2008
in Various (non-housing)
. 0 Comments

My grateful thanks to Free Movement for finding this, posting about it and passing it on. A Law Society letter of 2 April 2008 setting out the terms of the settlement of the Law Society’s litigation against the Legal Services Commission has been leaked. A PDF of the letter is here. Apparently, a ministerial statement has been laid before parliament.

[Edit 3 April 08: official Law Society press reports are now released and available here. Only a brief scoop then.]

The main terms follow below, but I have to agree with Free Movement that it doesn’t look like a lot.

There are some minor increases in some fixed fees and some hourly rates, although not the main civil litigation rate. There are a set of joint reviews to take place. The bigger points seem to be under ‘certainty’. The Unified Contract to continue to April 2010 (despite the LSC threats to terminate it). No competitive tendering for civil until 2013 and a 6 month delay in introducing best value tendering for criminal.

However, particularly of interest to housing litigators, there is no mention of whether the transition to set fee scale from hourly rates in certificated work is going ahead or whether it is caught by the LSC’s ‘acceptance’ that its right to amend contracts is significantly curtailed. I presume it is going ahead.

Also of interest are the CLAC and CLAN provisions. Apparently the LSC will announce ‘after the local elections’ where the next swathe will be, with no more till April 2010.

Hmmm. As the letter acknowledges

Whilst we are pleased at the benefits achieved by the litigation, we do not consider this settlement to be the answer to all the problems facing legal aid providers.  We know that many aspects of the Standard Fee Schemes continue to give serious cause for concern.

That seems like understatement. The Law Society’s justification for the settlement is as follows:

It is important to understand the limits of what could have been achieved from success in the litigation. A hearing date for our case had been fixed for late June 2008. Had we not reached a settlement, the LSC would have terminated contracts with a view to introducing new contracts in the autumn in which the graduated fee schemes were unchallengeable. This means that there would have been no prospect of returning to hourly rates. The profession would have been left with a historic dispute over whether they should have been paid on a different basis during this one year, and a prolonged period of disruption and uncertainty.

There is truth in that. But I don’t see how there is currently any prospect of returning to hourly rates either, save for a complete volte face by the LSC. I guess the Law Society considers itself to have bought time for the unworkableness of the whole shebang to become apparent prior to actually being introduced.

——————-

From the letter:

Terms of settlement

Financial benefits

A revised approach to unrecouped payments on account from more than six years ago – subject to cases involving dishonesty and / or greater than £20,000 on an individual case.
An increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08
An increase of 2% in the hourly rates only for Level 2 Family Help lower
Care level 2 fee increased from £347 to £405
5% increase in CLR fees and rates for mental health (whether paid as standard fee cases or exceptional claims), plus 2% for remote travel payments
5% increase in CLR fees and rates for asylum and immigration cases covered by the standard fee scheme (whether paid as standard fee cases or exceptional claims)
New rules on Standard Monthly Payments so that changes will not happen so often, so unpredictably and with such large variations

Stability measures

A commitment by the LSC (subject to certain caveats, particularly relating to CLACs and CLANs) not to terminate the Unified Contract before it expires through effluxion of time in April 2010
Deferment of the further changes to family fee schemes (including standard fees for private law family litigation, adjustments to the escape threshold for care standard fees, and a new advocacy fee scheme) which had been due this year, until April 2010
Acceptance by the LSC that their right to amend contracts is significantly curtailed, and that therefore the historic approach of making significant structural changes during the life of a contract cannot continue
The rule on remainder work will be changed so that firms are entitled to undertake it for two years after termination of their contract, so long as it has not been terminated for fault.

Certainty

The LSC is publishing a route map for civil and family legal aid showing the way forward until 2013, in which it commits not to introduce price competitive tendering for civil and family cases before 2013
The LSC is announcing a delay of six months to the earliest possible date for the introduction of best value tendering for crime, and will publish a full route map in its response to the BVT consultation
The LSC is publishing (once purdah for the local elections is out of the way) a list of the areas in which CLACs or CLANs may be introduced before April 2010. No CLACs or CLANs will be launched outside these areas before that date.

Reviews

The following reviews are being set up, with terms of reference settled in the course of negotiations all reviews to be published.:

The setting up of a Consultative Group equivalent to the Criminal Contracts Consultative Group. An early task for this group will be a full review of the new fee structures
A joint review of peer review accreditation, the specialist quality mark and other quality assurance issues.
A joint working group to address concerns about the contract compliance audit processes.
A joint review of the immigration stage billing problem, with a report to be published by 30th June 2008.
Law Society involvement in the evaluation of CLACs and CLANs, including our Head of Research to be on the advisory board

Print This Post Print This Post

No more than expected

Published
by
NL
on 17/03/2008
in Various (non-housing)
. 0 Comments

LSC introduces new IT system to file matter start funding claims. System promptly doesn’t work. Three months later, system still doesn’t work. Any idea when it will work? Errrr no. So we send in Excel forms instead.

LSC says “It’s not working as well as it could but it’s not meltdown or anything. We are now in the process of a recovery strategy”.

My giggles are not enough to stop me being pedantic. Can one actually be ‘in the process of a strategy’? Does this mean ‘in the process of coming up with a strategy’? Or  ‘in the process of implementing a strategy’? Or, more likely both at once, in the sense of ‘making it up as we go along’?

Print This Post Print This Post