The Ministry of Justice ‘consultation paper’ on reforms to legal aid to achieve a £350 million cut by 2013/4 is out. It is a hefty 224 odd pages. Responses are required by 14 February 2011
I’ve done what I can to fillet out its significance for housing and social welfare provision, cutting out the various justifications, excuses and statements of purpose. The following are the proposals on which consultation is to take place.
Housing – to remain in scope are:
- homelessness, at least at s.204 appeal (the document is silent on help at s.184 or s.202 stages).
- possession claims (tenancy and mortgage)
- disrepair counterclaims to possession claims
- “serious housing disrepair cases where the litigant is not primarily seeking damages, but is seeking a repair of such significance that without it the life or health of the litigant or their family may be at serious risk (such as the repair of gas equipment)”
- defending ASB proceedings
Out of scope:
- ‘non serious’ disrepair [4.78 and then the following at 4.194)
- an action to enforce a Right to Buy;
- an action to enforce a Right to Buy a freehold or extend the lease;
- actions to set aside a legal charge (for example, a mortgage) or the transfer of a property;
- actions for damages and/or an injunction for unauthorised change of use of premises;
- an action under the Housing Grants, Construction and Regeneration Act 1996;
- applications for a new tenancy under the Landlord and Tenant Act 1954;
- an action for re-housing;
- an action under the Access to Neighbouring Land Act 1992;
- an action for wrongful breach of quiet enjoyment;
- housing disrepair proceedings where the primary remedy sought is damages, including damages for personal injury;
- an action for trespass; or
- an action under the Mobile Homes Act 1983 which does not concern eviction.
- nuisance claims (4.239)
Legal Aid will be refused where some other form of funding, like a CFA, is available. (4.265)
Unlawful eviction isn’t mentioned at all. I would presume injunction for re-entry would be in scope but a damages only claim would not be, by a process of analogy.
Out of Scope:
- Debt where there is no immediate risk of homelessness
- Welfare Benefits to first tier tribunal appeal
- Employment – none at all.
- Judicial Review – for all except business purposes.
Interesting to note that the excuse throughout is the availability of voluntary sector advice and assistance for non-life threatening issues. For housing, Shelter and CAB are flagged up as the fitting alternative to legal aid funding. I wonder how they feel about that?
At 4.272, we find:
We propose that, in future, we will provide a simple, straightforward telephone service, based on the current Community Legal Advice (CLA) helpline (first established nationally in 2004). This advice service will be able to refer clients to the source of advice most appropriate to them, and will act as a reliable onestop shop for clients looking for legal advice. The CLA helpline will be established as the single gateway to civil legal aid services. All clients will be able to access the first tier of the service (the Operator Service) while the second tier will offer specialist advice to eligible clients in all categories of law within the scope of civil legal aid. In the vast majority of cases this will mean that clients will make their initial contact to access civil legal aid services through the Operator Service, rather than through a face to face provider. However the services will be designed to minimise the risk that clients with emergency cases experience delay in accessing the help they need.
Can that mean what it appears to mean? No direct approach from clients? And a further layer of phone advice before any referral to a face to face provider?
And there is to be a paid-for phone advice service.
Eligibility (Chapter 5):
Passporting for Income Support, ESA, income based JSA, pension credit to end. Capital to be taken into account at the same rate as non passported (currently limited to up to £8000)
The formerly passported with disposable capital over £8000 will have to make a contribution.
Any client with over £1000 in disposable capital to pay a one off £100 contribution, over monthly contributions, to be collected by the legal aid practice and set against payments by the LSC
Over £3100, payment of £1 of capital for each £1 over, up to £8000.
Property value to be considered –
Non contested property cases
Pensioner disregard of £100,000 abolished.
Equity disregard of £100,000 scrapped.
Mortgage disregard extended to full value of mortgage, subject to a ceiling of £200,000 gross property value, or £300,000 for a pensioner with disposable income below £315 per month. Mortgage disregard limited to one property only.
Contested property cases
Equity disregard of £100,000 scrapped
‘Subject matter of dispute’ disregard at £100,000
Mortgage disregard extended to full value of mortgage, up to a limit of gross value of £500,000
Maximum contribution level raised to 30% of disposable income between £315 – £733 per month, up from 20% maximum at present. Two options provided, one tapered, one not.
An across the board cut of 10% in civil legal aid rates. Enhancements capped at 50% for County Court, or 100% for High Court and above.
Barrister rates to be codified as follows:
- Junior counsel in county court £108.00
- Senior counsel alone or leading in High Court £135.00
- Led junior counsel in High Court or Court of Appeal £112.50
- Leading senior counsel in Court of Appeal £157.50
- Queen’s Counsel (where approved for instruction by rate (-10%) LSC) in the High Court or Court of Appeal £180.00
- Leading senior counsel in the Supreme Court £180.00
- Queen’s Counsel (where approved for instruction by LSC) in Supreme Court £225.00
- Noter/Pupil/2nd led junior counsel £36.00
In cases where there is a good chance of a costs award, payment in the event of being unsuccessful (or in the interim?) will be at ‘risk rates’: “where costs will be recoverable in the event of the claim succeeding, lawyers are paid at ‘risk rates’: £70 per hour for solicitors; £50 per hour for junior barristers; and £90 per hour for senior barristers, without general enhancements.”(7.15). This will apply from a post ‘investigatory help’ stage, rather than the £25K VHCC limit as now (or post permission in Judicial Review).
Expert fees – Surveyors etc. £50 per hour and proposals for fixed fees for reports and court attendances. (Annex H and J)
As a parting gift, price competitive tendering some way down the line for all.
This is all intertwined with the Consultation on the Jackson Report, also out today. What this will end up doing to CFA arrangements, or indeed fixed costs in fast track cases, will clearly have an impact on some cases proposed to go out of scope.
It is a good thing that homelessness and possession have, to some extent at least, been recognised as priority concerns, and one would hope that some obvious idiocies like phone only access will get lost in the wash, but this is going to present some very large problems. I hate to have to roll out the ‘access to justice’ line once more, but someone hasn’t done their market modelling in thinking this through.
If this happens, it is going to have a very significant impact on firms and organisations that followed the LSC’s urging to become holistic social welfare law providers in the last round. In a complete reversal of direction, only (some) housing would remain in scope. Big problems for some, not least those following the ‘paralegal factory’ model of practice.
That 10% cut in fees across the board is going to be very hard for some, I’m thinking about some law centres and NFPs that have remained on a knife edge of viability since fixed fees came in.
And then there are the unclear bits. Is homeless assistance to be restricted to s,204 appeals? These are all that is mentioned. So no assistance with applications or s.202 review submissions? How is one to determine life threatening disrepair without an expert’s report (and funding for it)?
The proposals for telephone access and referral only are, let’s be honest, bonkers. Street homeless, for example? How are the most vulnerable left within scope to know of this magical number?
At a tangent, both CABx and Shelter are used as a fig leaf throughout as ‘voluntary sector’ organisations which people can access for ‘non-urgent’ advice and assistance. I’m not sure what either organisation will make of that – not only being asked to bear that weight, but also given their rôle in provision of legal aid Social Welfare Law work – particularly under the new contracts that started today (15 Nov). That sounds suspiciously like a double hit for them – a bigger burden in the ‘voluntary’ side and withdrawal from scope of much of the SWL provision funded. But this proposal will be tough for every provider.
Coming next – time and sanity permitting – the Jackson proposals costs consultation.