Legal aid for many cases concerning local authorities is set to be maintained, despite swingeing cuts in provision in most other areas of civil litigation, the Ministry of Justice (MoJ) has announced.
The MoJ said that legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home. This will include asylum cases and housing matters where a person's home is at immediate risk, and mental health cases as well as child protection cases and judicial review claims. Criminal cases will also continue to qualify for legal aid.
It said: “Legal Aid will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage. It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.”
However, even in areas which have escaped the axe, applicants will subject to more rigorous means-testing before being awarded legal aid, including those on benefits. Greater account will also be taken in future of equity in people’s homes when assessing their capital means and a minimum £100 contribution to legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, with higher contributions expected from those who currently contribute to their legal fees.
Legal aid will no longer be available for most cases involving education, employment law, immigration, welfare benefits and housing, except where there is a risk to anyone’s safety or liberty or a risk of homelessness housing. It will also be abolished for clinical negligence claims, where the government said that 'no win, no fee' funding was already available.
The main provisions of the proposed reforms as they are likely to affect local authorities are as follows:
Claims against public authorities
- The MoJ said that legal aid for most public law challenges is justified on the basis that they enable individual citizens to check the exercise of executive power by appeal to the judiciary, often on issues of the highest importance. Legal aid will be retained for all but business cases (which already do not qualify for legal aid).
- The MoJ said that it intends to recalibrate the eligibility of claims against public authorities to ensure that only those alleging “serious wrong-doing” by public bodies will qualify. The proposals address the effect of the ruling of R(G) v Legal Services Commission [2004] EWHC 276 which rejected the notion that ‘serious wrong-doing’ required an element of deliberate, malicious or dishonest conduct and held that a negligent omission could suffice if the authority’s duty of care had been sufficiently important. This will mean that only case which involve an ‘abuse of position of power’ and/or ‘significant breach of human rights’ will qualify, as will cases arising from from “negligent acts or omissions falling very far below the required standard of care”.
- Public interest cases will lose their automatic funding entitlement, but will be considered for legal aid on a case-by-case basis on the Funding Code merits criteria.
- Actions concerning personal data, such as actions relating to inaccurate or lost data or rectification of personal data will no longer qualify for legal aid.
- Tort and other general claims, such as those for breach of statutory duty or malicious prosecution, will no longer qualify for legal aid.
- Legal aid will be retained for all unlawful discrimination claims currently within scope, regardless of the category in which they arise. However, routine legal aid funding will not be extended to discrimination cases which are currently out of scope, such as discrimination proceedings before the Employment Tribunal or the Special Educational Needs and Disability Tribunal (although Legal Help for these claims would remain within scope).
Social care and welfare
- Funding of legal advice to obtain or challenge an assessment for adequate services, challenging care home closures or contesting involuntary removal from a home by a local authority will remain available.
- Legal aid for cases under the Children's Act 1989 will be retained.
- Legal actions such as non-molestation orders or occupation orders involving domestic violence or forced marriage will continue to qualify for legal aid. This will applications under the inherent jurisdiction of the High Court for wardship orders relating to a 16 or 17 year old who has been abducted abroad for the purposes of forced marriage.
- Legal aid will be retained for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeals to the Court of Protection on deprivation of liberty issues. However, it will no longer be available for tort or other general damages claims except where the claims are of a very serious nature.
- Legal aid for benefit appeals will no longer be available, including appeals against housing benefit decisions although legal aid will remain available in repossession proceedings.
- Claims arising against public authorities from allegations of abuse and sexual assault will continue to attract legal aid where they arise out of allegations of the abuse of a child or vulnerable adult or they arise out of allegations of sexual assault. This, the MoJ says, will provide legal aid for cases concerning, allegations of abuse in local authority care, or in private educational or care institutions.
- Immigration appeals will no longer qualify, except where material issues of discrimination can be shown, but legal aid will remain for most asylum applications and appeals before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), and advice on appealing to higher courts. However, as part of plans to to remove all welfare-related issues from the scope of legal aid, applications for asylum support under sections 4 and 95 of the Immigration and Asylum Act 1999 will no longer qualify for legal aid.
Housing and debt
Legal aid will generally be withdrawn for housing law actions, with the following exceptions:
- Repossession cases, including actions for possession due to rent, service charge, or mortgage arrears, adverse possession and similar matters arising out of tenancy agreements.
- Damages claims for disrepair brought as a counterclaim in rent arrears possession cases. These cases could be considered a defence to a possession order, where the litigant or their family may be at immediate risk of being made homeless.
- Appeals to the county court on points of law under section 204 of the Housing Act 1996 which relate to the obligations of local authorities to those who are homeless or threatened with the risk of homelessness.
- Actions under the Mobile Homes Act 1983 where the site owner is seeking eviction.
- 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).
- For the challenge of ASBOs brought alongside possession proceedings on the basis of a nuisance. (For other ASBOs, heard in the magistrates’ court, legal aid will continue to be available under the Criminal Defence Service).
- Civil legal aid will continue to be available for injunctions concerning anti-social behaviour.
This means that the following legal actions will no longer qualify for legal aid:
- Actions to enforce a Right to Buy.
- Actions 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.
- Actions under the Housing Grants, Construction and Regeneration Act 1996.
- Applications for a new tenancy under the Landlord and Tenant Act 1954.
- Actions for re-housing.
- Actions under the Access to Neighbouring Land Act 1992.
- Actions for wrongful breach of quiet enjoyment;
- Housing disrepair proceedings where the primary remedy sought is damages, including damages for personal injury;
- Actions for trespass; or
- Actions under the Mobile Homes Act 1983 which does not concern eviction
Community safety and enforcement
- Legal aid will continue to be available for the subjects of anti-social behaviour order applications.
- Funding for confiscation proceedings under the Proceeds of Crime Act will continue. However, legal aid for cash forfeiture proceedings in the magistrates’ courts and the Crown Court will no longer be available.
- Injunctions under section 34 of the Policing and Crime Act 2009 to prevent or protect individuals from gang-related violence will continue to qualify for legal aid.
- Legal aid will be retained for Independent Safeguarding Authority Appeals (Care Standards), to both the First-tier Tribunal and the Upper Tribunal.
- Quasi-criminal proceedings – defined as any proceedings considered to be criminal under the ECHR - will continue to be eligible for legal aid.
- Contractual claims will no longer be eligible for legal aid, with voluntary bodies or Trading Standards expected to take up the slack for consumers.
- The defence of debt issues (including council tax arrears) will no longer qualify for legal aid, except where homelessness may result.
Courts and tribunals
- Legal aid will not be available for most tribunal hearings, other than on those areas specifically excepted.
- Appeals to the Court of Appeal, the Supreme Court or the European Court of Justice will no longer automatically qualify for legal aid, other than on those areas specifically excepted.
Education
- All education-related appeals will no longer qualify for legal aid. This will include applications to the special needs tribunal.
Employment
- All legal aid for employment tribunal cases will be withdrawn.
The MoJ also said that fees paid in civil and family cases will be reduced by 10% across the board and the use of 'risk rates' for in civil cases where costs are likely to be paid by the opponent, is to be extended.
At the same, the MoJ announced its backing for the reforms of the civil costs regime recommended by Lord Justice Jackson at the beginning of the year. These included ending the recoverability of 'no win, no fee' uplifts and associated insurance premiums in return for a 10% uplift for successful claimant solicitors and a general rise in the value of damages paid.
The Justice Minister Jonathan Djanogly said: “These are difficult issues which have been grappled with for some time, as all who are familiar with this area of law know. But I believe that today’s consultation marks the way forward. One of our key proposals is reforming the current “no win no fee” regime. We want to reduce overall costs, ensure claimants have a financial interest in controlling legal costs incurred on their behalf and deter avoidable, unnecessary or unmeritorious cases.
“Under the current arrangements claimants generally have no interest in the costs being incurred on their behalf because, win or lose, as they do not have to pay anything towards them. Today’s proposals are designed to prevent the situation in which, regardless of the merits of their case, defendants are forced to settle for fear of prohibitive costs. I want to strike the right balance between access to civil justice and ensuring that costs are proportionate, sustainable and affordable.”
The reforms to legal aid and the civil litigation funding regime are set out in two consultation papers which are available here:
http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm
http://www.justice.gov.uk/consultations/jackson-review-151110.htm
The consultation period for both ends on 14th February, 2011.
If adopted in full, the proposals are expected to achieve savings of around £350 million by 2014-15. The Ministry of Justice is required to reduce its overall spend by £2 billion by 2014-2015.
