Funding Public Law: What It Costs And How To Pay For It

Funding Public Law: What it costs and how to pay for it

By Ravi Low-Beer, Solicitor, The Public Law Project

1. This session will focus on challenges by the citizen to decisions of a public body, including housing law, immigration law, planning law, community care law, education law, welfare benefits law, mental health law and prison law.

2. The first question (“What does public law cost?) can be quickly answered: when we factor in legal costs paid directly by individual complainants, publicly funded costs, and the costs paid by public bodies defending claims, the answer is that we do not know how much public law costs. Except that it probably costs a lot.

3. So we will consider instead how to get funding to bring public law cases, ie:

· Disputes between citizens and public bodies (usually conducted in

telephone conversations, letters and emails, and sometimes, face to face meetings);

· ADR, eg mediation;

· Formal complaints about public bodies to the public bodies themselves

and to Ombudsmen such as the Local Government Ombudsman, and the Parliamentary and Health Service Ombudsman;

· Appeals to administrative tribunals;

· Proceedings before the civil courts, eg claims for judicial review and

statutory appeals to the court.

4. The aims of the session are:

· to give an overview of the legal aid and costs systems; and

· to introduce different funding options for different types of cases.

5. As a general rule, cases against public bodies are funded:

· by the state through the legal aid system;

· by clients directly;

· by insurance companies;

· through Conditional Fee Agreements.

6. These are considered in turn below together with Protective Costs Orders, by which the court can restrict the potential costs liability of a judicial review litigant at the outset of the case.

Legal aid

7. By way of introduction, here are some statistics:

“Our legal aid system is one of the best funded in the world. We spend around ￡38 per head on it annually in England and Wales, compared to ￡4 in Germany and ￡3 in France. Even countries with a legal system more like ours spend less; for example, both New Zealand and the Republic of Ireland spend around ￡8 per head”[1]

and

“In 2008-09, legal aid resource expenditure was ￡2.09 billion, with ￡0.91 billion spent on 1.3 million civil acts of assistance, and ￡1.18 billion on 1.6 million criminal acts of assistance. ￡124.4 million was spent on administration.

…

Total cash spending on civil legal aid rose from ￡792m in 2000/01 to ￡846m in 2004/05. In 2008/09 this figure had reached ￡914.1m. This represents a 2% year on year increase since 2001.

Family legal aid cash expenditure has grown by an average of 5% per annum from 1999/00 and 2008/09, accounting for ￡624m of total in 2008/09 –the highest level of expenditure in family legal aid to date.”[2]

8. Legal aid was established in England and Wales more than 60 years ago, by the Legal Aid and Advice Act 1949. Its present incarnation is more than 10 years old: section 1 of the Access to Justice Act 1999 established the Legal Services Commission, to administer two services, the Community Legal Service and the Criminal Defence Service. Together, these two services constitute the legal aid system in England and Wales, for civil and criminal matters. They are run under the auspices of the Ministry of Justice.

9. However, following concerns about the operation of the legal aid system by the National Audit Office, and a report by Sir Ian Magee, the Government announced on 3 March 2010 that the Legal Services Commission is to be abolished and replaced with an Executive Agency.[3] So much of what follows is set to change.

What services can be funded as part of the Community Legal Service ?

10. Section 4 of the Access to Justice Act 1999 (“the Act”) establishes the Community Legal Service and specifies what services it can provide. It states:

“(1) The Commission shall establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs.

(2) The descriptions of services referred to in subsection (1) are—

(a) the provision of general information about the law and legal system and the availability of legal services,

(b) the provision of help by the giving of advice as to how the law applies in particular circumstances,

(d) the provision of help in enforcing decisions by which such disputes are resolved, and

(e) the provision of help in relation to legal proceedings not relating to disputes.”

11. Section 6(6) provides that the services listed in Schedule 2 cannot be funded under the Community Legal Service. Schedule 2 states:

“The services which may not be funded as part of the Community Legal Service are as follows.

1. Services consisting of the provision of help (beyond the provision of general information about the law and the legal system and the availability of legal services) in relation to—

(a) allegations of personal injury or death, other than allegations relating to clinical negligence,

(aa) allegations of negligently caused damage to property,

(b) conveyancing,

(d) the making of wills,

(e) matters of trust law,

(ea) the creation of lasting powers of attorney under the Mental Capacity Act 2005,

(eb) the making of advance decisions under that Act,

(f) defamation or malicious falsehood,

(g) matters of company or partnership law, or

(i) attending an interview conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum (as defined by section 167(1) of the Immigration and Asylum Act 1999.

1A. Services consisting of the provision of help to an individual in relation to matters arising out of or in connection with—

(a) a proposal by that individual to establish a business;

(b) the carrying on of a business by that individual (whether or not the business is being carried on at the time the services are provided);

2. Advocacy in any proceedings except—

(1) proceedings in—

(a) the Supreme Court,

(d) the High Court,

(e) any county court,

(f) the Employment Appeal Tribunal,

(g) the First-tier Tribunal under any provision of the Mental Health Act 1983 or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984, or the Mental Health Review Tribunal for Wales,

(gza) the First-tier Tribunal under—

(i) Schedule 2 to the Immigration Act 1971,

(ii) section 40A of the British Nationality Act 1981,

(iii) Part 5 of the Nationality, Immigration and Asylum Act 2002, or

(iv) regulation 26 of the Immigration (European Economic Area) Regulations 2006,

(ga) the Upper Tribunal arising out of proceedings within paragraph (g) or (gza),

(i) the Proscribed Organisations Appeal Commission.

(2) proceedings in the Crown Court—

(a) for the variation or discharge of an order under section 5 of the Protection from Harassment Act 1997,

(b) which relate to an order under section 10 of the Crime and Disorder Act 1998,

(d) which relate to an order under paragraph 6 of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001, or

(e) under the Proceeds of Crime Act 2002 to the extent specified in paragraph 3,

(3) proceedings in a magistrates' court—

(a) under section 43 or 47 of the National Assistance Act 1948, section 22 of the Maintenance Orders Act 1950, section 4 of the Maintenance Orders Act 1958 or section 106 of the Social Security Administration Act 1992,

(b) under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 relating to a maintenance order made by a court of a country outside the United Kingdom,

(c) in relation to an application for leave of the court to remove a child from a person's custody under [section 36 of the Adoption and Children Act 2002] or in which the making of [a placement order or adoption order (within the meaning of the Adoption and Children Act 2002) or an order under section 41 or 84 of that Act is opposed by any party to the proceedings,

(d) for or in relation to an order under Part I of the Domestic Proceedings and Magistrates' Courts Act 1978 or Schedule 6 to the Civil Partnership Act 2004,

(da) under section 55A of the Family Law Act 1986 (declarations of parentage),

(e) under the Children Act 1989,

(f) under section 30 of the Human Fertilisation and Embryology Act 1990,

(g) under section 20 of the Child Support Act 1991,

(h) under Part IV of the Family Law Act 1996,

(i) for the variation or discharge of an order under section 5 of the Protection from Harassment Act 1997 ,

(j) under section 8 or 11 of the Crime and Disorder Act 1998,

(k) for an order or direction under paragraph 3, 5, 6, 9 or 10 of Schedule 1 to the Anti-terrorism, Crime and Security Act 2001,

(l) for an order or direction under section 295, 297, 298, 301 or 302 of the Proceeds of Crime Act 2002, and

(4) proceedings before any person to whom a case is referred (in whole or in part) in any proceedings within paragraphs (1) to (3).”

12. It is not necessary to go in detail in the excluded services. In relation to social welfare public law cases, the main funding gap appears to be the exclusion of funding for advocacy at inquests and on appeals before most tribunals (save for the Employment Appeal Tribunal, the Proscribed Organisations Appeal Commission, and the First-Tier and Upper Tribunal hearing mental health and immigration appeals (under paragraph 2(1)(g),(gza) and (ga) of Schedule 2)).

13. The reason why representation before most tribunals is excluded is that the view has traditionally been taken that most tribunals are well suited to the needs of unrepresented clients, so that representation is not, in general, necessary. The exceptions for mental health and immigration appeals reflect an acceptance of the importance of representation in those categories of cases.

Lord Chancellor’s power to direct that excluded services can be funded by the LSC

14. But the exclusions in section 6(6) and Schedule 2 to the Act are subject to section 6(8), which states:

“The Lord Chancellor —

(a) may by direction require the Commission to fund the provision of any of the services specified in Schedule 2 in circumstances specified in the direction, and

(b) may authorise the Commission to fund the provision of any of those services in specified circumstances or, if the Commission request him to do so, in an individual case.”

15. Funding for representation before tribunals excluded under Schedule 2 to the Act can therefore be made available (1) in any class of case; and (2) in any individual case where the Lord Chancellor makes a direction under section 6(8). Such funding is known as “exceptional funding”, and it is considered further at paragraphs 43-49 below.

How the LSC decide s which services to fund – the Funding Code

16. Section 8(1) of the Act states:

“The Commission shall prepare a code setting out the criteria according to which it is to decide whether to fund (or continue to fund) services as part of the Community Legal Service for an individual for whom they may be so funded and, if so, what services are to be funded for him”.

17. A Code has been published by the LSC in relation to the operation of the Community Legal Service. It is called the Funding Code. In the event of a legal aid query, it is usually a good starting point. It is divided into three parts:

(1) Part A: Criteria[4];

(2) Part B: Procedures[5]; and

(3) Part C: Decision-making Guidance. This is separated into:

· General principles (sections 1-14) [6]

· Other guidance (sections 15-19, 21-26 and 28)[7]

· Children and family (section 20)[8]

· An updated section 22 concerning representation before tribunals in

light of the Tribunals, Courts and Enforcement Act 2007[9]

· Exceptional Funding (section 27)[10]

· Immigration (section 29).[11]

18. The Code sets out 6 levels of service. These are:

(1) Legal Help

(2) Help at Court

(3) Family Help (which can either be Lower of Higher)

(4) Legal Representation

(5) Family Mediation

(6) Services authorised by the Lord Chancellor

19. The different levels of service are essentially different types of legal aid, the most important of which, for present purposes, are Legal Help in relation to advice and assistance in public law matters, and Legal Representation in relation to proceedings before courts and the immigration and mental health tribunals. These are considered in more detail below. The Code sets merits criteria which vary according to the level of service, nature of case and stage of proceedings.

Controlled and licensed work

20. A distinction is drawn in the Code between controlled and licensed work. Controlled work is granted on application by the client to the supplier whereas licensed work is granted on application by the client to the LSC. Legal Help is controlled work.