Legal Aid News: November 2018

Welcome to our update of the latest legal aid and access to justice news from November 2018.

Criminal legal aid cuts: On 24 November, the government announced an additional £8m for criminal defence advocacy fees. An additional £23m (in total) will now be spent on the revised Crown court fee scheme for advocates.

Earlier this year, the government proposed to increase spending on the revised advocates' graduated fee scheme (AGFS) by £15m after criminal barristers refused to accept new work under the proposed new fee scheme.

Lord Chancellor David Gauke also committed to bringing forward a 1% increase in all fees to come into effect alongside the new scheme. According to the government, the money will be targeted at junior advocates to support continued investment in the profession.

Gauke said, ‘we have acted on the views we have heard during our engagement with the Bar and will increase spending on criminal advocates’ fees by £8m, bringing the total increase to £23m. The government is committed to working closely with the legal professions to ensure that criminal defence advocacy is fit for the modern age and open to all.’

Chris Henley QC, chair of the Criminal Bar Association said: 'We have been relentlessly making the case that after years of deep cuts across the criminal justice system, significant investment is urgently required to address an increasing crisis, which is impacting profoundly on the retention and diversity of junior criminal barristers. Women, in particular, have been leaving the profession in large numbers. The Secretary of State has listened to our concerns and this development is an important first step in turning things around. There remain serious, structural problems with the new scheme, which will require further investment.'

Mental health and wellbeing: LawCare, the lawyers’ charity supporting mental health and wellbeing, have issued a statement on the importance of mental health in the workplace in response to the High Court’s judgment in Solicitors Regulation Authority v James & Others [2018] EWHC 3058 (Admin).The High Court held that all 3 solicitors should be struck off for dishonesty in circumstances where each were affected by mental health issues. The Solicitors Disciplinary Tribunal (SDT) had accepted the first respondent’s evidence that she felt ‘terrified’ and was regularly crying at work as a result of pressure from management about billing.

In his judgment, Lord Justice Flaux said that while pressure of work was relevant, it could not, even in conjunction with stress or depression, amount to the exceptional circumstances needed to avoid a strike-off - 'pressure of work or of working conditions cannot ever justify dishonesty by a solicitor,' he added.

LawCare said that leaders from across the profession must come together to improve the working culture in the sector.  ‘We need to take a careful look at how we educate and train lawyers about mental health and wellbeing and prepare them for practice, every lawyer coming into the profession should understand that there may be a time in their career when they may struggle, and know where to get help,’ said the charity. ‘We need to pay particular attention to the needs of junior lawyers for supervision and support with making the transition into practice.’

The charity added: ‘These cases have been devastating for the solicitors involved, their firms and their clients, and [might] have been avoided had these lawyers been better supported in the workplace and felt able to talk about their problems.’

Housing: On 14 November the government launched a consultation seeking views on a new specialist housing court providing ‘a single path of redress for both landlords and tenants’ to expedite housing disputes.

Housing advice was removed from the scope of legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) cuts, except where there is a risk of homelessness. There are court duty schemes sometimes available for tenants but coverage is not comprehensive and tenants often have to represent themselves without legal advice.

Sue James, housing solicitor at Hammersmith and Fulham Law Centre, told The Justice Gap that the consultation missed the point -  ‘The majority of clients I see at court have protected characteristics and the possession cases for rent arrears have a benefit issue that needs to be resolved. If legal aid was available for welfare benefits then these cases wouldn’t end up in court,’ she said. ‘If housing lawyers were able to see clients before possession proceedings are threatened, then we could resolve cases more quickly and before possession proceedings are commenced.’

The consultation can be found here and the deadline to respond is 22 January 2019.

UN High Commissioner on Human Rights report: On 16 November, Professor Philip Alston, the UN Commissioner of Human Rights released its report on the UK. The report found that the safety net in the UK had been reduced since 2010 by benefit freezes and caps, legal aid cuts and a reduction in local authorities’ services. On legal aid, it found that the LASPO cuts have ‘overwhelmingly affected the poor and people with disabilities, many of whom cannot otherwise afford to challenge benefit denials or reductions and are thus effectively deprived of their human right to a remedy. LASPO gutted the scope of cases that are handled, ratcheted up the level of means-tested eligibility criteria, and substituted telephonic for many previously face-to-face advice services.’

Legal aid lawyers in Scotland to receive 3% fee increase: On 29 November, the Scottish government announced that legal aid solicitors and advocates in Scotland will receive a 3% increase in their fees from April 2019. This was announced as part of the Scottish government’s response to an independent review of legal aid. The response also sets out plans for the establishment of a payment review panel, the streamlining of administrative processes and regulations to simplify fee structures.

Community Safety Minister Ash Denham said, ‘This government values the professionals who undertake legal aid work, often for the most vulnerable in our society, therefore I am pleased to be able to announce a three per cent increase in fees. This demonstrates our commitment to those delivering this vital service and is a first step in advance of a wider review of legal aid payments. We want a legal aid service that is effective and user-focused and our response to [the] review sets out commitments to simplify and update the current system. We have also confirmed legal aid provision for cases in housing, immigration, welfare and family law will remain protected, unlike in England and Wales where the legal aid scope for these categories has been cut.’

Angela Grahame QC, Vice-Dean of the Faculty of Advocates, said: ‘We are grateful for the careful consideration which has clearly been given by the Scottish government to the Independent Strategic Review of Legal Aid, and welcome its commitment to hold a public consultation in 2019 on the review’s recommendations. We welcome the support of the Scottish government for the legal profession in which our members play a vital role.’

CCMS crisis: CCMS, the LAA’s online application and case management system, experienced technical difficulties throughout November, particularly between 15-23 November when it was almost completely down. Beverley Watkins, Managing Partner at Bristol firm Watkins Solicitors, told the Law Society Gazette on 21 November that she was having to inform domestic violence victims that they must attend court on their own as CCMS had been ‘on and off for the past 2 weeks.’ She explained that her firm often has emergency legal aid for initial hearings, but is unable to attend future hearings because the necessary legal aid paperwork cannot be processed or the firm cannot submit the paperwork.

Richard Miller, the Law Society's head of justice, said CCMS has been beset with problems from the outset -  'system outages mean legal aid solicitors are unable to submit legal aid applications for their clients, some of which require work to be done urgently. A system which too often makes it difficult or impossible for solicitors to undertake essential work for their clients is clearly not fit for purpose,' he added.