On Wednesday 3 February the Ministry of Justice published its response to its 2009 consultation paper ‘Legal aid: refocusing on priority cases’. (CLICK HERE TO GO TO THE MOJ RESPONSE.)
The MOJ in their response have reconsidered several of their proposals, including some of those that were addressed in YLAL’s response (CLICK HERE TO SEE YLAL RESPONSE). We are delighted the Ministry has taken onboard our views and produced this detailed response.
YLAL summary of the MOJ response:
(1) Should the definition of “significant wider public interest” be strengthened?
Yes. Before granting funding, the LSC will now consider the facts of each particular case and judge whether it is an appropriate case to "realise the benefits" that may flow from a successful outcome.
Conversely, the LSC will not be considering the potential disadvantages to the public before funding such cases, as had been suggested.
Cases that are granted funding by virtue of having a significant wider public interest will now automatically be referred to the Special Cases Unit (see response number 10 below). This means, among other things, that where funding is rejected by the LSC on the basis that the likely costs outweigh the benefits the decision will no longer be reviewable by the Independent Funding Adjudicator (see number 12).
(2)(i) Should a new committee replace the Public Interest Advisory Panel and the Multi-Party Action Committee?
(ii)Should the budget for cases with a significant wider public interest be capped?
(i) A new committee will be established To avoid the appearance of bias it will not include representatives from public bodies.
(ii) The budget will be capped. This will take place in 2011-2012. A further consultation will take place prior to this to work out the funding priorities within that budget.
(3) Should funding be refused in claims against public authorities (not including judicial reviews) which are worth less than £5,000?
(4) Where an out of scope matter is bought back within scope by virtue of it having a significant wider public interest should funding be refused in claims which are worth less than £5,000?
(5) For cases funded under section 8 of the funding code should it be made explicit within the code that (for example) litigants should have sought redress the ombudsman before funding will be granted in respect of their claim?
Yes. This is just a clarification of the existing policy – this is not meant to be a substantive change.
(6) When weighing up the cost/benefit of appeals funded under section 8 of the funding code should the "likely costs" include the inter partes costs?
(7) There is currently a presumption that funding will be granted in respect of any judicial review where permission has been granted. Should this be abolished?
Yes. It is the intention of the Ministry of Justice that this will lead to funding being refused in very few cases.
(8) There is currently a requirement a claimant seeking funding for judicial review must have a personal interest in the case. Should this requirement be clarified?
Yes. This is not intended to impede the judicial review of environmental matters which affect a broad cross section of the population.
(9) In respect of judicial reviews, should further funding be withheld until receipt of the acknowledgement of service?
(10) Should more cases be referred to the Special Cases Unit?
Yes. Borderline cases with significant wider public interest or that raise significant human rights issues, will now also be referred to the SCU. However risk rates will not be applied to these cases. Costed case plans may be required.
The Independent Funding Adjudicator will no longer have the power to determine the cost/benefit in these cases (see number 12 below).
(11) Should the LSC seek representations from interested parties before funding is granted?
Yes but only in respect of a claimants financial eligibility and not the merits of the case itself. This change will be rolled out in family cases initially. It will not apply in applications for emergency funding, cases involving detention under the MHA 1983, asylum and asylum support cases and a few others.
(12) Should the Special Cases Unit have the final say for the cases they manage or should this lie with the Independent Funding Adjudicator?
The Independent Financial Adjudicator will no longer have the power to determine the cost/benefit in SCU cases. The IFA will continue to have the power to determine (a) the prospects of success; (b) whether the case is of overwhelming importance to the client; and (c) whether a certificate should be discharged or revoked on the grounds of conduct of the client.
(13) In community actions in working out the contribution the community should make should the starting point be the proportion of the population eligible for legal aid?
Yes. This will be calculated based on data from the Office for National Statistics.
(14) Should funding for advice on the treatment of prisoners be removed from the scope of the CDS?
No. However delegated powers to self-grant funding in these cases will be removed.
(15) Should delegated powers more generally be removed?
(16) Should there be restrictions on legal aid for non residents?
Yes. Anyone who is “resident” outside UK, the EU or certain overseas territories will not normally be eligible.
"Resident" is defined by the Ministry of Justice to be someone who states that they live somewhere and has an address in that place.
For people in the UK who are resident elsewhere funding will be available in the following types of case: domestic violence proceedings; child care or supervision proceedings; emergency housing matters; and Mental Heath Act or Mental Capacity Act detention.
It will be open for any non resident to apply for exceptional funding. This will nominally ensure that cases involving significant human rights abuses perpetrated by UK public bodies abroad will still be funded. The fact that such cases will now be funded by means of exceptional funding means that they will be automatically referred to the SCU. This means that the IFA will no longer have the power to determine the cost/benefit of the case.
4 February 2010