Legal Aid Agency agree to backdate Legal Aid Certificates

 

The situation prior to this important judicial review case was that, clients who required urgent and vital legal assistance were unlawfully being denied access to justice as providers were prevented from undertaking any paid work prior to the grant of funding, which could be many weeks later after the initial instruction. This meant that providers were providing essential advice before the granting of a legal aid certificate pro bono. Another effect of the situation, was that providers may simply refuse to carry out the work to the detriment of the legally aided client.

The Legal Aid Agency (LAA) has considered that the legal aid funding rules, in particular the Civil Legal Aid (Procedure) Regulations 2012, prevented the backdating of the legal aid certificates to before the date a decision was made by the LAA on the funding application or where negative decisions on the merits of an application had been reconsidered on review or appeal. How can this be the case, when a solicitor promptly makes the application for funding or even an amendment and the LAA refuse to backdate the certificate when there has been a gap between the date of application and date the LAA consider and grant the application?

The LAA had even refused to backdate public funding certificates where the LAA accepted that the work was urgent and necessary to the client’s case (such as issuing urgent proceedings or meeting an appeal deadline) and where any delay in consideration of the application was entirely due to maladministration by the LAA.

The judgment of the Court of Appeal in R (Kigen) –v- Secretary of State for the Home Department [2015] EWCA Civ 1286, confirmed that delays in obtaining legal aid funding would not be accepted as a reason for bringing proceedings out of time. This reaffirms the position that a legally aided client is being denied access to justice if providers are not taking on matters due to not being guaranteed that they will be paid by the LAA.

R (on the application of Duncan Lewis Solicitors) –v- The Legal Aid Agency and the Lord Chancellor

Duncan Lewis Solicitors recognised the funding situation as an inherent problem and dangerous precedent within the funding provisions with the work they were undertaking and wanted to highlight that clients who required urgent legal assistance were unlawfully being denied access to justice.

As costs draftsman, we have also seen this situation occur time and time again. Take for example, a matter involving an asylum seeker who is vulnerable and speaks very limited English and is facing the imminent removal from the country. Following a last minute referral, instructions are received on the weekend to judicially review the government’s decision to remove the client and for an injunction against her imminent removal. Does the provider take on the case knowing they will not get paid, or do they refuse instructions or wait for funding, by which time it will be too late for the client?

Duncan Lewis were granted funding by the LAA on 14 September 2017, which was made available from that date, but the LAA failed to backdate the funding to extend from the date of the initial application which was made on 12 September 2017.

Osbornes Law were an interested party in the challenge.

Bindmans, Broudie Jackson Canter, Deighton Pierce Glynn, Legal Aid Practitioners Group, Leigh Day and the Public Law Project all provided evidence in support of the claim, which goes to highlight how wide spread the issue was. It is inevitable that every legal aid provider up and down the country as experienced this situation.

The grounds for judicial review that Duncan Lewis Solicitors put forward were:

1. The LAA had misunderstood its powers and the regulations do not prohibit backdating of funding.

 

2. Alternatively, if the regulations did prohibit the backdating of funding, then they would be ultra vires of LASPO.

An oral permission hearing was heard on 19^th April 2018 and Mr Justice Butcher stated that the prohibition on backdating of funding presented a prima facie obstacle to the right of access to court, and that there was an arguable case that the prohibition was either due to a misinterpretation of the procedure regulations or that the regulations themselves were ultra vires of Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Duncan Lewis Solicitors were granted permission in a claim for judicial review.

Ultimately, the Government had agreed, in open correspondence, to amend the Civil Legal Aid (Procedure) Regulations 2012 to expressly allow for legal aid certificates to be backdated to the date of the application for public funding.

The Government had informed Duncan Lewis that ministers were planning to lay a statutory instrument before parliament to amend the regulations. The exact content and timing of the amendments remain to be set out.

Conclusions

The Government is yet to implement what they have agree to do, however it can be said that when it is implemented it will allow clients urgent legal assistance without being denied access to justice and it will also ensure that solicitors can begin work and have certainty that they will be paid for the work they undertake in the pursuit to secure the legal rights of their clients.

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