Posts in the ‘Public Law’ Category

Legal Aid for Community Care

Posted on: August 10th, 2014 by Jess Flanagan

I remain really quite pleased that Clarke Willmott was successfully awarded a contract to provide legally aided Community Care advice in Southampton and Bristol. In one week I have been able to help two new clients in a way I wouldn’t have been able to before we had this contract.

At the sake of sounding like a broken record, I thought I would repeat what I said about legal aid on our Elderly Care and Court of Protection blog, as I am so proud of the work we can now do to help those who really need it:

Providing Legal Aid for Community Care matters

“From 1 August 2014, Clarke Willmott will be in a position to offer our clients legally aided advice in respect of Community Care matters. From challenging Social Services and Continuing Healthcare assessments, to advising on applications for Judicial Review and in the Court of Protection, our team may be able to assist you. Until now, we have only been able to provide advice when a case is already in the Court of Protection, or if a hearing in the Court of Protection will be required.

Our contract with the Legal Aid Agency will enable us to advise eligible individuals and provide support for them at best interests meetings. These may take place way before a court hearing is necessary and can provide assistance in setting out views and evidence, to try to avoid the need for any court application.

Jess Flanagan, an Associate in the Clarke Willmott Court of Protection team says: ‘Everyone in the team is delighted that we can now provide legally aided support to the public, especially at a time when the austerity measures continue to bite in the Social Care world. With access to legal advice when an issue arises, as opposed to when the case is before the court, many clients will be able to avoid the lengthy and sometimes exhausting court process.’

To be eligible for legal aid an individual must have gross income of less that £2657, disposable income of less than £733 per month (combined with your partner if you are living with them) and capital of less than £8,000. It is a complicated and rigorous assessment, so if you are unsure, please call Jess Flanagan on 0845 209 1160.”

In the midst of all the challenges faced by legal aid practitioners and those they try so hard to support, I am so proud of what additional support we can now offer.

Transforming Legal Aid – restricting access to justice in the Court of Protection?

Posted on: February 6th, 2014 by Jess Flanagan

The Legal Aid Agency recently published this statement on its website:

Two important reforms which are part of the legal aid transformation programme go live from Monday 27 January.

These are:

1. Borderline merits – removing legal aid for civil cases with borderline prospects of success 

2. Crown Court eligibility – introducing a financial eligibility threshold

 As a civil lawyer I am concerned predominantly with the cuts to civil legal aid. That cases now initially assessed as having ‘Borderline’ merit will no longer benefit from legal aid, troubles me greatly.

In June 2013 I responded to the Ministry of Justice consultation: Transforming legal aid: delivering a more credible and efficient system’ (Ministry of Justice, April 2013). In September, a paper I wrote on the impact that the proposed ‘transformations’ would have on access to justice in the Court of Protection was published in the Elder Law Journal [2013] Eld LJ (Issue 3 Volume 3), by Jordans Publishing (please see http://www.jordanpublishing.co.uk/publications/private-client/elder-law-journal for further information on this excellent publication).

I expressed grave concern at the proposal to remove borderline cases from the scope of legal aid, and I have obtained permission to replicate that part of my article on my blog. What is set out below is a condensed version of the article, a full copy of which can be obtained by approaching Jordans Publishing direct.

Over the years I have been involved in legal aid practice, I have frequently had to adapt to the changes, cuts and withdrawals of various services for clients and providers alike. I have acted and continue to act for elderly clients with cognitive impairment who have been deprived of their liberty in a care home contrary to their wishes, and for family members of dementia sufferers who are trying desperately to uphold the welfare wishes of their loved ones in the face of risk averse and protective public authority decision makers.

The purpose of the paper was to discuss the impacts of the proposals set out in the Consultation Paper  Transforming legal aid: delivering a more credible and efficient system’ (Ministry of Justice, April 2013), which included proposals to cut civil legal aid that in my view will fundamentally change access to legal representation in welfare proceedings in the Court of Protection. In turn, this will result in restricting access to justice in some of the most complex and significant issues concerning vulnerable and elderly people.

Information about the types of disputes that the Court of Protection hears can be found elsewhere in this blog and on the Elderly Care and Court of Protection. The current process for obtaining Legal Aid for disputed welfare applications in the Court of Protection (excluding applications in relation to the Deprivation of Liberty Safeguards (DOLS) brought under s.21A Mental Capacity Act 2005 (MCA), for which there is no means assessment), is summarised below and in more detail in the paper.

In order to benefit from legal representation funded by Legal Aid within contested welfare proceedings, the circumstances of the matter in dispute had to concern an individual’s life; liberty; physical safety; medical treatment; capacity to marry or to enter into a civil partnership; capacity to enter into sexual relations; or right to family life. In addition the court must have ordered or was likely to order an oral hearing at which it was necessary for the applicant for funding to be legally represented. Given the nature of the disputes often before the Court of Protection, obtaining funding on merits is not particularly onerous.

Funding for Court of Protection matters was barely affected by the recent changes to public funding brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) but there are some key changes that would be brought about if the proposals set out in the consultation document were to come into effect.

The Importance of accessing Legal Representation

This section appears slightly differently in the article, but it is important to understand the importance of legal representation in particularly complex matters. This leads on to the point I make below about the importance of funding being available for what initially may be viewed as ‘borderline’ cases.

When a public authority is involved in a Court of Protection case, experienced and prominent counsel will be instructed to advise and represent the relevant department throughout the proceedings, preparing information in a way the court can access quickly and efficiently, and providing their client department with expert advice in a timely fashion. Usually, a social worker can access legal advice and representation from their Local Authority legal department without the financial concerns a lay person will experience.

Section 4 MCA 2005 sets out that, when determining what is in the best interests of someone who lacks capacity to make the decision themselves, the decision maker (including a Judge of the Court of Protection) must consider all relevant circumstances and must take into account the views of anyone engaged in caring for the person or interested in his welfare and where possible, consult them as part of the best interests analysis.

Some carers or family members find it difficult to express exactly what they need to tell the court. Some are too scared or feel threatened by the process, with the result that their views are not put to the court in a way it can properly consider. Some may become defensive or too difficult for a public authority opponent to work with – having access to expert legal advice can assist to smooth the path greatly.

A similar point can be made in respect of ‘P’ (the person that the court is concerned with) as section 4 also requires the decision maker to take into account P’s past and present wishes and feelings. On occasion the court will want to hear from P him/herself or through a litigation friend if P lacks litigation capacity. If that litigation friend wants P to benefit from legal representation, which is often the case when the Official Solicitor is invited to act in that capacity, the same process for obtaining legal aid needs to be undertaken.

The point I make is this – in complex proceedings, individuals need to be represented by experienced lawyers who can assist them in providing the court with information that may be fundamental to making a best interests decision that is in accordance with the provisions of MCA 2005. A separate point is that legal representation is often required to ensure that there is equality of arms between the parties.

The first question relevant to my type of work concerns the ‘Residence Test’. I will discuss this in another separate blog post at another time, as it may be relevant to an appeal that has been sought in the recent case concerning ‘habitual residence’, Re PO.

Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having “borderline” prospects of success? Please give reasons.

This paragraph appears exactly as it does in the original article

Under the Access to Justice Act 1999 (A2J) and LASPO, in order for an applicant to benefit from civil Legal Aid their case must satisfy the merits criteria. Where legal representation is required, this includes looking at the likely costs of the case, the prospects of success and the outcome sought by the applicant for funding.

Under both A2J and LASPO, in order to benefit from Legal Aid the applicant’s solicitor will need to give an estimate of the prospects of successfully achieving the outcome the client wants – by indicating whether the prospects are very good (80%), good (60-80%), moderate (50-60%); borderline or poor.  Where the prospects are moderate or poor, the solicitor must provide an explanation as to why funding should be granted.

In the normal course, funding is generally only available for cases that are assessed as having moderate to very good prospects of success. However, when the matter is of ‘overwhelming importance’ to the applicant, or the case is of ‘significant wider public interest’, the requirement is to have at least borderline prospects of achieving the outcome desired by the applicant.

The Civil Legal Aid (Merits Criteria) Regulations 2013 established under LASPO maintain the merits and prospects of success criterion and again, if the case is of significant wider public interest or is of overwhelming importance to the individual it only has to have borderline prospects of success. 

Court of Protection cases more often than not involve circumstances which are of overwhelming importance to the applicant and often bring into question ECHR rights. The terms of the Funding Code under A2J recognised this by ensuring that cases could be funded even where the evidence available at the point of making an application for funding was more supportive of restrictive decision making, usually contrary to what P and/or family members are seeking. In these types of cases it would be difficult to say that a case had moderate, or very good chances of success, due to the weight of the evidence available at the time. This is most evident in DOLS challenges made pursuant to Section 21A MCA 2005. Although the application for funding should include representations that the applicant has some relevant argument to pursue against the authorisation depriving them of their liberty, a fundamental human right is at stake and in my experience this is the primary issue in obtaining funding, even if there are only borderline prospects of success at the time of the application.

In cases where a fundamental human right is not engaged, one has to be slightly more persuasive in arguing that a case has more than borderline prospects of success. In some cases, it is sometimes difficult to see any prospects at all when you have only seen the evidence submitted on behalf of the opponent, more often than not a public authority.

As an adviser I am frequently presented with vast amounts of ‘evidence’ of safeguarding concerns that portray a family member or members as being abusers or culpable of neglect.  Experience has taught me such information cannot always be taken at face value. Public bodies are very able to put together large bundles of documents to discredit a particular carer, who would find it difficult to dispute what is said due to lack of time (normally due to their caring role) or lack of understanding as to how to go about addressing the allegations. Once legal aid has been granted and further evidence requested, analysed and checked against what was originally relied upon by an Authority, the picture is not always as bleak.  One example is a case where until recently an elderly gentleman was the sole carer for his wife who has had a dementing illness for over 25 years. Following a visit by an official from a public authority, notes were entered into the client’s record that, in the view of the family, put a negative spin on an otherwise positive (if not challenging) set of circumstances over the previous 5 years.  These notes resulted in concerns being raised amongst other professionals who otherwise had very little knowledge of the family or the history, causing enormous tension and mistrust of the husband’s ability to care appropriately for his wife. Had I not intervened, this less than accurate picture may have resulted in an elderly lady who wanted to live at home and be cared for by her husband being inappropriately placed into a care home.

When acting for an individual through a litigation friend, instructions can come from the Official Solicitor (the ‘OS’ – litigation friend of last resort) often very shortly before a hearing. A lawyer will have a very limited amount of time to consider the papers and make an application for funding in the normal way. More frequently, applications to the Court of Protection are made by public authorities seeking confirmation that its agents have made, or intend to make the correct and lawful decision in the best interests of an individual who lacks capacity. In these circumstances, the initial evidence is often presented in such a way to suggest the public authority’s decision is the ONLY legitimate option. Again, on further investigation, this is not always the case. Sadly this cannot be confirmed without some form of funding in place due to the huge amount of work involved. In these circumstances, where the merits look pretty bleak, assessing a case as having borderline prospects of success is the only way forward.

Without the ability to obtain public funding for borderline cases in Court of Protection matters, many individuals will be denied the benefit of having evidence against them properly tested and investigated. Judges may have no option but to simply ‘rubber stamp’ decisions made by public authorities that are based on incorrect interpretation of limited evidence. Judges will no doubt retain the integrity and fairness that is instilled within them and look at the evidence critically, but the court cannot itself seek specific evidence (other than directing reports and statements to be filed).  This is a risk that should not be taken.

The purpose of the proposals is to save costs to the Legal Aid bill. I suggest that removing Legal Aid for borderline cases in circumstances where the issue is of overwhelming importance to the individual concerned will not achieve this aim. Furthermore, the resulting pressure placed on other public budgets will increase. Family members who are not able to obtain funding for legal representation will often wish to pursue their case in any event as the outcome is so important to them and their loved one. In cases to determine whether an elderly person must be transferred to, or remain in a care home, some clients say the outcome sought is the difference between life or death. In my experience, individuals pursuing a case as litigants in person will be at increased cost to the public authority opponent and increase the strain on court time. The public authority will also have the ability to instruct the most expert counsel in Court of Protection proceedings, leading to the system becoming unfair and weighted heavily in favour of the public authority.

Post 27 January 2014, we shall hold our breath and wait and see what happens to those clients who may now not benefit from legal representation on the basis of the evidence stacked against them.

The final question that I responded to was Q33: Do you agree with the proposal that fees paid to experts should be reduced by 20%? I said no and argued that this would drive the effective experts away from providing reports. This would in turn result in poorer standards of reports, potentially leading to increased costs in arguing against the findings and a risk of the wrong decision being made on behalf of a vulnerable adult.

Where next?

‘The cuts may not have yet hit welfare disputes in the Court of Protection head on, whether under LASPO or in the current proposals, but if they are implemented, the proposals will make obtaining the right advice and the best evidence to uphold fundamental rights and choices even more difficult than it is already.’ This is from the original paper. Sadly, as we now know, the proposals are already starting to take effect. We await the publication of the response in the next couple of weeks. I have a feeling I might be re-visiting the other points raised in the original paper again.

 

Providers to be paid for Judicial Review claims where permission is granted by the Court

Posted on: June 4th, 2013 by Jess Flanagan

 Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.

Judicial review is a loegal process where the High Court is asked to consider a decision made by a public body in order to ascertain whether or not that decision was lawful and in accordance with the law. If it is not, the court will compel the public authority to make that decision again, following legal and proper processes. The purpose of Judicial Review is to ensure that when a public body is carrying out public functions it discharges its legal duties, does not abuse, misuse or exceed  powers and avoid breaching articles of the European Convention on Human Rights. Proceedings are often complex and concern decisions affecting the most vulnerable within our society.

The proposal set out above risks forcing specialist providers out of providing advice and assistance. This will in turn reduce access to justice for some of the most vulnerable within our society.

If providers are not willing, or able to take the risk of taking an application through to the permission stage, they may not be able to continue with this type of work, with the result being that which is set out above, in addition the amount of decisions of challenges to public authorities will be reduced. Some may say that this is a happy consequence for the Government – but it undermines one of the fundamental principles of a democracy governed by the rule of law – the ability of every citizen to hold public officials to account, not just on paper, but in reality.

Judicial Review allows individuals and organisations the chance to challenge poor decisions by public officials, ensuring they are accountable through independent scrutiny by the courts. If the risk of JR is dissipated, there is a risk that public authorities will not continually check and reassure themselves that decision making is lawful.

I have lost count of the number of letters I have written to public authorities (or even just brief emails) setting out a concern with a particular decision they have made impacting on a vulnerable adults life. The majority of these result in the legal team looking at the case and advising their client department to act lawfully and thus helping stop a misuse or abuse of power.

This type of resolution is not uncommon within the realms of public law and one of the reasons ‘legal help’ is so effective. But there are times when the matter doesn’t come under the radar of the busy legal team until much later in the process (at letter before action stage) or, sadly, times when the authority legal team will be supportive of the decision making public authority and rather than advising their client public authority client to change the decision prior to the matter reaching permission stage, that lawyer will push on and ignore all attempts to settle. I am aware that they will often resist JR claims up to the permission stage. If the proposal goes through, it gives even more incentive to the public authority to resist up to the permission stage because they may not get challenged and could get away with making that particular decision. The public authority has nothing to lose – they get their legal fees paid regardless and there will be an inequality of arms if the matter does go to court, because the authority knows that it can re-coup its costs of paying expensive counsel.

Payment is found from the same public purse that funds the providers who are trying desperately to manage the expectations of an often vulnerable and scared individual, who is being presented with an extremely complex issue to provide instructions upon. I say that they are often vulnerable because they are the people who are touched by public authorities most commonly, because they reach out to be protected by the state as they have no where else to turn.

Judicial Review of public law breaches is a good way of pursuing and challenging alleged breaches of European Convention Rights. Forcing more providers away from doing this work will reduce the ability for individuals to effectively access an independent court, which is one of the most fundamental of human rights.

With fewer lawyers taking the risk of pursuing cases on behalf of clients, there will be less choice and more and more litigants in person will be forced through the court system, the High Court, no less. There may be an increase in vexatious litigants and court staff will be bombarded with potentially inadmissible evidence and difficulties in explaining complex procedure to non lawyers. Members of the legal profession undergo training to be able to provide advice and explain complex issues to clients in a way in which they will understand them. Court staff are not allowed to give advice. Increased Court and Judge time will be spent in guiding litigants in person through the system.

The proposals will not stop Judicial Review cases being brought – it will just shift the real onus of managing cases from legally qualified representatives to the Judges and court staff. Litigants in person will still bring cases, especially prisoners who have all the time in the world to bring Judicial Review proceedings regardless of merit. At least with the current system there is a filter. The provider does already risk a degree of non payment on assessment of his bill already and therefore is attuned to justifying work done and cases they intend to bring.

To put a greater financial risk on to the provider is to risk creating a system where the solicitor becomes Judge and the public authority is not held to account. The current system is difficult enough and to place even more pressure on a lawyer (who is already facing severe pressures from simply being a lawyer, let alone a legal aid lawyer) will undermine the rule of law.

In terms of the statistics provided in the consultation paper, I have considered the response to the consultation from Housing Law Practitioners Association and agree with its analysis of the numbers.