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LEGAL AID AND JUDICIAL REVIEW CHANGES PROPOSED BY THE GOVERNMENT

LEGAL AID AND JUDICIAL REVIEW CHANGES PROPOSED BY THE GOVERNMENT. Alex Rook Partner, Public Law Department Irwin Mitchell LLP. Summary. 1. What is judicial review? 2. What steps are being taken by the government to limit judicial review? 3. What is legal aid?

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LEGAL AID AND JUDICIAL REVIEW CHANGES PROPOSED BY THE GOVERNMENT

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  1. LEGAL AID AND JUDICIAL REVIEW CHANGES PROPOSED BY THE GOVERNMENT Alex RookPartner, Public Law DepartmentIrwin Mitchell LLP

  2. Summary 1. What is judicial review? 2. What steps are being taken by the government to limit judicial review? 3. What is legal aid? 4. What steps are being taken by the government to limit legal aid?

  3. Background The Coalition Government has introduced wide-ranging reforms to both legal aid and judicial review since it was elected in 2010 and even more are underway. The government has mainly sought to justify these reforms on the basis that public spending on legal aid must be reduced in a time of austerity. These reforms have a significant impact on access to justice, including for disabled people. However, legal aid is still available for some areas of law and disabled people can still enforce their legal rights through the court.

  4. 1. What is judicial review? • Judicial review is the legal process by which individuals can challenge a decision made by a public body. Judicial review is therefore a powerful tool by which individuals can hold the state to account. • Victory will lead to the decision being overturned, and often negotiations during litigation may get a result that the clients want. • Examples of judicial review proceedings: • Individual assessment or care package challenges • Policy challenges that affect larger numbers of people

  5. a) Assessment / care package challenges The lawful assessment process: • The Supreme Court has confirmed in R (KM) v Cambridgeshire County Council [2012] UKSC 23, the lawful process that a local authority in England should follow when undertaking a community care assessment of an adult who may be in need of services. The assessment should be made up of the following four stages: • 1. Conduct an assessment to establish the needs of the disabled person. The assessment should be conducted without taking into account the resources of the authority or the disabled person.

  6. a) Assessment / care package challenges • 2. The local authority then decides if it is necessary to provide services in order to meet those needs. As an example, if the need is being met by a family member, then it may not be ‘necessary’ for the authority to meet that need (though the family member themselves may be entitled to support as a carer).   A local authority must also assess each need as being either low, moderate, substantial or critical. It will then have its own policy as to which of those needs it will meet, for example any need assessed as substantial or critical. Any needs which are unmet as they fall outside the policy must nevertheless be recorded on the assessment, and referrals should be made to general services which are available to anyone within the local authority area.

  7. a) Assessment / care package challenges • 3. If the need is assessed as being within the policy and so it is necessary for the authority to provide a service, it must then decide the nature and extent of those services. The authority is entitled to deliver the service in the most cost-efficient way possible, but only so long as the need is still being met. So for example, someone may have a need for assistance with washing and dressing themselves. The need is assessed as substantial and falls within the Council’s policy. A local authority can find a cost-effective way of meeting the need, but must provide the necessary services to ensure that the person is washed and dressed, and a lack of Council resources is not an acceptable reason for failing to meet the need.

  8. a) Assessment / care package challenges • 4. The individual then has the choice as to whether or not they wish to receive a direct payment (a cash sum) rather than the service directly so that they can commission the service themselves. If they want to receive a direct payment, the authority will then need to establish the reasonable cost of securing the provision of those services. • A ‘Resource Allocation System’ may be used by the Council to establish an approximate amount, but the services which are required to meet the eligible needs in the particular case should be costed in sufficient detail so that it is clear that the sum of money is enough to meet the assessed need. • This may mean in the above example 1 hour support 7 mornings per week , paid at £12 per hour, and so a direct payment is made for £84 per week (7 x 12). In more complex cases a more detailed explanation by the local authority of why the sum offered is reasonably sufficient to meet the eligible needs may be required.

  9. a) Assessment / care package challenges Look out for: • Failures to carry out assessments – low threshold for triggering assessment. • Failures to produce lawful assessments and care plans: look out for care plans where provision is not quantified or the timescales for carrying out assessments are not met. • Failure to make provision: look out for instances where the local authority and/or the PCT are not making provision in line with their own assessment. • Reductions in provision: Has the local authority/PCT formally reassessed before reducing provision? On what basis do they feel the need of the individual/carer has decreased?

  10. b) Policy challenges For example: • Council tax case • Bedroom tax cases • Isle of Wight case • Hillingdon day centres case

  11. How to bring a challenge • National charities – help families understand their rights/the law and push cases forward at the right time • Parent / local groups – hopefully understand the basics and use it in your local lobbying • Consider a complaint if time is not a factor - perhaps in tandem with making initial enquiries but don’t delay!At the end of the complaints process if still dissatisfied clients can go to the Ombudsman. • If you have reached the end of this process and are still dissatisfied with, for example, an ongoing failure, or if this is an urgent matter, Judicial Review is the ‘remedy of last resort’. This is particularly relevant if the lack of care presents an immediate risk to the individual’s health and well being.

  12. How to bring a challenge • Identify decision: What? Who? When? NB Time limits 3 months. • Find document recording decision: letter / minutes / tribunal decision. • Final decision? All rights of appeal / review exhausted? • Is there an urgent need for remedy? • Grounds broadly limited to • acting outside or beyond powers given (ultra vires) • acting irrationally or perversely • procedural impropriety

  13. Who is the Claimant? • Who can advocate and support bringing the challenge? • An individual claimant (via a litigation friend) or a family member • An organisation in its own name • Somebody with no connection to the case but where subject matter is of wider interest to the organisation which decides to “intervene”.

  14. Individual claimants • Legal Aid certificate for affected individuals whose means qualify. If a child, the means are the child's if need to bring the matter before the court, but could be the parents/carers for initial investigations • Gives valuable protection against an adverse costs order if some part of whole of the action is lost • But may be subject to a financial contribution from “community” where there are ‘other persons or bodies who might benefit from the proceedings and can reasonably be expected to fund the case’ • Family member can bring the action on behalf of the claimant (who may themselves qualify for legal aid • Conditional Fee Arrangements? Rare but possible, and discounted and blended fees used

  15. 2. What steps are being taken by the Government to limit judicial review? • In a speech to the Confederation of British Industry on 18 November 2012, David Cameron called judicial review a "massive growth industry" and many judicial review applications "completely pointless". • Chris Grayling, Lord Chancellor and Secretary of State for Justice, criticised judicial review in a Ministry of Justice press release on 19 November 2012 by lamenting the "burdens that ill-conceived cases are placing on stretched public services". 

  16. 2. What steps are being taken by the Government to limit judicial review? On 6 September 2013, the Government announced in the most recent consultation called “Judicial Review: proposals for further reform”. It included the following proposals: Legal aid will only be paid for the work carried out in judicial review cases if the High Court grants permission for the case to proceed beyond the first stage. This means that solicitors (and barristers) will bear the financial risk of not being paid for substantial work in judicial review cases. 

  17. 2. What steps are being taken by the Government to limit judicial review? • Changes to the rules on “standing” to make it harder for campaign groups using judicial review as a means of challenging Government policy; • Changes to the rules in judicial review cases challenging “procedural impropriety” by a public body; • Exploring alternative ways to resolve disputes regarding public sector equality duties other than by way of judicial review; and The consultation closed on 1 November 2013.

  18. 3. What is legal aid? “Legal aid” is publicly funded legal advice and representation provided to people otherwise unable to afford it in England and Wales. The following areas of law fall within the “scope” of legal aid : • Community care; • Debt and housing (where there is a threat of homelessness); • Family (public); • Mental health; • Asylum; • Actions against the police; • Education (special needs) • Discrimination; and • Public law. Judicial review can fall within any of these areas of law.

  19. 3. What is already ‘out of scope’? On 1 April 2013, most matters in the following areas of law were removed from scope under the Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO): • Welfare benefits • Divorce • Other housing (disrepair, landlord and tenant) • Most debt • Consumer law • Employment • Education (non special needs) • Immigration (non detention) • Wills • Personal injury • Clinical negligence (non cerebral palsy)

  20. 3. What is legal aid? A client has to satisfy 2 means tests to qualify for legal aid: • 1) The income test • 2) The capital test

  21. 3. What is legal aid? The income test: • A person receiving a “passported benefit” (Income Support, Income Related Employment and Support Allowance, Income Based Jobseeker's Allowance, Guarantee Credit, Pension Credit, Universal Credit) automatically passes the income test. • A person whose income (combined with their partner’s income) is over £2,657 gross per month, is ineligible for legal aid. • A person whose disposable income is over £733 monthly is ineligible. • A person whose disposable income is over £315 monthly will have to make a contribution.

  22. 3. What is legal aid? The capital test: • A person’s capital includes their home, minus the mortgage up to £100k. The first £100k of equity is disregarded. • Note: pensioner’s disregard. • A person left with more than £8k in capital does not qualify. • A person left with £3-8k will have to make a contribution. • A person left with less than £3k qualifies.

  23. 3. What is legal aid? The case must also pass the “merits test” to qualify for legal aid. This means the solicitor running the case must believe the case has reasonable prospects of success. If a client qualifies for legal aid: • The client will have their costs paid by the LAA and will benefit from costs protection; and • The solicitor has an ongoing duty to the client and the LAA.

  24. 4. What steps are being taken by the Government to limit legal aid? Despite 16,000 (largely negative) responses to its consultation earlier this year, the Government will: • Create a new residence test; • Remove prison law treatment cases from scope; • Remove funding for cases where the prospects of success are borderline; and • Cut fees yet further for lawyers and experts. These reforms will all apply to judicial review cases.

  25. Conclusion Despite all this bad news, remember that: • Legal aid is still available for public law, community care, and discrimination cases; • Legal aid is still available for individuals who satisfy the means tests; and • The fight over reforms to judicial review is not over.

  26. Public Law Department Web : www.irwinmitchell.com/servicesforyou/adminpubliclaw Email: alex.rook@irwinmitchell.com Telephone: 0207 421 3907

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