Transcript FUNDING AND PROVISION OF SERVICES

FUNDING AND PROVISION OF
LEGAL SERVICES
Access to Justice…
 When faced with a legal problem, most people will need expert help from
legally trained personnel
 Where a person cannot get the help they need they are being denied
Access to Justice
 For the ordinary person seeking legal assistance there are 3 main problems:
1.
Lack of knowledge – many people do not know who their local solicitor is or what they
specialise in
2.
Fear of dealing with lawyers – lots of people feel intimidated
3.
Cost – solicitors charge for work done per hour – can be £100-£150 per hour for routine
work or something in the region of £750 for specialist advice from a top city firm
 Access to justice involves both an open system of justice and also being able
to fund the costs of a case
 There have been various schemes aimed at making the law accessible to all
 E.g. Citizens Advice Bureau – stared in 1938 and provides free legal advice in most towns
and cities
 Problem of cost is still the major hurdle for most people – civil cases in the
High Court can routinely run into thousands of pounds
 Additional risk in civil case the loser pays all costs
 In criminal cases, a person’s liberty may be at stake and it is essential they
should be able to defend themselves properly
 For these reasons the Government has run various schemes to help those in
lower income brackets, fund their cases and thus improve their Access to
Justice
 First scheme was started in 1949 - around the same time as the
establishment of the NHS and “Welfare State”
 The schemes have been altered many times over the years and the current
system was implemented in 2000
 In December 2004 Review of the Regulatory Framework for Legal Services in
England and Wales was published which led to widespread reforms in ideas
regarding funding both civil and criminal cases
The Legal Services Commission (LSC)
 This was the body set up by Access to Justice Act 1999
 It is responsible for identifying the needs and priorities of funding and
developing the delivery of legal services in accordance with those needs
 In civil cases it is responsible for managing the Community Legal Service
Fund
 This provides legal funding in suitable civil cases
 In respect of criminal cases it is responsible for managing the Criminal
Defence Service
 This provides legal funding in suitable criminal cases
 The LSC will make contracts with the providers of legal services so that they
can do work for individuals and then get paid by the Government
 Providers can include solicitors and not-for-profit organisations (NFPs) such
as the Citizens Advice Bureau
Problems with LSC
 In March 2010, House of Commons Committee of Public Accounts criticised
the LSC because of its financial management because they became
‘…bloated and inefficient…’
 There are currently wide-sweeping reforms of the ‘Legal-Aid’ system with
the Government looking to wipe £350m off their £2 billion annual bill
 Wide ranging protests over these cuts as they are seen to be denying
ordinary people Access to Justice
Funding in civil cases…
The Community Legal Service

CLS is responsible for the funding of civil cases. Uses the money from Community Legal Services
Fund for these cases

It provides services for civil matters in the following ways:

1.
Legal Help – covers advice but does not include issuing or conducting court proceedings
2.
Help at Court – allows advice and advocacy at court or tribunal, although without formally acting as legal representative
in the proceedings
3.
Legal Representation – covers all aspects of a case including starting or defending court proceedings and any advocacy
needed in the case
4.
Support funding – allows partial funding of cases which are otherwise been paid for privately, such as a very high cost
case under a Conditional Fee Agreement
In order to qualify for these services the applicant has to show that their income and assets are
below a certain level
Community Legal Service Fund
 When the Government budget is drawn up, a set amount is given for
helping people fund legal cases
 Total amount of legal aid budget is over £2 billion
 Most is spent on criminal cases but some does go to the Community Legal
Service
 Problems:
 There is a limit on the amount given by the budget and when this runs out there is no
more money
 Criminal cases take priority on funding and so there may not be enough left for civil cases
which under normal circumstances would merit the funding
Financial limits on funding…
 Someone applying to use one of the services provided by the CLS must show
that they do not have enough money to pay for their own lawyer
 In order to decide if the applicant is poor enough to qualify for government
funded help, their income and capital are considered
 People receiving Income Support or Job Seekers’ Allowance automatically
qualify
 If a person’s gross (pre-tax) income is above £2,657 per month (2010-11),
they do not qualify for any of the schemes provided by the CLS
 If person’s gross income is below £2,657 per month, their disposable
income has to be calculated by taking away:
 Tax and National Insurance
 Housing Costs
 Childcare/child maintenance costs
 An allowance for them and each dependant
 If the amount left over is below a certain amount (£316 in 2010-11), the
applicant does not have to pay anything towards their funding
 However, if the amount left over is above a maximum level (£733 in 201011), the applicant will not qualify for any of the schemes
 Where the income is between the two levels, the applicant will receive
some funding but will also have to pay a contribution on a sliding scale
Disposable capital…
 This is the capital assets of the person e.g. money in a savings account,
stocks and shares, expensive jewellery etc
 In order to qualify for legal funding there can be a maximum limit for
disposable capital of £8,000 – if over this amount they must use their own
money to fund a legal case
 However, once their capital falls below £8,000 they become eligible for legal
funding
Types of funding…
Advice
 Advice in civil cases is one of the first things that people want when they
have a problem
 CLS provides various services to try and make sure that advice is easily
available
 CLS Direct is a telephone service that receives nearly a million calls every
year
 www.clsdirect.org.uk – allows access to people in remote areas to get
access to advice
 Community Legal Advice Centres – were established in 2006 and are a onestop service providing advice on:
 Debt
 Welfare benefits
 Community care
 Housing
 Employment
 Service Providers – people can also get advice from a solicitor or NFP if they
have a contract with the CLS to give advice under the Legal Help scheme
(this is always subject to the financial limits we just looked at)
Legal representation…
 This is where the CLS pays for the whole of a court case including paying for a
lawyer to represent you in court
 This is available to both claimants and defendants
 In deciding whether a person should receive help with funding, 2 matters are
taken into consideration:

Means test – person must show that the qualify financially for the representation they are
requesting

Merits test – in order to receive funding there must be a realistic prospect of success for the
case being brought and also the cost of bringing the case must not be greater that the likely
award of damages
 There are also general criteria that are considered by the CLS e.g. the
importance of the case
General criteria…
 Other factors that will be considered:
 Availability of money in the CLS fund
 Importance of the case to the individual
 Whether the case can be funded in another way e.g. CFA (no-win no-fee)
 The conduct of the individual
 The public interest
 So, even if someone is poor enough to qualify and has a very good chance of
winning the case, they may still not get funding if there is not enough
money in the Fund or there could be another way of resolving the dispute
Excluded matters…
 Not every type of civil matter can qualify for public funding and certain
types are specifically excluded i.e.:
 Cases of negligence (personal injury - even where very serious injury or death has
occurred (except in cases of medical negligence))
 Conveyancing
 Land disputes
 Wills
 Matters involving trust law
 Most defamation cases
 Company/Partnership law or anything arising from carrying on a business
 Funding is normally available for most other types of cases, whether at the
County Court or the High Court
 Small claims do not attract funding
 Cases involving tribunals do not normally attract funding
 With the current drive by the Government to reduce its legal aid bill,
funding is likely to be cut in more areas
Problems with funding…
 There is evidence that there are not enough legal service providers with
contracts with the LSC to provide funded cases

In 2004 the Constitutional Affairs Select Committee highlighted the problem of ‘Advice Deserts’
where there was no availability of providers for people to use, mainly because the rates of pay
were so low it was not economically viable

Northumberland :
No housing law advisers
No contracts for immigration law
Only 2 people dealing with employment law

Highlighted the problem that people had to travel long distances to get access to legal advice
 Problem has actually worsened since 2004 as more solicitors have stopped
doing poorly paid, Government funded work
Problems continued…
 Eligibility levels are also problematic so that even where there are enough
service providers in the area, only a minority of people with very low
incomes can actually access them through the scheme
 Select Committee on Constitutional Affairs said in 2004:
“At present, the legal aid system is increasingly being restricted to those with no means at all.
There is the risk that many people on modest means, but who are home owners, will fall out of
the ambit of legal aid. In many cases this may amount to the a serious denial of access to
justice.”
Problems continued…

The fact that there is a limit on the amount given by the Government in its budget,
means that some cases will not be funded purely because there is no money left for them

Exacerbated in civil cases as criminal cases take priority

Non-availability of funding for certain types of cases is also an issue.

One of the most prevalent areas of law is personal injury but there is no funding and most
cases run through CFAs


These may work OK for people with minor injuries but not necessarily so effective with major
injuries/disability cases as the risk may be too high for the solicitor to consider
Employment law is also an area where the private funding available for the company will
put them at a significant advantage over the employee who cannot afford representation
but does not qualify for Government funded representation either because of the type of
case
Funding in Criminal cases…
 Under the Access to Justice Act 1999 the LSC was required to establish a
Criminal Defence Service (CDS)
 This is aimed at:
“Securing that individuals involved in criminal investigation or proceedings have access to such
advice , assistance and representation as the interests of justice require.”
 The CDS offers the following schemes:
1.
Duty Solicitor Scheme
2.
Advice and assistance
3.
Representation
Advice
Full advice throughout the case
Duty Solicitors…

AJA 1999 states that the LSC shall fund such advice and assistance as it considers appropriate
for individuals who are held in custody at the police station or elsewhere

Main thing this provides is that people held at the police station are provided with free legal advice

This is important to protect the liberty of the individual and originally meant that anyone held
at the police station was eligible to receive free legal advice from the duty solicitor

However, this has been reduced since 2004 meaning that duty solicitor can no longer attend at
the station where client is detained:


For a non-imprisonable offence

On a warrant

In breach of bail conditions

For drink-driving offences
Less serious or fairly straightforward
They can still attend in these circumstances where D is vulnerable or has language difficulties or
where there is a complaint of serious maltreatment by the police
 The vast majority of advice under the duty solicitor scheme is now given by
solicitors over the phone to the defendant
 Since 2004, solicitors cannot claim for actually attending at the station
unless they can show that attendance was expected to ‘materially progress
the case’
Advice and Assistance…
 This can be given by solicitors who have a contract with the LSC to do
criminal legal aid work
 It is however limited to just one hour’s work – normally just advice but can
be representation if a full representation order has been refused
 There is usually a means test for advice and assistance and only those on
low incomes will qualify
 The exception to this however is the duty solicitor at the Magistrates’ Court
who can still see all defendants in custody under the advice and assistance
scheme
 This is free to everyone in custody
 Protects Human Rights (Arts 5 and 6)
Representation…
 In order to get full representation, D has to qualify under the interests of justice
test
 Will also be subject to means tests in certain circumstances
Interests of Justice
 D will only get help with legal funding for representation in court if he can show
that he comes within at least 1 of 5 factors deemed to be in the interests of
justice:
1.
Likely to lose liberty, livelihood or suffer serious damage to reputation if found guilty
2.
Case will involve a consideration of a point of law
3.
Individual is unable to understand the proceedings in court or to state his own case
4.
Case may involve tracing, interviewing or the expert cross-examination of witnesses
5.
It is in the interests of another person that D is represented (e.g. a rape case)
Means testing at the Magistrates’ Court…
 In addition to the IOJ test, those tried at Magistrates’ Court must satisfy a means
test
 Certain groups automatically qualify:

Those on income support

Under the age of 16 or under 18 and in full time education
 For everyone else there is a simple means test - less than £12,475 annual gross
income, they are eligible for funding
 If more than that but less than £22,325 – they are subject to a full means test
which looks at disposable income and family circumstances (sliding scale of
contributions)
 Over £22,325 – fail the means test and not eligible
 With the bar being set so low for eligibility criteria, over 75% of people at
the Magistrates’ Court do not qualify for any level of funding even if they
pass the IOJ test
Crown Court means testing…
 Gradually introduced during 2010 – no upper limit on disposable income
though
 Depending on income however, D may have to pay contributions, which
increase with higher income
 There are maximum amounts set for each type of offence e.g. £6,754 for
burglary, £185,806 for murder
 If D is found not guilty, contributions paid will normally be refunded
Problems with funding of criminal cases…
 Interests of Justice test is applied very strictly
 Even where D is charged with an offence for which prison sentence can be given it does
not necessarily mean that he will pass the IOJ test
 There must be a real risk of imprisonment
 This can mean that someone with multiple previous convictions may qualify under the IOJ
for the same type of offence as someone with no previous convictions who may not and
therefore may have to pay for private representation or represent themselves
 Means test is also very strict
 The levels of income allowed are very low
 Fixed fees for solicitors are meaning that fewer solicitors are taking on Governmentfunded work
 The Budget given by the Government for legal funding has nor risen in line
with inflation meaning that the LSC has less money to allocate for funding