Changes in Legal Aid for Judicial Review
As if the recent changes to legal aid were not hard enough, the Government has now issued a consultation paper "transforming legal aid? which proposes to make matters even worse for parents and carers who need to take legal action to make sure their child gets the provision to which they are entitled. A copy of the relevant section of the consultation paper is here.
In summary the current plans will have the effect of:
- Stopping lawyers being paid for initial work they do for you, except in unusual circumstances
- Reducing the number of strong cases that lawyers are prepared to take on
- Encouraging local authorities to take unlawful short cuts to save money, safe in the knowledge they are unlikely to be challenged in court
In essence, under the current system, if the local authority is failing in any of its duties to your child or relative - for example by not making the provision set out in their statement of special educational needs or care plan, you can bring a legal action with the benefit of legal aid. This is known as judicial review and is a simple idea although a rather complex process. An application has to be made to the court for permission to bring this, and if the Court considers there is an arguable case you will get permission and can then bring the full action. Legal aid currently covers the legal costs including the fees for barristers and solicitors as well as any costs which may be claimed by the other side if you lose.
In the vast majority of education and care plan cases, it is clear there is a legal duty and a breach, so the cases never even get to the stage of seeking permission as the local authority will put something in place to sort the problem out. In others, even if permission is refused, the local authority will still finally realise there is a problem and put matters right. But all too often people find that they are unable to get proper support unless the local authority realises there is a real risk that legal action will be brought. That is even more common in these times of financial crisis where authorities need to find every possible way of saving money.
Effect of proposals
Under the new proposals, although legal aid will be available, solicitors and barristers will not actually be paid for their work on issuing a claim unless the matter has gone to court and the Court has decided to give permission for the full action to be brought. This has been suggested because the government is concerned that too many claims are being brought. Whatever the reasons for this rise, it has not come about because of a large increase in education or social care cases so it is difficult to see why these should be penalised. After an almost universal objection to this from judges as well as lawyers and campaigning groups, the Government has decided to change the proposal very slightly by allowing the Legal Aid Agency to pay if they decide to in certain exceptional circumstances. Given Government cutbacks, this gives us no security at all and so adds little to the previous proposals.
You may think that the change does not really affect you or your children, only the lawyers. But the basic point is that lawyers cannot afford to take on the cases in any number unless they know they are going to be paid for their time. As the vast majority of our cases settle in favour of the client without the need for the matter to get permission from the court, this would mean that much of our work would be unpaid if we were to continue. Indeed, there will be a perverse incentive to take on cases which are slightly less strong as these are more likely to come before the Court and therefore get legal aid. The only alternative in strong cases would be to refuse to carry out this work under legal aid and instead insist that it all be done on a private basis. Because of this, we have little doubt that local authorities would soon realise that there was little real threat to them if they carry out unlawful cuts in services and will inevitably look differently at their requirements to comply with care plans and statements.
Consultation on this proposal has now reopened and it would be great if people felt able to tell their story and put forward objections. The final date for submitting responses to the consultation is 1st November 2013 and a link to the latest proposals is here: https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/supporting_documents/transforminglegalaidnextsteps.pdf
The sections relating to judicial review are set out in Annex B from paragraph 135 to 156.
If you are able to respond, you can email your views to: LegalAidReformMoJ@justice.gsi.gov.uk
In any event , we urge you to contact your MP, either by writing to them or, even better, seeing them in their surgery to explain your concerns. On the whole the Government has shown that it is prepared to change its mind if proposals have a real impact on children with special needs, but they will only do so if enough of the general public make their feelings heard.
If you are writing to your MP, it is best if you can write in your won words. However, we realise this is a complex area so have produced a draft letter for you to send. This will only need a little bit of amendment to fit your own case, but obviously the more detail you can give about your own family circumstances, the better.