Amended exceptional case funding guidance

Amended Guidance on exceptional legal aid (s10 LASPO) has been published here.

The revised guidance requires case workers to approach the assessment of each case on an open-minded basis, with no presumption about the proportion of applications that are likely to succeed. The basic test set out by the Court of Appeal in R (Gudanaviciene and others) v Director of Legal casework and the Lord Chancellor [2014] EWCA Civ 1622 features prominently and case workers are reminded at several points that:

“The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness”

Particular factors to be weighed in the balance are:
• How important are the issues at stake?
• How complex are the procedure, the area of law or evidence in question?
• How capable is the applicant of presenting their case effectively?

It will be interesting to see if and when this translates into a shift in the statistics on grants of exceptional case funding in family cases.

More LASPO Gloom

An Ad Hoc Statistical release by the MoJ that doesn’t mention fat cats…. (h/t @LAWrixon)

This one is about LASPO s10 exceptional funding applications.

Because we like to “add value” (barf) here at PT, I can share the following depressing nuggets with you :

I calculate that for the period April – December 2013 ….

  • Only 3% of applications were successful.
  • 54% of all s10 applications were for family cases.
  • 0.69% of all the applications granted were family – disproportionately low.
  • Family applications had a success rate of 1.29% (the overall success rate of 3% is skewed by a high 15% success rate for inquests with every other category faring far worse. Immigration had a success rate of 1.6% for example.
  • 5.38% of applications were made by individuals without the assistance of a solicitor. Of the 62 such applications, all were rejected or refused, bar one which was withdrawn and one which received a “positive preliminary assessment”. I call that a success rate of NIL. The Guidance suggests that the process is sufficiently straightforward to enable litigants to complete these applications without the assistance of a solicitor but the figures do not bear this out – individuals are not applying in great numbers, and when they do they are FAILING. Given these figures – why would solicitors put in the work? They are almost bound to fail.
  • 14.5% of the applications made by individuals were family applications. They all failed, bar the positive preliminary assessment.

The statistical release says of family applications, predominantly private law children (on page 4) “The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.” Whilst I recognise that s10 is by definition meant to be an exceptional provision, I’m not sure that I think that is a satisfactory gloss or even a precis of s10 and the relevant regulations and guidance. I think it sets the test too high, as is rather borne out by the figures.

FOI about LIPs from MOJ is FFS and OMG then AAK

I recently received a response to my Freedom of Information Request to the Ministry of Justice concerning private family cases and litigants in person. It’s a little impenetrable, so to help break through to what it means I’m going to run through it. First, read the response here.

The information comes from the HMCS FamilyMan database, the software so maligned by the Norgrove Review. It is clear that in some respects the data is unreliable, the most obvious example being the numbers of private law children cases with guardian appointments, which are very obviously too low (260 out of 45020 cases) and is likely to be simply because court staff do not consistently update the case records when an appointment is made.

So what I’ve been given is a set of tables.

Table 1 (actually comprised of two tables) shows Private law Children Act cases still outstanding in Family Proceedings Courts, as at 30th June 2011. The first shows “Applicant Representation”, the second “Respondent Representation”. Table 2 is the same date for the County Court, Table 3 for the High Court.

It’s unclear what duplication of data there is between the Applicant and Respondent tables, or whether the parties in cases involving cross applications are each counted in both tables as applicant and respondent. It is difficult to guess what proportion of “applicants” are applicants for contact (probably majority fathers), applicants for residence (probably reasonably evenly split) or applicants for other orders or combinations of orders. And any single party may be both applicant (say for contact) and respondent (say to a residence application). As a consequence it’s difficult to draw much from the fact that respondents are far less likely to be represented than applicants in all tiers of court (broadly speaking around 20% of Applicants are unrepresented and around 40% of Respondents are unrepresented in all tiers – based on the “none” figures). One could hypothesise that those who are initiating proceedings are far more likely to have organised themselves and actively sought advice and assistance prior to issue, or that a high proportion of those who are applicants do so because of intransigent and inflexible exes who may be less inclined to seek or follow advice – but we don’t even know when the data for representation is gathered (at issue?) or if it is maintained and updated as cases progress, lawyers are sacked and clients run out of funds for representation. Frankly, who knows?

But the interesting information one can glean from these tables is this: there is a column for mean length of case and median length of case. In all levels of court, for both Respondents and Applicants and regardless of who is or is not represented the median length of case is significantly less than the mean length of case. If my rudimentary grasp of mathematics does not fail me this is an indicator that there is likely to be a tail end of a few MAHUSIVELY long cases which are skewing the mean and pushing it up. I think this is significant. By way of an example the mean case duration in the FPC is 39 weeks, but the median is only 30. That’s almost 25% shorter.

The other trend that shows clearly across all these tables is that the cases where all applicants or all respondents are represented take longer to complete than those where there are no lawyers. Again, it’s difficult to draw much from this: it doesn’t mean lawyers make cases longer. It is more likely to reflect the fact that more lawyers are more likely to be involved in the more complex cases. What we aren’t able to say is how long the cases involving lawyers would have taken if the lawyers had not been involved OR what the quality of outcome would have been without them. It could reflect the fact that those who are unable to secure representation give up or fail to run important arguments, leading to swifter if less just disposal.

Interestingly in the County Court the shortest cases by mean and median are those where all applicants are represented. This class of case makes up by far the biggest single class of cases (27,160 of the 33,830 cases in the County Court and 45,280 in all tiers combined). Where all applicants are represented in the County Court the median case duration is 40 weeks, compared to 51 and 44 for “some applicants represented” and “none” respectively. This median should be compared with a whopping 62 week mean duration for cases where all applicants are represented, again suggesting there are a few intractable cases skewing the mean.

By contrast, where all Respondents are represented in the County Court cases take longer. Durations in the respondents table are lowest where some respondents are represented. This probably mainly reflects guardian cases, where child respondents are represented, and may be a reflection of the fact that a Guardian’s involvement can help to identify issues and to bring matters to a head with recommendation and a proactive child focussed push for resolution.

Putting all of this in perspective the total numbers of private law children cases are vast (45,280) compared with public law cases (13,700 in all tiers), notwithstanding the interminable rise in care issue rates. Whilst FPCs are carrying out (roughly) 1/3 care 2/3 private law, only around 20% of county court children work is care (by case volume not necessarily workload, resource or duration).

Unfortunately the response did not give any information about case durations in ancillary relief cases, nor was any explanation for this offered.

So, in summary, what does this tell us? Well, it isn’t very meaningful without other data and explanation, a point that David Norgrove has rightly made. How can either HMCTS, the judiciary or the Government understand the reasons why some cases take longer, absorb more resource, unless it understands the dynamics, the roles, what works and what doesn’t work? It needs the management data and proper analysis to do that. The Government doesn’t have the data to back up the proposals in LASPO, or to properly assess the impact of it on either access to justice, case volume, case duration or overall cost efficiency, because neither HMCTS nor anyone else is gathering it. It’s clear from a fairly basic analysis of the data that is available that the issues are complex and that it is not easy to evidence a hypothesis that a reduction in the number of lawyers will result in a reduction in average case duration. It is even harder to evidence the proposition that such a fundamental shift in how the system operates can be achieved without damage to access to justice. When listening to Ministers spout about LASPO and about lawyers (fat cats advancing behind a wall of women and children etc etc) lawyers are inevitably cast as part of the problem not the solution. They may indeed be on occasion part of the problem. But we really do need to turn the dialogue on it’s head: lawyers are part of the personnel that the Family Justice System relies upon in order to achieve the throughput of cases that it does. At the moment there is at least one lawyer working on the majority of cases. The LASPO proposals will, through decimation of legal aid in family (and other) cases, make massive cuts to the personnel available to service cases, leaving the already depleted and demoralised HMCTS staff (and the judiciary) to pick up the slack. There isn’t any slack in the system.