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  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.
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 Of the 62 such applications, all were rejected or refused, bar one which was withdrawn and one which received a “positive preliminary assessment”.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.
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? Continue Reading…