When justice cannot wait: Duncan Lewis Solicitors challenges the Legal Aid Agency’s rules on backdating of funding

Authors: Jeremy Bloom and Jamie Bell

R (on the application of Duncan Lewis Solicitors) v the Legal Aid Agency and the Lord Chancellor

Duncan Lewis Solicitors have been granted permission in a claim for judicial review to challenge the lawfulness of the Civil Legal Aid (Procedure) Regulations 2012 (‘the Procedure Regulations’) and the interpretation of these regulations by the Legal Aid Agency (LAA). We are reaching out to other lawyers who have been affected by these regulations and we are also seeking contributions to a fighting fund on Crowdjustice (the link to this is at the bottom of this post.)

What is this about?

One example of many that is being put to the court is a case concerning an elderly, suicidal woman facing imminent removal. After a last minute referral by an NGO concerned that she would commit suicide if removed, the woman instructs her solicitors, Duncan Lewis, on a Sunday afternoon to obtain an injunction against her removal the next morning. There is no time to access the court system to challenge her removal. Her solicitors have a choice: they must either choose to accept her instructions, in the knowledge that they will not be paid for the work, or they must refuse to act on the basis that the LAA will not be able to grant funding until the following day at the earliest (by which time it will be too late to take action to prevent their client’s removal).

What are we challenging?

The LAA’s position is that the Procedure Regulations do not allow it to make legal aid payments for work undertaken before the agency grants funding. The effect of this contention is that legal aid providers are not reimbursed for work properly undertaken on an emergency basis before the LAA is able to consider an application and grant funding. Another potential effect is that legal aid providers simply will not carry out this work, as they cannot be reimbursed for it by the LAA.

The LAA’s reading of the Procedure Rules also prevents it from granting funding from the date of an initial application, even in cases where there have been delays in grants of funding, or where negative decisions on the merits of an application have been reconsidered on review or appeal.

A stark choice

Following the judgment of the Court of Appeal in R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286, delays in obtaining legal aid funding will not be accepted as a reason for bringing proceedings out of time. Again, solicitors and barristers have to make a stark choice. Either they take on the work knowing that they will not be paid for it, or they refuse to act on the basis that funding is not in place and in the knowledge that their client’s access to justice will be obstructed as a result. If positive determinations on legal aid applications could be backdated to the date the application was made, this problem too would be solved.  

We are proud to say that we carry out this work despite a significant risk that our urgent and legitimate work will not be covered by the LAA. But this state of affairs is not right and it cannot go on like this. In this litigation we are arguing that the LAA has misunderstood its powers, and that the Procedure Regulations do not prohibit the agency from making legal aid payments prior to the date on which it has made a formal determination.

We do not believe that it was the intention of Parliament to create such an unacceptable obstacle to legal aid funding for those individuals in desperate need of urgent legal representation.

We believe that the regulations, as interpreted, create an unacceptable risk of lawyers having no choice but to refuse urgent cases as they know that they cannot be paid for their urgent work. This results in vulnerable individuals with meritorious claims being restricted access to the courts in their time of need.

We maintain that permitting the backdating of funding is an easy and practical solution to this and we hope that this will be proven in court.

At the oral permission hearing on 19th April, Mr Justice Butcher stated that the prohibition on the backdating of funding presents a prima facie obstacle to the right of access to court, and that there is therefore an arguable case that this prohibition is either due to a misinterpretation of the Procedure Regulations or that the Regulations themselves are ultra vires of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Have you, your firm, or your chambers been affected by the Procedure Regulations?

If you have, we would love to hear from you. Duncan Lewis has permission to seek evidence from other parties who may wish to be joined to the proceedings, to file evidence or to intervene in the case.

Please contact jamieb@duncanlewis.com or jeremyb@duncanlewis.com  as soon as you can. Time is running out for us to apply to the court for other parties to be involved in the claim.

Are you able to contribute to a fighting fund so that this challenge can be brought?

We are bringing this challenge because we believe that the current rules, or their interpretation, are unlawful and the effect that they have on access to justice is extremely worrying. We are committed to covering our own costs in the litigation. If we are not successful, we may also be required to pay the Defendants’ costs. We are therefore seeking contributions to a fighting fund which will be used to pay the costs of the Defendants in the event that we are not successful.

If we cannot raise this fighting fund, we may not be able to bring the challenge at all, as we would have to assume an unacceptable level of risk for the other side’s costs. We will match any sum we are able to raise from others.

If you want to contribute to enable us to bring this challenge, please visit our crowd-funding page here: https://www.crowdjustice.com/case/challenge-legal-aid-regulation/

Image via Flickr-AllenAllen