Legal aid lawyers have never had an easy ride, but over the last few years since the introduction of CCMS and LASPO the iniquities and frustrations of working in this sector have grown exponentially.
CCMS and LASPO may still be with us, but following two separate challenges to the operation of the legal aid system, some of the most conspicuously unfair aspects have been eliminated.
One of the most frustrating aspects of working as a legal aid lawyer was that it was often essential to commence work, so as to avert an imminent injustice, before the Legal Aid Agency had completed its assessment and granted a certificate. Although there were some provisions for emergency work, these did not apply in most situations. To add insult to injury, the LAA’s own delays in assessing the paperwork are often the reason that practitioners are forced to bring challenges for judicial review before funding is granted.
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Prior to a judicial review brought by Duncan Lewis, even if the LAA eventually accepted that the matter merited funding, that funding would only cover work going forward. The LAA claimed that it had no power to “backdate” certificates. Duncan Lewis argued that it was an unlawful barrier to justice to refuse to remunerate lawyers where it had been necessary to commence work before a certificate was granted in order to secure access to justice for the client.
Following a grant of permission by the Administrative Court, we reached a compromise on the basis that the Lord Chancellor would introduce a power to backdate a certificate. The government has now produced those Regulations. They will apply to all applications from 20 February 2019.
The conditions under which the Legal Aid Agency now has a discretion to backdate a certificate are:
- That the application for funding must be made as soon as reasonably practicable.
- That it is in the interests of justice for work to be carried out before a decision is received.
- That the Director is satisfied that a decision to backdate is appropriate, having regard to all circumstances.
Duncan Lewis were the Claimant, with Toufique Hossain (Director of Public Law), Jamie Bell (Lead Solicitor) and Jeremy Bloom (Trainee Solicitor) preparing the case. Osbornes Solicitors were an Interested Party. Counsel for the Claimant were Chris Buttler and Eleanor Mitchell at Matrix Chambers. Alison Pickup and Katy Watts at the Public Law Project also assisted in the preparation of the case.
Congratulations to the legal team and many thanks to those who provided evidence in support of the claim: Bindmans, Broudie Jackson Canter, Deighton Pierce Glynn, Legal Aid Practitioners Group, Leigh Day, and the Public Law Project.