LAPSO received Royal Assent on 1 May 2012 and will come into force on 1 April 2013. It will have a large number of wide ranging impacts on both civil law and criminal law proceedings. This e-briefing considers the potential impact it may have on the ability of Registered Provider’s tenants to obtain legal aid.
Part 1 of Schedule 1 to LAPSO sets out a list of specific applications for which legal aid will be available. Unless the application is one specified on that list or is an “exceptional case” an applicant will not be able to obtain legal aid. Previously, under the Access to Justice Act 1999, applicants would be eligible for funding for any matter that was not specifically excluded.
The change from being prevented legal aid only if the application was ‘not specifically excluded’ to being prevented unless the application ‘is specifically listed’ has resulted in a narrower scope of applications for which legal aid will be available to applicants. This will likely make it more difficult for applicants to obtain funding for cases which would have previously been awarded it.
If an application does not fall within a category listed in Part 1 of Schedule 1 to LAPSO, legal aid may still be available if it is an “exceptional case”. An exceptional case is one which “is likely to produce significant benefits for a class of person, other than the individual and the members of the individual's family” or affects the applicant’s Human Rights.
If it does become more difficult for tenants of Registered Providers to obtain funding for cases which they would previously have been awarded, this may lead to a rise in the number of cases which claim to be an “exceptional case”. Before legal aid can be given for “exceptional cases”, the Director of Legal Aid Casework, a newly created position that has powers delegated from the Lord Chancellor, will have to be satisfied that such an “exceptional case” exists. The time which it will take the Director of Legal Aid Casework to make a decision is still unknown.
However, if there is a rise in the number of “exceptional cases” or even cases which are claimed to be such, Registered Providers will need to quickly become more aware of and consider more fully the implications of Human Rights legislation on their cases. File notes will need to be completed to evidence that such issues have been addressed and considered as once proceedings have been issued it will be too late to address them.
LAPSO will result in more complicated and protracted proceedings if Human Rights issues are being cited at every opportunity and this will lead to higher costs to Registered Providers. However, that delay and cost will be exacerbated if Registered Providers do not take steps now to ensure that their staff are adequately trained to identify cases which will involve Human Rights issues to ensure that such cases are appropriately dealt with.
Eversheds has a wealth of experience in this area and can provide training on Human Rights issues together with their implications to assist Registered Providers in facing these new challenges.