Appendix
Further Memorandum from The Department for Constitutional
Affairs to The Constitutional Affairs Committee
1. This is a memorandum from the Department for
Constitutional Affairs (DCA) in response to the Constitutional
Affairs Committee's Fourth Report of Session 2002-03 Immigration
and Asylum: the Government's proposed changes to publicly funded
immigration and asylum work (HC1171-I). The Government has
now announced the way forward. This memorandum has been agreed
with the Legal Services Commission (LSC).
Introduction
2. On 5 June 2003 this Department issued a consultation
paper on proposed changes to publicly funded immigration and asylum
work. The consultation period closed, after 12 weeks, on 27 August
2003, during the summer recess. 260 responses were received.
3. At the invitation of the Secretary of State,
the Constitutional Affairs Committee decided to conduct a brief
inquiry to examine the proposals, concentrating in particular
on the proposals to set maximum limits on the amount of public
funding available in individual cases.
4. The Committee heard oral evidence at two meetings.
At the first, on 14 October, David Lammy MP, Parliamentary Under
Secretary of State at DCA and Clare Dodgson, Chief Executive of
the LSC, gave evidence. Further evidence was heard on 21 October
2003. On 23 October the Department submitted further information
to the Committee in response to questions raised in the oral meeting
on 14 October. On 24 October the DCA and the LSC submitted a joint
memorandum setting out our revised proposals. The Committee published
its report on 31 October 2003. Unfortunately the timing was such
that the Committee could not consider all the points raised in
the DCA/LSC memorandum.
5. On 27 November 2003 DCA announced the way
forward in the light of the Committee's report and the wider consultation.[1]
The announcement sets out the original proposals in the consultation
paper of 5 June 2003, and the details of the way forward. It also
sets out the implementation dates, which start on 1 March
2004.
The Committee's report
6. DCA remains very grateful to the Committee
for its careful consideration of the issues, especially considering
the relatively short time available. We are also grateful to all
the respondents to the consultation paper and to the range of
practitioners in the field, and their representative bodies, with
whom DCA and the LSC have had discussions during and since the
consultation.
7. The Committee's principal concern, which reflected
the majority of respondents to the consultation paper, was over
the "stringent constraints on time"—as the Committee
put it—in the original proposals. We had proposed a cap
of 5 hours' work at the initial decision-making stage, and 4 hours'
work in preparation for any appeal to the Immigration Appellate
Authority. We proposed that there should be exceptions to those
caps, and specifically sought responses as to what those exceptions
should be. However, where the exceptions did not apply, the cap
on the number of hours would be fixed and could not be extended.
The Government's announcement on the way forward
8. As we indicated in our memorandum, we have
seen the need for an alternative approach with greater flexibility.
As set out in the announcement, our new approach allows a 5 hour
threshold for legal advice at the initial stage of an asylum application.
We believe that this will be sufficient time in the majority of
routine cases, where attendance at interview is not required.
However, if the practitioner needs more time in genuine and complex
cases, they can apply to the LSC to extend the time they devote
to a case. The LSC is of course very experienced in making decisions
on the amount of time which suppliers need for individual cases,
issuing cost limitations as a matter of course in all Legal Representation
cases across all categories of work within the Community Legal
Service. In asylum cases, since April 2003, the majority of decisions
on funding for judicial reviews have been made in-house by the
LSC's Specialist Immigration Team, rather than by suppliers under
devolved powers
9. We have concluded that attendance by representatives
at interview is not necessary in most cases. As a result, in all
but exceptional cases (unaccompanied minors; applicants going
through fast-track initial decision processes; those suffering
from a recognised and verifiable mental incapacity which makes
it impractical to undergo an interview without support) funding
for attendance by a representative at the substantive asylum interview
will not be authorised. The LSC will introduce rules to ensure
that in these exceptional cases where attendance at interview
is appropriate, this will be by an experienced advisor or the
immigration supervisor and not by an outdoor clerk.
10. On appeals, the LSC will now remove the devolved
powers to grant funding for appeals from the majority of suppliers
to ensure that only meritorious cases receive public funding.
Suppliers will make an initial assessment of the merits of the
case before applying to the LSC for funding. Those practitioners
with a good record of success at appeal will be given devolved
powers to continue to grant funding. Initially devolved powers
are likely to be awarded to approximately 40 suppliers that have
a better than average success rate at appeals before the adjudicator.
The LSC will continue to monitor performance and award devolved
powers to further suppliers as appropriate.
11. In this way, we can curb the amount of public
funding which is spent on straightforward or hopeless cases, while
ensuring that limited resources are targeted where they are most
needed, on complex and genuine cases with a real prospect of success.
Immigration cases
12. Immigration cases cover a wide range of applications
which vary greatly in their complexity. We have decided to implement
a similar threshold as for asylum cases for the initial decision.
This will normally be between 3 and 5 hours. As in asylum cases,
the LSC may authorise an extension to the threshold for genuine
and complex immigration cases. A similar procedure to asylum appeals
will be instituted for immigration appeals, i.e. the LSC will
make a decision on whether to grant funding after the practitioner
has assessed the merits of an appeal and applied for public funding
for this purpose. For those cases that pass the merits test, thresholds
will be authorised according to the nature of the individual case
and the experience and previous outcomes of the supplier. As with
asylum cases, those practitioners with a good record of success
at appeal will be given devolved powers to continue to grant funding.
The merits test and 'complex and genuine cases'
13. The merits test for public funding is set
out in the Funding Code, which was approved by Parliament under
s. 8 of the Access to Justice Act 1999, and which came into force
in April 2000 with the establishment of the Community Legal Service.
14. The test for the initial stage is the "sufficient
benefit test". This states (at 5.2.1) that:
"Help may only be provided where there is
sufficient benefit to the client, having regard to the circumstances
of the matter, including the personal circumstances of the client,
to justify work or further work being carried out."
15. The test for whether Legal Representation
is granted before the Immigration Appellate Authority is set out
at paragraph 13.4 of the Funding Code as follows:
"Prospects of Success
Legal Representation will be refused if the prospects
of achieving a successful outcome for the client are:
i. unclear or borderline, save where the case
has a significant wider public interest, is of overwhelming importance
to the client or raises significant human rights issues; or
ii. poor."
16. The ultimate decision of whether a case is
genuine is not decided by the LSC and the complexity of a case
will depend on the individual circumstances of a client and the
particular legal issues raised in that case. However, the LSC
will fund cases which appear to have merit on the information
available and which are not clearly poor because of, for example,
existing precedents and evidence or lack of credibility. A non-exhaustive
list of examples of poor cases is set out in the new Immigration
Specification of the General Civil Contract and in such cases,
the LSC is unlikely to authorise public funding beyond the initial
stage. The LSC will publish further guidance with new forms to
deal with all applications to extend the financial thresholds.
Conclusion
17. We believe that this new regime for asylum
and immigration cases meets the criticism from the Committee and
others of our earlier proposals for fixed caps. These measures
will ensure that legal aid is properly targeted on those genuine
and complex cases that can demonstrate the need for it by passing
the merits test. We therefore do not address further the comments
in the Committee's Report relating to fixed time limits. For example,
the Committee's comments in paragraph 84 about allowing solicitors
to charge clients on a private basis, once the maximum cost limits
are reached, no longer apply given that the LSC will ensure that
appropriate public funding is allowed according to the merits
of the case.
Other proposals
18. Our other proposals, for accreditation of
suppliers and the introduction of a Unique File Number, were much
more strongly supported. While the focus of debate was therefore
inevitably on the proposal for hours, accreditation and the Unique
File Number will play a vital role in driving up standards and
cutting out abuse and unnecessary duplication. The details of
the proposals for accreditation and the Unique File Number are
still being finalised in discussion with those involved (notably
the Law Society and the Home Office respectively). The current
position is as follows.
Accreditation
19. As reported in our joint memorandum of 24
October,[2] the LSC is
working closely with the Law Society and the Office of the Immigration
Services Commissioner (OISC) to develop standards for the three
levels of accreditation agreed. This work is almost concluded
and drafts of the standards have been circulated to all representative
bodies (e.g. the Immigration Law Practitioners' Association (ILPA),
the Legal Aid Practitioners' Group (LAPG), Citizens Advice) for
final comment.
20. The Law Society has finalised arrangements
for the recruitment of an independent assessment organisation
and selection should be complete by early spring 2004. The LSC
and Law Society have also further developed robust methods of
assessment for each of the levels of accreditation, which will
be finalised once the assessment organisation is in place.
21. Guidance on the implementation of the scheme
during 2004/05 is currently being drawn up and the LSC is aiming
to notify practitioners of the arrangements and the details of
the standards as early as possible in the spring. Accreditation
will commence from April 2004 and be compulsory from 1 April 2005.
Unique File Number
22. The Home Office Reference Number will be
used from 1 April 2004 as the Unique Client Number. It will be
used by suppliers when they claim the costs of the work they have
carried out from the LSC and also when they apply for funding
for appeals. This will help prevent unnecessary changes of supplier
that result in duplication of work and costs. The first point
at which suppliers can claim costs is following the initial Home
Office decision and the Home Office will ensure that decision
letters include their reference number. The LSC will continue
discussions with the Home Office about ways to implement up front
controls to stop clients 'shopping around' for advice.
The Committee's other recommendations
23. The Committee also made specific recommendations
on disbursements and conferences with counsel. Our comments on
these are as follows.
Disbursements
24. There is a maximum disbursement limit of
£150.00 at the initial stage of a case, primarily to allow
for interpreters' costs without the need for an extension, and
this is proportionate to the financial threshold allowed for practitioners'
work at the same stage. The disbursement limit can be extended
in line with the financial threshold, where further work can be
justified in a genuine and complex case. There is no maximum disbursement
limit at the appeal stage. As stated above, the LSC will allow
a threshold according to the nature of the appeal and it is accepted
that disbursements such as expert reports may be required for
meritorious cases where this is both reasonable and necessary
in light of the particular circumstances of the case.
25. In addition, the LSC proposes to consult
further on the use of interpreters and expert reports. The cost
of expert reports has increased significantly in recent years
and research has been undertaken to set maximum rates of payment.
Work is also being done to investigate methods of guaranteeing
high quality reports, perhaps through ensuring that only properly
regulated or accredited experts may provide publicly funded reports.
A consultation paper will be published in the spring.
Conference with Counsel
26. There is now greater flexibility in our approach
to introduce financial thresholds for publicly funded work and
this will allow for a conference with counsel, where necessary
according to the individual nature of the case. Reasonable counsel
fees and other disbursements will be allowed within a higher financial
threshold for cases granted public funding to proceed with an
appeal. The threshold can be extended by the LSC in genuine and
complex cases.
Work with the Home Office
27. The Committee also commented on Home Office
decision-making, and separately recommended that the DCA and Home
Office make vigorous efforts to ensure a "joined up"
approach. The Committee will therefore be interested to learn
that officials from the Home Office, Department for Constitutional
Affairs and Legal Services Commission are examining the initial
decision-making stage of the asylum process, with particular regard
to the role that legal aid and publicly funded practitioners play.
This work may lead to further changes in the way that legal aid
for asylum seekers is delivered beyond those now proposed. In
particular, consideration is being given as to whether legal aid
is needed at the initial stage in all cases. The Government will
make a further announcement on any further changes in due course.
Implementation
28. The implementation dates are set out in the
announcement. Given the savings involved, and the urgency with
which accreditation and the Unique File Number should be introduced,
we will be introducing the new measures as quickly as is practicable.
We acknowledge the Committee's call that there should be no delay
in addressing the issue of quality representation, but we cannot
agree to the Committee's call for a moratorium in implementing
the time and funding limits. Financial reasons aside, we believe
that the new measures we have put in place—with the opportunity
for the LSC to examine the merits of individual cases—will
ensure that limited resources are targeted where they are most
needed, and should be implemented as soon as possible.
1 HC Deb, 27 November 2003, col 37WS Back
2
Fourth Report from the Constitutional Affairs Committee, Session
2002-03, Immigration and Asylum: the Government's proposed
changes to publicly funded immigration and asylum work, HC
1171, p 38 Back
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