Annex A
SUMMARY OF
SCHEME
On receipt of the Tribunal's decision on the
original appeal the appellant can approach his representative
for advice on whether or not there are grounds for challenging
that decision. The representative's advice, and advice provided
by counsel, will be funded under existing arrangements as part
of the Controlled Legal Representation for the original appeal.
In providing advice on whether the appellant
has grounds for challenging the Tribunal's decision, the representative
should decide whether he is prepared to provide representation.
This decision should be based on the test that the Tribunal judge
will apply following reconsideration. This test is whether, at
the time the application was made, there were significant prospects
that the appeal would be allowed on reconsideration.
If the representative thinks that a case meets
this threshold then he should provide representation. If he thinks
that the case is weak or does not have significant prospects of
success then representation should be refused.
If a representative agrees to provide representation
it will be on the basis that the costs he incurs cannot be recovered,
other than disbursements including expert and interpreters fees,
until a section 103D costs order is made.
If an application is unsuccessful at the review
stage, in the majority of cases funding will be refused. The Tribunal
in its "filter" capacity, and the High Court, will have
discretion to award funding but this can only be exercised in
exceptional circumstances:
If at the time the application was made there
were significant prospects that the appeal would be allowed on
reconsideration but because of a change in circumstances or a
change in the law the application was dismissed.
If an application is successful at the review
stage funding will not be awarded. This is because the decision
on funding will be taken by the Tribunal following reconsideration.
An exception to this principle is if a case is successful but
subsequently withdrawn or the respondent concedes. Funding will
also be awarded if the High Court refers a case to the Court of
Appeal because it raises an important point of law.
Following the reconsideration of an appeal funding
will automatically be awarded if the case is successful. If the
case is unsuccessful the Tribunal judge will look at whether at
the time the application was made there were significant prospects
that the appeal would be allowed on reconsideration.
In special circumstances the Tribunal will have
the option of awarding funding to the representative but not counsel,
or vice versa.
If the Tribunal refuses to award funding the
representative and/or counsel can apply to the Tribunal to have
the decision reviewed. In the application an oral hearing can
be requested. It will be at the Tribunal's discretion to grant
an oral hearing. The decision will be reviewed by a different
senior judge to the judge that made the original funding decision.
CORRESPONDENCE FROM
BARONESS ASHTON
OF UPHOLLAND
, PARLIAMENTARY UNDER-
SECRETARY OF
STATE
NEW LEGAL
AID ARRANGEMENTS
FOR ASYLUM
AND IMMIGRATION
TRIBUNAL: REMUNERATION
RATES
I am writing following my appearance before
the Committee on Tuesday, 1 March, at which I gave evidence on
the Government's proposals for new legal aid arrangements for
challenges to decisions of the Asylum and Immigration Tribunal.
I hope that I was able to respond to the majority
of the Committee's concerns. I am aware however, that because
of time constraints we were unable to address the issue of the
rates that will be payable to suppliers under the new scheme.
Given that this is a concern that has been raised by stakeholders
in both the written and oral evidence presented to the Committee
I thought it would be helpful if I responded in writing on this
point.
Stakeholders, including the Law Society and
the Bar Council, have expressed concern that because, under the
new arrangements, work will be funded as part of Controlled Legal
Representation, suppliers are effectively being asked to work
for less. This is not the case however, and in considering this
issue it is important to recognise that the new funding rates
have been created to reflect the different nature of the new onward
appeals system. Making a direct comparison between the rates payable
under the current system and the rates that will be paid under
the new system may therefore be unhelpful.
It will be the case that the rates paid under
the Controlled Legal Representation scheme (CLR) prior to the
"uplift" are lower than the rates currently paid for
High Court certificated work. However, only the review stage of
the new process would currently attract funding under High Court
certificated rates. The reconsideration stage would be payable
at basic CLR rates. Under the new arrangements there will be an
uplift to CLR rates for work which is undertaken over both the
review and reconsideration stages of the onward appeals process.
Therefore, when considering the appeal work undertaken as a whole
the rates overall are higher than the current payments.
When the LSC consulted with suppliers on the
contract changes necessary as a result of the new arrangements
an "uplift" of 25% to CLR rates was proposed. As a result
of the consultation the LSC has agreed that a higher uplift rate
of 35% will now be payable.
It is also important to note that in relation
to payment rates there are provisions in the LSC's Contract for
suppliers to apply for a further uplift to their costs in certain
circumstances. The amount of uplift will depend on the nature
and complexity of the case and will be subject to negotiation
on an individual case by case basis. Any such uplift would be
in addition to the 35% uplifted rates.
Taking all these factors into consideration
the Government is confident that the remuneration package will
be attractive for those suppliers who seek to take forward meritorious
appeals.
I hope this letter has helped to clarify the
issue.
Baroness Ashton
7 March 2005
| 
