at Community Law Partnership / No. 15– July 2014
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Exceptional Funding Breakthrough
Regular readers will know that Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 provides for exceptional funding in areas which are now out of scope for legal aid in order, amongst other matters, to avoid there being a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing). However, in 2013 to 2014, out of a total of 1,520 exceptional funding (EF) applications, only 69 were granted (and only one in the area of Housing Law, which incorporates accommodation issues for Gypsies and Travellers).
Parminder Sanghera of TAT has been fighting for a Romani Gypsy client who has been trying to obtain planning permission for her one caravan site. Our client is barely literate and (understandably) does not understand all the complexities of planning law. Her case had to go to a Public Inquiry and she was not able to represent herself. We sought EF for our client. The Legal Aid Agency argued that our client could run her Inquiry case herself or perhaps with the help of someone else such as her brother. An enormous battle then ensued and, throughout the matter, the Legal Aid Agency (LAA) refused to provide EF for our client. After an unsuccessful initial judicial review application, a second judicial review application was lodged challenging this decision and, shortly after the lodgment of this application, the LAA decided to grant EF to our client.
At virtually the same time, Magdalene Robinson in the CLP Housing Team has been fighting to get EF for her housed client who faces a claim for demotion of her tenancy. The basis of the claim is anti-social behaviour committed by the client’s son, from the age of 7 (he is now 13). The anti-social behaviour is caused by a diagnosed disability that is currently uncontrolled and there is nothing the client can do to correct his behaviour in the absence of stronger medical support. A demotion of the client’s secure tenancy will achieve nothing other than to make it easier for the local authority to evict the client and her children, since it will not need to prove to the court that any of the grounds for possession exist. A pre-action protocol letter was sent to the LAA, threatening judicial review action against its refusal to grant legal aid to the client to enable her to defend the claim. The letter raised two issues: 1) whether the LAA was correct to publish guidance stating that demotion claims are out of scope for legal aid, when they are clearly “relating to the loss of home”; and 2) even if these claims are out of scope, the case satisfied the criteria for EF. The LAA has also now indicated in that case that EF will be granted(the argument as to whether demoted tenancy cases are within scope for legal aid remains. At the time of writing the LAA has not provided reasons for its assertion that these cases are no longer in scope).
These cases demonstrate the accuracy of what was said by Coulson J in M v Director of Legal Aid Casework [2014] EWHC 1354 (Admin), a previous challenge concerning EF (at para 58):
There was some debate before me as to what is meant by an ‘exceptional case’ in Section 10 of LASPO. The defendant and [the Lord Chancellor] suggested that this meant not only a case that was outside Part 1 of Schedule 1 of LASPO, but also a case that was exceptional in its wider meaning, namely a case that was highly unusual or very much out of the ordinary. I do not accept that submission. It seems to me that, as a matter of statutory interpretation, Section 10 of LASPO is dealing with those cases which fall outside Part 1 of Schedule 1 of the Act. They are therefore exceptional, in that they are an exception to the general regime of the Act, which is that civil legal aid is only available for those cases falling within Part 1 of Schedule 1. In my view, there is no wider meaning (and certainly no magic) in the term “exceptional case”.
These are extremely important decisions and we hope that they indicate a sea change at the LAA in terms of how EF applications are dealt with. Congratulations to Parminder and Magdalene and to the barristers who assisted with these cases, Joe Markus and James Stark of Garden Court North Chambers.
The No Mad Laws Campaign
Marc Willers of Garden Court Chambers and Chris Johnson of TAT, representing the Campaign had a meeting with one of the Shadow Justice Ministers and member of the All Party Parliamentary Group on Gypsy Roma Travellers, Andy Slaughter MP on 9th July 2014. Amongst other things they discussed:-
- The disastrous restrictions on legalaAid for judicial review cases;
- The lack of any legal aid for disputes under the Mobile Homes Act 1983 apart from possession actions and serious disrepair issues;
- The enormous difficulties in obtaining Exceptional Funding (see above);
- The recovery by the Secretary of State for Communities and Local Government (SSCLG) of all Gypsy and Traveller planning appeals in the Green Belt (see below);
- The inadequate National Roma Integration Strategy produced by the Westminster Government.
Mr Slaughter said he found the meeting very useful and said he would seriously consider the issues in the process of policy formulation prior to the 2015 General Election.
The No Mad Laws Campaign will now be updating their briefing paper and circulating that as soon as possible. CLP nowhave a specific section on their website dedicated to the No Mad Laws Campaign which you can find at
The Ministry of Justice have just produced the Legal Aid statistics for England and Wales for 2013 to 2014. These make depressing reading.
In terms of civil cases, the volumes of new matters started for Legal Help (pre-court advice, basically) have fallen by 80% between 2009 - 2010 and 2013 - 2014. The number of Certificates granted for civil representation has fallen by 30% between 2010 - 2011 and 2013 - 2014.
Since 2007-2008 the number of civil providers has nearly halved (as at the end of the financial year) and criminal providers under contract have decreased by 16%. In the last year the number of civil providers has reduced by almost a quarter compared to the previous year.
Recovery of Gypsy and Traveller Planning Appeals in the Green Belt
Many readers will be up to date on the situation with regard to this issue.
Mr Pickles, the SSCLG, continues to recover these appeals. He usually overturns the Planning Inspector’s recommendation to the detriment of the Gypsy or Traveller concerned. Occasionally he agrees with the Planning Inspector’s recommendation. He has never yet come up with a decision that is more favourable to the Gypsy and Traveller than the Planning Inspector’s recommendation.
Connors & ors v SSCLG & ors [2014] EWHC 2358 (Admin) is a recent High Court planning appeal case which included a challenge to the recovery procedure. This challenge was unsuccessful. A full report on this case will soon be available on our website – see further below.
TAT have lodged two judicial review challenges to this recovery process and we will keep readers closely informed of progress with these vital challenges.
Residence Test
The Government had proposed the introduction of a residence test for legal aid. Amongst other things this would have meant that those who were (as defined by the Government) ‘lawfully resident’, including Gypsies and Travellers, would have had to prove that before being able to apply for legal aid. This would have added a further bureaucratic hurdle (on top of all the existing bureaucratic hurdles) for Gypsies and Travellers before they could even apply for legal aid. Additionally it would have left some people from the Roma community without any recourse to legal aid despite having the most serious of legal problems. The Government was in the process of introducing this change by means of secondary legislation.
In the recent very important judgment, R(Public Law Project) v The Secretary of State for Justice [2014] EWH 2365 (Admin), the High Court has decided that the use of secondary legislation to introduce this change was ultra vires. We will soon have a report on the case up on our website – see further below.
New Cases on the Website
You can find cases about Gypsy and Traveller issues and also cases which are not specifically about Gypsies and Travellers but which impinge on Gypsy and Traveller issues on our website at:-
Very soon the following cases will be going up:-
- Ball v SSCLG;
- Billy Smith v SSCLG;
- The latest cases on compliance with Court Directions (the post Mitchell cases) and the recent change to the Civil Procedure Rules.
Legal Action
The annual two part update on Gypsy and Traveller Law by Marc Willers and Chris Johnson (Angus Murdoch had to drop out this year due to pressure of work) is appearing in May and July editions of Legal Action magazine. See:
Until Next TimeWe hope you find our E-Bulletin useful. All and any comments very welcome.
Don’t forget our national self-funded advice line for Gypsies and Travellers:
0121 685 8677
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Keep up the good fight! Best wishes to all our readers. Kushti bok!
The Travellers Advice Team
Part of The Community Law Partnership
Solicitors
4th Floor, Ruskin Chambers
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