Policy Responses 2007 Funding code.htm

1.1 Law Centre (NI) is a not for profit provider of legal services to disadvantaged individuals and advice agencies in Northern Ireland. It provides specialist legal services (advice, representation, training, information and policy comment) in the areas of: immigration, social security; community care, mental health and employment law from our two regional offices.

1.2 Legal representation is provided to disadvantaged individuals, often on referral from member agencies. In addition, legal advice and information services are provided to almost 500 member agencies. Members include local Citizens Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.

1.3 Below we set out some general comments on the proposed Funding Code, followed by our response to the issues raised by the consultation questions. We have chosen to respond only in respect of those issues which have a particular impact on our key areas of work.

2.1 Law Centre (NI) welcomes the opportunity to comment on the proposed Northern Ireland Funding Code. In our submission of June 2006 on the development of the Funding Code, we stressed that access to legal aid is central to the promotion of social justice. We also argued that, subject to suitable discretion within the system, in circumstances where targeting is necessary, then funds should be directed to those cases which seek to address social disadvantage. Our experience in social welfare law in Northern Ireland has exposed many gaps in the legal aid system which have a significant adverse impact on access to justice for many individuals and groups of individuals. We particularly drew attention to the lack of legal aid for representation in a number of tribunals (e.g. in relation to employment disputes and social security commissioner hearings and other specific appeals) and the limits on legal aid for other tribunals, such as the means test and low fees applied to mental health review tribunals. We regret therefore that public funding for tribunal representation does not form part of the new arrangements for funding civil legal work in Northern Ireland. We strongly urge that the Commission gives prominence to the issue of public funding for tribunal representation in its engagement in the current discussions on tribunal reform in NI. In particular, we think that funding directed to tribunal representation could be diverted through the community legal service rather than through an extension of funding on a case by case basis.

2.3 In relation to priority areas of funding, we make three comments. First, we welcome the high priority attached to social welfare cases and wider public interest cases. We support prioritising actions against public authorities alleging a ‘breach of human rights’. We are disappointed, however, that the requirement of a ‘significant’ breach set out in the initial consultation document has been retained. The mere breach of human rights is of itself ‘significant’ and we strongly caution against this requirement as a funding criterion for challenges to alleged breaches of human rights. Should the Commission seek to retain this test, we recommend that the Code establishes how the test is to be applied in funding applications concerning alleged human rights violations.

2.4 Second, we would urge that specific recognition be given in the Annex to the Code to proceedings aimed, not only at averting the threat of loss of liberty, but also those which challenge existing detention, such as mental health detention cases.

2.5 Third, we have concerns that insufficient priority is accorded to two case types involving two groups: those with mental health issues and older persons who may require community care services. We recommend that specific priority should be given to mental health and community care cases for the following reasons. In relation to mental health, there is an acknowledged lack of legal services in Northern Ireland for those with mental health issues[1] As compared with GB, there is a legacy of under-funding of mental health law work in Northern Ireland through the civil legal aid system. Significant public investment is therefore required in this area of law in order to develop practitioner expertise in this area of law across Northern Ireland. Such funding would support the Code’s objectives of directing public funding at ‘those who need it most’ [para. 1.6]. For further comment on Mental Health Review Tribunal cases see para. 3.16 below.

2.6 There is also a strong case for prioritising matters relating to the rights of older people who may be particularly vulnerable due to their age, health or disability.[2] We would wish to see reference to ‘help with social welfare issues’ extended to specifically include help for older people with community care services. As with mental health law, this is an area of law in respect of which there is under-developed legal expertise in Northern Ireland.

3.1 The Test: We agree that it is not appropriate to set strict thresholds as to the number of people who could potentially benefit before wider public interest is established. Given the subjective nature of the assessment of a ‘significant’ wider public interest, in terms of ‘securing real benefits’ (para. 10.4), we recommend that a primary role for developing this test is entrusted to an independent public interest advisory panel along with responsibility for monitoring the impact of the test on access to justice. We comment further below on the role of a public interest panel in reviewing decisions about public interest.

3.2 Cost Benefit: It may be difficult to clearly identify the prospects of success in public interest cases. The criteria for assessing cost benefit therefore need to be interpreted with flexibility and with recognition that benefit may be direct or indirect. There may be a particular role for an advisory panel in these determinations.

3.3 Alternative Funding: In relation to how the availability of alternative funding in respect of public interest cases should influence the Commission’s treatment of applications for public funding, distinction should be drawn between alternative sources of public funding for public interest cases (e.g. from ECNI, NIHRC, NICCY) and other sources of alternative funding. Charitable organisations and voluntary pressure groups may have an important role to play in third party interventions in public interest cases (with the permission of the relevant court), but availability of resources within this sector should not substitute for public legal funding for public interest cases. The availability of a possible contribution by a charitable or voluntary organisation should not preclude public funding of public interest cases. Our experience in Northern Ireland is that it is extremely difficult to get local charities (or their headquarters organisation, if UK wide) to fund legal cases.

3.4 In relation to the impact on decisions to fund public interest cases of alternative sources of funding from other public bodies, careful consideration needs to be given to the limits of other public bodies in relation to the availability of funds for this type of work, as legal assistance is often only one aspect of the work of these bodies. We are aware, for example, that the NIHRC’s total casework budget amounts to a very small proportion of its overall operational budget.[3] Close co-operation between public bodies in relation to funding decisions through, for example, memoranda of understanding, is therefore essential to ensure that public funding is targeted at those most in need and in the best interests of the public. The apparent availability of alternative public sources of funding should not automatically preclude consideration by the Commission to fund a case.

3.5 Public Interest Advisory Panel: The White paper on the Future of Legal Aid in NI in 2000 highlighted a key role for independent monitoring as a key aspect of the reform of the legal aid system in Northern Ireland. While this role is performed by the Commission, we strongly support the establishment of a Public Interest Advisory Panel, similar to that in England and Wales, operating under the auspices of the Commission. The contribution of lay and expert members of the Panel is important in terms of its perceived operational independence and in enabling the Commission to draw on widespread expertise in the determination of public interest matters. We recommend that the panel consists of practitioners (including those working in the advice sector generally); academics as well as those with experience or knowledge of public interest policy and/or litigation. Consideration should also be given to whether the panel’s membership should reflect any particular areas of substantive legal expertise. Guidance on a public interest advisory panel needs to outline the status of the advice of the panel; its role in reviewing and monitoring the operation of the public interest test and its role in any internal review and/or appeal process.

3.6 We generally welcome measures to extend the role of ADR as an alternative to litigation subject to the reservation that this is not to the exclusion of an applicant’s ability to pursue litigation in appropriate circumstances

3.7 Complaint systems/Ombudsman schemes are important for resolving a dispute and possibly averting litigation. They are therefore useful complements to litigation. Where complaint systems are open, transparent, accountable and effective in terms of remedies and do not prejudice the right of access to a court, then it is not unreasonable to expect an applicant to utilise these systems prior to the submission of an application for pubic funding. We would have concerns, however, about an automatic requirement to utilise these mechanisms prior to receipt of an application for funding for the following reasons. First, the recommendations of complaint/Ombudsman mechanisms are not binding. Second, these mechanisms may have a limited jurisdiction (e.g. the Ombudsman’s limited jurisdiction to consider only alleged instances of maladministration) and therefore be unsuitable fora for the pursuit and resolution of certain complaints. They may not, therefore, provide effective access to justice nor effective remedies for the resolution of the complaint. Finally, these mechanisms do not afford the opportunity to clarify the law on a particular matter . These factors may make it inappropriate to require utilisation of these procedures prior to an application for public funding. If the Commission proceeds with a requirement to utilise existing complaints systems prior to receipt of applications for public funding, careful consideration will need to be given to the clear identification of those relevant and effective procedures in respect of which the Commission will expect an applicant to have used. This will need to be clearly communicated to potential applicants so as not to prejudice access to justice for applicants who need to be mindful of the time limits for bringing civil proceedings.

3.8 For the reasons set out above, we would similarly urge caution in refusing legal representation on the grounds that an existing complaint or Ombudsman scheme has not been pursued.

3.9 We recognise the importance of protecting the integrity of the fund from serious depletion by a limited number of cases. Sufficient flexibility should be retained to defer a final determination on funding depending on at what point in the financial year the application enters the system (for example, where an application for funding is received at a point in the financial year where resources have been largely exhausted and a new budget yet to be set). We support the exclusion of the affordability criteria to judicial review cases and to proceedings in which the life or liberty of the client is at risk.

3.10 We support the establishment of a Special Cases Unit be established within the Commission. Like the Public Interest Panel, this Unit should be comprised of staff members and lay members in order to highlight its operational independence. Given the small size of the jurisdiction, it may be appropriate for lay members of the Public Interest Panel to serve also as members of the Special Cases Unit.

3.11 It is in the public interest to ensure that all public bodies act within the limits of their powers and in accordance with the requirements of procedural fairness. As is noted at para. 10.2 of the consultation document, ‘it could be said to be always in the public interest for public authorities to act lawfully.’ It is therefore difficult to draw a distinction between those cases that may benefit a ‘significant number of people’ from those that may not in terms of assessment for funding. While we do not consider a distinction should be drawn in these terms, if it is, we believe that the test of ‘overwhelming importance to the client” is too high and should instead be drafted to encompass cases where the decision at issue is a matter of ‘considerable importance for the client’.

3.12 We strongly agree that there should be a presumption of funding where the Court has already granted leave to proceed in a judicial review case. In circumstances where the Commission chooses to fund only one ‘test case’, it is important to clarify the impact on other potential applicants of a successful outcome in that ‘test case’ i.e. where one applicant has been refused funding because another case is proceeding as a test case the Commission would need to be certain that the former would achieve a remedy as a result of the successful outcome of the test case.

3.13 We welcome provisions to make Investigative Help available for immigration cases for the purposes of obtaining Counsel’s opinion. We would caution the Commission that the introduction of Investigative Help for this purpose should not create a presumption or expectation that Counsel’s opinion is required to be sought for each application.

3.14 We welcome the provision of funding for these case types. The current arrangements which apply means testing to these case types and which provide funding for advice by way of representation only curtail access to justice for those wishing to bring proceedings before the Mental Health Review Tribunal. This is in contrast to the position in England and Wales where full fees are available for this type of work and no means testing is applied to these cases. We would recommend that Full Representation for these cases should extend the fees available in these case types and should not be subject to financial means testing for applicants. Only in this way, will sufficient expertise be developed amongst the legal community to ensure that this vulnerable group enjoy access to justice.

3.15 The ‘reasonableness’ test in s. 15(3) of the draft Code in relation to the circumstances where funding may be withdrawn requires clarification. Where it is proposed that funding is withdrawn on the basis that it is unreasonable to continue to fund in all the circumstances of the case, the ‘reasonablenesss’ of this determination should be balanced against the applicant’s legitimate expectation that funding is continued. Avenues for review and appeal against decisions to withdraw funding should also be outlined. In the Funding Code.

3.16 Given the significant changes that the new Code will bring about in relation to civil legal aid and the potential impact on access to justice for many individuals, we strongly urge that mechanisms for periodic review and evaluation of the operation of the new system is built-in to the system at the outset. This should involve feedback from users of the system and other interest

[1] Campbell, J. & Wilson, D, Unmet Need: A Study of Mental Health Legal Advice and Representation in Northern Ireland, Law Centre (NI): (2004).

[2] See Help the Aged, Impact Report (2006) for data about the particular vulnerabilities of older people in Northern Ireland

[3] NIHRC Annual Report 2005 – 2006. Of 920 new enquiries received, and of 20 applications considered, 4 cases were granted assistance. Of a global budget of £1,447,601, £43,598 was spent on general casework for the relevant period in 2006