On 8 June 2020 the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (the Amendment Regulations) came into force. The Amendment Regulations established a new fee regime for the remuneration of legal aid providers for appellants whose asylum and immigration appeals are being dealt with under a new Online Procedure which had previously been in pilot phase, but was rolled out widely by the First-tier Tribunal (FtT) in mid-March 2020.
The roll-out of the Online Procedure was partly a response to the Covid-19 pandemic. However, the procedure also involved new case management directions, including the requirement for the Appellant to file a full appeal bundle and skeleton argument at a very early stage of the proceedings. It had been recognised for some time that the existing Legal Aid regime did not adequately remunerate providers for the additional and front-loaded work required by the Online Procedure, and a number of groups had called for these cases to be remunerated at hourly rates. Instead, the changes hastily introduced via the Amendment Regulations provided for a new fixed fee, set on the basis of what appeared to be limited and incomplete information about the work that was required and how this interacted with the key features of the fee scheme. The changes were immediately identified by representative bodies and Legal Aid providers as having the potential to make the situation worse.
Duncan Lewis represented three claimants who challenged the Amendment Regulations on the grounds that the Lord Chancellor had failed to conduct a lawful consultation before making the Regulations, and failed to gather the information he reasonably required to make a proper decision; that the Regulations were not rationally or proportionately connected to their statutory purpose; and that the Regulations result in the unlawful restriction of access to justice for the claimants and many others.
The claim was an important one for all asylum and immigration appellants who qualify for legal aid. It was supported by overwhelming witness evidence from Duncan Lewis, the Immigration Law Practitioners Association, the Bar Council, Dr Jo Wilding, and letters of support from the Law Society and the Legal Aid Practitioners Group. The evidence supported the view that the scheme established by the Amendment Regulations did not adequately remunerate providers for the additional work required by the Online Procedure, and that providers who undertook this work may not even have recovered their costs. In the wider context of Legal Aid cuts and the precarious situation of many providers, there was (at least) a real risk of providers taking on fewer cases of this kind, leaving individuals with meritorious claims unable to effectively exercise their right of appeal to the FtT.
Duncan Lewis’ evidence demonstrated the context in which Tribunal appeal work is carried out and the heightened risks faced by providers under the Amendment Regulations. They calculated projected losses in the region of £50,000 or 1000 hours of unpaid work over a two years, and demonstrated that they were already experiencing significant difficulties in instructing counsel for complex protection and immigration appeals.
The Law Society highlighted ‘the likely detrimental impact [the Regulations] will have on an already ailing sector of the profession [and] the knock-on effect these measures may have on access to justice’.
Evidence from ILPA and the Bar Council demonstrated the paucity of the Lord Chancellor’s efforts at consultation, the failures of the Lord Chancellor to properly consider the impact of the proposed changes, and the wider concerns regarding access to justice.
On 4 August, the Lord Chancellor wrote to the claimants accepting that the making of the Amendment Regulations was unlawful on the basis that the consultation had been inadequate and that he had failed to satisfy his duty of inquiry. He therefore decided to revoke the Amendment Regulations and to put in place a temporary fee regime which will allow providers to undertake work under the Online Procedure in the knowledge that they will be remunerated at hourly rates.
Simon Robinson, trainee solicitor, comments:
“This is an important victory for all appellants at the First-tier Tribunal and their ability to access justice. Following the Claimants’ legal challenge, the Lord Chancellor’s swift acceptance of his unlawful action is a welcome step. It acknowledges the importance of judicial review as a mechanism to ensure the Government’s lawful use of its powers. We look forward to the Amendment Regulations being revoked, and to a productive and lawful consultation on any further proposed amendments.”
Toufique Hossain, Jeremy Bloom and Simon Robinson who instructed Chris Buttler and Eleanor Mitchell of Matrix and Ali Bandegani of Garden Court Chambers.