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Regulations to create backdating power made in response to litigation by Duncan Lewis (1 February 2019)

Date: 01/02/2019
Duncan Lewis, Main Solicitors, Regulations to create backdating power made in response to litigation by Duncan Lewis

The Civil Legal Aid (Procedure) (Amendment) Regulations 2019 were laid before Parliament on 30 January 2019 by the Government. As of 20 February 2019, the legal aid regulations will confer a discretionary power on the Legal Aid Agency to backdate legal aid determinations to the date on which an application for funding or an amendment to an existing certificate was made.

We welcome these important changes to the rules on legal aid funding, which were made as a direct response to litigation brought by Duncan Lewis Solicitors. As the claimant, we brought a claim for judicial review of the Legal Aid Agency’s refusal to backdate legal aid certificates. The significance of this litigation is the fact that backdating was not permitted even when solicitors had made a legal aid application as promptly as possible and it is necessary to begin work in order to secure access to justice for a client before the Legal Aid Agency has granted a certificate.

Our contention in the litigation was that the Legal Aid Agency and Lord Chancellor failed to recognise that the legal aid regulations must contain an implied power to backdate certificates, or are ultra vires. In response to our case, they agreed to amend the regulations to explicitly create the power to backdate their decisions.

The conditions under which the Legal Aid Agency now has this discretion are:

  1. That the application for funding must be made as soon as reasonably practicable.

  2. That it is in the interests of justice for work to be carried out before a decision is received.

  3. That the Director is satisfied that a decision to backdate is appropriate, having regard to all circumstances.

Condition 1 is particularly helpful as it will allow lawyers to take on urgent work, as long as they make the application promptly, without having to wait for a decision from the Legal Aid Agency.

The test set out in condition 2 was a feature of previous, more generous, legal aid regimes, and is a welcome reintroduction into the funding regulations.

Condition 3 may well become the battleground for future disputes about the exercise of the discretion to backdate. The regulations specifically refer to decisions made on the basis of information available at the time of making a decision, so, when providers are unable to supply the Legal Aid Agency with full documentation at the time of an application, they may need to give explanations for this when calling for a backdated certificate.

In the announcement, the Government also revealed that it would be closing the ‘out of hours’ service once the regulations come into force. This service allowed representatives to contact the Legal Aid Agency for emergency decisions outside of normal working hours. The system did not provide full coverage and some urgent cases fell through the cracks. If it is properly administered, the new power to backdate should enable lawyers to focus on the urgent work necessary to protect the interests of their clients, rather than spending precious time trying to obtain a decision from the Legal Aid Agency before carrying out this work. Our wider concern with the removal of the ‘out of hours’ service is the length of time that it can take for the Legal Aid Agency to make decisions and the high number of poor initial decisions. Neither the new nor the old system can fully address these structural problems.

Duncan Lewis are the Claimant, with Toufique Hossain (Director of Public Law), Jamie Bell (Lead Solicitor) and Jeremy Bloom (Trainee Solicitor) preparing the case. Osbornes Solicitors are an Interested Party. Counsel for the Claimant are Chris Buttler and Eleanor Mitchell at Matrix Chambers. Alison Pickup and Katy Watts at the Public Law Project are also assisting in the preparation of the case.


We are particularly grateful to the following firms and organisations for their invaluable assistance in providing evidence in support of the claim: Bindmans, Broudie Jackson Canter, Deighton Pierce Glynn, Legal Aid Practitioners Group, Leigh Day, and the Public Law Project.

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