Advice and Representation Flashcards
What are the three main difficulties for an ordinary person seeking legal assistance?
Lack of Knowledge
Intimidation
Cost
Lack of knowledge
many people do not know where their nearest solicitor is located, or, if they do know this, they do not know which solicitor specialises in the law involved in their particular case.
Intimidation
people often have a fear of dealing with lawyers, they feel intimidated.
Cost
solicitors charge from about £100 an hour for routine advice from small local firms, to over £500 an hour for work done by a top city firm of solicitors in a specialist field.
It is still a major hurdle for individuals wishing to start a case, and prevents people from seeking justice.
What is access to justice?
If cannot get it- being denied to it.
It involves both an open system of justice and also being able to fund the costs of a case. There has been various schemes aimed at making the law more accessible to everyone.
Go into more detail on the issue of cost separated into civil and criminal ?
Civil: High Court- can run into thousands of pounds.
County Court: cheaper but will probably cost more than the amount that is being claimed.
Also, the additional risk is that the loser has to pay the winner’s costs.
Criminal: A persons liberty may be at stake and it is essential that they should be able to defend themselves properly.
What did Lord Woolf do regarding government schemes?
In ‘Access to Justice’ he discussed the issues surrounding funding of civil cases. (consultation document).
He stated under his reforms that the civil justice system needed a new structure and made 303 recommendations to try and rectify the situation. The Government responded by implementing these recommendations into Access to Justice Act 1999.
What was it like under the old legal scheme and what was it consolidated by? Criticisms?
Consolidated by the Legal Aid Act.
The cost of funding cases was very expensive. There was also criticism’s that advice was not available to those who actually needed it.
What happens under the Legal aid, Sentencing and Punishment of Offenders Act 2012? What operates the administration of legal aid?
Since April 2013 it has been operated by the Legal Aid Agency which comes under the umbrella of the Ministry of Justice.
Who is the Director of Legal Aid Casework and what does he/she do?
An independent civil servant and the decisions on granting legal aid will be made him him/her and his/her team.
How does the legal aid system work?
By the Government making contracts with providers of legal services so that the providers can do legal work and be paid by Government funds. Providers include law firms and non-profit organisations, such as the Citizens Advice Bureau, offering advice on legal matters.
Under previous legal aid schemes who was aid available for?
All those except which specifies excluded e.g. small claims.
Under the new system who is available for legal aid?
Under the new system,, the starting point is that legal aid is not available for civil cases unless the case falls into one of the categories specifically mentioned under the Act or other regulations. The types of cases included are:
o Those which involve children’s rights.
o Those involving a person’s freedom of liberty.
Where will the later be heard with legal aid?
The latter will also include cases which are being heard at the Mental Health Tribunal when deciding whether a person is to be continuously detained at a mental hospital. Claims for asylum are also funded by legal aid.
With the new law who are not eligible for legal aid?
The result of this change means that legal aid is no longer available for claims against medical negligence, trespass to the person and trespass to land and property.
What sets the criteria for funding civil cases?
The Act gives the Lord Chancellor the power to set criteria for making civil legal aid services available. It also sets out the factors the Lord Chancellor must consider when setting the criteria. These factors are set out in S. 10(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
What is the criteria for civil funding?
The likely cost of providing the services and the benefit which may be obtained by them;
The availability of resources to provide the services;
The importance for the individual of the matters in relation to which the services would be provided;
The availability of other services, such as mediation;
Where the services are sought by an individual in relation to a dispute, the individual’s prospect of success in the dispute; and
The public interest.
Where does funding for legal aid come from? What issue arises?
The funding for legal aid comes from the government’s budget. This means that a set amount is made available each year. Also the amount set has to be considered against all other claims on the budget, such as hospitals, health care and education. As a result, the government cannot afford to make legal aid available to everyone.
Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and S.10(3) what factors does the LC consider when setting the criteria?
The likely cost The likely cost of providing the services and the benefit that could be obtained
The availability of resources to provide the services
The importance for the individual of the matters in relation to which the services would be provided
The availability of other services, such as ADR
Where the services are sought by an individual in relation to a dispute and the prospect of success
The public interest
What is means testing?
When since?
What is it about?
Since 2012.
Person applying for gov funded advice or representation must prove cannot pay for own lawyer.
Assess income and capital.
If benefits like job seekers allowance- to quality presume disposable capital is below set level.
Gross income must be below set level.
Disposable income is Calculating starting starting with the gross income of an applicant and taking away the following:
- Tax and national insurance
- Housing costs
- Childcare costs or maintenance paid for children
- An allowance for each dependant
There is a minimum amount of disposable income below which the applicant does not have to pay and?
and contribution fees.
Monthly disposable income is graded into?
Bands.
Band A
1/4 of income in excess of the band
Band B
1/3 of income in excess of the band
Band C
1/2 of income in excess of the band
Band C
1/2 of income in excess of the band
What does disposable capital refer to?
Disposable capital refers to person’s assets, such as money in a bank and even a savings account, stocks and shares or even expensive jewellery and even home value.
In order to qualify for funding the max limit of disposable capital is?
8,000
What can happen if a person is just below 8,000 or over?
Even when a person overall capital is just below they may still be charged a contribution fee towards his case. if they have more than £8,000 they must use their own money to fund the legal case.
What is the limit for disposable capital?
3,000
The value of someone’s house if taken into account, how is this done?
The value of someone’s home is taken into account. This is done by deducting the amount of mortgage, but only up to £100,000, from the current value of the property. If the amount left after this exceeds £100,000 then the amount left is countered at disposable capital.
The rest is taken into assessment for funding and means tested. Deducting the amount of the houses mortgage does this, but only up to £100,000 then all the access is taken as disposable capital.
Legal services are provided by a wide range of people and organisations. Give examples?
Local solicitors are a main source of legal services, but there are also advice agencies, welfare associations and consumer protection groups who can offer help and advice. The Government intended to extend the range of bodies that provide legal services and to make sure that services were more evenly distributed through the country.
Legal Services Commission granted contracts to service providers. What happened? Give figures?
The number of contracts decreased steadily. At the start of 2000 there were about 5,000 solicitors’ firms with civil contracts. This was lower than the numbers who used to deal with legal aid cases under the previous system.
What happened under the Legal Aid Agency regarding contracts? Give a figure.
Under the Legal Aid Agency, the number has continued to decrease. BY 2015 only 1,820 firms had contracts. In addition, 231 not-for-profit agencies had contracts.