Jun 01 2010

Legal aid in the Upper Tribunal: update on what’s happening

At long last, the Scottish Legal Aid Board and the Scottish Government have promulgated regulations for legal aid in the unified tribunal system. There’s plenty of evidence that legal representation makes a substantial difference to success rates in the tribunals, so this is welcome, although the effect of the regulations is patchy. This post gives a brief description of the proposed scheme and its background. There will be fuller discussion at this conference on 14 June.

The historical background

Some years ago, 1 December 2002 to be precise, the legal aid scheme was amended to make provision for legal aid to be available for appeals to the Social Security Commissioners and the Child Support Commissioners in Scotland. Six years later, on 3 November 2008, the Commissioners were abolished and their functions transferred by order to the new Upper Tribunal. The Scottish Legal Aid Board did not notice this, and it is unclear when it found out1. Thus legal aid continued, on the face of the scheme as published, to be available for appeals to the non-existent commissioners, but not for appeals to the existent Tribunal. This in spite of the fact that assurances had been given long ago as 2007 that legal aid would be available2. Either the UK Government was unaware that there was a separate legal aid system in Scotland, or the Scottish Legal Aid Board was unaware that the tribunal system of the United Kingdom was being substantially revamped. Perhaps both. Thus, from November 2008, legal aid for complex social security appeals in Scotland was simply abolished by indolence and accident, although the Board’s website continued (and continues even now) to assert that there had been no change.

The abolition of the Immigration and Asylum Tribunal: the interim scheme

In moves well heralded over the previous two years, the IAT was to be merged into the new unified tribunal system. This time the Board was certainly aware that this would be happening, with effect from 15 February 2010, and that there was a consequent need to put a new legal aid system in place for immigration and asylum cases by that time. It didn’t move terribly fast. Neither did the Scottish Government. Various drafts of possible regulations were tossed round, although they weren’t made available for consultation3 (and even Freedom of Information Act requests for the drafts were refused4 ).

On 11 February 2010 an interim, non-statutory, scheme was put in place for legal assistance in respect of the functions of the former IAT with effect from 15 February. Put shortly, this provided, as before, for ABWOR5. There was still no cover for any other tribunal functions in the unified tribunal, although SLAB asserted “We are liaising with the Government to issue a similar Determination to provide interim cover for the other affected Tribunals.“. In fact no such Determination was ever issued. SLAB mistakenly claimed “You will be aware that the Court of Session has a discretion to remit a judicial review to the Upper Tribunal. In these circumstances the cover will revert to ABWOR“; in fact there was no ABWOR cover – or indeed any legal aid at all – for remitted judicial reviews (no doubt why there weren’t any).

Until 8 June, this remains the position: so there is ABWOR for work in the Asylum and Immigration Chamber both of the first-tier Tribunal, and of the Upper Tribunal, in terms of a non-statutory Determination of the Scottish Government, but otherwise nothing. The Secretary for Justice’s Determination hasn’t been published, but here it is: as footnoted below, SLAB thought it was secret and refused to make it available (!), but at least the Government was willing to publish it.

The new regulations: at last

In spite of Scottish Government’s weird belief (footnote below) that draft regulations put before Parliament remain secret until they are approved, the draft was published in the usual way on being laid before Parliament in April. The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 2) (Scotland) Regulations 2010, SSI 2010/239, have now been published. The new regulations were approved on 3 June and will come into force on 9 June. With a certain degree of insouciance as to the unexplained two-year delay, the explanatory note states simply “These Regulations… amend advice and assistance and civil legal aid legislation in consequence of the transfer of tribunal functions to the First-tier Tribunal and the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).” . The Cabinet Secretary for Justice, explaining the regulations to the Justice Committee on 25 May, gave the unfortunate impression by his use of tenses that he was not informed that these functions had been transferred years before.

There is also, for no very clear reason, a second (although numbered first) parallel set of regulations, the Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations, SSI 2010/166, which makes consequential changes to the Civil Legal Aid Regulations. One very strange, indeed unprecedented, provision of these regulations is that if SLAB decides after the event that, on reflection, representation in the Tribunal was “unjustified in the circumstances of the case” it can seek recovery of what was paid to a solicitor who did the work in good faith and with no lack of skill and care: Regulation 3. Robert Brown MSP questioned this in the Justice Committee; it does not seem to be clear that this effect was intended.

The first general effect of the new regulations is that civil legal aid (but without automatic sanction for counsel) will now be available for judicial review petitions transferred to the Upper Tribunal by the Court of Session. It would have been neater to have simply provided that an existing Court of Session legal aid certificate (which will still be needed to commence proceedings in a legally aided case) could carry over, so obviating the need for a second legal aid application. From counsel’s point of view, the amendment made to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 by the Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010, regulation 4, has the advantage that (assuming of course counsel to be sanctioned) fees will be assessed on the same scale as in the Sheriff Court, rather than on the Court of Session scale (which in some cases now provides for payment at less than the minimum wage; in statutory reviews, for example, counsel are currently paid at rates of about £5 per hour). There may in consequence be some applications for discretionary transfer to the tribunal; to date there has only been one such application, (Currie, 2009 CSOH 145) and no actual transfers.

The second general effect is that ABWOR is provided for some, but not all, of the functions of the unified tribunal. Most importantly, it is available for the Asylum and Immigration Chambers of both the First-Tier Tribunal and the Upper Tribunal. It is also available for social security and child support cases, but in the Upper Tribunal only. There is then a short miscellaneous list (new regulation 5A (d), and see the Executive Note attached to the No. 2 Regulations) of other less important functions of the tribunals for which ABWOR is also available, such as some appeals against tax penalties and also vaccine damage cases. In what may have been thought an uncontroversial provision, however, in all cases ABWOR is not available unless “the solicitor to whom application has been made is satisfied that the tribunal deciding the case will do so sitting in Scotland“; but there can be no guarantee that any Scottish case will be decided in Scotland, and indeed urgent Scottish applications in the Asylum and Immigration Chamber of the Upper Tribunal are expected routinely to be dealt with in London where the business of the Tribunal is concentrated6. For Scottish cases dealt with in England, accordingly, there seems to be no legal aid provision at all, although they will include those in which representation is most desperately needed.

For other classes of cases before the unified tribunal, such as those brought in from the former Information Tribunal, social security and child support cases at first tier, and most tax cases, there’s still nothing. There have been recent challenges to the failure to provide a proper scheme for legal aid in the children’s hearings, and to the nominal (but impossible to access7 ) scheme for defamation cases. There should be some challenges in these areas also. Legal aid is available in the Court of Session for judicial review of a refusal to provide legal aid in tribunals; and, for the moment at least, counsel offered such instructions remain subject to the cab-rank rule. It would be good to see some judicial review petitions brought while this remains the case.

  1. The Board’s Minutes of 9 November 2009 state that it was “ not aware of this until very recently“. [back]
  2. And the UK Solicitor General gave Parliament this undertaking:

    Those who are eligible for legal aid for a judicial review in the High Court will not be put at a disadvantage if the case is transferred to the upper tribunal. We will therefore extend the scope of legal aid so that they get legal aid.

    Not in Scotland, but hey. [back]

  3. There was a short consultation at one point with a group of solicitors, the Glasgow Immigration Practitioners Group, under Chatham House rules so that what was said is confidential; but that was all. [back]
  4. In answer to an FOI request for the draft regulations, SLAB replied

    you asked for a copy of the Determination and draft regulations by today. I am not able to provide you with this information for the following reason. Section 26 of the Freedom of Information (Scotland) Act 2002 – disclosure of the information is prohibited, for example, under an enactment. We consider that this exemption applies because the information constitutes information supplied to us by a third party for the purposes of the Legal Aid (Scotland) Act 1986. Section 34 of this Act prevents Board employees from disclosing this information without the consent of the persons who supplied the information. I do not have this consent and do not consider that we are under any obligation to seek consent to release the information covered by section 34.

    The Scottish Government, also refusing to make available the draft regulations, said this:

    Given that the drafts have not yet been approved by the Scottish Parliament, they remain documents relating to the formulation of Government policy. As the exemption is conditional we have applied the ‘public interest test’. This means we have, in all the circumstances of this case, considered if the public interest in disclosing the information outweighs the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. It is essential that the Scottish Parliament has the appropriate time to scrutinise the draft regulations in the appropriate setting and to suggest amendments to them if necessary. The regulations will however, become publicly available if they receive parliamentary approval.

    [back]

  5. ‘Assistance By Way Of Representation’. Strictly, the Determination provides for payment of “a sum equal to that which would have been allowed in respect of fees and outlays if assistance by way of representation was available… [back]
  6. See the decision in Eba 2010 CSOH 45 (incidentally due for an appeal hearing later this month) at paragraph 91. [back]
  7. Nobody has ever been awarded any legal aid under its provisions. [back]
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