Social Welfare Lawyers in the Centre of Birmingham

Legal Aid Problems

PM is a previous Client of ours and is an Irish Traveller. He lives in his caravan with his partner and recently his 3 year old son has come to live with him. PM has been in the area of a particular Welsh local authority (LA) since 2012 and, since that time, he has had to resort to unauthorised encampments since he does not have an authorised pitch in the area. However he has been pressing the LA to provide him with an authorised pitch but they have, to date, failed to do so. Since 2017 PM has instructed us to assist him and we have been taking up the case on his behalf.   In July 2019, out of desperation, he moved onto an empty pitch on a site that LA are building for Travellers in their area.  At this date LA have only obtained funding to construct three pitches and these three pitches have now been constructed. PM has moved onto one of these pitches. At this date, no further funding is available for further pitches though, ultimately, the LA intends to construct 32 pitches at this site. The LA’s Gypsy and Traveller Accommodation Needs Assessment estimates that they need 32 pitches for Travellers in their area (hence the number of pitches they intend to construct).

The LA have taken possession action against our Client since he was trespassing on the site. This action was taken under CPR Part 55 in the local County Court. Though Legal Aid is available for ‘loss of home’ under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012, under Schedule 1 Part 1 paragraph 33 ‘trespassers’ are excluded from the definition of ‘loss of home’. Therefore, we had only two alternatives in this matter: to try to obtain Exceptional Cases Funding (ECF) for our Client to defend the action in the County Court or to try to obtain Legal Aid for a Judicial Review of the decision to bring and carry on the proceeings.  In either case the challenge on behalf of PM would be on the following basis: though PM is trespassing on land owned by LA, LA have failed to meet the duty to meet assessed need for Traveller pitches under the Housing (Wales) Act 2014 s103. PM is clearly part of this assessed need but the LA have failed to provide him with a pitch. In our opinion it is perfectly possible that this would amount to a complete defence to the action taken against PM.

The first hearing of the possession action was listed for 5 August 2019. Prior to the possession hearing we made an emergency application for Legal Aid for a Judicial Review for PM This application was refused on 5 August 2019 but, fortunately, PM managed to persuade the Court, supported by a letter from us, to adjourn the first hearing to a later date to enable him to try to obtain some form of Legal Aid.

We appealed against the refusal of Legal Aid for the Judicial Review and, on 6 August 2019 made an application for ECF for PM to defend the proceedings.

The next hearing in the possession action was listed for 6 September 2019.  We heard nothing from the LAA in relation to ECF application or the appeal against the refusal of Legal Aid for JR.  When we chased we were informed, with regard to the ECF application, that the means assessment had still not been completed.

On 3 September 2019, our appeal against the refusal of ELA for the JR matter was allowed and Legal Aid for the JR was granted. Presumably the means assessment had been carried out and client found to be eligible.  We lodged a JR application together with an application for an Injunction to stay the possession proceedings. On 6 September 2019 that application for an Injunction was refused on the grounds that there was an alternative remedy, namely defending the action in the County Court.  Throughout this matter we have pointed out that PM, understandably, does not understand the legal arguments in the case and is not able to present those in the Court himself.

As we had no ECF in place, we sent a further letter to the Court for the hearing on 6 September 2019. PM attended at the hearing and did his best to ask for an adjournment. A Possession Order was made.

Following the hearing the LAA said that there was a problem with what we had put down with regard to means in terms of the ECF application even though the LAA accepted that they knew our Client was in receipt of income related ESA (a passporting benefit) and that he had very little capital. Initially, nobody at the LAA could explain to us exactly what was wrong on the means side of things. The LAA were not moving on to deal with the merits of the application until the means had been dealt with. They had satisfied themselves as to means for the JR application for funding but persisted in refusing to consider the merits of the ECF application. On the merits side we were arguing that, since the LAA were now satisfied that there were public law grounds for the JR matter, they ought to be satisfied of the very same public law grounds for defending the possession action. However we were prevented from pursuing the merits argument because of the apparent problems with the means assessment.

Back to the JR. We sought an oral hearing of the Interim Injunction application and this came before the High Court on 18 September when a stay on the possession proceedings was granted and Directions were given by the Court.  The LAA finally confirmed that as regards the means assessment in the ECF application made on 5th August we had ticked the wrong box by mistake, indicating that the client was not in receipt of a passporting benefit. Later in that same CCMS means assessment we stated  that our Client was in receipt of income related ESA and the LAA were well aware that our Client’s only form of income was income related ESA and that he had a very small amount of capital, as they had satisfied themselves of that for the JR application. They insisted that we re-submit the form.  ECF was finally granted on 19 September 2019 at which stage the Judicial Review proceedings were stayed and we are now appealing against the possession order made against our unrepresented client  in the County Court.

In granting us ECF on 19 September 2019, the LAA’s Officer who wrote the letter stated: ‘firstly, may I personally say how sorry I am that it became necessary for your Client to attend the initial possession hearing unrepresented. I will be making our Senior Management Team aware of the issues that I have identified in our handling of this case’.

It is clear that the means assessment in the ECF process should have been dealt with expeditiously and we could then have at the very least, obtained ECF in advance of the 6 September hearing and our Client would then have been represented at that hearing. As a result of that failure, we are now having to appeal against the Possession Order that was granted and clearly this is a much more difficult process than being able to  defend the action at first instance.

Please also see – http://www.communitylawpartnership.co.uk/news/terryann-samuels-the-long-road-to-the-supreme-court-struggles-with-the-legal-aid-agency