Social Welfare Lawyers in the Centre of Birmingham

Terryann Samuels – The long road to the Supreme Court – Struggles with the Legal Aid Agency

7 June 2013 – Ms Samuels made an application as homeless to Birmingham City Council (“BCC”)

20 August 2013 – BCC determine that Ms Samuels is intentionally homeless; She requested a review of this decision through her representatives by letter of the same date.

11 December 2013 – BCC  notified Ms Samuels of its decision on review and in particular that the Council had decided to uphold the intentional homeless decision.  because she could, and should, have used some of her subsistence benefits to make up the shortfall between her HB and her contractual rent,

24 December 2013 – Ms Samuels issued an appeal in the County Court challenging the decision of 11 December 2013 that she was intentionally homeless.

10 June 2014 –  The judgement in the appeal was handed down by the court. HHJ Worster dismissed the appeal.

27 June 2014 – Legal Aid was granted to Miss Samuels to issue an appeal of HHJ Worster’s judgment to the Court of Appeal.

1 July 2014 – Ms Samuels issued an appeal in the Court of Appeal

On 27th October 2015 the Court of Appeal dismissed her appeal.

18 November 2015 – Permission to appeal to the Supreme Court refused by the Court of Appeal.

23 November 2015 – Application to Legal Aid Agency (LAA) for amendment of Legal Aid certificate, supported by Counsel’s advice, limited to applying to the Supreme Court for permission.  The application stated “We are seeking a modest increase in the costs limitation at this stage as, if the Supreme Court refuses permission to appeal then that will be the end of the matter.”

24 November 2015 – Supreme Court of the United Kingdom confirm that the time for the application for permission to appeal is extended until 28 days after the final determination of the application for public funding.

24 December 2015 –Mr Bagri from the Exceptional and Complex cases team at the LAA confirms that the application for amendment has been refused as he assesses the prospects of success as “poor”.

14 January 2016 – Appeal against this decision sent to the Legal Aid Agency supported by Counsel’s advice.  This is treated by the Legal Aid Agency as a review of the decision to “show cause” the certificate.

3 February 2016 – Further submissions in response to the “show cause” sent to the Legal Aid Agency.

9 March 2016 – Mr Bagri from the Legal Aid Agency informs us by e-mail that the review of the show cause has been unsuccessful and the Legal Aid certificate has been discharged.

22 March 2016 – Appeal to the Independent Funding Adjudicator (IFA) against the decision to discharge the certificate submitted. The IFA is an independent lawyer who considers appeals against refusals of legal aid.  Letter includes the following “In our view, Counsel is clearly correct and Mr Bagri is incorrect.  It is to be noted that in his final e-mail dated 9 March 2016, Mr Bagri carries out no analysis whatsoever of the question as to whether an individual confined only to subsistence benefits income can properly be treated as having flexibility to divert over 11% of that income to paying the shortfall in her rent.  Mr Bagri has also completely failed to address the reasons point raised in Counsel’s submissions.  He does not address the points we made about the inadequacy of the Court of Appeal’s analysis.  In our view, this is a matter of national importance, and is exactly the sort of point which merits consideration by the Supreme Court.  At this stage we seek only a limited certificate to enable us to apply for permission.  If the Supreme Court agree with Mr Bagri’s view then they will refuse permission.  In our submission the costs of taking that small step manifestly justify the potential benefits to be obtained.”

24 April 2016 – LAA confirms that the case will be put to the IFA.

27 June 2016 (following several chasing e-mails) –receive email from LAA saying that case needs to go to the Special Controls Review Panel  (SCRP) not IFA. The SCRP is a panel of at least two independent lawyers which considers appeals against refusal of funding in certain types of case.

3 October 2016 – Decision of SCRP received by e-mail.  Appeal refused, the Panel agreed with the reasoning of the Court of Appeal.

20 October 2016 – Judicial Review pre-action protocol letter sent to the Legal Aid Agency.  “… the SCRP has failed to give any or any adequate reasons for its decision.  The decision recites the Panel’s conclusions but not its reasons.  The Panel has failed entirely to give reasons for its rejection of the Claimant’s substantial and detailed submissions in support of her appeal.  By way of example, the decision letter states that Farah –v- Hillingdon LBC can be easily distinguished, but fails entirely to explain why, and the decision letter fails to address the effect of Nzolameso –v- City of Westminster on homelessness reasons, and the proper approach to the Code of Guidance …”

3 November 2016 – Legal Aid Agency confirm that the matter will be considered afresh by a different SCRP.

6 February 2017 – Further submissions sent to Legal Aid Agency for consideration by the SCRP (as we still had no decision and the case of Carmichael had been decided since the last submissions we had made).

17 February 2017 – We were informed by the Legal Aid Agency that the new SCRP Panel would consider the appeal on 21 February 2017.

17 March 2017 – Second negative decision of the SCRP together with the advice that “The SCRP decision is final; there is no further right of appeal.”

3 April 2017 – JR Pre-action protocol letter sent to the Legal Aid Agency alleging failure to consider relevant matters, having regard to irrelevant considerations, and the breach of natural justice.

11 April 2017 – Legal Aid Agency confirm that they are quashing the second SCRP decision and putting it before a third Panel.

25 April 2017 – E-mail to Legal Aid Agency pointing out that the documents that they are proposing to send to the SCRP do not include all of the relevant documents, and confirmation from Legal Aid Agency that the matter will be considered on Wednesday 26 April 2017.

26 April 2017 – Legal Aid Agency confirm that SCRP meeting postponed due to illness.

31 May 2017 – Receive third negative SCRP decision.  It runs to 35 paragraphs and is two to one against allowing the appeal.  The one was a housing lawyer.

Counsel, James Stark, and solicitor Mike McIlvaney discuss the case.  Are we missing something?  We feel that the case is very strong, of national importance, and one which the Supreme Court is likely to want to deal with. CLP partners agree. We collectively decide that we will seek permission from the Supreme Court without the benefit of legal aid.

20 October 2017 – Application for permission to appeal lodged.

19 February 2018 – Permission to appeal granted [cue fanfare] on all grounds.  Surely we will get some Legal Aid now.  We ask the Legal Aid Agency how we should proceed.  There is no CCMS wording code for appeals to the Supreme Court.  The Legal Aid Agency advise us to make a new application using CCMS and to mark it urgent.  In the meantime we have to get on with things in the Supreme Court.  The Court graciously waives the payment of the initial fee unless and until Legal Aid be granted.

19 March 2018 – Legal Aid application submitted.

22 March 2018 – Application for Legal Aid refused.  Decision letter states “… The decision of the Panel regarding prospects continues to be binding upon the Director.  Even if the grant of permission does not negate the previous findings which include proportionality as well prospects of success which is based on the outcome at a final hearing.” (sic).  We have a right of appeal.

26 March 2018 – JR pre-action protocol letter sent to Legal Aid Agency.

6 April 2018 – Legal Aid Agency Central Legal Team write … “Our client accepts that a decision of the SCRP in relation to a previous application would not be binding.”  The letter invites us to make a substantive application “Unless you consider that the Director already has the full information available in order to make a substantive decision.”  (We had previously made an emergency application as instructed by the LAA).  We confirm that we consider that the Director already has all of the information that he needs.

9 April 2018 – Letter from Legal Aid Agency advising that we must make a substantive application because they have now been advised that they cannot “convert” an emergency application into a substantive application.

9 April 2018 – Substantive application submitted via CCMS.

10 April 2018 to 1 June 2018 – Almost two months of CCMS related shenanigans.

1 June 2018 – We receive a full Legal Aid certificate up to and including final hearing (hooray). Costs limitation is £5,000.00 which doesn’t even cover the first disbursement we have to pay.

12 June 2018 – Application made to amend the Legal Aid certificate costs limitation, and for prior authority to instruct to Counsel.

21 June 2018 – LAA informs us, for the first time that they consider this to be the same case as that for which we had previously had Legal Aid which certificate was discharged, and we have to prepare a High Cost Case Plan.

31 August 2018 – Very High Cost Case Plan eventually signed after much wrangling with Exceptional and High Cost Cases team (see flowchart).