“I note that Exhibit ED/23 records that we made 2 bail claims during the period1 September 2018 to June 2021. I have no reason to doubt that figure, which would represent less than 20% of our total claims. I confirm that our contract manager has not raised any questions or concerns about this figure. There are several reasons why we have billed relatively few bail claims, but the overall theme has been that we have taken on a substantive matter and progressed that in a short period of time, resulting in release from detention, such that a separate file for bail advice has not been required.”
“The problems we have identified from our monitoring, raised with LAA in our correspondence and at meetings from June 2019 onwards, include: i. failing to advise on bail and/or refusing to represent client in bail applications. ii. refusing to act for clients due to insufficient capacity iii. failing to act diligently or promptly, or at all iv. appearing to lack competence v. failing and/or inability to advise on judicial review vi. failing to identify trafficking indicators and/or to refer into NRM vii. failing to provide written advice at the end of a surgery viii. clients not knowing if a Provider had taken on their case at the end of a surgery ix. clients believing their case had been taken on after a surgery, but being told weeks later that it had not x. ceasing to act for a client without providing adequate reasons xi. failing to communicate with client or respond to communications from client xii. requesting payment for legal services xiii. failing to use an interpreter where required xiv. failing to provide cover when solicitors/advisors with conduct of cases taken on from the surgery were absent due to e.g. annual leave or illness.”
“Access to legal advice and representation a. Providers refusing to take on clients seen at DDA surgeries, citing capacity to do the work or because the cases are too complex (data provided by the LAA in February 2020 showed, for example, that 5 firms had not opened a single Legal Help file for any of the 292 clients seen at 41 DDA surgeries; 4 opened Legal Help matters for less than 5% of clients seen, 5 for more than 5% but less than 10%, and 8 for more than 10% but less than 20%) [SL1/6]. This suggests potential breaches of providers’ warranties as to capacity and/or competence, and/or the expectation that providers will take on follow-on work for DDA rota clients where they are eligible for legal aid. b. Providers not attending their rota slots or attending late, in clear breach of paragraph 8.105 of the Immigration Specification. c. Providers unable to do judicial review work (often involving injunctive relief) because they are not authorised to do so by their regulator, in breach of the tender requirement (and so the associated warranty under cl. 18.1 of the Standard Terms) that a provider must be able and willing to conduct “the full range of licensed work in the Immigration and Asylum Category of Law”
“Contract managers started to re-engage with providers in August 2020 regarding annual visit activity, prioritising their work based on risk. As noted above, contract managers have a portfolio of providers covering different areas of law funded by legal aid. Contract managers are a finite resource, and that being so, (particularly after the pause in contract management activities), contract managers were and are focusing their attention on the highest risk areas, which will vary depending on the providers in their portfolio.”
“…impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. More recent authorities make it clear that any hindrance or impediment by the executive requires clear authorisation by Parliament. Examples include Raymond v Honey[1983] 1 AC 1 , where prison rules requiring a prison governor to delay forwarding a prisoner’s application to the courts, until the matter complained of had been the subject of an internal investigation, were held to be ultra vires; and R v Secretary of State for the Home Department, Ex p Anderson[1984] QB 778 , where rules which prevented a prisoner from obtaining legal advice in connection with proceedings that he wished to undertake, until he had raised his complaint internally, were also held to be ultra vires.”
“If it is established that there has in fact been a breach of the duty of fairness in an individual’s case, he is of course entitled to redress for the wrong done to him. It does not matter whether the unfairness was produced by application of a policy or occurred for other reasons. But where the question is whether a policy is unlawful, that issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way.”
“the issue in relation to the application form might have been argued on the basis that an administrative practice (adoption of an overly complex form) had created an impediment to gaining access to legal aid and hence to court in cases where there was a right to have publicly funded assistance. That, in substance, was the effect of asking whether the form was inherently unfair in impeding access to legal aid.”
“For all the performance management, provider monitoring and “hourly checks” … the Secretary of State through her officials was not aware that in the Midland and East of England, accommodation was not being provided within timescales she had set in 36% of all cases where a section 4(2) decision had been made on her behalf.”
“there is evidence of a real risk of a breach of the Secretary of State's statutory duty in a significant number of cases.”