Consultation Paper on Delegating Authority under the Access to Justice (NI) Order 2003
The Commission proposes to outline how it will determine applications for publicly funded legal services and assess claims for payment
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Foreword by Baroness Ashton Introduction by Sir Anthony Holland 1. Current delegated arrangements 2. Proposed outline decision-making in issuing civil legal-aid certificates 3. Proposed outline decision-making in appeals against the assessment of claims for work carried out under a civil legal-aid certificate and other decisions 4. Proposed outline decision-making for the revocation and discharge of civil legal-aid certificates on financial grounds 5. Reform of Criminal Legal Aid: Managing decision-making on exceptionality 6. Establishing a panel of solicitors, barristers and lay persons Appendices How to give us your comments
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Our Mission and Aim
The Commission will promote fair and equal access to justice in Northern Ireland in its provision of publicly-funded legal services. Our aim is to provide high quality, customer focussed services that target those in greatest need and demonstrate value for money.
Foreword by Baroness Ashton
This consultation paper represents an important first step in modernising the administration of publicly funded legal services in Northern Ireland. The NILSC’s proposals, which outline how it will determine applications for publicly funded legal services and assess claims for payment, are a necessary precursor to the development of a Northern Ireland Funding Code which will be the subject of separate consultation. The specific proposals set out in this consultation paper reflect the responsibilities conferred on the NILSC by Parliament. The proposals will ensure that there is proper accountability for spending public funds with those responsible for taking decisions being directly responsible for the financial consequences of their decisions. I welcome the NILSC’s commitment to consultation and its desire to establish transparent and accountable structures. In publishing this consultation paper the NILSC is sending a strong signal as to its desire to develop an inclusive approach to developing policy and procedures. I look forward to hearing the outcome of this consultation exercise and to the establishment of appropriate decision making structures which will enable Sir Anthony Holland and his colleagues to progress with the reform of publicly funded legal services.
Baroness Ashton Parliamentary Under Secretary
Catherine Ashton Parliamentary Under Secretary
Consultation Paper on Delegating Authority
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Access to Justice | Northern Ireland Legal Services Commission
Chairman’s Introduction
This consultation document is an important step in the development of the Commission and the services it provides and in the process of reform of publicly-funded legal services in Northern Ireland.
Sir Anthony Holland Chairman
The Northern Ireland Legal Services Commission assumed responsibility for the administration of legal aid in Northern Ireland on 1 November 2003. Up to 31 October 2003 this responsibility lay with the Legal Aid Committee of the Law Society of Northern Ireland. Since then, members of the Legal Aid Committee have assisted the Commission by continuing to carry out certain decision-making delegated by the Commission. The Board of the Commission has now decided to consult on the delegation of decisionmaking to structures and staff within the NILSC under the Access to Justice (NI) Order 2003. This consultation document sets out the Commission’s proposals for the delegation of the Commission’s powers to decisionmaking structures in NILSC in relation to -
• the award of civil legal-aid certificates; • appeals against the refusal of a civil legal-aid certificate; • appeals against the assessment of claims for work done under civil legal-aid certificates; • appeals against the refusal of authorities, exceptional costs and other issues in relation to Children’s Order, Assistance by Way of Representation (ABWOR) and other categories of decision making; • the revocation and discharge of civil legal-aid certificates on financial grounds; • the award of civil legal-aid certificates where the Commission has a conflict of interest; • the award of certificates of exceptionality under the revised criminal remuneration structure being developed by the Northern Ireland Court Service (NICtS).
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Access to Justice | Northern Ireland Legal Services Commission
During 2005, the Commission will begin to codify its decision-making processes as a necessary first step in the development of a Funding Code for Northern Ireland. This work will describe the scope of civil legal aid, the decision-making criteria that the Commission applies to awarding civil legal-aid certificates and assessing claims for work done. In addition, the Commission will be seeking to implement measures which reduce the bureaucratic burden of applying for legal aid and making claims for work done. This consultation document is an important step in the development of the Commission and the services it provides and in the process of reform of publicly-funded legal services in Northern Ireland.
Responding to this consultation document The Commission welcomes all comments and responses to this document. These should be directed to: Sheila McPhillips Secretary to the Commission Northern Ireland Legal Services Commission 2nd Floor, Waterfront Plaza 8 Laganbank Road Mays Meadow Belfast BT1 3BN
Sir Anthony Holland Chairman
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Access to Justice | Northern Ireland Legal Services Commission
The Commission’s Proposals
The following proposals outline how the Commission will determine applications for publicly funded legal services and assess claims for payment
1. Current delegated arrangements 1.1 The decision-making arrangements in place prior to 31 October 2003 have continued to operate under the Transitional Arrangements agreed with the NICtS and the Legal Aid Committee of the NI Law Society in 2003. Broadly speaking, under these arrangements: a) all first-level decision-making (including deciding on initial applications for civil legal-aid certificates, the extension of Legal Advice and Assistance, the assessment of civil and criminal claims, and the revocation or discharge of certificates already awarded) is carried out by NILSC staff; and
b) all appeals against the first-level decision-making (including refusals of civil legal-aid certificate, appeals against assessment, appeals against the award of an authority for expert witness) are heard by a panel of solicitors and barristers (currently the former Legal Aid Committee or the Fees Assessment Committee). 1.2 In all cases, appeal against a first-level decision is automatic, and the decision of the appeal committee is final. 1.3 In addition, the Commission operates a Special Committee, which comprises senior experienced legal practitioners who do not participate in any way in any other decision-making by the Commission. The function of this Committee is to hear appeals in relation to cases in which the Commission has a conflict of interest or cases in which the Commission is
the prospective or actual Respondent, such as in a judicial review against the Commission arising from a refusal to grant civil legal aid. The Commission is not proposing to change the arrangements currently in place for this type of decision.
2. Proposed outline decision making in issuing civil legal aid certificates 2.1 The Commission is proposing to apply the decision-making process set out in Appendix 1 to the issue of civil legal aid certificates and the appeal against the refusal to grant these certificates. 2.2 The Commission is seeking comment generally on the proposed process and on the following specific issues relating to the proposals.
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Access to Justice | Northern Ireland Legal Services Commission
Table 1 Issues for consultation in civil legal aid (relating to paragraph 2.2)
Issue 2(a) Refusal on grounds of insufficient or poor quality information provided in application 2(b) Automatic right of review at initial refusal 2(c) Role of applicant in person in providing information to decision/review/appeal stages – appearance in person 2(d) Role of applicants solicitor/counsel in providing information to decision/review appeal stages: appearance in person 2(e) Role of independent solicitors and barristers in appeal process 2(f) Role of independent lay members in appeal process 2(i) Role of individual members of Commission in appeal process
2.3 Scope of certificates: The Commission intends to consult on the various aspects of the scope of a certificate at a later date. Among the issues that the Commission will consult on is the automatic allocation of senior counsel in certificates relating to High Court litigation and junior counsel in certificates in relation to County Court litigation. The Commission would welcome initial comment on these issues at this stage.
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Access to Justice | Northern Ireland Legal Services Commission
3. Proposed outline decision-making in appeals against the assessment of claims for work carried out under a civil legal-aid certificate and other decisions 3.1 The Commission is proposing to implement the decision-making process at Appendix 2 in relation to all decisions taken regarding the: • assessment of claims for work done; • appeals against the refusal of an authority for expert witness; and • appeals against refusal of authority for exceptionally high costs. 3.2 The Commission is seeking comment generally on the proposed process and on the following specific issues relating to the proposals:
Table 2 Issues for consultation in assessment of claims and granting of authorities (relating to paragraph 3.2)
Issue 3(a) Refusal on grounds of insufficient or poor quality information provided in claim 3(b) Automatic right of review at initial assessment of claim or request for authority 3(c) Role of applicants solicitor/counsel in providing information to decision/review appeal stages 3(d) Role of independent solicitors and barristers in appeal process 3(e) Role of independent lay members in appeal process 3(h) Role of individual members of Commission in appeal process
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Table 3 Outline decision-making for the revocation and discharge of civil legal aid certificates on financial grounds (relating to paragraph 4.2) Stage Stage 1: Initial assessment of information received from solicitors/third parties/ NILSC Service Delivery/ NILSC Compliance Teams/ Corroboration from third parties sought Stage 2: Review of information received Description of decision making Compliance & Counter Fraud Officer seeks clarification of apparent discrepancies in financial status of applicants from solicitor
4. Proposed outline decision making for the revocation and discharge of civil legal-aid certificates on financial grounds 4.1 The Commission is proposing to implement the decision-making process for the revocation and discharge of civil legal-aid certificates on financial grounds as set out in the table below. 4.2 In order to be eligible for legal aid, a person applying must meet certain criteria regarding the amount of capital and the amount of income that he or she has. When an applicant provides this information, the Commission carries out certain checks to confirm that the person meets the criteria for financial eligibility. In many cases, the Commission receives or identifies further information which may cast doubt on the financial eligibility of an applicant. Where an applicant’s financial circumstances have changed, he or she may no longer be entitled to receive legal aid.
(a) If no information is received to account for discrepancies then certificate is immediately revoked; (b) On basis of information received Compliance & Counter Fraud Officer makes following decision: • allow certificate to remain in force; • revoke certificate; • discharge certificate; or • recommend to Director of Corporate Services that NILSC seek prosecution of applicant or solicitor on grounds of fraud
Stage 3a: Certificate remains in force Stage 3b: Certificate is revoked or discharged
No further action
File is removed from live file processes in Service Delivery to Corporate services. Debt recovery processes begin Appeal on grounds of illegality or misinterpretation of financial information heard by NILSC appeals panel Counter Fraud Officer presents evidential package to PSNI
Stage 4: Appeal against decision to revoke or discharge
Stage 5: Prosecution
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Access to Justice | Northern Ireland Legal Services Commission
5. Reform of criminal legal aid: Managing decision-making on exceptionality 5.1 Under the revised arrangements which the NICtS is introducing in relation to the remuneration for barristers and solicitors for work carried out under criminal certificates (fixed-fee arrangements), the Commission will have responsibility for considering applications for exceptionality, that is, those cases which the solicitor or counsel believes will require additional resources. The Commission will have to put in place arrangements for: a) making the decisions on exceptionality; and b) managing the costs of those cases which receive an exceptionality certificate. The Commission is working closely with the NICtS on all aspects of the detailed arrangements for the
implementation of the new remuneration structure for criminal legal aid. 5.2 The Commission is proposing to implement the decision-making process set out in the table below for the award of certificates of exceptionality in criminal cases.
Table 4 Outline decision-making process for the award of certificates of exceptionality in criminal cases (relating to paragraph 5.2) Stage Stage 1: Application for certificate of exceptionality Description of decision-making Decision on exceptionality made against Criminal Remuneration Regulations by Business Manager (Criminal Defence Service) Appeal heard by Exceptionality Panel chaired by Director of Service Delivery, comprising 2 Business Managers, 1 Panel Solicitor and 1 Panel Barrister
Stage 2: Appeal against refusal
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5.3 Transitional period: The management of decision-making during the embedding of the revised criminal remuneration structure will be particularly difficult as there will be no precedent for the decision-making in this field. The Commission is asked to consider delegating the authority for these decisions in the period up to June 2006 to an Exceptionality Committee comprising 3 solicitors and 3 barristers with extensive experience of criminal case management, to consider all applications for a certificate of exceptionality. The Director of Service Delivery will be a member of this Exceptionality Panel and will take the advice of the Exceptionality Committee in deciding on the award of certificates of exceptionality. The Commission will then review these arrangements in June 2006 with a view to moving to the target arrangements outlined above.
6. Establishment of a panel of solicitors and barristers and lay persons 6.1 The Commission proposes to establish such a panel, to assist the Commission in the decision-making processes described in this document. The Commission is seeking comment the following specific issues relating to the establishment of such a panel.
Table 5 Issues for consultation in establishment of a panel (relating to paragraph 6.1)
Issue 6(a) Appointment of legally qualified members the panel through nomination by the Law Society and the Bar Council of Northern Ireland 6(b) Appointment of legally qualified members to the panel to membership of the panel through open competition 6(c) Appointment of lay members to the panel through open competition
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Access to Justice | Northern Ireland Legal Services Commission
Appendix 1
Granting or refusing a civil legal aid certificate: Decision, Review, Appeal.
Application submitted
(a) Automatic right of review at first stage refusal (b) NILSC request for confirmation of all evidence being provided
(a) Applicant must provide evidence of failure to apply the Regulations/NI Funding Code properly or illegal application of Regulations/ NI Funding Code (b) No rights of audience paper based decision-making
100% compliance and quality of information check only 100% pass are registered
Decision by adjudicator
Review by Business Manager (Qualified Solicitor) (third tier)
Appeal to Committee chaired by Commission member, with Director (Qualified Lawyer), 2 Business Managers (1 Solicitor), 1 Panel Solicitor, 1 Panel Barrister and 1 lay person
NILSC Decision-Making Code/NI Funding Code provides: (a) Scope (b) Supporting evidence required to make a decision at each level (c) Reasons for granting and for refusal
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Appendix 2
Paying claims for work carried out under a civil legal aid certicicate: Assessment decision-making.
Claim submitted
(a) Automatic right of review at first stage refusal (b) NILSC request for confirmation of all evidence being provided
(a) Applicant must provide evidence of failure to apply the Regulations/NI Funding Code properly or illegal application of Regulations/ NI Funding Code (b) No rights of audience paper based decision-making
100% compliance and quality of information check only 100% pass are registered
Decision by assessor
Review by Business Manager (Qualified Solicitor) (third tier)
Appeal to Committee chaired by Director, comprising 2 Business Managers (1 Solicitor), 1 Panel Solicitor, 1 Panel Barrister and 1 lay person – Appeal Decision is final
NILSC Decision-Making Code: (a) Eligibility of expenditure (b) Supporting evidence required to make a decision at each level (c) Reasons for granting and for refusal
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Access to Justice | Northern Ireland Legal Services Commission
How to give us your comments
In accordance with The Consultation Code of Practice Criteria the consultation period is 12 weeks. The last date for responses is 30th June 2005.
How to respond In accordance with The Consultation Code of Practice Criteria the consultation period is 12 weeks. The last date for responses is 30th June 2005. When responding please state whether you are responding as an individual or representing the views of an organisation. This consultation document can be made available in other forms upon request.
How to give us your comments We place a very high value on the importance of listening to our stakeholders and explaining our decisions and welcome any views or comments you may have on Delegating Authority. You can email the Commission Secretary with your comments at accesstojustice@nilsc.org.uk Alternatively post your comments to us at: The Secretary Northern Ireland Legal Services Commission 2nd Floor, Waterfront Plaza 8 Laganbank Road Mays Meadow Belfast BT1 3BN
Further information about the Commission Further information about the work of the Commission can be obtained on its website www.nilsc.org.uk or by writing to the Commission at the address below.
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Northern Ireland Legal Services Commission 2nd Floor, Waterfront Plaza 8 Laganbank Road, Mays Meadow Belfast BT1 3BN
Telephone 028 9024 6441 Email: accesstojustice@nilsc.org.uk www.nilsc.org.uk