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legal: funding a case

of success in bringing judicial
review proceedings.
An example is where there seems to
have been a breach of a statutory duty or
a public law issue, but the chance of a
judge agreeing with this cannot be known
until certain work has been carried out.
The Legal Aid Agency deems
investigative representation appropriate if
six hours of casework are likely to be
required, or if advice from a barrister or
an independent social worker assessment
or other professional input is required
because facts are disputed.
Casework can include further client
appointments, taking witness statements,
correspondence or researching a complex
legal point.
The legal aid provider will need to make
this application on a system called CCMS,
completing both a means and a merits
assessment with similar financial scrutiny
as at the legal help stage.
The merits test is more complex
and the practitioner must explain why A legal aid solicitor should be able to say what type of funding is best suited to your circumstances
the case meets the criteria for
investigative representation. statements and other evidence and a to your circumstances. Some people have
The Legal Aid Agency usually takes statement of facts and grounds setting out complicated finances and providers will
around 12 days to decide unless the one’s case. check whether you are eligible.
legal advice provider flags it as an Once this has been filed with the court, a It can be hard to find a solicitor with
urgent application. judge will then consider whether to grant capacity to do community care cases as
If the agency grants the funding, then permission for a hearing – all judicial there are not many of them. Contact a
the provider will be given a certificate reviews require permission as a first hurdle. local firm first but, if none are available,
to proceed. If a permission hearing is necessary you can use any firm elsewhere.
rather than a purely paper application, A few organisations provide assistance
Stage 3. Full representation additional funding needs to be requested to get cases started for those who need it,
This is for people who are actively to cover the costs of any extra work and ensuring access to justice until a law firm
contemplating judicial review proceedings representation in court. can be found to issue proceedings.
– the issue has not been resolved and When legal aid funding at the CASCAIDr cannot take your matter
all avenues for sorting it out have investigative or full representation stage is all the way through to court and we do
been exhausted. granted, there is a rule that if one not do legal aid advice at all, but we do
It must involve clear statutory breaches recovers “property” (including damages), offer up to three hours for free and some
or public law grounds for challenge. A there is a statutory charge; this means further free advice for some clients. We
competent appraisal that there is a 50% that the money is recouped to cover the are working on ways to ensure we can
or greater prospect of success is required; costs that the Legal Aid Agency has paid. pass people on to good legal aid firms that
the 50% success possibility criterion is not A waiver can be requested at the time have the capacity to take work on. n
necessary if the threat is to the person’s of the application in public interest cases. ● To check whether you are eligible for
life, liberty or home. Alternatively, you can wait until the end of legal aid and what you will need as proof
This funding is also claimed via the the case when costs are decided and see: https://www.gov.uk/check-legal-aid
CCMS system. The merits assessment is request the waiver then, but it may be ● You can find a legal aid solicitor via
for deciding whether a case can be dealt more difficult to secure at this time. https://find-legal-advice.justice.gov.uk
with through this route if it is
proportionate to the circumstances. Where to start Belinda Schwehr is chief executive of legal
The provider can apply on an urgent or As complicated as all this might seem, if advice charity CASCAIDr (www.CASCAIDr.
emergency basis, which is decided within you need advice about a community care org.uk) and owner of Care and Health
48 hours, while non-urgent applications matter, the best thing to do is to approach Law, a consultancy. She has been a
usually take around 12 days. legal aid providers who have a contract barrister, solicitor advocate, presenter,
Once funding is granted, a certificate and explain what the issue is about, why writer and university law lecturer; Kaylee
David960/geograph.org.uk carried out is issued. want to achieve. in community care and public law, and a
you think there is a problem and what you Lindsey is a senior caseworker specialising
outlining the type of work that can be
CASCAIDr consultant. She represents both
Do you just need advice or do you need
This is usually limited to obtaining
advice from counsel and preparatory work someone to investigate and put the case
adults and children in disputes with local
for proceedings, such as putting together
authorities and the NHS, including issuing
forward for you? The provider should
a court bundle, gathering witness
www.cl-initiatives.co.uk identify what type of funding is best suited judicial review proceedings
Community Living Vol 34 No 2 | Winter 2021 9