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Legal Aid and appointees
I wonder whether anyone here can advise.
If someobdy is an appointee for someone else; they are granted leave to appeal against a FtT decision and have a desire to instruct a solicitor, would the claimant or their appointee be the Legal Aid claimant?
What if there were sound questions around the claimant’s capacity to litigate?
TIA
Dear Dan,
I think Claire Hodgson is the best person to respond. My recollection of Civil Legal Aid applications was that a claimant would submit a claim for legal Aid, via their Litigation Friend. This ensured that it was a claimant’;s financial circumstances that were taken into account, rather than their carers/appointee. The Litigation Friend effectively acts as their appointee, to ensure that their litigation is properly progressed. I don’t think there is any reason why a DWP Appointee could not act as a Litigation Friend - I would have thought they are the best people to show that they act in the claimant’s interests in pursuing any litigation.
As I say though, I would have thought a personal message to Claire is the safest option for appropriate guidance on the issue. You could ask the legal Aid Agency - I suspect their response would be a version of “Google it”.
I hope that this is of some help.
Regards
Chris
I concur, and indeed my recollection of civil legal aid applications leads to me to believe it must be the claimant’s means not the appointee’s. Thinking about it further, how could the means of a corporate appointee be assessed?
Having said that, I’m sure Claire is the person to give you a definitive answer.
I wonder whether anyone here can advise.
If someobdy is an appointee for someone else; they are granted leave to appeal against a FtT decision and have a desire to instruct a solicitor, would the claimant or their appointee be the Legal Aid claimant?
What if there were sound questions around the claimant’s capacity to litigate?
TIA
and here i am.
first, massive caveat.
i haven’t done legal aid for years - last time was when at previous firm doing legal helps on benefits matters. and as for full legal aid - that was abolished for pi many years ago and i have no clue about the current rules etc (as i understand it, for PI only babies injured at birth can get legal aid at all for pi).
however, as a matter of first principle, a person without capacity to litigate does not have capacity to litigate, and therefore needs a litigation friend. that has to be the case in tribunal as in ordinary court.
i presume by appointee you mean the appointee for DWP purposes? or someone else? usually a family member would be lit friend, or someone with formal power of attorney, or the CoP deputy if there is one - and if they are all the same person, so much the better.
my recollection of legal aid means testing is, however, that it is the incapacitous person’s means that would be relevant, not the lit friends. in the same way as if applying for a court fee remission
but, as i say, you need to double check with someone who does do legal aid
there are other firms represented on here who do (stevensons, i think? and a couple of others i’ve seen on various occasions.
sorry i can’t be more help.
I wonder whether anyone here can advise.
If someobdy is an appointee for someone else; they are granted leave to appeal against a FtT decision and have a desire to instruct a solicitor, would the claimant or their appointee be the Legal Aid claimant?
What if there were sound questions around the claimant’s capacity to litigate?
TIA
and here i am.
first, massive caveat.
i haven’t done legal aid for years - last time was when at previous firm doing legal helps on benefits matters. and as for full legal aid - that was abolished for pi many years ago and i have no clue about the current rules etc (as i understand it, for PI only babies injured at birth can get legal aid at all for pi).
however, as a matter of first principle, a person without capacity to litigate does not have capacity to litigate, and therefore needs a litigation friend. that has to be the case in tribunal as in ordinary court.
i presume by appointee you mean the appointee for DWP purposes? or someone else? usually a family member would be lit friend, or someone with formal power of attorney, or the CoP deputy if there is one - and if they are all the same person, so much the better.
my recollection of legal aid means testing is, however, that it is the incapacitous person’s means that would be relevant, not the lit friends. in the same way as if applying for a court fee remission
but, as i say, you need to double check with someone who does do legal aid
there are other firms represented on here who do (stevensons, i think? and a couple of others i’ve seen on various occasions.
sorry i can’t be more help.
Cheers Claire, I thought it would be cheeky to DM you knowing you’ve been out of the Legal Help loop for a while.
I can avoid a lit friend I think as the appointee can act in all matters relating “exercis[ing] any right to which that person may be entitled” thus avoiding the capacity to litigate issue, but the appointee would really rather like counsel’s opinion on something but doesn’t want to pay for it…
I know from recent experience that where there’s a lit friend Legal Aid assess the claimant’s circumstances but any costs can fall against the lit friend; not that that’s a problem at the UT. However the situation with an appointee is slightly different and I wonder whetehr that’s material from LAA’s position.
I can’t seem to get a straight yay or nay and I doubt the board will see much further input from Stephensons.
The main issue is obtaining counsel’s opnion; there is the distinct possibility of a panel sitting…
Hi Dan,
Have you thought of applying to the Free Representation Unit for Counsel’s opinion on the issue your client has.That neatly removes the concerns about fees and Legal Aid.
Cheers
Chris
Hi Dan,
Have you thought of applying to the Free Representation Unit for Counsel’s opinion on the issue your client has.That neatly removes the concerns about fees and Legal Aid.
Cheers
Chris
Cheers Chris
Sadly FRU require a subscription; Bar Pro Bono Unit doesn’t though so thank you for your inspiration.
Hi there -
Dan….I am unsure why you suggest Stephensons will not be contributing to the Rightsnet discussion forum, as I/we regularly do?
In any event, in answer to your original post (and accounting for the further clarification/info you then provide later), the situation with Legal Aid is something of a “red herring” in all this - on one level.
By that I mean (as Claire points out before me) the capacity for any person to litigate at all is a very case-specific/claimant-specific matter and determines basically, on investigation at the outset of a case, if a person requires a litigation friend to (forgive me) litigate…that would be in any proceedings whether legally aided or not.
Again, as Claire indicates, the role is often taken on by a family member or similar. It does not have to be the claimant’s DWP appointee.. but it certainly could be.
Actually, in theory (I am fairly sure) the application for legal aid - which would still be made by (or in fact in that sense “for”) the claimant himself/herself, could be made by the DWP Appointee or the claimant’s Attorney/deputy etc, and then a different person could (as I say in theory) be appointed Lit Friend in the actual litigation itself (this would be highly unusual though).
It is certainly the claimant’s means which are assessed for legal aid…not the Lit friend’s.
As far as legal aid is concerned, well that opens up a set of issues in itself….not so much regarding the status of the Lit friend (who, as is said, may be one or any of the above and may also be susceptible to costs orders against them personally in certain cases)
However, the real issue here is that the claimant may “like” to avail themselves of Counsel’s opinion - as you put it - but that does not confer a right to legal aid to fund such an advice of course.
In order to get legal aid for such a purpose, there would need to be an application for legal aid…either for “full representation” or (more likely if limited to Counsel’s opinion) for “investigative help”.
In either case, the legal aid applicant (through their lit friend and - at least usually - their lawyer) will have to show not only financial eligibility for legal aid…but merit in the application.
So, if we get over the facts that
a) Legal aid is not generally available at all for welfare bens cases other than those already at UT or where there is possible JR of a refusal of leave from FTT
and
b) the funding of counsel’s opinion is merited as decided by the LAA,
then - the claimant (and lit friend) are effectively and to all practical intent protected by the shield of legal aid.
In fact, it would be hard to see how a costs order could be made against a lit friend at all under a legal aid application for investigative help only…as there would be no proceedings to generate costs either way at that point.
Presuming we then got a good Counsel’s opinion, with merits identified in proceeding, then any contemplated representation in proceedings would (again presumably) be funded by a full legal aid application which would then be (presumably) granted as a result of Counsel’s obtained opinion on the merits of the case.
If there is legal aid granted as a result, then the lit friend should have little concerns even if the case is lost with costs against as the LAA has agreed to fund the case and effectively to bear costs in the event of losing.
If Counsel advises little or no merits…you wouldn’t get Legal Aid anyway
hope that helps
Pete
Dear Dan,
“Nearly Right” Chris to the rescue. Thanks for letting me know that FRU require a subscription. It is likely to be useful as I was not aware of that.
Good Luck
Chris.