MoJ faces judicial review on two separate fronts over legal aid plans

The Ministry of Justice will face judicial review proceedings on two separate fronts over its controversial legal aid reforms after two charities this week launched challenges.

The Public Law Project, acting for ten legal aid law firms, issued an application on Tuesday for permission to apply for judicial review of an MoJ policy decision to make publicly funded legal advice in community care law accessible only through a mandatory single telephone gateway.

Patient safety charity AvMA announced yesterday that it had launched a legal challenge over the Ministry’s decision to scrap legal aid for victims of clinical negligence.

The Public Law Project challenge – which is backed by the Law Society – centres on the government’s plans for telephone operators, who are not legally qualified, to determine a caller’s financial eligibility, whether their problem is within the scope for legal aid, and whether they would be entitled to face to face advice or telephone-only advice.

“The specialist law firms are concerned that many individuals (such as those with language and learning difficulties) who have problems communicating by phone will be prevented from accessing justice through the legal aid scheme if this proposal is implemented,” the PLP said. “Further, even where such individuals are able to access the gateway, they are likely to face various hurdles evidencing a need for urgent or face to face advice.”

The ten firms will argue that the government failed to properly consider the impact of its decision on the vulnerable groups who are most likely to require advice and assistance in community care law. They will also claim that the decision to include this category of law within a pilot scheme trialling a telephone gateway was irrational.

Jo Hickman of the Public Law Project said: “Our clients are specialist lawyers who are acting in the interests of those who will be at risk if this proposal is implemented. Their concern is that the consequence of this decision will be to limit meaningful access to justice for some of the most vulnerable individuals in society. PLP shares this concern.”

AvMA is also arguing that the plan to withdraw legal aid for clinical negligence was irrational and unfair “on a number of fronts”.

The charity said no account had been taken of the extra cost to the NHS of switching cases which would have funded by legal aid to “no-win no-fee” agreements, which it said were far more costly.

It pointed to support from the National Health Service Litigation Authority, which defends the claims for NHS trusts, for keeping clinical negligence in scope. Lord Justice Jackson, whose report on litigation costs formed the backdrop for the government’s reforms, has also advocated that legal aid is retained in this area.

AvMA Chief Executive Peter Walsh said: "We regret that we have to take this action, but the Ministry of Justice has failed to listen to the overwhelming arguments put to it for keeping clinical negligence in scope for legal aid.

“Scrapping legal aid for clinical negligence is completely irrational whatever way you look at it, as well as grossly unfair. Ken Clarke's department might save a little money, but the cost will simply be heaped on the NHS.”

Walsh also argued that some of the most vulnerable people in society injured by negligent treatment at the hands of a State body would be denied access to justice. “And the NHS will be deprived of the opportunity of learning from mistakes which are often only recognised because of a legal challenge,” he added.

The AvMA chief executive warned that even though a Bill was going through Parliament, there was a danger Parliament would be “misled by an inadequate and irrational consultation response and impact assessment”.

He said: “No consideration has been given to our argument that as the NHS is an arm of the State, it is a responsibility of the State to ensure availability to redress for victims of NHS negligence. One of the leading QC's in medical law (Martin Spencer QC) is representing us and has advised us we have a good case.”

AvMA warned that victims of clinical negligence would be hit by a "double-whammy" if the Legal Aid Sentencing and Punishment of Offenders Bill went through unamended. “In addition to taking away legal aid (which is only available to the poorest in society), changes to the way "no-win no-fee" agreements work would mean that around 50% less even of these cases would be viable to take forward,” it argued. “Solicitors would only be able to take on the more clear cut cases. Amendments are being sought to that part of the Bill also.”

Philip Hoult