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Legal Aid reforms update

The government has been defeated in the House of Lords over welfare benefits.

Lord Bach raised concerns over the fact that there is automatic legal aid for any client who gets to the second tier or upper tribunal (that is the Court of Appeal and the Supreme Court) on welfare law cases. However, there is no automatic right for first tier tribunals.

In other words clients don’t have legal aid to identify or help start their case.

The point is that in order to get to second tier tribunal or Court of Appeal or the Supreme Court, you can only do so by identifying a point of law.

Lord Bach argues that how can it be right that clients should not be allowed some legal advice to find out if a legal issue arises.

The government seemed to believe that it was appropriate logic because they were generous enough to make the concession in the House of Lords in April 2012.

However, they have not kept the concession  according to Lord Bach, as they have come up with something much more vague that will only happen in a very few cases.

The House of Lords agreed and this motion overturning the order was passed.

What persuaded the Lords to take the action they have is that they believed the government had failed to honour what Ken Clarke said during the passage of the LASPO Act to allow support in "point of law" cases at the first-tier tribunal level - the first stage of the tribunal process.

There were also concerns raised over Judicial review plans under the LASPO Act.

Lord Beecham said that legal aid is to be available if the cases is unsuitable for a conditional fee agreement.

Suitability and availability are two different things.

There was also concern that alternative remedies to judicial review should only be insisted on where is was reasonable to do so. The point is that a remedy should be effective and legal aid should not be denied if there is another remedy but it would not be reasonable to rely on it if it is not effective; for example if it would result in delay or unlawful detention.

Plus there are concerns over the government’s plans to reduce reliance on judicial review. It plans to substantially reduce the number of cases that can be dealt with using this advanced procedure. Judicial review is the course of holding the Executive to account.

Swain & Co.’s solicitors say that Judicial review is essential to ensure people have the means to hold Government and public bodies to account for their actions.


Judicial review is part of Public Law work.

Swain & Co. Solicitors have tremendous experience in Public law work and have been recognised by the Legal 500 for the work we carry out in this area, and we are here to assist you in Public Law and Judicial Review matters.

Call us for free on 0800 0351 999.

We can offer a free initial consultation to discuss your potential case.

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