Organisation we investigated: Legal Aid Agency
Date investigation closed: 15 September 2021
A Law Centre complained to us about decisions the Legal Aid Agency made on legal aid applications for three of its clients. The three clients were EU nationals the Home Office had found rough sleeping in the UK and ordered to be deported.
The Law Centre said the Legal Aid Agency’s decisions to award the aid were delayed and the Agency had refused to backdate the legal aid certificates. This caused the Law Centre losses of around £50,000, which it was unable to recoup.
In 2017, the Law Centre was representing three clients the Home Office had decided should be deported. At the time, a Home Office policy said EU citizens living in the UK must exercise their EU Treaty rights to free movement in order to stay in the country. The Home Office found the three clients rough sleeping and said this was evidence they were not exercising their EU Treaty rights.
The Law Centre applied for judicial review of this decision on behalf of its three clients. It argued the Home Office policy was unlawful and was being used to systematically identify and deport EU citizens. At the same time, the Law Centre applied to the Legal Aid Agency for legal aid for each of its three clients.
The Legal Aid Agency initially decided against awarding legal aid to two of the EU citizens. One of these decisions was overturned at review, seven weeks from the date of initial application. Another was overturned at appeal stage around 13 weeks after the initial application. It took six weeks for the third EU citizen to be awarded legal aid.
At the time, regulations only permitted legal aid certificates to be issued from the date the Legal Aid Agency made a decision in favour of awarding the aid. The Law Centre asked the Legal Aid Agency to backdate the legal aid certificates, particularly given the delay caused by having to appeal the initial decisions. The Legal Aid Agency said it did not have the power to do that.
The Law Centre’s case representing the EU citizens was successful at judicial review. The Home Office was ordered to pay the Law Centre’s costs.
However, the Law Centre was unable to recoup all of its costs because its clients had not been getting legal aid when the judicial reviews began. The clients had not agreed to pay the Law Centre if their legal aid application was unsuccessful.
What we found
The Ombudsman’s investigation found the Legal Aid Agency had unreasonably delayed reaching decisions on the legal aid applications of the Law Centre’s three clients.
We also found that:
- the Legal Aid Agency’s procedures for deciding the outcome of legal aid applications, together with its interpretation of the legislation (that it could not backdate legal aid certificates, even following appeal or review) led to an unfair situation for some groups of people
- the Law Centre brought that unfairness to the Legal Aid Agency’s attention through its complaint
- the Legal Aid Agency should have done something to address that unfairness - not to have done so was maladministration.
Putting it right
The regulations governing the way the Legal Aid Agency works changed in 2019. The Legal Aid Agency now has the specific power to backdate legal aid certificates. We therefore recommended to the Legal Aid Agency that it:
- examine this case in detail to learn why there were such long delays and to make sure its policy on backdating will eliminate any unfairness to specific groups, as seen in this case
- apologise to the Law Centre
- pay the Law Centre the costs it was unable to recoup as a result of the Legal Aid Agency’s failings.
Read the press release.