As of 1 April 2013 access to legal aid for employment matters was withdrawn. This means that no legal aid is available for non – discrimination employment matters UNLESS the applicant is a victim of trafficking.
For compensation claims the applicant does not need to have been recognised by a Competent Authority but they will be required to provide evidence as to why the definition of trafficking is met. In practice, in the absence of a reasonable or conclusive grounds decision, this will require a letter from the support provider setting out what indicators are present and why on the specific facts of the case the applicant is deemed to have been trafficked..
It does not matter whether the applicant entered or is present in the UK lawfully or not, for the purpose of accessing legal aid for a trafficking compensation claim. The requirement is whether they are trafficked.
If the applicant does not meet the definition of trafficked, then they will not be able to access legal aid unless the matter amounts to a complaint of unlawful discrimination.
Evidence of means
The Legal Aid Agency requires applicants to provide evidence of their financial position. For Legal Help (for the start of all compensation cases and claims in the Employment Tribunal) this will be the financial position in the month prior to the application. For full legal aid, a legal aid certificate, this will be the three months prior to the application. Evidence is usually made up of:
- Bank Statements for any account held abroad or in the UK
- Payslips if the applicant is in employment and receives payslips
- Evidence of rent payments, either in the form of a rent agreement, rent receipts, letter from landlord
- Benefits letter dated within three months of the application being made.
If the applicant has a partner then the Legal Aid Agency will require financial information for them also, including partners abroad.
If the applicant is not in employment, is not receiving benefits or is receiving support from a charity, then a letter from the support provider confirming the date support began and the sum received, either weekly or monthly, is usually accepted as evidence of financial means.
After a person has been granted a legal aid certificate, the Legal Aid Agency often review their financial situation at short notice and will cancel legal aid if documentation is not produced. This can have extremely serious consequences in the middle of a court case.
Legal Aid not only covers the costs incurred in relation to a case but also provides costs protection in the courts, meaning if the claim is not successful the applicant will not be held liable for their opponent’s legal fees.
Conditional fee agreements and after the event insurance
Under regulation 39 of the Civil Legal Aid (Merits Criteria) Regulations, legal aid will only be granted if the decision maker is satisfied that the compensation claim cannot be funded by means other than legal aid.
The decision maker needs to be satisfied that the victim:
- Does not have access to other potential sources from which it would be reasonable to fund the case
- The case is unsuitable for a conditional fee agreement
- There is no person other than the victim, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings
- The individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other forms of alternative dispute resolution.
Further, Article 12 of the Directive requires that victims of trafficking have access ‘without delay’ to legal counselling and to legal representation and that such legal counselling and legal representation be free of charge where the victim does not have sufficient financial resources.
Few victims of trafficking are in a position to fund a claim against their trafficker. It should, therefore, be simple to demonstrate that legal aid is the only genuine option for pursuing a claim. Despite this, unless addressed, the Legal Aid Agency will refuse applications for civil legal aid, on the basis that the victim has not demonstrated that they are unable to obtain either a conditional fee agreement (CFA)¹ or after the event insurance (ATE)². Such refusals are potentially unlawful.
A CFA/ATE is not provided free of charge. In relation to a CFA, a charge is paid as a ‘success fee’ is taken from the compensation awarded. In contrast, where the claim is funded by legal aid, the victims’ costs would be paid by the trafficker and repaid to the Legal Aid Agency in the form of the statutory charge, meaning that the victim has not had to pay fees from their compensation.
Similarly, ATE requires the payment of an insurance premium. Some insurers will defer payment of the premium to the conclusion of the claim, but in any event, this still constitutes a charge.
A CFA/ATE will not cover disbursements³ so even if the victim were offered a CFA/ATE, in reality, they would be unable to bring a claim.
It is not clear as to who the Legal Aid Agency consider should cover the costs of making CFA/ATE enquiries. Few victims are able to make enquiries unaided and few support providers are able to use their limited resources making such enquiries.
Because of the approach taken by the Legal Aid Agency, it is important to make representations about CFA/ATE. The application should:
- Refer the decision maker to the relevant sections of the Directive/ECAT regarding access to free legal advice.
- Reiterate that CFA/ATE is not ‘free’.
- Refer to the victims’ ability to make enquiries CFA/ATE themselves, does the victim speak English or have mental/physical injury which would impact on their ability to make enquiries? Consider if there are any issues arising from the Equality Act 2010
- Comment on the victims’ ability to cover disbursements as they fall due.
ATLEU has been granted permission for judicial review of the lawfulness of requiring victims of trafficking, financially eligible for legal aid, to have to carry out CFA/ATE enquiries.
The Queen (oao) Norbert Novodomski v The Lord Chancellor and Secretary of State for Justice CO/9/2020. A date is still to be listed but it is hoped that judicial oversight will result in clear guidance and a consistent approach.
If you are experiencing refusals of funding linked to CFA/ATE enquiries please contact firstname.lastname@example.org
¹Conditional Fee Agreement
A conditional fee agreement is commonly known as a ‘no win no fee’ agreement. The client only pays their solicitors costs at the end of the case and only if they win. The solicitor is allowed to charge a success fee that cannot be recovered from the opponent, so a portion of the client’s compensation will always have to be paid to the solicitor.
²After the Event Insurance
This is a type of insurance obtained to cover the client’s costs if the claim is unsuccessful and they are therefore liable for the legal fees of their opponent as well as their own. Insurers will charge a premium which the client is required to pay in respect of the policy. Insurance will not usually cover the cost of disbursements as they fall due.
These are costs that are paid too third parties in support of the legal claim:
- Court fees
- Document translation
- Expert reports.
List of compensation providers
The list below was provided to us by the Legal Aid Agency and lists the providers who sought additional miscellaneous matters.
Those providers highlighted in bold have confirmed that they are able to advise in relation to trafficking and slavery compensation claims.
Many advised that they were unable to undertake trafficking and slavery compensation claims, while some did not respond to our request for information.