Legal aid for compensation claims is divided into two separate schemes: legal help and legal aid certificates. There are advantages and disadvantages to each scheme. However, it is not often possible for a client to be able to choose between the two schemes, as each scheme is specific to a particular forum or a particular stage of the case.
To access legal help a client signs a legal help form, usually at the solicitor’s office. The solicitor takes responsibility for ensuring that the client is entitled to legal aid by taking the client through a means test and then assessing the merits of the case. At the end of the case, the file is sent to the Legal Aid Agency for assessment and payment.
Legal help was designed for small scale matters; it is either a gateway to a full legal aid certificate or for short and simple matters. With trafficking compensation schemes, which often involve extremely complex and lengthy employment tribunal, legal help can be used. Almost all cases will be treated as Escape Fees, which are paid on an hourly basis, rather than a fixed fee, which is only £79 for a trafficking case.
Changes to legal help for compensation claims
Many lawyers are unaware that legal help is available for trafficking compensation claims. Although parliament expressly gave victims the right to access the legal aid scheme in the Legal Aid, Sentencing and Punishment of Offenders Act and in the Modern Slavery Act, the Legal Aid Agency failed to make any provision for this. Following pressure from ATLEU, the Legal Aid Agency told solicitors to use miscellaneous legal help matter starts to assist victims. This meant that solicitors would have to use one of the five miscellaneous matter starts awarded with every legal aid contract. In ATLEU’s view this was manifestly unworkable.
Accordingly, ATLEU brought a judicial review to challenge adequacy of legal aid in this area.
After ATLEU was granted permission to pursue the judicial review, and shortly before the hearing in March 2016, the Legal Aid Agency agreed to undertake a review of legal aid for victims by the end of June 2016. Following this, ATLEU withdrew their claim.
Despite the government accepting that there was ‘considerable urgency in relation to this review’, the review did not report until 15 December 2016. Following the legal aid and Trafficking of the Slavery Compensation Claim Cases Review, the Legal Aid Agency invited expression of interest for solicitors to apply for a limited number of trafficking compensation claims and matter starts were finally available from 2017.
While this means that there are now a number of solicitors’ practices and charities who can do trafficking compensation work, ATLEU has considerable concern that this scheme will not result in adequate provision for legal aid for victims of trafficking and slavery. We believe that only a dedicated human trafficking contract would provide this. In any event, we would welcome any feedback from solicitors as to their experiences (good and bad) in accessing legal aid.
Obtaining legal help
The great majority of compensation claims start by the client signing a legal help form. It does not matter whether the case eventually proceeds in the employment tribunal or the courts.
There may be some difficulties for clients completing legal help forms. For example, victims may have difficulty in evidencing their financial situation and so may find it impossible to provide the necessary evidence. You should refer to the Guide to Determining Financial Eligibility for Controlled Work and Family Mediation April 2019 and be prepared to justify – with reference to the paragraphs – any gaps in evidence. You should also try to gather evidence that the client is a victim of trafficking. If there is no national referral mechanism decision, an evidenced and reasoned letter from an expert, such as a first responder, can be attached to the legal help form.
You will bear the risk if there is not enough evidence on eligibility. It is, therefore, important to check that all possible evidence has been retained, or its absence accounted for.
Where legal help should be used
In the employment tribunal, legal aid certificates are not available. Accordingly, all work must be done under legal help. The most significant limitation with legal help is that there is no funding for advocacy. An application for exceptional funding may be made for this. Further, if a tribunal refuses to delay a hearing to permit the trafficking claimant to make an application for exceptional case funding to cover their advocacy, this may be an error of law. Puthenveettil v Alexander & Ors UKEAT/0165/17/DM.
However, if exceptional case funding is granted, you should advise the client of the operation of the statutory charge, as detailed below.
There is no need, or facility, to get an extension on profits costs in legal help, nor to receive payments on account, including for disbursements.
Legal aid certificates
Court proceedings are not covered under the legal help scheme, and so you will need to get a legal aid certificate. Legal aid certificates also provide costs protection and this protection provides a client with significant leverage in court proceedings, as this increases the exposure of the defendants.
Obtaining a legal aid certificate for a claim against traffickers can be difficult and very slow. You should ensure that you are familiar with the Legal Aid Agency’s means assessment guidance so as to reduce delays.
The statutory charge
Once a client has accepted an offer of a legal aid certificate, the statutory charge comes into effect. This means that a legally aided client whose legal aid costs are not covered by inter-partes costs, will in effect have to pay back their legal costs at legal aid rates out of any settlement sum or award from the case. ‘Legal aid is a loan, not a gift.’
In practice, this tends to occur in two situations:
- Non-costs compensation award
If the tribunal claim was solely run on legal help, the statutory charge will not apply. However, if exceptional funding was received (i.e. to cover advocacy in the employment tribunal) or a legal aid certificate was obtained (for an appeal to the employment tribunal), the statutory charge operates. It is important to remember that once the statutory charge becomes operable, it attaches to all work done for the client on any form of legal aid funding.
The following shows how this works in practice. A client is advised on legal help throughout their employment tribunal proceedings (so the statutory charge would not apply). However, the client needs to make an emergency application to the employment appeal tribunal for a hearing postponement. They cannot use legal help for an appeal so they need to obtain a legal aid certificate. Once they have a certificate, the statutory charge is engaged. This allows the Legal Aid Agency to recoup all of the costs – including on the legal help form – from any compensation obtained from the tribunal. It does not matter if the work done on the certificate is only a small proportion of the overall work on the case – the client will have to pay all the legal costs out of any winnings.
2. No costs obtained
When a court case settles but it did not prove possible to obtain costs from the traffickers as part of the settlement, the court case will be run under a legal aid certificate, and the statutory charge will apply.
Accordingly, you may want to consider whether to apply for exceptional funding or a legal aid certificate because of the effect on the statutory charge.
Contributions and maintaining a legal aid certificate
Unlike legal help, a legal aid certificate may be offered subject to the client paying a contribution either from capital or income. Sometimes, a client is eligible for legal help without a contribution in the employment tribunal but they would have to pay a contribution for a legal aid certificate in the court. This may effectively force the client into the employment tribunal, instead of the court.
Victims of trafficking often have unstable financial situations which may change frequently during the course of proceedings, and hence during the period that the legal aid certificate is valid. It is important to ensure that the clients understand their duty to keep the Legal Aid Agency informed of any changes in financial circumstances. If a client loses their legal aid certificate following a financial change during High Court litigation, then the client also loses their costs protection. It may be necessary to bring proceedings to a very rapid halt in these circumstances.
Finally, any costs incurred dealing with the Legal Aid Agency are not recoverable inter-partes. Accordingly, the statutory charge will recover these from any settlement or award obtained by the client. In this situation, you should consider making a formal complaint to the Legal Aid Agency and seek to recover payment for these costs..
Dealing with delays in certificates
Due to the difficulties experienced in dealing with trafficking compensation claims at the Legal Aid Agency, a client may not know if they will obtain a legal aid certificate (or the amount of a contribution) before time limits start to expire. Thus it may be necessary to preserve the client’s position as to limitation, by issuing proceedings in the court and the employment tribunal simultaneously and staying until the Legal Aid Agency makes a decision. Res Judicata and Issue Estoppel should be considered carefully in these situations.