Duty to Deal with Applications

Orders of the Day — Legal Aid Bill [Lords] – in the House of Commons at 10:57 pm on 4th July 1988.

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'Where an application is made to the Legal Aid Board for Civil Legal Aid the Board shall have a duty to deal expeditiously with the application and if the Board have not within two months of the receipt of the application refused legal aid then it shall be deemed to have granted legal aid until such time as legal aid is revoked or amended or discharged.'.—[Mr. Fraser.]

Brought up, and read the First time.

Photo of Mr John Fraser Mr John Fraser , Norwood 10:59 pm, 4th July 1988

I beg to move, That the clause be read a Second time.

The purpose of the new clause is to place a discipline on the Legal Aid Board to deal expeditiously with legal aid applications. We are concerned about the lapse of time at present between the making of an application for legal aid under the present procedures of the Law Society and the application being dealt with on its merits. We have reason to fear that if the experience in Scotland is anything to go by, the situation may get worse rather than better when the Legal Aid Board is in operation.

The problem is that when a prospective assisted person applies for legal aid, the lawyers—solicitors and counsel—can incur no expenditure until the legal aid certificate is granted. Any work that is done before the legal aid certificate is given cannot be recovered under the legal aid scheme even if subsequently it turns out that it would have been reasonable to do that work. The prospective legally aided person may suffer considerable disadvantage, at a time when he may be under the greatest of pressure from those who are bringing proceedings against him.

It might be an application for possession of premises, whether residential or business, or a claim for the recovery of a vehicle under a hire purchase agreement, but in all cases the prospective legally aided defendant could suffer great disadvantage, and even have judgment entered against him in default. The whole case can go disastrously wrong in the opening weeks, during which time the application for legal aid is still being considered by the Law Society or, under the Bill, by the Legal Aid Board.

We understand that in urgent cases it would be possible for an assisted person to apply for an emergency legal aid certificate, but we cannot contemplate a legal aid system where everybody goes for emergency civil aid certificates. The maximum period of about six months in some parts of the country—although I readily admit that the period of application for legal aid differs remarkably from one area to another—is far too long. We should do something in legislation to deal with the difficulties.

There are precedents for putting a limit on the amount of time that a public authority can be allowed to deal with an application. Under housing benefit regulations and law, the local authority is expected to determine an application for housing benefit within 14 days. I regret that in many areas local authorities do not act within that time, but Parliament placed that duty on them. I suppose that if anybody sought to challenge a local authority on a delay in dealing with housing benefit, he would be able to rely on the time limit laid down by Parliament.

In planning legislation, we say that if a planning application is not decided by a local authority within two months, there is a direct appeal to the Minister under the appeals procedure. There are other precedents for saying that if an application has not been refused by a public authority within two months, the application is deemed to be granted. I give the example of the Caravan Sites and Control of Development Act 1960. If an application for a caravan site is not decided by a local authority within two months, the person who made the application is deemed to have the application granted.

In the new clause we propose that if a legal aid application is made to the Legal Aid Board and is not dealt with within two months, it is deemed by default to have granted the application. After all, that is the way that the courts work. If a summons is issued, it is possible for a plaintiff to obtain judgment by default, whether in the High Court or a county court. We may have legal aid applications where the prospective legally aided person finds that judgment is entered against him because of the delay. If a default system is good enough against a defendant, it should be good enough for somebody applying for legal aid.

I said that our fears were worsened by what has occurred in Scotland. A short letter from a practitioner to the Law Society of Scotland, dealing with problems in Scotland, which has a Legal Aid Board, states: The Legal Aid Committee and you may be interested to know that in two cases at Stornoway Sheriff Court this week the learned Sheriff recalled lists because three and a half months was more than enough time for the Scottish Legal Aid Board to process an application for legal aid. In both cases the application for legal aid was made promptly and in one case in fact before the tabling diet.Perhaps someone should tell the Legal Aid Board who seem unable or unprepared to meet the Sheriff's timetable.If Sheriffs throughout the country take a similar view, solicitors and their clients are going to be faced with some very difficult decisions. I would be interested to know whether or not practitioners elsewhere are experiencing a similar attitude. It may be that our local faculty should be taking the matter up with the Sheriffs or the Sheriff Principals to educate them on the subject and I would appreciate your views. That is what has happened in Scotland.

The Government should make boards disciplined and efficient through legislation. Administrative delays are disgraceful. Many of my constituents have been inconvenienced by long delays in issuing passports, immigration applications and applications for registration of United Kingdom citizenship. This is one area where we cannot afford delay. If legal aid is not granted within two months of an application being made, the applicant should be deemed to be legally aided until such time as the Legal Aid Board has a further look at the matter. It would then be free to revoke or amend the legal aid application, or to deal with it differently. It would mean that lawyers could get on with the case and the legally aided person would not suffer disadvantage early in the case when delay in granting legal aid may prove fatal to his interests.

For those reasons, and because there is no reason why legal aid applications should not be determined within two months, I commend the new clause.

Photo of Humfrey Malins Humfrey Malins , Croydon North West

I shall be brief. I have some sympathy with the new clause. As a practising solicitor I have noticed a great difference in the time between determining a criminal application for legal aid and a civil one. The system in criminal courts seems efficient as usually the application is granted on the same day that it is lodged. For civil applications the position is worse.

I practise in Surrey and our applications are lodged at Brighton. Civil legal aid applications tend to take between four and six months to be determined. I appreciate the burdens carried at the legal aid headquarters, but that is too slow. Often the interests of the applicant can be seriously prejudiced by such a delay.

I know that the Law Society can grant emergency certificates, but only when it is an emergency, and those grants are fairly sparing. Anything we can do to make the decision on an application for legal aid quicker would be to the good.

I have sympathy with the new clause. I hope that when my hon. and learned Friend the Solicitor-General replies he can assure me that the board will have at the front of its mind the need to deal with applications quickly. Certainly in the past my clients have been prejudiced. We all hope that in future the system can be smartened up.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers)

Although the Government cannot accept the new clause, there is a measure of common ground in the form of a common desire—as expressed by my hon. Friend the Member for Croydon, North-West (Mr. Malins)—to ensure that legal aid applications are processed with proper expedition.

As the White Paper states, the Government will require the board to set appropriate targets for the handling of its business, and those targets will be carefully monitored. The aim, as the White Paper makes clear, must be to ensure that the needs and interests of all concerned—that of course means the applicant and the taxpayer—are properly balanced.

We share that common aim, but we cannot agree that it is wise for legal aid to be deemed to have been granted if an application has not been dealt with within two months. The House will remember that there are two sides to the matter. There is the duty on the applicant, and the duty currently on the Law Society—in future, on the board—to process the application. If a system operated under which legal aid were deemed to have been granted within two months, there would be a positive encouragement for applicants often to be less than co-operative in answering requests for supplementary information. A solicitor who submits an inadequately completed application form, or a client who is unwilling to co-operate in the assessment of his means, could find himself the one to reap the reward by obtaining legal aid by default, while someone more co-operative might experience more trouble, to no better advantage.

The present system is to be continued under the provisions of the Bill. It provides for legal aid to be granted immediately where there is a genuine and real need for work to be done urgently. That seems to us the best way to ensure that emergencies—as mentioned by my hon. Friend the Member for Croydon, North-West—are properly provided for.

I return to the subject with which I began. We have made it clear in the White Paper that appropriate targets are to be set for the handling of the board's business, and they are to be monitored. We believe that that is the best way in which to overcome a problem which I accept must be overcome by one means or another.

Photo of Mr John Fraser Mr John Fraser , Norwood

I am not sure that that is satisfactory. I know that the Solicitor-General says that the new clause would put a premium on the sending in of inadequate legal aid applications, but that could be solved very simply. if inadequate information was supplied by the applicant, the board could easily have the option of refusing the application. That is exactly what happens with immigration applications. If an applicant does not reply to the questions put by Lunar house, the application is refused on grounds of non-co-operation. There is a precedent for dealing with non-co-operative applicants.

I simply cannot understand what happens to the applications mentioned by my neighbour, the hon. Member for Croydon, North-West (Mr. Malins), during a period of six months. The process sometimes takes six months even when the applicant is in receipt of social security or income support, and therefore no means-testing arises. Where does the application remain for that time? Does it go into a pending tray? If so, it must be one of massive proportions.

I realise that it is not easy to set absolute time limits, but there must be some tougher target for the board to meet. In some parts of the country legal aid applications are dealt with extremely expeditiously. Letters are replied to within two or three days. In other parts, particularly in London—the hon. Member for Croydon, North-West mentioned Surrey as well—it takes six months. That simply is not good enough.

We should like the Legal Aid Board to be virtually instructed to have a target period, perhaps about two months, and certainly no longer. That would provide some means for us to come back and harry the Solicitor-General and the board if the targets were not met. Perhaps the hon. and learned Gentleman could put some target on the table that might act as a guideline for the future.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers)

I hope that it will assist the hon. Gentleman, even if it does not satisfy him fully, if I repeat that the Government will require the board to set appropriate targets for the handling of its business—I am not prepared to say that the appropriate target should be exactly two months in any particular area—and that those targets will be monitored. Subject to the question of a time limit, I think that that is the objective that the hon. Gentleman and the House as a whole wish to achieve. I commend that, rather than the new clause, as the proper way to proceed.

Question put and negatived.