Changes to Legal Aid for Appeals Lodged Online During the Coronavirus Pandemic

In a letter from Michael Clements, President of the First Tier Tribunal Immigration And Asylum Chamber, which provided further guidance to immigration practitioners regarding the use of the Tribunal service during the current Coronavirus pandemic, he confirmed that the service remains open and that “where either or both parties feel that expedition of an appeal is appropriate, an application should be made”. The letter went to state, “The Tribunal will respond pragmatically and will do what it can to provide an early date for deciding the appeal”. He also stated that “having taken into account feedback from practitioner groups and associations and mindful of the need to ensure that the Tribunal can decide appeals justly and efficiently in the current circumstances, I have decided that, where possible, all appeals will commence using the CCD (“core case data”) platform with effect from 4 May 2020, or such later date if the legal aid issues of using CCD have not been resolved”. The HM Courts and Tribunal Service’s (HMCTS) CCD platform has been developed to make the process of lodging and managing appeals increasingly streamlined and efficient and is intended to increase the number of cases settling before reaching a full hearing. As part of the new way of lodging appeals, a new procedure has been introduced which mandates an advance skeleton argument (ASA) much earlier.

In May 2020, the Ministry of Justice (MoJ) announced changes to the legal aid fixed fee structure for appeals using the new online procedure via the CCD platform; a move intended to reduce the number of appeals proceeding to a substantive hearing.

What changes has the MoJ made to the legal aid fixed fee structure?

The Amendment to the Civil Legal Aid (Remuneration) Regulations 2013 introduces a Controlled Work Stage 2c fee to replace the existing Stage 2a and 2b fees. These new fees are as follows:

• £627 for asylum appeals, and;
• £527 for immigration appeals

This represents an increase of £400 for asylum appeals and is supposed to cover the extra cost of drafting an ASA, assuming an average of eight hours of work at an hourly rate of £50.

The new fee structure will only be in place for one year from June 2020 to June 2021; however, it will remain to be seen whether the fees will then revert to the previous rates.

How have the new rates been received by legal practitioners?

The Immigration Law Practitioners’ Association (ILPA), has been scathing about the changes, stating, “it is important to be clear, these changes that are being rolled out on an urgent basis, purportedly due to COVID-19, are not actually related to the pandemic at all. We understand that the urgency is being driven by HMCTS’ desire to have everyone working within the new digital process, however, we do not think that this should have been the top priority here, and the overriding desire to rush out that process is having a serious and negative impact on the sector. HMCTS did not appear to have considered the implications of the digital reform process (now known as the core case data (“CCD”) platform) for legal aid at all until raised by ILPA and others last year”.

The main concerns of the ILPA are as follows:

• With an increase in fee of £400, the amount of work which must be billed to reach the escape claim fee threshold and, therefore, be paid at more commercially viable hourly rates has been increased from £681 to £1,881 (three times the old and new fixed fee respectively). This means that whereas at present a case that has accrued work valued at between £682 and £1,880 would be paid at hourly rates, such a file will now only receive £627.
• For appeals without a hearing, the additional £400 does not allow sufficient margin for the payment of a barrister to draft the ASA. Because cases before the CCD approach were more likely to result in a hearing, this allowed for a fairer split of fees; e.g. for asylum cases, the law firm would receive £567, and the barrister £302 – under the new scheme, a total of £627 is available. As ILPA state, “if that £627 was split to reflect the fact that the firm has done basically the same amount of work that would have been done for a full appeal hearing, that would leave an additional amount of just £60 for counsel to draft the appellant’s skeleton argument”.
• The increase of £60 for asylum cases which do proceed to a hearing is only £60 – which given that the increased fee is intended to cover an additional 4 to 12 hours of work, this additional £60 is far too low.

Ultimately ILPA believes that these increases will this will deter legal practitioners from taking on complex immigration appeal cases, instead of taking on those which require less overall work. They further state, “ILPA’s position is that, if this is indeed a situation which requires urgent change and a temporary fee structure (which we do not accept is the case), then hourly rates must be implemented on a temporary basis rather than the proposed stage 2c fixed fee, until such time that the MoJ has been able to consult properly with all practitioners and to come up with a new and workable scheme. We believe that the proposed fixed fee will do irreparable harm to the sector, even if it is only in place temporarily. Cash flow for legal aid providers was already in crisis even before coronavirus, partly due to the fact that providers get payments in arrears, only after completion of the case”.

The Law Society takes a similar view, stating that the MoJ has “seriously underestimated the number of appeals that reach the ‘escape fee’ level and thus underestimated the significance of ‘escape fees’ in funding appeal”. They too are asking for an hourly rate for the preparation of ASAs.

Final words

It seems the MoJ may have misjudged their approach when announcing these new fees for legal aid immigration appeal cases. Most barristers have confirmed they will not work under such conditions, with a group of 20 chambers stating, “Other than in exceptional circumstances, each member of the immigration team of the chambers listed below will not accept instructions under the Reform Procedure to prepare an ‘Appeal Skeleton Argument’ unless specific provision is made for that work to be adequately remunerated”. Given the volume of complaints raised over this new fee arrangement, it will be fascinating to see how the MoJ responds. We will keep you updated with updates as they occur.