Changes to funding of prison law cases

Changes to funding of prison law cases by David Wells

As of 14th July 2010, significant changes have taken place to the way in which prisoners receive funded advice and assistance in relation to prison law issues. These follow a Government review designed to tackle the dramatic rise in spending on prison law, which rose from £1 million in 2002 to over £20 million last year.

Advisers now wishing to carry out prison law work must have a suitably qualified supervisor overseeing all such work. Many firms previously practising prison law fell at this hurdle and no longer offer prison law advice and assistance.

As before, in order for advice and assistance to be given on a prison law issue, advisers must be satisfied that the case passes a sufficient benefit test. This test, however, has now been revised. The sufficient benefit test is achieved where it is determined that there is a realistic prospect of a positive outcome that would be of real benefit to the client.

The net effect of the revised provisions is not to prevent prisoners from obtaining legal assistance on prison law cases but to prevent certain cases from qualifying for funded assistance. Providers of prison law work will now be remunerated under a fixed and standard fees system. There are certain cases, referred to as ‘Treatment Cases,’ for which payment is no longer available. The government has decided that such cases are suitable for being dealt with through the internal complaints procedures within the prison. There is no definitive list of this type of case, but examples include advice and assistance on the entitlement to rights and privileges; issues arising out of correspondence (except legally privileged correspondence); food (except where there is a religious dietary requirement involved); lost or damaged property, and issues arising out of the incentive and earned privileges scheme, save where an IEP warning would have a serious impact on parole or progression.

Where, however, it is felt by the adviser that a Treatment case ought to attract funded advice and assistance, an application must be made to the Legal Services Commission and full reasons must be given. One such case might arise where a prospective client has a severe mental health problem or severe learning difficulty such that, even with the help of other prisoners or staff, he or she is not able adequately to formulate his or her complaint effectively.

Perhaps a more accurate summary of Treatment type cases can be given by saying that treatment cases which have no real chance of success or which do not rise to a significant legal or human rights issue , and which are of an objectively trivial nature or which are not part of a bone fide complaint will not be paid for except where it can be shown that it would be practically impossible for the client to use the internal complaints process without some input from an adviser to help formulate his or her complaint. Advice and assistance must not be provided on any matter if the issue has potential for becoming a civil claim resulting in damages, such as health issues.

There are cases where it is generally recognised that advice and assistance is likely to be merited. Those cases fall under the following headings:

Cases arising out of a prisoner’s sentence

Examples include issues such as categorisation, accessing offending behaviour courses; indeterminate/life sentence planning; determinate sentence planning; challenging adverse decisions in relation to sentence calculation; challenging adverse decisions in relation to license conditions; first categorisation and allocation rising from initial sentence; category A reviews; security categorisations; re-categorisation; resetting of minimum terms; accessing offender behaviour courses and legal issues arising out of home detention curfew, release on early conditional license, release on temporary licence and the Early Removal Scheme. Advice on recall to prison following breach of licence is not within the scope of the new arrangements, but may be funded as a parole board case in appropriate circumstances where the matter is referred to the parole board for consideration.

Disciplinary cases

This includes advocacy assistance or advice and assistance in proceedings before a prison governor or Independent Adjudicator. It is said that the sufficient benefit test will not be satisfied in proceedings where there is no risk that the prisoner will have additional days added to his sentence. For indeterminate life sentence prisoners, the sufficient benefit test is capable of being satisfied where there is a real likelihood that as an alternative to extra days, there will be a penalty likely to have a damaging impact on future parole.

Parole Board cases

Funded advice and assistance and/or advocacy assistance is available for proceedings before the parole board or for cases requiring representations to be made in relation to a mandatory life sentence and breach of licence.

Recall to prison for breach of licence conditions

Advice and assistance is available to clients who are recalled to prison for breaching the conditions of their licence. If representations are submitted which result in an oral hearing, advocacy assistance may be offered.

In all cases, and as before, advice and assistance can only be given where the inmate is financially eligible. Single or unmarried prisoners with no income, assets or savings are almost certainly going to overcome this hurdle.

Conclusion

The true impact of these new arrangements won’t be known for some time. They are clearly designed to stop publicly funded work for matters which are regarded as objectively trivial and which can be resolved by utilising internal complaints procedures. That is not to say that advisers cannot carry out such work, but simply they won’t get paid for doing so. Will advisers be keen to address such issues on behalf of a prospective client knowing that no payment will follow? Time will tell. In addition, bearing in mind that the cases which merit funding under the new arrangements are now going to be the subject of fixed and standard fees, and bearing in mind that advisers will no longer be paid travel or waiting time to go to prisons, advisers are more likely to attempt to deal with cases through correspondence or through video link where possible, something which prisoners generally do not like. Advisers are also likely to re-think which prisons they can justify covering geographically in an attempt to minimise cost and maximise profits.

David Wells is a senior partner at Wells Burcombe LLP