Please note the email from the LAA below confirming this.
Because of the unlawful conduct of those acting on behalf of the state, the right of appeal is suspended.
The effect of this is that if, during a s.21A appeal against a deprivation of liberty, there is a lapse in the standard authorisation, until the new authorisation is in force, the legal aid certificate is in effect suspended.
Not only therefore is someone unlawfully detained during this period, but they lose the right to appeal.
It will make the role of the litigation friend all the more complex as decisions about what to do will have to made by the litigation friend.
Any hearings during this period will have to be vacated or the solicitor and barrister will not be funded. Any work done or expert instructed will have to be put on hold.
Keeping an eye on expiry dates during an appeal is vital.
What is the answer to this mess?
There is no satisfactory answer in this game of charades that is called deprivation of liberty procedures.
Whatever the answer, it will increase costs, confusion and delays. It is likely to add to the distress of P and P’s family. Some of the apparent solutions will only be available to those who are poor enough to receive means tested legal aid.
To compound the problem, those who are not (and are proceeding by a litigation friend) may be asked to pay for their remedy.
The local authority (if their delay) or the care home (if they have failed to apply) will surely have to bear the costs for the period that the person is denied legal aid.
A writ of habeas corpus could challenge the detention for which there is no legal authority.(means tested legal aid)
It might continue as best interests case (how can it be in a person’s best interests to be unlawfully deprived of their liberty). This would require a separate legal aid certificate.
You might argue that the Court should be asked to make an order to continue the deprivation of liberty but this is fraught with problems.
Will the LAA now be auditing all 21A cases to see if any of the appeal covers a period when no authorisation was in place?
From: MHU-EC [mailto:MHU-EC@legalaid.gsi.gov.uk]
Sent: 28 February 2017 17:52
To: Jola Edwards <firstname.lastname@example.org>
Subject: RE: Query from Jola
Thank you for your enquiry which Lee has forwarded on to me.
Unfortunately you will not be covered under the current certificate for the period in which the standard authorisation was not in place as this is a condition of non-means funding. As you confirm the standard authorisation has now been renewed, the certificate would be able to continue but there would be a gap in funding.
Apologies that this is not the outcome you were hoping for and I do understand that this was out of your hands, but it will not be possible to claim when the authorisation was not in place.
Sophie Hull| Liverpool Office |
Mental Health and Civil Escape Case Team
Email | MHU-EC@legalaid.gsi.gov.uk