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England and Wales, Funding and legal aid, Human rights/equalities, Research

A reflection on the participation of decision-makers in administrative justice research

Screenshot 2018-04-04 07.47.30

By Michelle Waite

Decisions made by those working in administrative justice systems are often in the news, especially in the context of sickness and disability benefits. In a recent Twitter exchange I expressed the view that in order to fully understand any administrative justice system it is essential that decision-makers are included in administrative justice research. The purpose of this post is to reflect a little on why that was my view, why I think I was able to secure participation by the Legal Aid Agency in my own research and what that yielded.

Background

My PhD research examined the lawfulness of the Exceptional Case Funding (ECF) scheme operated by the Legal Aid Agency (LAA). In cases where legal aid is not ordinarily available, ECF must be granted if without it an individual’s rights under the European Convention on Human Rights (ECHR) would be violated or there is a risk of such a violation. I considered the legality of the ECF scheme itself and how it is being operated in practice.

Why did I want access to LAA decision-makers?

I felt that it was important to include the LAA in my research so as to build a full and rounded picture of how the ECF scheme is working from the perspective of those administering it, as well as applicants and their lawyers. Whilst I had other sources of evidence of the LAA’s approach and practices through interviews with legal practitioners, access to ECF application documents and the judgments in the Gudanaviciene[1] and IS[2] cases, I anticipated that interviews with members of the ECF team would enable me to expand on these. Without the participation of LAA decision-makers, I felt that it would be rather like trying to describe a coin, whilst only being able to see the ‘heads’ side of it.

‘Without the participation of LAA decision-makers,…it would be rather like trying to describe a coin, whilst only being able to see the ‘heads’ side of it.’

Reflections

For my research I asked to interview ECF decision-makers working across the main categories of law in which ECF is, in theory, available (i.e. immigration, family, welfare benefits) and who were also of varying levels of experience and seniority. The LAA agreed to this, although I was not able to choose interviewees myself. There was therefore the risk that the decision-makers selected were those who it was felt would give the best account of the LAA’s practices. I also had to give an indication of the kinds of questions I intended to ask in advance, and the LAA was clear that participants could not answer questions about individual cases.

When I first approached the LAA, I did not expect them to agree but I felt that I had to at least try. I was therefore delighted and surprised when they agreed to give me access to carry out the interviews. As well as being a researcher, I was still practising as a legal aid housing solicitor at the time I carried out my fieldwork and I made the LAA aware of that. Reflecting upon the conversations I had in order to secure access and the interviews themselves, I think that may have been to my advantage. Whilst it may have been assumed that as a legal aid practitioner I would be hostile towards the LAA, it was also certain that I was going to be making future applications for legal aid and possibly for ECF so I had an interest (as did the firm I worked for) in maintaining a constructive working relationship with them. I also formed the impression that perhaps the LAA saw their participation as a positive opportunity to communicate their perspective in a way that was not possible in litigation.

What difference did it make to my research?

The interviews with ECF decision-makers provided some valuable and unexpected insights. For example, I found that there were quite varied understandings of the concept of ‘complexity’, a key aspect of the test to be applied when deciding whether ECF should be granted. I was also able to explore the impact that the Gudanaviciene judicial review had had on participants’ approach to deciding whether or not to grant ECF. This was crucial because this case significantly changed the overarching question decision-makers must ask themselves when looking at an application.

What next for my research?

I am currently developing two articles based on my thesis: one on my overall findings and the other in which I make the case for there to be a right to ECF in some welfare benefits cases relying upon Article 3 ECHR.

About the author:

Michelle Waite is a PhD candidate at the University of Liverpool and a solicitor specialising in housing law (currently non-practising). Her doctoral research was funded by way of a scholarship from the Hodgson Trust.

 

[1] Gudanaviciene and others v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin); Gudanaviciene and others v The Director of Legal Aid Casework and the Lord Chancellor [2014] EWCA Civ 1622.

[2] IS v Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin); Director of Legal Aid Casework and Anor v IS [2016] EWCA Civ 464.

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