The outcome of an MoJ investigation into fraudulent legal aid applications relating to non-molestation orders

David Gale made this Freedom of Information request to Ministry of Justice

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

18th June 2018

Dear Ministry of Justice,

On 19.05.16, the MoJ sent communications to an MP / House of Commons Select Committee member as follows:

"Non-molestation orders and legal aid
During your meeting with the Minister last week we undertook to write with details of the steps we are taking to establish whether individuals are making “unevidenced” applications for non-molestation orders (NMOs) in order to obtain legal aid in private family cases.

It is clear that applications for NMOs have risen in recent years – although, as discussed, there could be various reasons for this increase. To explore the issue further we are doing the following:

• contract managers within the Legal Aid Agency are investigating the issue of NMO applications with legal aid firms, and will conduct formal audits if necessary. It would be helpful if you could identify any particular firms you believe to be a problem. The more specific you can be about any issues you have identified the better;

• we have also commenced work with Her Majesty’s Courts and Tribunals Service to understand the reasons behind local trends in the courts in Derbyshire. Again, if you believe there are issues at a particular court it would be helpful to know; and

• finally, we are liaising with Home Office colleagues, who hold the policy lead for domestic violence, to understand the broader context. A number of the matters you raised go beyond legal aid, and some – such as your concerns about the police – go beyond the remit of this department. By talking to the Home Office, we should get a better sense of other developments that may be driving the rise in NMO applications.

We are unsure at this stage exactly how long this work will take, but will provide you with an update within the next three weeks."

At the MP's request, I provided to the MoJ information related to the conduct of court cases in Derby and elsewhere.
As yet, there has been no sight of the resolution / conclusion of the MoJ's investigation.

Please provide details of how this MoJ investigation was progressed and what conclusions or reports were drawn up as a result.

Yours faithfully

David Gale
Kids for Cash UK

Dear Ministry of Justice

I note that a response has not yet been received to my FOI request of 18.06.18.

Please provide, by return, an acknowledgment that my FOI request has been received, and that an internal review will be initiated to discover why a response has not been forthcoming.

Yours faithfully

David Gale (Mr)

Wallis, John, Ministry of Justice

Dear Mr Gale

 

I write further to your email of 18 June requesting details of work we
undertook in 2016 to see if we could find any evidence of individuals
making improper applications for non-molestation orders (NMOs) in order to
obtain legal aid in private family cases.

 

Prompted by your enquiries, our work at the time focused on the family
courts in Derbyshire, exploring the trends you had highlighted in previous
correspondence. Colleagues in Her Majesty’s Courts and Tribunals Service
in Derbyshire consulted criminal justice agencies in the area and reviewed
a sample of case files. This work did not uncover any issues of concern.
Many of the cases examined involved allegations of repeat abuse rather
than one-off incidents.

 

While Derbyshire saw a bigger increase in NMO applications compared with
the national picture, the actual numbers were small and the increases
could be attributed to a range of reasons.

 

Enquiries made of LAA contract managers did not highlight any issues
either. If, however, you have further information on any specific issues
relating to a legal aid firm, please supply us with the details and the
LAA will look into it.

 

More widely, it may interest you to know that changes the Government made
to the domestic violence evidence requirements for obtaining legal aid in
private law family cases, introduced in January of this year, included
giving the LAA the discretion to withdraw legal aid if an NMO which was
the basis for the funding was made ex parte and subsequently set aside by
the court.

 

Please let me know if you have any further questions or if you have any
additional information that you would wish to bring to our attention.

 

John Wallis

Family Justice Policy

020 3334 5055

 

 

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Dear Mr Wallis

Thank you for your response. I am concerned that the problems in the non-molestation order (NMO) applications geographic hot spots appear to be hidden to the Ministry of Justice (MoJ).

1. To use the Derby Court as an example: an analysis of the MoJ’s own data shows that, in 2011, there were 48 NMO applications. That figure rose to 215 by 2014, 288 by 2016, and 510 by 2017. We already have written confirmation from the Derby Court manager that these significant increases were not due to the amalgamations of cases from other courts.

2. I accept that the legal aid status may be revised when an NMO is set aside but, in reality, what is happening is that law firms are making NMO applications to gain legal aid and then, withdrawing the application at a later stage so that the legal aid remains in place. Both the courts and the legal aid agency have confirmed that neither have sight of the progress of cases within each other’s information systems. The cases are not linked by automatic data updates. In my professional role as a public sector consultant Chief Information Officer, I see a relatively simple solution here.

3. An analysis of the MoJ’s data shows that a handful of large law firms are responsible for a large proportion of the NMO application increases. In many instances, the applications are made ‘out of area’ to those courts showing the largest increases. This suggests that law firms are making applications to specific courts identified as ‘soft targets’, where an applicant is likely to receive a more favourable response to an NMO application that is not backed by corroborating evidence.

4. We are concerned that, in some cases, spending a night in a women’s refuge is adjudged to be sufficient corroborating evidence. This is of particular concern, given that one major provider of women’s refuges has been evidenced as having received referral fees from law firms making NMO applications.

5. We understand that the outgoing President of the Family Division of the High Court has already acknowledged a ‘vice in the system’ in relation to NMOs but is frustrated that because of ‘judicial independence’ change cannot be effected unless direct legal challenges are made to the courts on a per case basis. You will already be aware that Defendant’s in NMO cases are unlikely to receive legal aid or be represented.

There does appear to be a mismatch in the accounts provided from the coal face (evidenced by the MoJ’s own data), when compared to the government’s official responses. I would very much welcome the opportunity to input to this important debate in the hope of finding a solution to a problem that appears to be getting worse rather than better.
Yours sincerely

David Gale
Kids for Cash UK

Wallis, John, Ministry of Justice

Dear Mr Gale

Thank you for your response. I note in particular your desire to contribute further to consideration of these issues. I will talk to my colleagues about how you might best do this and come back to you.

John Wallis
Family Justice Policy
020 3334 5055

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Wallis, John, Ministry of Justice

Dear Mr Gale

I promised to come back to you with further details of how you might best contribute any further views you have on the issues raised.

You may be aware that the Government is currently conducting a review of the reforms made to legal aid under LASPO, which is due to report later this year. This includes legal aid for domestic abuse cases. The evidence-gathering phase of the review will continue until the end of September, and colleagues working on the review tell me that you are welcome to submit evidence to it by sending an email to the following address: [email address].

Regards

John Wallis
Family Justice Policy
020 3334 5055

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