The Legal Aid Agency has published a position statement setting out when the costs of care and other family proceedings will form part of the statutory charge on Human Rights Act damages received.
This has been a problematic issue recently. Take for example a situation where a human rights claim for damages is made within care proceedings and the legal aid certificate is amended to cover this. If damages are awarded to the client then all of the costs under the certificate have been taken into account by the LAA in respect of the calculation of the statutory charge. Therefore in view of the costs involved in the care proceedings the statutory charge can often take up all or most of the damages received.
The position statement highlights judicial guidance provided by Mr Justice Keenan in the case of H v NCC and LAA  EWHC, regarding the procedure to be followed where a HRA claim for damages arises during care proceedings. Practitioners are advised to obtain a separate legal aid certificate for the Human Rights Act claim and issue separate proceedings for that claim. In addition it is recommended that the LAA are contacted well in advance of the final hearing of the Human Rights Act claim for confirmation that the statutory charge will not extend to the care proceedings. This would then mean that only costs relating to the HRA certificate would be relevant for the purposes of the statutory charge.
The LAA has confirmed that should the guidance not be followed and damages are recovered within the care or other family proceedings themselves then all the costs of those proceedings will be taken into account in respect of the statutory charge.
You can read the full position statement here.
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