Regulation of civil workRegulation of civil workRegulation of civil workCivil legal aid:meaningRegulation of civil workRegulation of civil workRegulation of civil work:exceptional casesRegulation of civil workRegulation of civil workRegulationsRegulation of civil work:regulationsRegulation of civil workRegulationsRegulation of civil work:regulationsRegulation of civil workRegulationsRegulation of civil work:regulationsRegulation of civil workRegulation of civil work:contractsRegulation of civil workContractsRegulation of civil work:contractsRegulation of civil workContractsRegulation of civil work:contractsRegulation of civil workContracts
The statutory foundation
2.41Civil legal aid, or strictly under the Act, ‘civil legal services’, is defined by LASPO as only that which is included in Schedule 1 of the Act. In contrast to the Access to Justice Act 1999, which provided that work was in scope unless specifically excluded by the Act, LASPO says that only work explicitly included in Schedule 1 is in scope.
2.42LASPO s8 defines what civil legal aid is. It includes:
•providing advice as to how the law applies in particular circumstances;
•providing advice and assistance in relation to legal proceedings;
•providing advice and assistance in relation to the prevention settlement or resolution of legal disputes;
•providing advice and assistance in relation to the enforcement of decisions in legal proceedings or other decisions by which disputes are resolved.
2.43Advice and assistance includes both representation and mediation and other dispute resolution.
2.44LASPO s9 provides that only areas of law expressly listed in Schedule 1 are in scope and can be funded under legal aid. If work is not listed in Schedule 1, it will not be covered by legal aid and you will not be paid for doing it.
2.45LASPO s10 makes provision for what are known as ‘exceptional cases’. Where cases are not covered by the scope rules in Schedule 1 but certain conditions are satisfied, an application may be made to the Director to fund the case even though it is otherwise out of scope. See chapter 4 for more on exceptional cases. Note that these cases should not be confused with Legal Help cases where costs exceed three times the fixed fee. Such cases were previously known as exceptional cases under the Access to Justice Act regime but are now called escape fee cases.
2.46LASPO ss11 and 21 provide that legal aid will only be awarded if merits and financial criteria respectively are satisfied. Sections 25 and 26 create the statutory charge and give costs protection and section 27 enables the establishment of the mandatory telephone gateway. It is under these sections that the relevant regulations are made.
The regulations
2.47Regulations set out the detail of the scheme. Key ones are:
•Civil Legal Aid (Procedure) Regulations 2012;
•Civil Legal Aid (Merits Criteria) Regulations 2013;
•Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013;
•Civil Legal Aid (Costs) Regulations 2013;
•Civil Legal Aid (Remuneration) Regulations 2013;
•Civil Legal Aid (Statutory Charge) Regulations 2013.
Several of the regulations have since been amended. A full list of regulations, together with amendments, can be found at
www.legalaidhandbook.com/laspo-resources listed on a single page for easy retrieval. Each has a brief description as some regulation titles are more intuitive than others, and amendment regulations are listed with the regulations they amend to facilitate cross-referencing.
2.48Regulations deal with the terms on which funding can be granted. They set out the detail of the various means and merits tests to be applied, how costs are dealt with through the statutory charge and cost protection, and not least with the rate you are paid for doing the work.
2.49The Funding Code made under the Access to Justice Act 1999 was abolished and not replaced. Most of the equivalent provisions are now in the Merits and Procedure Regulations and the Funding Code Guidance has been replaced by the Lord Chancellor’s Guidance.
1See www.gov.uk/government/uploads/system/uploads/attachment_data/file/332795/legal-aid-lord-chancellors-guidance.pdf. The Procedure Regulations define the various levels of funding, and set out the form of the application, together with appeal procedures against refusal. They also define the terms on which the telephone gateway operates. See chapter 3 for more on the telephone gateway.
The contracts
2.50The Standard Civil Contracts 2010, 2013, 2014 and 2015 govern the relationship between the LAA and organisations holding contracts. The LAA calls such organisations ‘providers’. The contracts set out your duties and responsibilities, together with any powers delegated to you. They also govern some of the detail of the operation of individual cases building on what is in the regulations. Unless you have a contract, you will not be permitted to carry out legal aid work. All contracts are due to be replaced by a single civil contract from April 2018. See para 18.33 onwards below.
2.51A contract consists of three main sections:
•The standard terms govern the relationship between the organisation and the LAA and Lord Chancellor and your obligations as an organisation. See chapter 16.
•The schedule sets out the types of work you are permitted to do, and in the case of Legal Help, Help with Family Mediation and Controlled Legal Representation (CLR), the maximum numbers of matters you are allowed to start per year. It will also specify any additional requirements (such as presence requirements), and will include any commitments you made as part of your tender for the contract (against the selection criteria, for example). Breach of any provision of your schedule, including any commitment you made in your tender, is a breach of contract subject to sanction in the usual way (see chapter 19).
•The specification deals with how you should conduct individual cases, and is dealt with in subsequent chapters.
2.52Other documents which are referred to in the contract, and which you should follow or take account of (though not technically part of the contract) include:
•Specialist Quality Mark or Lexcel (your chosen quality standard);
•Equality and Diversity Guidance;
•Category Definitions (see appendices D–G);
•Standard Monthly Payment (SMP) Reconciliation Protocol (see appendix J);
•Independent Peer Review Process;
•Key Performance Indicator (KPI) Outcome Codes;
•Data Security Requirements.