Scope of the schemeCivil legal aid:scope of schemeCivil legal aid:scope of schemeCivil legal aid:scope of schemeCivil legal aid:exclusionsCivil legal aid:scope of schemeCivil legal aid:exclusionsCivil legal aid:scope of schemeCivil legal aid:scope of schemeCivil legal aid:scope of schemeCivil legal aid:categories
3.4Unless LASPO Sch 1 explicitly puts an issue in scope, it is out.
1Previously, legal aid was an inclusionary scheme; unless Schedule 2 to the Access to Justice Act 1999 explicitly put an issue out of scope, it was in scope. See appendix C for the text of Schedule 1.
3.5Schedule 1 is not easy to understand and requires a certain amount of cross-referencing and double or even triple negatives to be navigated to understand whether a case is in fact in or out of scope. The Schedule is in four parts; Part 1 lists types of proceedings which are in scope, but is subject to Part 2 (which excludes certain types of action) and Part 3 (which excludes certain courts and tribunals), as well as the definitions in Part 4. So in order to see whether a case is in scope, you need to check that it is included by Part 1 but not excluded by Part 2, and that your venue is included in Part 3 if you wish to provide advocacy.
3.6The exclusions in Part 2 of Schedule 1 are:
•personal injury or death;
•negligence;
•assault, battery or false imprisonment;
•trespass to goods or land;
•damage to property;
•defamation etc;
•breach of statutory duty;
•conveyancing;
•making wills;
•trust law;
•a claim for damages for breach of human rights under Human Rights Act 1998 s7;
•company and partnership law;
•matters arising out of a business;
•welfare benefits and social security matters below Upper Tribunal level;
•criminal injuries compensation;
•change of name.
The Part 2 exclusions always override the Part 1 inclusions unless specifically disapplied.
3.7For example, in housing cases, LASPO Sch 1 Part 1 para 33 says that services in relation to loss of a home are in scope, subject to the exclusions in Part 2 but then para 15 of Part 2 says services in relation to benefit matters are out of scope. The result of this is that you can advise and represent in respect of possession proceedings, but cannot make representations about housing benefit or submit a benefits appeal even where housing benefit problems are the cause of the arrears underlying the proceedings (see chapter 11 – Housing for more information about dealing with housing cases under LASPO).
3.8Or again, Part 1 para 19 says that services in relation to judicial review are in scope, subject to the exclusions in Part 2. Part 2 para 15 excludes any matter related to welfare benefits but para 19(2)(a) of Part 1 disapplies that exclusion. Therefore, notwithstanding the general exclusion of welfare benefits work, judicial review of welfare benefit decisions is in scope. This allows public law challenges, to the law generally and to the exercise of discretion by benefits authorities, but does not allow advice or representation on routine appeals to the Social Entitlement Chamber of the First-tier Tribunal.
3.10The following table gives a summary of the areas of law in scope in each category.
Category | Type of work | Comments | |
Actions against the police etc | Where the defendant is a public authority with the power to detain, imprison or prosecute: •abuse of a child or vulnerable adult •abuse of position or power by a public authority where the alleged abuse was deliberate or dishonest and resulted in foreseeable harm •significant breach of human rights •advice to victims of sexual offences Allegations of deliberate abuse of a person in the care of a public authority or institution Exceptional funding in claims against a public authority with the power to detain, imprison or prosecute Exceptional funding on: •applications for compensation following wrongful conviction •applications for criminal injuries compensation •claims for damages for professional negligence in bringing a claim in this category | In each of these causes of action, the Part 2 exclusions around personal injury and death, negligence, assault, etc are disapplied. See Director of Legal Aid Casework v R (Sunita Sisangia) [2016] EWCA Civ 24 4Permission to appeal to the Supreme Court was refused by the Supreme Court for the proper interpretation of LASPO Sch 1 Pt 1 para 21(4) (deliberate or dishonest abuse of position or power by a public authority) – something more than an intentional tort is necessary to amount to ‘deliberate or dishonest’ but whether that threshold is reached in the individual case will be fact specific | |
Clinical negligence | Neurological injury to infants causing severe disablement and which happened in the womb, during birth or up to eight weeks after birth Exceptional funding on any matter claiming damages or making a complaint to a professional body alleging breach of duty in the course of clinical or medical services, or claiming damages for professional negligence in the making of such a claim | | |
Community care | The provision of community care services and of facilities for disabled persons | LASPO Sch 1 Pt 1 paras 6 and 7 contain an exhaustive list of statutes and statutory provisions that are in scope; if it is not on the list, it is not in. Para 6(n) was added to include Part 1 of the Care Act 2014 | |
Debt | Mortgage arrears and possession Orders for sale of the home Involuntary bankruptcy where the home is included in the estate Exceptional funding on any matter relating to proceedings for the payment of monies due or enforcement of orders made in such proceedings Exceptional funding for matters arising out of personal insolvency | Debt is a mandatory gateway category. | |
Discrimination | Contravention of the Equality Act 2010 or a previous discrimination statute (a prescribed list is given at LASPO Sch 1 Pt 1 para 43(3), including (but not limited to) cases alleging discrimination before the employment tribunal | This category is not limited to employment cases and includes any matter where discrimination can be pleaded. If it overlaps with another category – for example, alleging discrimination in the provision of community care or education services – work can be done in either category; though discrimination is a mandatory gateway category work done in another category in the alternative does not need to go through the gateway. | |
Education | Special educational needs Discrimination in education provision | All other education work is out of scope. Education is a mandatory gateway category. | |
Family | Public law children work: Child care and supervision Secure accommodation orders Adoption Child abduction and international child abduction Inherent jurisdiction Forced marriage protection and protection from female genital mutilation Domestic abuse and protection from harassment arising out of a family relationship Enforcement of international child maintenance Private law children work and financial provision on relationship breakdown, but only where there is domestic abuse or risk of child abuse – see chapter 5 Child safety orders and parenting orders following conviction of a child | In general, child protection work and work required by the UK’s international obligations is in scope but private law work is out of scope. It can be brought back where there is domestic or child abuse, but only where particular prescribed evidence is available. See chapter 5 for more details. | |
Housing | Possession of a rented home (including most counter-claims in possession proceedings even if they would be out of scope as a stand-alone claim) Unlawful eviction – both injunction and damages Homelessness Allocations where the client is or is threatened with homelessness Provision of accommodation by way of community care services to an individual who is homeless or threatened with homelessness (overlap with the community care category) Disrepair, but only to require carrying out of repairs (solely damages claims are out of scope) and only where the disrepair causes a serious risk of harm Protection from harassment Accommodation and support for asylum seekers | Damages only unlawful eviction claims may however be caught by the ‘suitability for a conditional fee agreement’ test – see para 7.16 of the Lord Chancellor’s Guidance on Civil Legal Aid and para 11.25 of this book. See chapter 12 of the Guidance for how applications for funding for disrepair will be dealt with. | |
Immigration and asylum | Asylum Detention (but only advice on the detention and bail, not on the substantive issue unless independently in scope) and residence restrictions pending deportation Applications for leave to remain under the domestic violence rule Applications for leave by victims of trafficking, slavery, servitude or forced labour Terrorism prevention and investigation measures Proceedings before the Special Immigration Appeals Commission Judicial review, but not •where the same issue has been the subject of a previous JR or appeal within the last year, •of removal directions where the substantive decision or appeal was made in the last year •of a negative decision on an asylum application where there is no right of appeal to the tribunal Exceptional funding of any immigration or asylum matter | Most mainstream non-asylum immigration work is out of scope. LASPO Sch 1 Pt 1 para 19, which brings JR into scope, contains a number of specific restrictions limiting the circumstances in which a judicial review can be brought in an immigration case. | |
Mental health | Services in relation to the Mental Health Act 1983, the Mental Capacity Act 2005 and the Repatriation of Prisoners Act 1984 Sch para 5(2) | | |
Miscellaneous | Working with children and vulnerable adults Protection from harassment where not arising from a family or housing relationship Proceeds of crime Environmental pollution Advice to victims of sexual offences Abuse of child or vulnerable adult except where in the actions against the police etc category Damages claims by victims of trafficking Gang-related violence injunctions Anti-social behaviour injunctions | This is work that does not fit into any other category. Since all categories became ‘exclusive’ in 2013 (ie tolerance work is not allowed), you can only take on miscellaneous cases if specifically authorised to do so by your schedule. Some – but not all – contracts include an allocation of miscellaneous matter starts and the LAA ran an ‘invitation of interest’ exercise in December 2016 / January 2017 to allocate further matters. | |
Public law | Human rights and public law challenges | Many cases will also be in another category. For example judicial review of a housing decision falls within both the public law and housing categories. | |
Welfare benefits | Welfare benefit appeals – but only upper tier tribunal cases, cases in the Court of Appeal, Supreme Court and judicial review only Appeals on a point of law relating to council tax reduction schemes to the High Court and above Exceptional funding on any welfare benefits or council tax reduction scheme matter | Legal Help only for Upper Tribunal cases, and for High Court appeals in council tax reduction scheme cases. Representation including advocacy in all other High Court and above cases. | |