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Scope of the scheme
 
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.
3.9For the purposes of awarding contracts (see more below) the Legal Aid Agency (LAA) divide the work up into categories. The category definitions documents2See appendices D–G. give a reasonable guide to work which is in scope, but for the detail, particularly in borderline or unclear cases or where the Part 2 exclusions may apply (for example in the case of housing benefit work within arrears cases, as above), it is always best to refer back to the Act itself. The category definitions can be found on the LAA website.3The 2014 and 2015 category definitions are on the main pages for their respective contracts, www.gov.uk/government/publications/standard-civil-contract-2014 and www.gov.uk/government/publications/standard-civil-contract-2015, but for some reason the 2013 category definitions have their own page at www.gov.uk/government/publications/legal-aid-agency-category-definitions-2013. There is a category definitions document to accompany each version of the contract, see below.
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 244Permission 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)
This includes claims for breaches of the Human Rights Act brought within Court of Protection proceedings.5See https://courtofprotectionhandbook.com/2016/06/07/legal-aid-for-historic-human-rights-breaches-in-the-cop/.
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.
 
1     Previously, 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. »
2     See appendices D–G. »
3     The 2014 and 2015 category definitions are on the main pages for their respective contracts, www.gov.uk/government/publications/standard-civil-contract-2014 and www.gov.uk/government/publications/standard-civil-contract-2015, but for some reason the 2013 category definitions have their own page at www.gov.uk/government/publications/legal-aid-agency-category-definitions-2013»
4     Permission to appeal to the Supreme Court was refused by the Supreme Court »
Scope of the scheme
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