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3.20As described above, legal aid cases are divided into categories by the contracts. At the highest level, civil and crime are treated separately, have separate contracts and different funding rules. See chapter 10 for crime.
3.21At the time of writing, there are four main civil contracts, plus two specifically for the small number of welfare benefits providers:
•The Standard Civil Contract 2010: this contract has been superseded for all categories except family mediation, which continues to operate under an amended version of the 2010 contract following a re-tendering exercise. New contracts took effect from 1 February 2015 and were extended in July 2016.
•The Standard Civil Contract 2013: housing and debt; family; immigration and asylum.
•The Standard Civil Contract (welfare benefits) 2013 from 1 October 2013 – welfare benefits in London and the South East, and the Midlands and the East.
•The Standard Civil Contract 2014: from 1 August 2014 – mental health; community care.
•The Standard Civil Contract 2015: from 1 November 2015 – actions against the police etc, clinical negligence, public law.
•The Standard Civil Contract (welfare benefits) 2016 from 1 November 2016 – welfare benefits advice in the North, South West and Wales.
3.22Discrimination and education are only available through the telephone gateway and the providers of this work and those of the debt, housing and family telephone services have a separate contract (the Civil Legal Advice Contract 2013).
3.23An organisation may therefore be operating under several separate contracts simultaneously depending on the work it does and it is vitally important that you apply the correct rules to the particular category of work you are operating in.
3.24The definitions of each category are set out in the appropriate category definitions specific to the contract which applies, so there are 2013 category definitions (debt, discrimination, education (SEN), family, housing, immigration and asylum, welfare benefits, miscellaneous work), 2014 category definitions (community care, mental health and miscellaneous work), 2015 category definitions (clinical negligence, actions against the police etc, public law and miscellaneous work), and in the crime contract. See appendices D–G.
3.25All civil contracts have been extended to 31 March 2018. The LAA intends to undertake a procurement exercise for all civil work from April (see para 18.33 below), and thereafter operate all civil work under a single contract.
Case study
We have a 2013 contract in housing. My client is a homeowner facing possession proceedings. Can I advise her under our housing contract?
Mortgage possession work is categorised as debt work and not included in the housing category. Debt work is gateway work, meaning the client must approach the telephone gateway first (unless she is an exempt person). You should therefore tell her to contact the gateway. Since proceedings have been issued, the gateway may well decide that face to face advice and representation is required, but that is a decision for the gateway, not for you or the client. If the gateway does decide that, they will refer the client for face to face advice, and if the case is referred back to you, you will be given a gateway reference number which you must record on your file in order to be paid.
The same applies if you represented the client on a Housing Possession court duty scheme; if ongoing work is required, you should refer it to the gateway not do it yourself.
3.26An organisation can only be funded to conduct civil legal aid cases if it has a Standard Civil Contract with the LAA. The contract will specify what cases the organisation can take on.
3.27Every contract has a schedule, which is the part specific to the organisation. In order to be allowed to take on cases, you must be permitted to work in that category by your schedule. The schedule will specify the number of matter starts of controlled work, and whether licensed work is allowed for each category. Controlled work – Legal Help, Help at Court and Controlled Legal Representation – is funding for advice granted by the organisation; licensed work, also known as legal representation or certificated work, is funding for representation in courts, mainly granted by the LAA.
3.28The matter starts permitted in your schedule are the maximum number of new controlled work cases in that category of law you are permitted to take on during the life of the schedule (usually a year). You can only take on cases in a category in which you have a supervisor and a contract.
3.29Licensed work is not restricted by matter starts, so there is no limit on the number of certificate applications you may make in a year, as long as you have a contract in the appropriate category.
3.30Therefore, provided you have a contract in the relevant category, the matter is in scope and you have sufficient matter starts (where relevant), you can take on the case, if the client is eligible. In many categories of law organisations which bid for contracts in the lower lot sizes are able to self-authorise up to 50 per cent additional matter starts in the first contract year. You should check your contract schedule for details.
Exceptional cases
3.31You may, however, take on cases that would otherwise be excluded but fall within the ‘exceptional case’ provisions in LASPO.
1LASPO s10(3). All decisions on exceptional cases are made by the LAA. The test is:
(a)that it is necessary to make the services available to the individual because failure to do so would be a breach of–
(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
3.33Legal aid can be backdated to cover making the application under regulation 68 of the Civil Legal Aid (Procedure) Regulations 2013, but only if legal aid is granted. You may have to make the application pro bono unless the client can pay privately.
3.34See chapter 4 for more information about making applications and a review of relevant case-law.