Other restrictions on taking on casesReferral feesCivil legal aid:referral feesCivil legal aid:previous adviceCivil legal aid:previous adviceCivil legal aid:previous adviceCivil legal aid:previous adviceCivil legal aid:previous adviceCivil legal aid:previous adviceCivil legal aid:previous advice
Referral fees
3.69There is an absolute prohibition on referral fees in legal aid work. Clause 6.8 of the Standard Civil Contract Standard Terms makes clear that no payment or benefit may be made to or received from any third party.
Client has received previous advice
3.70The Legal Help form requires the client to certify that they have not previously received advice on the same matter, and where they have done so within the last six months requires you to explain why you took on the case. This is because there are specific rules in the contract to prevent the legal aid fund paying out twice for the same matter, and therefore in order to make a claim the second time you must be able to demonstrate that the case meets one of the exceptions allowing you to do so.
3.71Some of the exceptions apply if you are the client’s original provider looking to re-open a case that has been closed; others apply if you are a second provider looking to take over a case from the original organisation.
3.72In the case of controlled work a second matter start can only be opened on the same case as the original provider where:
(a)at least six months has elapsed since there was a claim on the first matter; or
(b)there has been a material development or change in the client’s instructions and at least three months has elapsed since there was a claim on the first matter.
1Standard Civil Contract Specification 2013 para 3.40. 3.73Where you are relying on para 3.47(b) (material development or change), you should note that:
•Giving instructions following a failure to give instructions is not a change in instructions.
•A decision or response from any third party to any correspondence, application, appeal, review or other request made in the course of the original matter is not a material development.
•A change in the law that was anticipated in the original matter is not a material development.
2Standard Civil Contract Specification 2013 para 3.37. However, you can instead re-open the original matter and make a further claim (see chapter 5) in some circumstances.
3.74Where you are the second provider, looking to take over a case, you can only do so where:
(a)there has been a material change in relevant circumstances since the initial decision to grant Legal Help; or
(b)the client has reasonable cause to be dissatisfied with the first provider; or
(c)the client has moved a distance away from the first provider and effective communication is not practicable; or
(d)the first provider is not making a claim for the work and confirms that in writing.
3Civil Legal Aid (Procedure) Regulations 2012 reg 23(4). The contract
4Standard Civil Contract Specification 2013 para 3.40. requires you to make reasonable enquiries of the client as to whether there was previous advice. Where there is a transfer, you must establish that there is good reason, and record that reason on the file.
5Standard Civil Contract Specification 2013 para 3.44.3.75However, it is not sufficient for you to take the client’s word as to the reasons for transfer. You must seek the client’s authority to obtain the file from the previous provider, and must then request the file from the previous provider. You cannot start work on the case until you receive the file. Where the client refuses to give you authority, or where you obtain the file and discover that there is in fact no good reason for transfer, you may not make a claim for the case. The sole exception is where there is urgent work that is absolutely necessary to protect the client’s position or meet a court deadline, in which case you can do the urgent work and claim for it, even if it later transpires there was no good reason.
6Standard Civil Contract Specification 2013 paras 3.42 and 3.43.3.76In the case of certificated work, there is no specific rule or guidance on transfer of solicitor. However, to transfer, the second solicitor would have to make an application to the LAA to amend the certificate, and the LAA will consider whether the application is justified. The second solicitor must include work done by the first solicitor on the bill at the end of the case, and therefore the LAA (or court) will be able to see all work done by both solicitors, and may disallow on assessment any unjustified duplication.