Legal HelpLegal Help:scopeLegal HelpLegal Help:scopeLegal HelpLegal Help:other sources of fundingLegal HelpLegal Help:formsLegal HelpLegal Help:formsLegal HelpLegal Help:formsLegal HelpLegal Help:forms:clients unable to signLegal Help:formsLegal HelpLegal Help:formsLegal HelpLegal Help:forms:children, applications on behalf ofLegal Help:formsLegal HelpChild:application for Legal HelpLegal Help:forms:children, applications on behalf ofLegal Help:formsLegal HelpChild:application for Legal HelpLegal Help:forms:protected party, application on behalf ofLegal Help:formsLegal HelpLegal Help:forms:post, applications byLegal Help:formsLegal HelpLegal Help:forms:people resident outside European UnionLegal Help:formsLegal HelpLegal Help:forms:fax, application byLegal Help:formsLegal HelpLegal Help:webcam adviceLegal Help:telephone adviceLegal Help:formsLegal Help:email adviceLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:financial eligibilityLegal HelpLegal Help:merits testLegal HelpPrevious advice:Legal Help, andLegal Help:previous adviceLegal Help:merits testLegal HelpPrevious advice:Legal Help, andLegal Help:previous adviceLegal Help:merits testLegal HelpPrevious advice:Legal Help, andLegal Help:previous adviceLegal Help:merits testLegal HelpPrevious advice:Legal Help, andLegal Help:previous adviceLegal Help:merits testLegal HelpPrevious advice:Legal Help, andLegal Help:previous adviceLegal Help:merits testLegal HelpLegal Help:merits testLegal HelpLegal Help:opening more than one matter:separate and distinctLegal Help:opening more than one matterLegal HelpLegal Help:opening more than one matter:separate and distinctLegal Help:opening more than one matterLegal HelpLegal Help:opening more than one matter:separate and distinctLegal Help:opening more than one matterLegal HelpLegal Help:opening more than one matter:different causes or eventsLegal Help:opening more than one matterLegal HelpLegal Help:reopening closed matterLegal Help:opening more than one matter:different causes or eventsLegal Help:opening more than one matterLegal HelpLegal Help:opening more than one matter:work that does not address other problemsLegal Help:opening more than one matterLegal HelpLegal Help:opening more than one matter:work that does not address other problemsLegal Help:opening more than one matterLegal HelpLegal Help:opening more than one matter:more than one clientLegal Help:opening more than one matterLegal HelpLegal Help:fundingLegal Help:fixed feesLegal HelpLegal Help:fundingLegal Help:fixed feesLegal HelpLegal Help:more than one fixed feeLegal Help:fundingLegal HelpLegal Help:housing possession schemesLegal Help:fundingLegal HelpLegal Help:housing possession schemesLegal Help:fundingLegal HelpLegal Help:housing possession schemesLegal Help:fundingLegal Help
Scope
5.5At the most basic level, work must be allowed under LASPO (see chapter 2 for more information).
5.6Legal Help allows you to provide advice and assistance in relation to a specific matter, but does not cover issuing proceedings, advocacy, or instruction of an advocate (although you may obtain counsel’s opinion, where justified in a complex case, but this would be very rare). For information about clients who are outside England and Wales or who are not from England and Wales, see further ‘Clients abroad’ below.
Other sources of funding
5.7The Civil Legal Aid (Merits Criteria) Regulations 2013
1Reg 32. state that Legal Help may only be provided if it is reasonable to do so, having regard to any other sources of funding available to the client. This means that, for example, you should check whether the client has legal expenses insurance (perhaps as part of home contents cover) or is a member (or the partner of a member) of a trade union.
Forms
5.8The form is the CW1 Legal Help, Help at Court and Family Help (Lower) form.
5.9The assessment of means and client’s details sections must be fully completed, and signed by the client, normally in the presence of someone from your organisation, before you start doing any legal work.
2Standard Civil Contract Specification 2013 para 3.10.Case study
I don’t really want to stick a Legal Help form under the client’s nose and ask them to sign, even before we’ve said ‘Good morning’. Does that mean I will not be able to charge for all my time during the initial interview?
You will be covered, as the 2013 Standard Contract Specification para 3.10(i) confirms all the time in an interview will be allowed, when a client signs the CW1 form at any point.
5.10The form must be kept on the file and is not sent to the LAA, unless requested for an assessment.
3Standard Civil Contract Specification 2013 para 3.11.What if the client cannot sign the form?
5.11There will be occasions when your client is a child or patient, and you may not be satisfied of their capacity to sign the form and give instructions. Sometimes a client will not be physically able to attend your office. You must not use more than 10 per cent of your matter starts in any schedule period for clients who cannot attend on you personally.
4Standard Civil Contract Specification 2013 para 3.17. This restriction does not apply if you have accepted the case this way in order to comply with the Equality Act 2010.5.12Whenever you grant Legal Help to a client in the circumstances described below, you should make an attendance note justifying what you did, and tick the appropriate box on page 5 of the Legal Help form.
Applications on behalf of children/protected parties
5.13You can accept an application direct from a child, if the child is entitled to bring, prosecute or defend proceedings without a litigation friend or equivalent;
5Civil Legal Aid (Procedure) Regulations 2012 reg 22(2). or there is good reason why one of the persons listed in regulation 22(4) (see para 5.15 below) cannot apply on the client’s behalf and the adviser is satisfied that the child understands the nature of the work and is capable of giving instructions.
5.14An application can be accepted on behalf of a child from:
•a parent, guardian or other person responsible for the child’s care; or
•a litigation friend or guardian ad litem; or
•if neither of the above are available, any other person (except anyone who works in your organisation), provided that the other person has sufficient knowledge of all the circumstances to act responsibly in the child’s interests and to give proper instructions.
5.15An application can be made on behalf of a protected party by:
•a person acting or proposing to act as the protected party’s litigation friend; or
•any other person (who does not work for your organisation) where there is good reason why a litigation friend or proposed litigation friend cannot make the application.
6Civil Legal Aid (Procedure) Regulations 2012 reg 22(4). Applications by post
5.16You may grant Legal Help to a client by post where there is good reason. Standard Civil Contract Specification 2013 para 3.14 says that this applies ‘where the client requests that the application is made in this way and it is not necessary for the interests of the client or his or her case to attend in person’.
People resident outside the European Union
5.17You may not grant Legal Help by post to a client resident outside the European Union if one of the following applies:
7Standard Civil Contract Specification 2013 para 3.15.•the client could, without serious disadvantage, delay their application until they had returned to the EU;
•someone resident in the EU could apply on their behalf; or
•it would otherwise be unreasonable to accept the application.
This means that applications by post can be accepted from persons outside the EU in certain circumstances. This facility has been particularly useful in immigration cases where clients have been refused entry to the UK, or have been removed or deported, but have a right of appeal that can be exercised from outside the UK. From April 2013 such cases are less likely to be in scope but clients abroad can apply for legal aid if the work does remain in scope, for example judicial reviews and pre-action work on citizenship, passport and other immigration refusals, where there is no right of appeal and all internal administrative reviews have been exhausted.
Applications by fax
5.18You can only accept applications by fax if that is specified in your contract schedule. If it is, Standard Civil Contract Specification 2013 para 3.16 says that you can only exercise that power if your client is a child or vulnerable adult and work is urgently required for their safety, and you take reasonable steps to obtain the original signed form.
Telephone, webcam and email advice
5.19You can give, and claim for, advice over the telephone or by email, webcam etc if the client cannot attend your office for a ‘good reason’ as defined in Standard Contract Specification, 2013 para 3.14, see applications by post above, provided the client is later found to be eligible for Legal Help and signs the form. If the client subsequently fails to sign the form, you cannot claim payment.
8Standard Civil Contract Specification 2013 para 3.20. This can be combined with a postal application, subject to the rules above, meaning that the client does not need to attend your offices to sign the form.
Financial eligibility
5.20Clients must be financially eligible on both capital and income. They must inform you of any change in their means and you may have to stop work if their means change significantly (see chapter 3 for more information). However, there are no contributions to be paid in respect of Legal Help.
5.21The Standard Civil Contract Specification 2013 para 3.23 states that you can only carry out work for clients who are financially eligible and that you must obtain satisfactory evidence of their means before assessing eligibility. In practical terms, that means, except in exceptional circumstances, you must obtain evidence of a client’s means before starting work. Further guidance and a non-exhaustive list of types of satisfactory evidence may be found in section 12 of the
Guide to Determining Financial Eligibility for Controlled Work and Family Mediation.9See www.gov.uk/government/uploads/system/uploads/attachment_data/file/420970/laa-determine-controlled-work-mediation.pdf/. What is required is satisfactory evidence to show that the client is eligible. Where reasonable to do so, you may accept evidence that falls outside the computation period – for example a letter showing an award of benefits issued before the period.
5.22Generally the evidence should show the amounts received. However, (in a case based on the previous Access to Justice Act rules, which were similarly worded) the High Court has ruled that a nil assessment because a local authority letter showing a client as being in receipt of Children Act 1989 s17 support did not contain the amounts was irrational because it was within the solicitor’s knowledge that such support was within eligibility limits and the question that should have been asked was not whether the evidence contained the amounts, but whether it was reasonably sufficient to show eligibility.
10R (Duncan Lewis (Solicitors) Ltd) v The Lord Chancellor [2015] EWHC 2498 (Admin).5.23If it is ‘not practicable to obtain it before commencing controlled work’, you may start without evidence of means; but you need to show that you acted reasonably in assessing eligibility and starting work without evidence. In practice you should record on your initial attendance note:
•why it was reasonable to start work without evidence of means (for example, because the client needed advice urgently due to the imminent expiry of a time limit); and
•how you assessed eligibility (eg by making sure that the Legal Help form is properly completed, using the information the client was able to give you from their account of what they have been living on).
5.24You must get the evidence as soon as practicable unless the client’s circumstances prevent this being done at all at any point in the case, for example due to mental disability, age or homelessness.
11Standard Civil Contract Specification 2013 para 3.24. Where a client states that they have no income or capital, you should assess whether this is credible and note your file accordingly. Where a client has, for example, recently fled domestic violence that may well be the case. You should enquire how they are living day to day and if, for example, financial or other support is being provided by a friend or relative that person should provide a letter setting out the nature and extent – and any financial amounts – of that support.
12Guide to Determining Financial Eligibility for Controlled Work and Family Mediation, April 2015 v1, para 12.2.16.5.25If you act reasonably in granting Legal Help to a client before obtaining evidence of their means and you do not claim any disbursement or report any time after the point where the LAA decides it would have been practicable to obtain satisfactory evidence of means, you can still claim payment for the work.
5.26However, if the LAA decides that you could have obtained evidence of means at any stage of the case, costs will be ‘nil assessed’ at any audit. Having files ‘nil assessed’ can have very serious consequences, so it is strongly advisable to get valid evidence of means prior to starting work in all but emergency situations.
Merits test
5.27The Legal Help merits test is known as the ‘sufficient benefit test’, and in full states: ‘Help may only be provided where there is sufficient benefit to the client, having regard to the circumstances of the matter, including the circumstances of the individual, to justify the cost of the provision of legal help’.
13Civil Legal Aid (Merits Criteria) Regulations 2013 reg 32(b). This is not intended to be a high hurdle, at least to initial advice, but will apply to all steps in the case. See para 4.2.14 of the Lord Chancellor’s Guidance:
Previous advice
5.28Clients are generally only entitled to advice on a matter from one legal aid provider, so you should always ask the client whether they have taken previous advice before starting work.
5.29The Standard Civil Contract Specification 2013 paras 3.40–3.45 set out what you must do if the client has received previous advice, whether that is from your organisation or somewhere else.
5.30There is a list of particular circumstances in which a new matter start will not be justified at para 3.46 of the Standard Civil Contract Specification 2013. However, it is worth noting that you can open a new matter if a client faces enforcement proceedings because he or she is alleged to have breached the terms of a suspended or postponed order, or the terms on which proceedings were adjourned.
15Standard Civil Contract Specification 2013 para 3.48.5.31You generally cannot open a new matter for a client who has received advice on the same matter within the last six months, unless an exception applies. Exceptions are listed at para 3.36 of Standard Contract 2013 Specification:
•There has been a material development or change in the client’s instructions and at least three months have elapsed since the previous claim was submitted, but:
•note that if the client has simply failed to give instructions, then returns, that cannot be counted as a change in instructions;
•any change in the law that was anticipated in the original matter cannot count as a material development;
•a decision, or other response from another party, arising from the first piece of work cannot count as a material development.
•The client has reasonable cause for dissatisfaction with the previous adviser (this must be justified dissatisfaction with the service, not because the client was unhappy about good advice they were given, or wants a second opinion).
•The client has moved away and has difficulty communicating with the previous adviser.
•The first adviser is no longer able to act for a good reason relating to professional conduct, eg conflict of interest.
•The first adviser has confirmed that no claim will be made.
5.32If the client says that he or she is dissatisfied, you must request confirmation of the reasons for transfer, and a copy of the file from the previous organisation. If the client refuses consent, no advice should be given and no claim can be made.
16Standard Civil Contract Specification 2013 para 3.42. No work may be done until the previous file has been received, unless absolutely necessary to protect the client’s position or meet a deadline. When you receive the file, if you believe the client was unreasonable in being dissatisfied with the service, you must stop work but can still claim a fixed fee if urgent work was justified before getting the file.
17Standard Civil Contract Specification 2013 para 3.43.
Case study | | |
Can I open a new matter when the client has already received advice on the same problem from my organisation? | | |
Legal Help forms are also known as ‘new matter starts’ (see chapter 3 for more information about means and merits tests for Legal Help cases). | | |
Matter claimed | Open new matter? | | |
Up to 3 months ago | No | | |
3–6 months | Yes – if there is a material development or change in instructions | | |
6+ months ago | Yes | | |
Case study
My client says she received advice from the Civil Legal Advice telephone service last month. Can I open a new matter start?
First, check that the advice would fall within your contract (ie, family or housing).
It is mandatory for debt work to go through the telephone gateway. As a face to face provider you can only do debt work if the client is exempt (see chapter 2) or the gateway refers it to you.
The other two gateway categories, education and discrimination, are restricted further in that face to face work can only be done by the telephone providers or their agents.
Having established whether you can take it on in principle, it depends how much work they did for the client. Ask her to show you the confirmation of instructions, advice and action letter which the gateway will have sent under SQM requirement F1.1.
If the client has not signed a Legal Help form, you can open a new matter, as initial telephone advice is not ‘controlled work’ under the Civil Legal Aid (Procedure) Regulations 2012 reg 2.
Otherwise, you should treat advice from the Civil Legal Advice telephone service as you would advice from any other LAA provider.
Reopening a closed matter
5.33Although you may not be able to open a new matter, you can (and may be obliged to) do more work on the original matter.
18Standard Civil Contract Specification 2013 para 3.35. The disadvantage is that you cannot claim an additional fixed fee; but there are compensations:
19Standard Civil Contract Specification 2013 para 3.49.•previous work and additional work after the client comes back, can be counted together towards the escape fee threshold;
•further disbursements can be claimed.
Case study
What is the procedure for reporting a revived Legal Help case to the LAA?
You complete the appropriate amendment spreadsheet to the LAA (civil, crime, or mediation
1) and send it with an email to Operational Assurance explaining what you have done:
PA-ClaimAmend@legalservices.gsi.gov.uk. You should put your organisation’s name and account number in the subject line. Operational Assurance will void the first claim so that you do not claim twice for the same matter. They will confirm the action they have taken and copy to your contract manager for information.
Opening more than one matter
Separate and distinct
5.34If a client has problems that are ‘separate and distinct’,
20Standard Civil Contract Specification 2013 para 3.31. you can open more than one matter. Opening more than one matter for a client must be carefully justified in every case if you are not to fall foul of LAA audits. If your organisation is found to have opened matters incorrectly, significant amounts of money may need to be repaid to the LAA, so it is extremely important to get this right.
5.35It is relatively easy to justify more than one case as ‘separate and distinct’ if they necessarily fall under different categories of law. So, if a client has a housing problem and needs a divorce, it is likely to be justifiable to open two matters (subject to scope rules).
5.36It is more difficult to justify opening more than one matter within one overall category of law. The first thing to remember is that the rules contained in the category specific sections of the Specification take precedence.
21Standard Civil Contract Specification 2013 para 1.2. So, if you are considering whether to open more than one matter within a category, you should look up the category specific rules first.
Different causes or events
5.37If your client’s circumstances are not explicitly dealt with, it is worth applying the wording in the general Contract Specification, which states that matters are ‘separate and distinct’ ‘typically because they arise out of different causes or events’. So, it is a good idea to ask yourself whether the causes or events are separate. For example, if your client has a serious housing disrepair problem and a family law problem, these would be very likely to be separate and distinct.
5.38It is more difficult if the client has ‘more than one separate and distinct legal problem’ within a category.
22Standard Civil Contract Specification 2013 para 3.31. You must be able to demonstrate two things:
If legal proceedings were started, or other appropriate remedies pursued, for each problem it would be appropriate for such proceedings to be both issued and heard separately.
AND
Each problem requires substantial legal work which does not address the other problem(s).
‘Substantial legal work’ is defined as at least 30 minutes’ additional preparation or advice, or separate communication with other parties on legal issues.
23Standard Civil Contract Specification 2013 para 3.32.Work that does not address the other problem(s)
5.39If you are going to satisfy the LAA that work on one issue does not address another, this has to be clear in your case recording. If you consistently deal with two or more issues together, it will be very difficult to argue that they were really ‘separate and distinct’. You will need to open two separate files and keep separate attendance notes and letters relating to each issue. However, more than one problem may be discussed in one interview with a client as this may be more convenient for them. If so, separate attendance notes should be produced for each and time apportioned between the issues.
5.40If you consider that the test is satisfied, you can ask the client to sign more than one Legal Help form at the initial meeting, or subsequently.
24Standard Civil Contract Specification 2013 paras 3.30(c) and 3.33.More than one client
5.41The LAA says that you should only use one new matter even if the problem involves more than one client, unless:
25Standard Civil Contract Specification 2013 para 3.39.•if proceedings were issued, each client would be a party to those proceedings;
•each client has a separate and distinct legal interest in the problem or issue; and
•in considering whether there is sufficient benefit for the second or any subsequent client to receive Legal Help, you take into account the fact that Legal Help that is already being provided in relation to the same general problem.
Case study
I have a client who has been unlawfully evicted from his rented property. He doesn’t want to go back there but does want to sue the landlord. He also wants to apply to the local authority as homeless. How many Legal Help forms should he sign?
This is two matter starts. They are two separate causes of action, albeit both within the housing category, and were the cases to go to court they would be separate proceedings.
Funding
Fixed fees
5.42Legal Help is paid under fixed fees, although cases that reach the escape threshold (three times the fixed fee) can be paid in full at hourly rates. Current fees and hourly rates are found in the Civil Legal Aid (Remuneration) Regulations 2013.
5.43Paragraph 3.31 of the Standard Contract Civil Specification states that you must not open more than one matter start for a client unless the client has more than one ‘separate and distinct’ legal problem – see above.
More than one fixed fee
5.44In some circumstances, you may be able to justify opening more than one Legal Help file for a client. For more information about this, see para 5.34 above; and comments in relation to individual categories of law, below.
Housing possession schemes
5.45You cannot ask a client to sign a Legal Help form at a court duty scheme, as this work is funded under a separate schedule, and is paid at a fixed fee per client seen.
26Standard Civil Contract Specification 2013 para 10.19.5.46If the client’s case needs further work, you can ask the client to come to your office and sign a Legal Help form (subject to the usual rules in relation to means and merits).
5.47However, you cannot then claim a fee for advising that client under the court duty scheme.
27Standard Civil Contract Specification 2013 para 10.24. It is very important that organisations have systems to prevent double-claiming in error in these circumstances. If you open a housing Legal Help case within six months of having advised the same client on the same case at a duty scheme you will not be entitled to the court duty payment for that client, so your systems will need to allow you to identify such cases and where necessary notify the LAA to rescind a payment already made against your court duty schedule.