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6.28Under LASPO much private family law was removed from scope unless the client can demonstrate that he or she is the victim of domestic violence or that a child is at risk of abuse. Check carefully that the case you intend to take on remains in scope before granting controlled work (see the section on scope, above). This is particularly important as if you grant controlled work in an out of scope case, you may be paid for it on your initial claim, as it will be submitted electronically and the LAA may not be able to identify your error through claim codes without seeing the file; but the LAA will seek to recover fees if an error comes to light on audit and could extrapolate the finding across all your claims. You do not want to receive a hefty bill and a contract notice.
Legal Help – level 1
6.29Legal Help allows you to provide legal advice and assistance in relation to a specific matter, but does not cover issuing proceedings, advocacy, or instruction of an advocate (although you can obtain counsel’s opinion, where justifiable). If you need to advise your client on issues arising from mediation and arbitration, see Help with Family Mediation, (which was a new level of service from 1 April 2013, below).
6.30Representation is not available in uncontested proceedings for divorce or judicial separation, except in very limited circumstances. Straightforward divorce work, where representation at court is not required, should be done under Legal Help, where it remains in scope for people who are the victims of domestic violence (see ‘Scope’ at para 6.5 above for more information).
6.31Legal Help is also known as level 1 in the family standard fees scheme.
Scope
6.32See chapter 5 for information on the following:
•whether other funding may be available, and legal aid should therefore not be granted;
•what to do if your client has received previous advice from another organisation;
•what to do if your client has received previous advice from your organisation;
•clients from abroad or clients who are abroad;
•clients who are children.
Legal Help is designed to cover cases which complete after little work beyond the first meeting with the client, and covers the consequential letters to the client and any letters to a third party. If you do more work in relation to children or finance issues, you may be able to go on to grant Family Help (Lower) funding (see below).
Domestic violence and child abduction cases
6.33These cases are included in the controlled work standard fee scheme as far as level 1. Level 2 is not designed to cover these cases and you will often find that you need to issue proceedings under a certificate very quickly.
6.34For evidence of domestic violence which acts as a passport to private Family law services, see ‘Scope’ above.
Wills and change of name cases
6.35These cases are no longer in scope under LASPO.
Divorce petitioner cases
6.36There is a ‘stand-alone’ fee which applies to divorce, nullity, judicial separation and proceedings to dissolve civil partnerships (assuming the work is brought into scope due to evidence of domestic abuse). This covers cases where the client requires advice to initiate proceedings, they are issued, and there are no children or finance issues that would justify the grant of Family Help (Lower). We will look at this in more detail later on.
Financial eligibility
6.37See chapter 3 for more information on the following:
•passporting benefits;
•assessment of capital;
•assessment of income;
•reassessment of means.
6.38See chapter 5 for more information on the following:
•evidence of means;
•when you can start work without evidence of means;
•reassessing the client’s eligibility if their means change significantly.
Merits test
6.39The Legal Help merits test is known as the ‘sufficient benefit test’, and in full states: ‘there is likely to be sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the cost of provision of legal help’.
1Civil Legal Aid (Merits Criteria) Regulations 2013 reg 32(b). The question is whether a reasonable private paying individual of moderate means would pay for the work.
2Civil Legal Aid (Merits Criteria) Regulations 2013 reg 7. In most family cases remaining within scope, the test will be met.
Forms
6.40The form is the CW1 Legal Help, Help at Court and Family Help (Lower) form. The 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.
3Standard Civil Contract Specification 2013 para 3.10.How many Legal Help forms?
6.41You can have more than one Legal Help matter open at the same time, but this is very unusual in family work. It may be permissible if your client has entirely separate family disputes.
4Standard Civil Contract Specification 2013 para 7.169. The LAA gives the example of disputes in respect of different family relationships, where any potential proceedings would be separate. This would apply, for example where your client was the mother of children with different fathers each of whom was applying separately for residence.
Funding
6.42Legal Help – level 1 is paid as two different standard fees.
5Current fees and hourly rates are found in the Civil Legal Aid (Remuneration) Regulations 2013 Sch 1. The higher fee is only applicable when your client is the petitioner in a divorce and there are no significant children or finance issues and no other form of civil legal service is provided to your client. The higher fee can be claimed three months after proceedings are issued or when the proceedings are concluded (whichever is sooner).
6.43In all other cases, the lower level 1 fee is payable (whether or not combined with a level 2 fee).
6.44Divorce, child abduction and domestic abuse cases that exceed three times the fixed fee when calculated at hourly rates, can be claimed in full (see chapter 11 for more information about claiming escape fee cases).
6.45Other level 1 cases cannot be claimed as escape fee cases.
Family Help (Lower) – level 2
Scope
6.46This covers the provision of ongoing assistance with some kinds of ‘Family Dispute’.
6Standard Civil Contract Specification 2013 para 7.60.Private Family Law – conditions for level 2
6.47Up to and including 8 May 2011, paragraph 10.55 of the then Family Contract Specification required two meetings with the client in order to justify a level 2 fee. Note also that following certification of Point of Principle CLA 54,
7See www.gov.uk/legal-aid-points-of-principle-of-general-importance-pop. definition of ‘meeting’ was broadened from 20 December 2010 to include phone calls. The LSC removed the requirement for a second meeting from 9 May 2011 and instead practitioners had to show that ‘substantive negotiations’ had taken place. This remains the position under the 2013 Standard Contract, for cases within the new reduced scope. However, practitioners report that it can be difficult to persuade some contract managers that ‘substantive negotiations’ have taken place, even when considerable work has been done on the file, for example if the other party is acting in person and refuses to respond, despite numerous attempts or where they respond through their ex-partner rather than to the solicitors direct. In such situations, practitioners may need to use the costs appeals process (see chapter 13).
Criteria for Family Help (Lower) – meaning of ‘significant family dispute’ – Family Contract Specification 2013
7.60 You may only make a determination that a Client qualifies for Family Help (Lower) where all relevant criteria in the Merits Regulations, Financial Regulations and Procedure Regulations are satisfied including the criteria in Paragraph 35 of the Merits Regulations. In addition, the fee for Family Help (Lower) may only be claimed for those Family Disputes:
(a)which involve more than simply taking instructions from and advising the Client, and providing any follow up written or telephone advice; and
(b)where you are involved in substantive negotiations with a third party (either by conducting the negotiations yourself or by advice and assistance in support of mediation); and
(c)where the dispute, if unresolved, would be likely to lead to family proceedings; and
(d)which do not primarily concern processing a divorce, nullity, judicial separation or dissolution of a civil partnership; and
(e)which do not primarily concern advice relating to child support.
Family Help (Lower) – children
6.48This covers all work up to the issue of proceedings. It is not necessary to obtain a consent order to formalise any agreement in respect of children, although if you are claiming a settlement fee (see para 6.53 below), it is advisable to record the agreement in writing, so that the LAA can see that it was a ‘genuine settlement to conclude that aspect of the case’.
8Standard Civil Contract Specification 2013 para 7.67.Family Help (Lower) – finance
6.49This covers all work including the issue of proceedings and all work required to obtain a consent order.
9Standard Civil Contract Specification 2013 para 7.67.Family Help (Lower) – children and finance
6.50Where a case involves children and finance issues meeting the criteria set out above, both the children and finance fees may be claimed. You claim two Family Help (Lower) fees, one for children and one for finance, where the merits criteria are met
10Standard Civil Contract Specification 2013 para 7.61. (see merits test at para 6.85 below).
Forms
6.51You do not need another CW1 Legal Help, Help at Court and Family Help (Lower) form. Simply tick the box at the bottom of page 9 of the original form to confirm that the criteria for level 2 are met.
Funding
6.52Family Help (Lower) (level 2) is paid under standard fees, although cases that reach the escape threshold (three times the fixed fee at levels 1 and 2 combined) can be paid in full at hourly rates. For more information about claiming escape fee cases, see chapter 13.
Settlement fees
6.53Settlement fees can be claimed for cases that conclude at this level, without the issue of proceedings (save to obtain a consent order – Standard Civil Contract Specification 2013 para 7.67). In order to be considered as ‘settled’, that aspect of the case (ie children or finance) must be fully resolved at that level and the client actively involved in a decision to accept a settlement. The agreement on financial issues must be recorded in writing or in a consent order. It is advisable to record the agreement in respect of children in writing as well.
6.54If the client ceases to give instructions, dies, or the parties are reconciled, the settlement fee cannot be claimed.
11Standard Civil Contract Specification 2013 para 7.67(c).6.55You must wait for 21 days after the case has been concluded before claiming the settlement fee. In relation to financial issues, if the settlement breaks down, and you become aware of the fact within six months, the settlement fee becomes repayable. In relation to children issues, the period is three months.
12Standard Civil Contract Specification 2013 para 7.67(b).6.56For more information about when you can or should close a case, see chapter 5.
Case study | | |
Mrs Brown had been married for 11 years and has two children, James and Jennifer. She came to see us about her divorce. It transpired that her husband had been very controlling, preventing Mrs Brown from contacting her family and only permitting her access to small amounts of money, which had to be fully accounted for. This had resulted in Mrs Brown suffering from anxiety and depression, about which she had consulted her GP within the last two years. She was able to obtain a GP’s letter to show that she was eligible on the basis of ‘domestic abuse’ under LASPO. | | |
Mr Brown refused to attend mediation; and also instructed solicitors on a private paying basis. Eventually we were able to finalise the divorce and obtain agreement to settlements in respect of the arrangements for the children and the finances. | | |
Our office is in Salisbury. What can we claim? | | |
| | |
You can claim: | | | |
Legal Help level 1 | £86.00 | | |
Family Help (Lower) (children) | £199.00 | | |
Family Help (Lower) (finance) | £208.00 | | |
Settlement fee (children) | £119.00 | | |
Settlement fee (finance) | £125.00 | | |
| Total £737.00 | | |
Funding from the client’s point of view – the statutory charge
6.57For information about the statutory charge,
13Civil Legal Aid (Statutory Charge) Regulations 2013. see chapter 5. The statutory charge does not apply to cases completing at Legal Help (level 1), but if the case goes beyond level 1, the level 1 costs are included in the costs caught by the charge.
6.58The home is exempt from the charge in cases completing under Legal Help, Help at Court or Family Help (Lower). The charge does not apply to maintenance payments. However, even where a lump sum is paid, the statutory charge does not apply to standard fee cases. This is a powerful incentive to clients to settle at level 2, as in most cases their legal aid will be free.
6.59However, in escape fee cases, the charge applies, but only to costs above the escape threshold (ie, those costs over three times the standard fee).
6.60Where the charge arises only under Legal Help, Help at Court or Family Help (Lower), it is in favour of the firm. You may apply to the LAA to waive it, if its operation would cause grave hardship or distress to the client, or where it would be unreasonably difficult to enforce.
14Civil Legal Aid (Statutory Charge) Regulations 2013 reg 81.6.61You should collect the appropriate sum from the client and claim the net costs from the LAA.
6.62But note that at level 3 (certificated work), the charge applies in favour of the LAA and includes the fees at levels 1 and 2.
15Civil Legal Aid (Statutory Charge) Regulations 2013 reg 4(2).