Certificates – private family lawPrivate family law case:certificates:scopePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:scopePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:scopePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:scopePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:mediationPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:domestic violence and abusePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:domestic violence and abusePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:domestic violence and abusePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:final hearingsPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:financial eligibilityPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:waiver in domestic abuse casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:waiver in domestic abuse casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:waiver in domestic abuse casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:prospects of successPrivate family law case:certificates:merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:merits testPrivate family law case:certificates:cost–benefit/successful outcomePrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:appealing refusalsPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:children cases–merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:financial matters merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:financial matters merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:financial matters merits testPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:scopePrivate family law case:certificates:grantPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:grantPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:grantPrivate family law case:certificates:domestic abuse casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:grantPrivate family law case:certificates:domestic abuse casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:grantPrivate family law case:certificates:domestic abuse casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:urgent casesPrivate family law case:certificates:grantPrivate family law case:certificates:application–urgent casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:urgent casesPrivate family law case:certificates:grantPrivate family law case:certificates:application–urgent casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:urgent casesPrivate family law case:certificates:grantPrivate family law case:certificates:application–urgent casesPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:urgent casesPrivate family law case:certificates:grantPrivate family law case:certificatesPrivate family law casePrivate family law case:certificates:urgent casesPrivate family law case:certificates:grantPrivate family law case:certificatesPrivate family law case
Scope
6.72A Representation certificate authorises the conduct of litigation and the provision of advocacy and representation, and includes steps preliminary and incidental to proceedings, and steps to settle or avoid proceedings.
6.73The then LSC introduced a standard fee funding scheme known as the Private Family Law Representation Scheme (PFLRS) from 9 May 2011. Under the PFLRS there are two levels of funding:
Family Help (Higher) – Level 3: To cover all work up to the preparation for final hearing.
Legal Representation – Level 4: To cover all work from preparation for a final hearing up to and including all work to conclude a case after the final hearing, eg application to the court of first instance for permission to appeal, and advice on the merits of an appeal against a final order.
6.74The LSC introduced a standard fee scheme for advocacy, the Family Advocacy Scheme (FAS) from 9 May 2011. For more information on the fee schemes for litigators see chapter 13. For more on the FAS, see chapter 16.
6.75Before you apply for a certificate, see chapter 5:
•general criteria;
•clients who are abroad;
•clients from abroad;
•clients who are children.
Mediation
6.76Mediation remains within scope of legal aid. It is means and merits tested. The merits test is that ‘the Director is satisfied that the mediator has assessed that, in all the circumstances of the case, the case is suitable for mediation’.
1The Civil Legal Aid (Merits Criteria) Regulations 2013 Pt 4 reg 37. Prior to 2014, there was an obligation only on applicants for legal aid to prove their case was unsuitable for mediation before starting court proceedings; but the Children and Families Act 2014 made it compulsory for all separating couples to attend a Mediation Information and Assessment Meeting (‘MIAM’) before starting proceedings in relation to money or children issues. Practitioners report that enforcement of this requirement varies considerably between different courts.
Domestic violence and abuse
6.77The LAA does not consider the fact that domestic abuse or violence has taken place should automatically rule out consideration of mediation. They will accept that it is not reasonable to consider mediation if an allegation of domestic abuse has resulted in a police investigation or the issuing of civil proceedings for the protection of the applicant within the last 12 months. In other circumstances, you will need to justify why it is not appropriate to involve the police, for example where this might jeopardise the long-term financial or other interests of the family, or if you have reason to believe that the police will not be able to assist, or if they have been contacted but have failed to respond or to provide adequate assistance in the past.
6.78It is unlikely that funding will be granted for committal proceedings if criminal proceedings have been instigated by the police. Breach of a non-molestation order became a criminal offence in 2007, and the LAA would ordinarily expect the client to report a breach to the police before seeking an amendment to the certificate for committal.
Final hearings
6.80Proceedings up to a final hearing are covered by a form of legal aid called Family Help (Higher). Final hearings are covered by a form of legal aid called ‘Legal Representation’. In practice, you need to apply for an amendment to the certificate. There were some problems in cases where the client was eligible for legal aid due to evidence of domestic abuse, as the time limit on the original evidence could expire before a final hearing, and it might be difficult or impossible to obtain fresh evidence that fitted the narrow drafting of the regulations. However, regulation 2(5) of the Civil and Criminal Legal Aid (Amendment) (Regulations) 2015 added a new regulation 31(7A) to the Civil Legal Aid (Procedure) Regulations 2012. As a result, it is not necessary to provide up to date evidence when applying to amend a certificate to cover a final hearing.
Financial eligibility
6.81See chapter 3.
Waiver in domestic abuse cases
6.82The LAA has discretion to waive the upper disposable income and capital limits for victims of domestic abuse seeking protection from the court.
3Civil Legal Aid (Financial Resources and Payment of Services) Regulations 2013 reg 12. It does not apply at Legal Help level. It is important to note that any contribution from income or capital that is applicable under the regulations cannot be waived. If granting a certificate as a delegated function, you can assume the LAA will exercise its discretion in favour of granting a waiver; but when you submit the substantive application, you should make clear that the case is a domestic abuse case, and that you are seeking the waiver.
6.83You should advise your client that, although the upper limit may be waived, the liability to pay contributions is not. The usual rules on contributions will apply, so the client’s funding will be revoked in the event of non-payment. Clients with income much above the upper limit who successfully obtain a waiver can find themselves paying quite substantial contributions, so you should clearly advise the client to expect that. You can provide an indication of how much this will be by using the LAA’s eligibility calculator at
http://civil-eligibility-calculator.justice.gov.uk/.
6.84This is particularly important in emergency cases, since if you grant an emergency certificate, and the client is then offered a substantive certificate with contributions and declines the offer, he or she will be liable for the full costs you incur on the emergency certificate.
Merits test – standard criteria
6.85Before you apply for a certificate you need to ensure that the standard criteria are satisfied.
4Civil Legal Aid (Merits Criteria) Regulations 2013 reg 39. Those that apply in private family law cases are:
•The individual does not have access to other potential sources of funding from which it would be reasonable to fund the case.
•There is no other person besides the individual, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings.
•The individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution.
•There is a need for representation in all the circumstances of the case including:
•the nature and complexity of the issues;
•the existence of other proceedings; and
•the interests of other parties to the proceedings.
6.86The first criterion requires you to consider whether the client has alternative methods of funding the case at their disposal, and you will need to explore with the client and consider whether, for example, the local authority would pay for adoption proceedings. You will need to address any potential sources which are not in fact available, in the application.
Stage 1 – Prospects of success
6.87All cases must be put into one of the following categories according to its prospects of success (for a discussion of the sequence and reasons behind the amendments see chapter 5):
5Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 reg 5, amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2 and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2.•very good – 80% or above;
•good – 60% to 80%;
•moderate – 50% to 60%;
•marginal – 45% to 50%;
•poor – less than 45%;
•borderline – it is not possible, because of disputed law, fact or expert evidence, to assign the case to another category but it cannot be categorised as ‘unclear’; or
•unclear – the case cannot be assigned to any of the other categories because there are identifiable investigations to be carried out after which the prospects can be estimated.
6.88In
IS6[2015] EWHC 1965 (Admin) para 96, per Collins J. in the High Court, Collins J said that the standard to be applied in assessing the prospects of success is the prospects as they would be with the assistance of competent legal representation, not the prospects on the basis of material available but untested at the time of the application. This is to ensure that cases where competent representation would turn the case in the applicant’s favour are not excluded from funding. Although the Court of Appeal overturned his declaration that the merits regulations were unlawful, it did not specifically deal with this point. In our view, and notwithstanding that the wider judgment was overturned, that must be the right approach.
Stage 2 – Cost-benefit/successful outcome
6.89This varies according to the type of case, see below.
Appealing refusals
6.90A refusal of a certificate on the basis of merit can be appealed, within 14 days of the decision, to the Independent Adjudicator. A refusal on financial grounds cannot be appealed, though a fresh application can be made if circumstances change.
Private law children cases – merits test
6.91Private law children cases are proceedings concerning contact, residence, parental responsibility, financial provision for children, and other matters under the Children Act which are not special Children Act or other public law proceedings.
6.92You need to show that you are likely to obtain a ‘successful outcome’ – a significant improvement in the arrangements for children.
6.93The merits test is as follows:
•Prospects of success are:
•marginal or better or borderline.
7Civil Legal Aid (Merits Criteria) Regulations 2013 reg 68, amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2(9) and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2(11).; and
•the reasonable private paying individual test is met: ‘the potential benefit to be gained from the provision of civil legal services justifies the likely costs, such that a reasonable private paying individual would be prepared to start or continue the proceedings having regard to the prospects of success and all the other circumstances of the case’.
8Civil Legal Aid (Merits Criteria) Regulations 2013 reg 7. CCMS and forms
6.94As mentioned in chapter 5, the LAA introduced mandatory use of its online Client and Cost Management System (CCMS) for all new applications from April 2016. CCMS replaces the paper forms explained below.
6.95See 5.115 onwards for more information about:
•what to do if CCMS is not available; and
•claiming time spent on CCMS that exceeds time taken using a paper form.
6.96The client should attend an appointment with a mediator unless any of the exceptions apply (see above).
6.97Representation will be refused if no reasonable attempts to settle without recourse to litigation (whether by negotiation or otherwise) have been attempted.
6.98Forms will be rejected if the signatures are more than two months old. See the aide-memoire at appendix A. For CCMS cases the client’s signature cannot be obtained until the application is completed and must be done at that time.
Financial matters – merits test
6.99You need to show that you are likely to obtain a ‘successful outcome’ – a significant improvement in financial or other arrangements. The merits test is as follows:
9Civil Legal Aid (Merits Criteria) Regulations 2013 reg 69, amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2(10) and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2(12).•Prospects of success are:
•moderate or better; or
•borderline, marginal or unclear, and the case is of significant wider public interest, of overwhelming importance to the client, or the substance of it relates to a breach of Convention rights.
•Representation will be refused unless the likely benefits justify the likely cost, such that the reasonable private paying individual would be prepared to take or defend the proceedings in all the circumstances.
CCMS and forms
6.100Again, before applying for funding, the client should attend mediation (unless the exceptions apply) and to have attempted to settle, by negotiation or otherwise. Applications should be made via CCMS. If you need to apply using a paper form because CCMS is not available, use form CIVAPP3 with the appropriate MEANS form.
Funding
6.101The Private Family Law Representation Scheme (PFLRS) and the Family Advocacy Scheme (FAS) have applied since 9 May 2011. For more information on the fee schemes see chapter 13.
Grant and scope of a certificate
6.102In almost every case, a certificate is only granted subject to two limitations. First, it is very rare for a certificate to be granted to cover the entirety of proceedings. Usually, it is limited to a particular step in the proceedings. Secondly, costs will be limited, usually to £2,250 plus VAT in the first instance.
6.103Costs limitations include profit costs (and any enhancement or uplift), counsel’s fees and disbursements, but not VAT. It is extremely important not to do work outside the scope of any limitation as you will not be paid for it. You should note that payments to counsel under the FAS count towards the financial limitation on certificates.
10Standard Civil Contract Specification 2013 para 6.65. It is particularly easy to lose track of counsel’s fees and disbursements and it really helps to keep all documents relating to financial issues together if using a paper file. If you have delegated functions, you have the power to amend the financial limitation on an emergency (but not substantive) certificate up to £10,000, but only to allow you to do work that is urgent. If you exercise this power, you should inform the LAA via CCMS or on form APP8 if CCMS is not available that you have done so.
Domestic abuse cases
6.104Representation is available to apply for an injunction under Family Law Act 1996 Part 4. This is covered by LASPO Sch 1 para 11, therefore there is no need to produce evidence of previous domestic abuse as this only applies to services under para 12.
6.105The merits test is as follows:
11Civil Legal Aid (Merits Criteria) Regulations 2013 reg 67, amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2(8) and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2(10).•Prospects of success are:
•marginal or better, or borderline.
•Representation will be refused unless the case meets the proportionality test: ‘that the likely benefits of the proceedings to the individual and others justify the likely costs, having regard to the prospects of success and all the other circumstances of the case.
Applying for a certificate – urgent cases
6.107You may exercise a delegated function to grant an emergency certificate. See chapter 5 for more information about delegated functions.
6.108If a substantive certificate is refused (on means or merits), or made conditional on a contribution which the client refuses, the client is liable for all costs incurred under the emergency certificate. The client must therefore be advised of this at or before the time of the grant, and given a costs estimate. In these circumstances, the solicitor should bill the certificate in the usual way; the LAA will pursue the client for the costs.
•Merits: Emergency representation may be granted as a matter of urgency where it appears in the interests of justice to do so.
12Civil Legal Aid (Procedure) Regulations 2012 reg 52(1)(b). •Means: Emergency representation may be provided where there has not yet been a detailed assessment of the client’s resources, provided that he or she has provided sufficient financial information to demonstrate that it is likely that he or she will be found to be eligible.
13Civil Legal Aid (Procedure) Regulations 2012 reg 52(2). Confirmed by Point of Principle (PoP) CLA59, 1 February 2017. In cases of doubt, eg because of complex means, you can submit an urgent application via CCMS. See above for the LAA’s power to waive the capital and income limits in domestic abuse cases.
•Limitations: You must apply both a scope and a costs limitation (see the standard limitations at
www.gov.uk/government/publications/civil-legal-aid-application-forms-supporting-guidance). Scope should be limited to the steps that need to be taken urgently. The initial scope limitation can be amended, provided the certificate remains limited to steps that need to be taken urgently. Costs will usually be limited to £1,350 plus VAT in the first instance, though this can be exceeded or amended where justifiable.
•Application for substantive certificate: The LAA must receive the substantive application within five working days of the emergency grant, and in the event of a delegated function amendment to scope or costs, you can apply through the dual step process so that the substantive certificate reflects the amendment you made using your delegated functions. There is a LAA Quick Guide to this
http://ccmstraining.justice.gov.uk/Quick-guides/Quickguides/managing-live-cases-1.
6.109It is important to ensure that your emergency certificate is replaced by a substantive certificate within 56 days, as emergency certificates expire at that point and any further work would not be funded. The time limit cannot be extended.
6.110See chapter 5 for information about:
•amendments to certificates;
•refusals and appeals;
•use of counsel and amendments for a QC;
•changes to prospects of success or cost-benefit;
•disbursements and prior authority;
•contributions;
•high-cost cases;
•ending a case;
•discharge of certificate;
•revocation of certificate.
6.111See chapter 13 for information about getting paid in family cases.