Authors:Vicky Ling
Last updated:2023-09-18
'Everybody need a partner to stand right by their side'
Marc Bloomfield
Will Smith and the Legal Aid Agency may agree, but is lack of a partner’s signature on the CW1 an audit failure?
I recently received a query from a reader of the LAG Legal Aid Handbook about whether it is always necessary for a client’s partner to sign a legal help form. There may be issues of client confidentiality, and it can be difficult if the partner does not accompany the client and you need to start work quickly.
I referred the enquirer to the LAG Legal Aid Handbook 2018/19, para 3.41, and guidance issued by the Legal Services Commission in 2009, which states that the partner’s certification does not have to be signed in all circumstances. The guidance gives the obvious examples, such as where the partner is the opponent or has a contrary interest. It goes on to refer to the common situation where the client simply attends the office without their partner, and cites para 2.11 of the Unified Contract – Civil Specification (3 November 2008), which was in force at the time. The guidance states that the client is generally required to attend the office with evidence of their, and their partner’s, income but:
There is no need in these circumstances to require the partner to attend the office to sign the form or to send the client home with the form to obtain their partner’s signature.
The reader was doubtful for several reasons: the guidance is now quite old; the contract manager had said the form had to be signed by the partner; and the form itself uses the word ‘must’. She had also been referred to the Legal Aid Agency’s (LAA’s) Frequently asked questions: civil legal aid reforms dated 29 May 2013 (page 4, question 17) about what happens if the client’s partner refuses to sign or the client doesn’t want the partner to know they are getting legal advice. The answer was: ‘We expect the partner’s signature to be obtained for licensed work …’ In my view, as the FAQ refers to licensed work, it is not relevant.
The fundamental question is: does the LAA have authority to require a client’s partner to sign a CW1 form? The LAA’s authority is provided by its contract and regulations.
The Unified Contract – Civil Specification states (at para 2.11):
The assessment of means section and the client’s details must be fully completed and the form signed by the client in your presence before the controlled work is commenced…
It does not mention a partner. The 2013 Standard Civil Contract Specification (May 2016 version) says at para 3.10:
The assessment of means section and the client’s details must be fully completed and the form signed by the client in your presence before the controlled work is commenced…
So, nothing about a partner signing the form there.
If we look at Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 Part 3, we can see that they are simply reflected in the contract. They do not refer to the client’s partner either. Reg 22(1) states that applicants must attend the proposed provider’s premises in person (some exceptions are given). Reg 23(1) states that an application must be in a form specified by the lord chancellor. It goes on to state what the form must specify:
(a)the form of civil legal services to which the application relates;
(b)the matter to which the application relates;
(c)the category within which the civil legal services fall …; and
(d)a proposed provider …
I discussed this with my co-editors of the Legal Aid Handbook. The key question for us was whether wording on the form can add a mandatory requirement that goes beyond what the regulations and contract say, and whether complying with the contract but not the wording on the form amounts to an audit failure.
We agreed that it would be difficult for the LAA to find a breach of contract where there is no contractual requirement and where it has previously (in the 2009 guidance) made it clear that it is not a contractual requirement. We are aware that some organisations have pending appeals on this issue and we’d love to know the outcomes!