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The rules regarding delegated functions have changed in recent months. Most changes are helpful, but you can get caught out if you are not familiar with them.
It is a sad fact of life post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 that the Legal Aid Agency (LAA) is no longer able to provide practitioners with as much help and support as it used to. We thought four lever-arch files of regulations and guidance was a bit too much of a good thing, but now the Legal Services Commission Legal aid manual is no more, it can be hard to keep up with changes.
Delegated functions, for example, used to be a fairly straightforward matter and listed in the contract and on your schedule. Now that scope is so complex, so too are delegated functions, which are listed in tables of delegated authorities on the
LAA’s website.
There have been some changes since the
2018 Standard Civil Contract came into force. These have mainly been positive, but one or two have caught practitioners unawares. For example, since 2013, practitioners have not had delegated functions to grant emergency representation for judicial reviews, though cases concerning urgent homelessness matters were always exempt from this. The LAA’s
training slides on the 2018 Standard Civil Contract stated (at slide 39) that homelessness challenges under Children Act 1989 s17 were included in the exemption.
However, in January 2019, the LAA announced that the position on judicial reviews was reverting to the pre-September 2018 position (‘
Civil news: delegated functions for emergency homelessness JRs’, LAA news story, 11 January 2019). This was good news in many ways as it clarified that delegated functions could be used for judicial review challenges under the following:
•Housing Act 1996 Part VII;
•National Assistance Act 1948 s21;
•Children Act 1989 s20;
•National Health Service and Community Care Act 1990 s47(5);
•Care Act 2014 s19(3); and
•Social Services and Well-being (Wales) Act 2014 s36.
The bad news is that Children Act 1989 s17 homelessness cases are no longer covered, as that was the pre-September position. A practitioner contacted me recently, having tried to use delegated functions in such a case and been told, after doing the work, that she did not have the power to do so and should have applied to the LAA for an emergency certificate. The LAA’s announcement flagged up the good news, but not the bad – you had to check the table to find out.
Urgent need to start work
You may ask: what happens if there is an urgent need to take action in a judicial review case where you do not have delegated functions now that the LAA has closed its ‘out-of-hours’ service? In February 2019, following a challenge by Duncan Lewis, the Civil Legal Aid (Procedure) (Amendment) Regulations 2019 SI No 130 took effect giving the director of legal aid casework the discretion to backdate certain legal aid determinations (‘
Civil news: backdating powers now available for civil cases’, LAA news story, 20 February 2019). It is only possible to use backdating powers where applications are made as soon as reasonably practicable and the LAA is satisfied that:
•it was in the interests of justice for the services to be carried out before the date of the determination; and
•the services could not have been carried out as controlled work.
It means that you are taking action ‘at risk’, but if the case meets the test, you will get paid. You should provide the following information on
CCMS (the client and cost management system):
•the date from which you want the determination to take effect; and
•a brief justification on why it is appropriate to backdate, with reference to the requirements in the amendment regulations.
You can also ask for the effect of a determination to be backdated at any point by submitting a case enquiry containing the information set out above.
Family: domestic abuse cases
There is some good news for family providers, as they may now use their delegated functions to make determinations that an individual qualifies for family help (higher) for private law children proceedings where the provider has decided that the client qualifies for emergency representation to obtain a protective injunction and the proceedings are heard on the same day. However, you will be working at risk if the emergency protective injunction is not granted and there is no other evidence of domestic violence. The
Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 and
Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 tables of delegated authorities have been amended at reg 68 and reg 35(1) respectively.