Legal aid and COVID-19
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Marc Bloomfield
Some key issues in the legal aid contract and responses from the Legal Aid Agency as at 30 March 2020.
The Legal Aid Agency (LAA) is regularly updating its processes in light of the evolving situation. Its guidance can be found in Coronavirus (COVID-19): Legal Aid Agency contingency response.
Legal aid contract
The 2018 Standard Civil Contract Standard Terms and 2017 Standard Crime Contract Standard Terms contain a clause at para 30.6 (pages 92 and 91 respectively) that relieves you from your obligations under the contract due to an epidemic, as long as you have implemented your business continuity plan.
If you have to close your office, you need to notify your contract manager and explain how closure will affect service delivery, and how you will deal with urgent matters and ensure that work is supervised. If your contract manager is not available, you can contact the LAA’s Customer Service Team on Twitter (this is not appropriate for client case queries).
If a supervisor is not available, the Contract Specifications (paras 2.24 (civil) and 2.27 (crime)) state that if your supervisor is unable to work for up to six weeks, you can appoint someone else internally, even if they do not meet the full supervisor requirements. Alternatively, you may appoint an external supervisor. If the situation is likely to go on for more than six weeks, you need to get authorisation from your contract manager.
The face-to-face aspect is an important element of the contract. If you have to close to the public, you will need to explain how far you are able to meet the relevant office requirements (Contract Specifications paras 2.33–2.37 (civil) and 2.44–2.52 (crime)). The LAA’s contingency response makes it clear that, of these contract requirements, what it is most concerned about is how you would deal with urgent matters.
Providing services to clients remotely
The LAA’s contingency response says:
We understand in the current situation it may not be possible to meet clients in person. Your well-being and that of your clients is important to us … Depending on local police practices and their own health concerns, you may not be able to physically attend on those clients.
Police station fixed fees
These can be claimed for attendances by phone or video. The contingency response says you need an attendance note confirming both the police and the client were happy to proceed without a physical attendance. This may be problematic, due to the varying approaches currently being taken by different forces. The practitioner representatives will doubtless be raising this with the LAA.
Controlled work
You can use up to 25 per cent of your controlled work matter starts using remote methods of communication, without seeing the client. Note that you will need to make an appropriate ID check if you advise a client by remote means (Civil Contract Specification para 3.18).
The LAA has issued some guidance about accepting digital rather than ‘wet’ signatures. It expects you to make reasonable attempts to obtain evidence, but the Contract Specifications allow you to assess means without accompanying evidence where it is not practicable to do so (Contract Specifications paras 3.24 (civil) and 3.6 (crime)).
Certificated work
The LAA’s contingency response states:
We have suspended time limits for delegated function applications, substantive amendments and appeals against LAA decisions.
There are limited situations in which the LAA will accept an application via CCMS (the client and cost management system) without the client being present with you. It generally scrutinises these applications carefully as it expects them to be used in only a very small minority of cases. You need to be extremely careful to check financial eligibility.
Where you need to use delegated functions urgently, the client signs a ‘Promissory Declaration’ as to costs, should they not be eligible. Once signed and dated, the promissory declaration must be kept on file and may be requested as evidence to support your substantive application for funding on CCMS.
Where the client cannot reasonably be expected to travel to the office at all, you need to use the ‘Declaration Against Instruction’ process. To begin this, you must first complete either the paper means and merits forms or your own attendance note to record the client’s information. This information will be inputted onto CCMS once instructions have been obtained.
The contingency response states that a Family Advocates Scheme Advocates Attendance Form may not be available for remote hearings and an attendance note or notes on the brief (including any bolt-ons) will be accepted as evidence of a hearing.
Financial hardship
The practitioner representative bodies are talking to the LAA about how they may be able to improve cash-flow. In the meantime, the LAA has brought together information about existing measures.

About the author(s)

Description: Vicky Ling - author
Vicky Ling is a consultant specialising in legal aid practice and a founder member of the Law Consultancy Network.