Authors:Vicky Ling
Last updated:2023-11-03
Watching brief
Marc Bloomfield
Description: Practice management
Key recent changes to the legal aid scheme.
Temporary arrangements
The Legal Aid Agency (LAA) has been reviewing and updating temporary arrangements. They will be retained until March 2021 unless stated otherwise (Coronavirus (COVID-19): Legal Aid Agency contingency response, 18 March 2020; last updated 27 January 2021). It is important to check the website carefully for indicated end dates. Three weeks’ notice will be given of any changes.
The LAA has published a Schedule of processes restarting after COVID-19 contingency (24 June 2020; last updated 26 January 2021). If you have queries, the LAA’s Twitter team @LAAHelpTeam has a reputation for responding quickly and helpfully.
There is guidance on obtaining signatures from clients, which may be by electronic means (Coronavirus (COVID-19): working with clients, 14 April 2020; last updated 27 January 2021). This refers to Law Society advice that an electronic signature may not be a ‘signature’ at all, as long as the client communicates clearly that they understand the conditions attached to legal aid, eg, by exchange of emails (but not by text). You are expected to obtain a ‘wet’ signature at the earliest opportunity where this is possible.
The LAA says:
In order to avoid delays or issues with processing, you should seek a signature at the earliest possible opportunity. If you are unable to secure a client signature (including a digital signature), where it is clear that reasonable attempts have been made to secure the client’s signature and you have provided evidence of the client’s intention to sign the form or that you have been appointed to act for a client by a court or tribunal, you may still submit a claim.
The LAA expects you to make reasonable attempts to obtain evidence of means. The contract specification allows you to assess means without accompanying evidence where it is not practicable to obtain it (2018 Standard Civil Contract Specification, 19 January 2021, para 3.24). You must record the reasons on an attendance note.
The Standard Civil Contract 2018 allows you to use up to 25 per cent of controlled work matter starts using remote communication, without seeing the client (2018 Standard Civil Contract Specification, para 3.17). The LAA says it will be flexible if circumstances mean that more than 25 per cent of matter starts are provided remotely.
Guidance changes
The LAA has updated the Civil finance electronic handbook (version 3.1, 18 December 2020). The main changes are to data protection terminology post-Brexit and internal guidance to LAA staff, but there is clarification to wording about claims under the Family Advocacy Scheme for remote hearings on pages 50 and 57, and a new section about care cases involving deprivation of liberty claims on pages 62–63. The Escape case electronic handbook has been similarly updated (version 2, 18 December 2020) and has a reworded section on subject access requests at page 39.
Updated forms
The LAA has updated the data protection wording on all its paper forms. The most used are: CW1 Legal Help, Help at Court and Family Help (Lower) (version 25; 28 January 2021); CW1PL Family Help (Lower) Public Law (version 7; 23 December 2020) for cases under Children Act 1989 s31; CW1&2 Legal Help and Controlled Legal Representation – Mental Health (version 14; 28 January 2021); CW2 Controlled Legal Representation (Imm) (version 16; 28 January 2021); CRM1 Client’s Details Form (version 11; 23 December 2020); and CRM2 Application for Advice and Assistance (version 10; 23 December 2020).
Capital disregards
Following R (GR) v Director of Legal Aid Casework [2020] EWHC 3140 (Admin), concerning a domestic abuse survivor denied legal aid based on the value of property that was not available to her, the Ministry of Justice decided to amend the regulations for all applicants.
Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020 SI No 1584 reg 2(4) removes the £100,000 mortgage cap. This means that all debt secured on a home will be deducted from the total value of the land when assessing a person’s capital, so that only the equity (main dwelling and other properties) will be assessed as capital in the means test. This reg comes into force on 28 January 2021.
It was held in GR that if an applicant is considered to have equity in their home that they cannot access, the director of legal aid casework has discretion and may disregard it. Public Law Project has issued a practice note and a precedent following the decision.
Other amendments (which came into force on 8 January 2021) allow for a mandatory disregard for lump sum payments from UK government-funded schemes where there has been a state error, and a discretionary disregard for UK financial support schemes for victims of a serious incident, such as a violent crime, terrorist action or a national emergency.