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Legal Aid Reforms

Legal Aid Reforms. Case Management Training 15 February 2013. Welcome. Welcome and Introductions Housekeeping What are we doing today?. Objectives of the day.

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Legal Aid Reforms

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  1. Legal Aid Reforms Case Management Training 15 February 2013

  2. Welcome • Welcome and Introductions • Housekeeping • What are we doing today?

  3. Objectives of the day • Provide an overview of the legislation and regulations so that you understand the new legislative framework for civil legal aid and how it will operate • Opportunities to ask questions • Know where to find further information

  4. The LASPO Act The LASPO Act provides the new legal framework of the legal aid scheme. The structure of the Act is set out below and the most important sections are in bold. You will need to be familiar with the key sections: • Sections 1-7 covering roles of the Lord Chancellor and Director of Legal Casework • Sections 21-26 covering eligibility, contributions and the statutory charge • Schedules 1 covers what is in scope of civil legal aid. Schedule 1 is key as it lists the work that remains in scope for legal aid

  5. Terminology • The legislation uses different terminology and it is important that we start to use this e.g. • The Act gives a very specific meaning to “Exceptional cases”. Therefore what we used to call “exceptional cases” i.e. when they go over 3x the standard fee are now described in the Contract as “escape fee cases” • Funding decisions are now referred to as “determinations”

  6. Director of Legal Aid Casework • The new Director of Legal Aid Casework will have a statutory responsibility for taking decisions about legal aid in individual cases (referred to as ‘determinations’) • The Director will also have the power to make legal aid available for cases not in scope through exceptional case funding • Some functions of the Director are delegated e.g. caseworkers still continue to make determinations • The Lord Chancellor has powers to make secondary legislation e.g. levels of remuneration and the merits tests to be applied in each type of case

  7. Sections 21 – 26 – financial resources • These sections cover: • Determinations about financial eligibility • Information about a client’s financial resources • Client’s contribution of costs and enforcement • Charges on property in connection with civil legal aid • Costs in civil proceedings • The detail of these will be covered in the section on eligibility.

  8. The LASPO Act Schedule 1 Part 1 • LASPO takes the opposite approach to the Access to Justice Act • Under AJA most work was within the scope of civil legal aid unless it was specifically excluded • Under LASPO unless the work is explicitly listed in Schedule 1 it is not in scope of legal aid • Schedule 1 lists work in scope by type of work and not by category of law. For example work we define as the “ Actions Against the Police” category is listed in paragraph 3 (Abuse of a vulnerable client) and at paragraph 21 (abuse of position or powers by a public authority) • So the Act is concerned solely about whether work is in scope of legal aid whereas we are also concerned that it is in scope for the category in which the provider holds a contracts

  9. The LASPO Act Schedule 1 Part 2 • Part 1 states which exclusions apply to it from Parts 2 and 3 and all 3 sections should be read together to establish if advice on a matter is within scope of the Act • Part 2 lists the services that are excluded from scope. For example it says that civil legal services in connection with conveyancing are out of scope (Paragraph 9). • However under Part I it explicitly states that services arising out of a family relationship where the client has been a victim of domestic violence can include services provided in relation to conveyancing (Paragraph 12 (4))

  10. Part 3 • Part 3 of Schedule 1 excludes advocacy for all proceedings unless specifically listed (these exclusions closely mirror current provisions in the Funding Code) • In some instances, the extent of advocacy services permitted in a forum is limited to specific proceedings

  11. Civil Legal Aid Regulations • The Funding Code will no longer exist. Everything will be set out in Regulations and there will be approximately 20 sets of regulations. The key ones are: • Civil Legal Services (Merits Criteria) Regulations 2012 • Civil Legal Services (Procedure) Regulations 2012 • Other important Regulations are: • Remuneration Regulations replace the Payment Annex to the Contract • Eligibility Regulations replace existing financial regulations • Some of the Regulations are still being drafted

  12. Civil Legal Aid (Merits Criteria) Regulations • Merits Criteria Regulations set out the merits criteria that will apply to a case and replace the Funding Code Criteria • The effect of the merits criteria is intended to replicate the effect of the Funding Code. • The substantial change is that all applications for Legal Representation, save for Family and Mental Health Tribunal cases, must satisfy the decision maker that a case is not suitable for a CFA

  13. Merits Regulations Part 1 • There are no changes to the merits tests but they are set out in a different way in the regulations as shown below:

  14. Merits Regulations Parts 2, 3, 4, 6 • Part 2 sets out the forms of civil legal services that are available, such as Legal Help, Help at Court etc. Existing forms of service remain the same and there is a new form of service – Help with Family Mediation • Part 3 sets out which forms of civil legal services are available in different categories of law for example Family Help (Higher) is only available in Family • Part 4 sets out the general criteria for each form of civil legal services which are almost identical to the criteria set out in the Funding Code • Part 6 sets out specific merits criteria for certain types of cases and there are a few minor changes for example the Regulations include criteria for representation in the Court of Protection, that is, the Director must be satisfied that the Court of Protection has ordered, or is likely to order an oral hearing, and it is necessary for the individual to be provided with full representation in the proceedings

  15. Civil Legal Aid Procedure Regulations • The Procedure Regulations set out how legal advice should be conducted and replace the Funding Code Procedures • The following areas are covered by the Regulations: • Part 1 Interpretation and General • Part 2 Gateway Work • Part 3 Controlled Work • Part 4 Licensed Work • Part 5 Emergency Representation • Part 6 Special Case Work • Part 7 Family Mediation • Part 8 Exceptional Cases

  16. Procedure Regulations Part 4 – Licensed Work • Part 4 of the Procedure Regulations set out the supporting documents that must be submitted when making specified applications for Licensed Work:

  17. Licensed Work – Reviews and Appeals • The client has a right of review against a decision that: • Regulation 44 - Case is not in scope or the client does not qualify • Regulation 69 – the case does not qualify for Exceptional Case Funding • There is a further limited right of appeal to an independent adjudicator l

  18. Exceptional Case Funding • Exceptional Case Funding (ECF) is defined in Section 10 of Part 1 of the Act and Part 8 of the Procedure Regulations • It allows for funding of cases that fall out of scope, which breaches an individual’s Convention rights (Human Rights Act 1998) or some enforceable EU right • A special unit has been set up to deal with all of these applications • MoJ will shortly publish guidance on the scheme • To apply for ECF in an existing category a provider must have a contract in that category or apply for an Individual Case Contract (ICC) provided that the effective administration of justice (EAJ) test (Reg 31(5)) is met

  19. Transitional Regulations • The Regulations will set out how cases started under the Access to Justice Act (AJA) 1999 will be treated once Part 1 of the LASPO Act has commenced • Cases will be subject to the following arrangements: • Any application made before 1 April 2013 will be considered under the AJA in relation to means, merits, scope and remuneration • Any application made on or after 1 April 2013 will be subject to the LASPO provisions • Applications that are rejected before 1 April 2013 will not be considered to be made before 1 April 2013 for the purposes of making any subsequent application

  20. Civil Eligibility Regulations • No changes to thresholds for eligibility and payment of contributions • Income contributions will increase by up to 30% for those with higher levels of income and liable to pay a contribution • The proposal to take all equity in the client’s home into account was dropped therefore: • £100k equity disregard remains • £100k mortgage disregard remains • Capital assessment of those on passporting benefits • Subject Matter of Dispute (SMOD) disregard restricted to £100k for controlled work • Further detail on eligibility later in the day

  21. Contract Category Definitions • Amended to update terminology and changes to the scope of civil legal aid • The definitions are wider than the scope definition set out in the LASPO Act because they cover all work that could potentially come back in scope through ECF • All cases under the Equality Act 2010 or a ‘previous discrimination enactment’ will fall under the new 2013 Discrimination category • Where a case under the Equality Act also falls under another contract category (e.g. AAP) it can be funded by a provider working in that category

  22. Guidance • Existing guidance will be replaced from 1 April 2013 as follows:

  23. Forms and codes • Forms have been updated to reflect new terminology, changes to the legal aid scheme, requirements for data protection • For example, the Civil APP3 will require a provider to state that evidence of domestic abuse is being provided if this is required • The CLSAPP7 Form (consideration of mediation) is no longer required before making an application for legal aid • The POA Form has been revised in light of issues of interim billing of Phase II fees • New ECF Form • Important that providers use new forms after 1 April 2013 • New proceedings codes

  24. Scope of Legal Aid: Family

  25. What remains in scope? 25

  26. Domestic Violence Definition The definition of domestic violence in LASPO has been amended to reflect the new cross-government definition. This can be found in the  Legal Aid, Sentencing and Punishment of offenders Act 2012 (Amendment of Schedule 1) Order 2013. The new definition is: domestic violence” means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;”.

  27. Private Family Law – DV criteria • Paragraph 12 (1) of Part 1 of Schedule 1 of LASPO sets out the Private Law proceedings that are in scope for legal aid, namely: ‘Matter[s] arising out of a family relationship between A and another individual (“B”) where – • There has been, or is a risk of domestic violence between A and B; and, • A was, or is at risk of being, the victim of that domestic violence’ • There are specific evidentiary requirements to satisfy the domestic violence criteria which are set out in legislation

  28. Domestic Violence - Evidence • Regulation 33 of the Civil Legal Service (Procedure) Regulations 2012 sets out the evidence required for applications: • Relevant unspent conviction for a DV offence • Relevant police caution for a DV offence • Evidence of relevant criminal proceedings for a DV offence which have not concluded • Relevant protective injunction • Undertaking given in Court • Multi-Agency Risk Assessment Conference (MARAC) plan • A copy of a court record of a finding of fact • Letter from a health professional • Letter from a Social Services department • Admission to a domestic violence support organisation

  29. Domestic Violence – Evidential Requirements • Only one item of evidence is required to satisfy the evidential requirements • The evidence must be within 24 months of the date of the application • The evidence must be obtained when making the applictaion • The Funding to obtain the required evidence is not available under the legal aid scheme • There will be template letters that will assist clients who are trying to obtain evidence • MoJ published a list fof DV offences

  30. Child Protection – Evidential Requirements • Regulation 34 of the Civil Legal Service (Procedure) Regulations 2012 sets out the supporting evidence required for these applications: • A relevant unspent conviction for a child abuse offence • A relevant police caution for a child abuse offence • Evidence of relevant criminal proceedings for a CA offence which have not concluded • A relevant protective injunction • A copy of the court record of a finding of fact of abuse of a child by B • A letter from a social services department confirming that the child has been assessed as being, or at risk of being, a victim of child abuse by B • A letter from a social services department confirming that, a child protection plan has been put in place to protect the child from abuse or the risk of abuse by B • An application for an order for a protective injunction made with an application for a prohibited steps order against B under section 8 of the Children Act 1989(a) which has not, at the date of the application for civil legal services, been decided by the court

  31. DV and Child Protection – Applications • The fixed fee and hourly rates for this work remain unchanged • The specific type of evidence used to permit funding must be included: • On the APP3 Form when applying for Licensed Work • On the file when granting Controlled Work

  32. Children • Children under the 18 are eligible for legal aid in all family proceedings as defined in the act where: • They are (or propose to be) the applicant or respondent OR • They are made a party to the proceedings under FPR 16.2 OR • They are a party to the proceedings and are conducting or propose to conduct the proceedings without a guardian under FPR 16.6

  33. Child Abduction • Funding for cases involving international child abduction remain unchanged • Legal aid is available for securing an order to prevent the unlawful removal of a child from the UK or secure the return of a child unlawfully removed from or within the UK • There will be disputes about when a child has been abducted “within” the UK • Unlike the domestic violence and child protection criteria these proceedings do not trigger funding for other aspects of the case

  34. EU and International Agreements • Funding for enforcing certain EU and International Agreements is in scope for legal aid • These are set out in Paragraphs 17 and 18 of Part 1 of Schedule 1 of LASPO • EU maintenance regs – generally expect to see this at Controlled Work

  35. Contracts – Family Specification • The definition of Family in the category definition document covers work that may be claimed under ECF funding • The contractual provisions for Legal Help and Family Help will remain the same under the 2013 contracts e.g. when specific fees may be claimed • There is no change to the Family Fee Schemes • Contains provisions about when Help with Family Mediation can be claimed

  36. Other changes There is no longer a requirement for a client to consider mediation before making an application for a family certificate therefore there is no requirement to submit a CLSAPP7 with the application

  37. Scope of Legal Aid: Housing (and debt)

  38. Scope: Housing • The table below shows what is in and out of scope for legal aid for the housing category:

  39. Scope: Debt The table below shows what is in and out of scope for legal aid for the debt category

  40. Telephone Gateway - Debt • Although Housing & Debt are being contracted together, Debt will be subject to the mandatory telephone gateway unless the Client is ‘exempt’ • If on referral to the telephone gateway telephone advice is considered inappropriate, the client will be referred to a face-to-face provider • Providers must not open a NMS in Debt unless they have been provided with a valid CLA reference number or their client is an Exempted Person • Legal Representation IS NOT GATEWAY WORK

  41. Scope of Legal Aid: Discrimination

  42. Scope: Discrimination • From April 2013 the following work will be in scope and funded under the new Discrimination category of law: • All cases under the Equality Act 2010 • All cases under a ‘previous discrimination enactment’ (e.g. Race Relations Act 1976) • Services will no longer be commissioned in Employment or Consumer and General Contract so cases under the Equality Act in these categories can only be funded via the new Discrimination category • It is expected that the vast majority of cases funded will be in the field of employment

  43. Scope of Legal Aid: Education

  44. Scope: Special Education Needs (SEN) • The table below shows what is in and out of scope for legal aid for Education:

  45. Scope: Special Education Needs (SEN) • SEN covers advice, assistance and representation on all matters arising under Part 4 of the Education Act 1996 e.g. from formal requests for statutory assessment to applications to the First-Tier (SEND) Tribunal • Advice and assistance in relation to learning difficulty assessments under section 139/140A of the Learning and Skills Act 2000 is also covered e.g. advice on making a complaint to a local authority for not having made such an assessment • Importantly, a child does not already need to have a statement of SEN to qualify for legal aid in this area

  46. Scope: Discrimination • All advice, assistance and representation in relation to a contravention of the Equality Act 2010 in education law is covered e.g. claims made under the enforcement provisions set out in Part 9 of the Equality Act • Claims made in reliance on provisions in the Equality Act are also covered e.g. on an exclusion appeal to an Independent Review Panel where discrimination is alleged • The provision of such assistance is limited to Equality Act advice alone and any out of scope work would be disallowed as ultra vires

  47. Scope: Other Work • This category covers any ad hoc advice as long as it relates to the provision or quality of education • For example, this would include an application for judicial review where the matter involved the provision of funding of education • It would also include a judicial review of the decision of a school admission appeal panel • There may be other small areas where it may be possible to obtain advice on an education matter using legal aid

  48. Merits and Procedures Applications to the First-Tier (SEND) tribunal and the Special Education Needs Tribunal for Wales are funded at this level of service and advocacy is not permitted before these forums • The Civil Legal Aid (Merits Criteria) Regulations set out the criteria that needs to be met for granting legal representation • The vast majority of applications will be for: • Appeals to the Upper Tribunal (cases determined according to the General Merits Criteria in Part 4 of the regulations) • Judicial Review (Cases brought by way of Judicial Review are determined according to the criteria in Chapter 2, Part 6 of the regulations)

  49. Scope of Legal Aid: Welfare Benefits

  50. Scope: Welfare Benefits • The table below shows what is in and out of scope for legal aid for Welfare Benefits:

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