Crime contracts verification deadline 8 December 2015

The Legal Aid Agency has written to all successful bidders asking them to submit verification evidence by 23.59 on Tuesday 8 December, if they want to do work from the revised new Own Client and Duty contract start date of 1 April 2016.

Firms that have already been asked to submit some verifiation evidence for their successful Duty bids are being asked for additional information, including completed Supervisor forms, whether for ‘crime only’ or prison law as part of their own client contract bid. There is only one Supervisor form for ‘crime only’ as opposed to the five forms under the 2010 contract. Forms can be found here.

The LAA will also carry out further checks on staffing, offices and implementation of the delivery plan submitted by successful bidders, in the run up to 1 April, where it can start Duty Contracts from that date.

1 April 2016

The LAA says it intends to start the new Own Client and Duty Contracts from 1 April 2016 where possible; but where this is not possible due to ongoing litigation, it will allocate work under ‘contingency duty rotas’ to those holding Own Client Contracts. Firms can opt out of being included on these rot as if they do not want to do duty work.

Further information

The Law Society has provided some useful information, including provisions between January and April for new firms not holding a 2010 Contract.


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Lord Chancellor wins appeal over residence test

In Public Law Project v The Lord Chancellor & Anor [2015] EWCA Civ 1193, the Court of Appeal reversed the decision of the High Court that the proposed residence test for civil legal aid would be unlawful. It found that such a test was within the Lord Chancellor’s powers and not unjustifiably discriminatory.

In a short and much narrower judgment than that of the High Court (which considered in detail the practical difficulties of access to legal aid the test would create), Laws LJ (with whom Kitchin and Christopher Clarke LJJ agreed) confined himself to considering whether the residence test was ultra vires LASPO, and whether its effects amounted to unlawful discrimination.

Laws LJ held that Part 1 of Schedule 1 of LASPO lists categories of law where the need for legal aid is pressing. But that does not mean that it is only open to the Lord Chancellor to restrict access to legal aid on the basis of lesser need. LASPO’s purpose is also to restrict legal aid on costs grounds, and it is open to the Lord Chancellor to remove access to the scheme on that basis. The objective of saving funds and making legal aid work more efficiently are objectives of LASPO. The residence test is within the scope of such a strategy, and within the scope of the powers permitted to the Lord Chancellor. s9(2)(b) read with s41(2)(b) of LASPO permits the Lord Chancellor to omit services for classes of individuals, and that is what the residence test does. It is not outside the powers granted by the Act.

On the issue of discrimination, it was common ground that the test is discriminatory; the question is whether it is justified. The saving of public funds is a legitimate aim, and the test is a proportionate means of achieving it. There is a distinction to be drawn between the duty of the State to ensure fair and impartial justice and a duty to fund legal representation. There is a wide discretion to decide what litigation is to be supported by public money, which is essentially a political question, and the restriction on it due to the residence test is not manifestly without reasonable foundation. Any requirement of European or human rights law for access to legal aid is met by exceptional funding under s10 LASPO.


The Public Law Project’s solicitors, Bindmans LLP, have issued a statement regretting the ignoring of evidence of the practical difficulties the test would cause. They will seek leave to appeal to the Supreme Court.

It is slightly strange that Laws LJ focussed on the statutory purpose of LASPO as being in part about controlling and reducing the cost of the scheme, and how the residence test was a lawful part of that strategy. Similarly, on discrimination, he described the legitimate aim sought as being the saving of costs.

But the residence test, according to the original consultation and impact assessment, was never about cost. It was projected to save very little. The original justification for the test – scarcely touched on by the Court of Appeal – was public confidence in the operation of the legal aid scheme. Moses LJ, in the High Court, described that as amounting to “little more than reliance on public prejudice”. Laws LJ disagreed, considering it possible for reasonable people to disagree about the merits of the test. But he didn’t address at all whether that was a legitimate aim, whether the test was a proportionate means of achieving it, or whether it fell within the statutory purpose of LASPO.

Unless the Supreme Court is persuaded to deal with any appeal quickly, the Lord Chancellor now has the power to introduce a residence test. Having the power is not, of course, the same as exercising it. The new Lord Chancellor has struck a noticeably more thoughtful and liberal tone than his predecessor. It is not too late for him to consider whether the many injustices that would result from the residence test – for those caught by it, and for those not caught who can’t prove entitlement – require it to be added to the lengthening list of Grayling measures quietly abandoned.


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New exceptional funding application form

The LAA has revised and simplified the application form for exceptional funding, following criticism of it and the process in the case of  IS v The Director of Legal Aid Casework & Anor[2015] EWHC 1965 (Admin) (our post here). The form itself is shorter and simpler, and now asks only for information supplementing that in the APP1 to which it is to be attached.

There is now a section for applying for Legal Help to fund the making of an application for exceptional funding. This should be of some help in allowing practitioners to make more applications – though the making of an application for Legal Help to fund the making of an application is still unfunded, unless funding is granted. This means that there is still a significant risk element, and it is questionable whether that is enough to answer the High Court’s criticisms in that respect.

There is also now a procedure for urgent cases, with a commitment to deal with them within 5 working days rather than the usual 20 – see the provider information pack for more.

The Lord Chancellor’s Guidance has yet to be revised even though the judgment in IS was several months ago. The LAA said it would happen “very shortly” two weeks ago.

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Legal Aid Agency to extend existing crime contracts

Despite previous statements which indicated its intention to press ahead with the introduction of new Duty and Own Client contracts in January, the LAA announced today that all existing contract holders will be invited to apply for an extension to the end of March 2016. It also said new litigator fees would be deferred to that date.

Legal challenges are believed to have been issued by unsuccessful bidders in 69 out of the 85 procurement areas. The Law Society has estimated that 85% of the value of the proposed new contracts is being challenged and has provided a map which illustrates the challenges at local level.

The Law Society is calling for an independent review of the process as a second whilstle-blower has emerged to reinforce the claims of the first.

The LAA says the claims will be robustly defended but has also said that they have a backstop date for new contracts of 10 January 2017 in the ‘unlikely’ event that new contracts cannot be started before then.

In the meantime, crime firms continue to live with significant uncertainty and many will be suffering financially.

UPDATE: The LAA has published an FAQ on the contract extension.



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LAA announces plans for civil contract tenders 

The LAA has published a statement setting out its long terms plans for re-tendering and harmonising civil contracts. It says:

It is our intention to align all face to face civil contracts from April 2018.

New contracts in relation to welfare benefits, immigration removal centres and HPCDS will be awarded to end on 31 March 2018. All existing standard civil contracts (except Mediation) that are due to end before 31 March 2018 will be extended through to this date.

To enable this alignment it is also our intention to end any contract that runs past 31 March 2018 early (ie actions against the police etc, clinical negligence and public law).

The only exception to this is the 2014 welfare benefits contracts, which will be re-tendered in 2016 for new contracts to run from 1 November 2016.

So it is likely that there will be a major civil procurement exercise in late 2017. We don’t yet know what form that will take or whether there will be a competitive element.

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Changes to civil forms

There have been changes to a number of civil forms, with effect from 1 November. The affected forms are:

  • CW3A

Any forms signed or dated from 1 November onwards must be the new ones. Forms signed before 1 November must be submitted by 30 November. You can see all the forms on the LAA website here.

Out now – new editions of the LAG Legal Aid Handbook and the Solicitors Office Procedure Manual 

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Solicitors Office Manual – new edition

Solicitors OPM Cover

Hundreds of law firms in private practice have used ‘The Solicitors Office Procedures Manual’ to update or replace their existing office manuals since it was published in 2009. The second edition is now available and has been fully updated so that it complies with:

  • The SRA Code of Conduct
  • Lexcel 6
  • CQS procedures (section G)
  • Law Society’s Core Practice Management Standards
  • Specialist quality Mark 2014
  • Legal Aid Agency Contract requirements

There is also a version of ‘The Solicitors Office Procedures Manual’ which has been adapted to the needs of sole practitioners.

To purchase a copy of either version, visit the SOPM website.

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