Crime contract tender opens

The has LAA opened the tender process for new crime contracts to start on 1 April 2017. It is not a competitive process and contracts will be awarded to all those meeting defined criteria, whether they hold a contract currently or not.

  • Mandatory criteria, eg professional standing, payment of taxes etc
  • Regulated by an appropriate professional body
  • Hold the SQM (at least passing a ‘desktop’ audit for new applicants) or Lexcel
  • Have an office meeting defined standards
  • Employ a full time supervisor (Criminal Investigations and Proceedings, Prison Law, Appeals and Reviews, depending on the area of law)
  • Meet a ratio of one supervisor to four other designated staff/caseworkers (six for prision law only)
  • Organisations wanting to expand duty solicitors by more than 50% or, where they currently have none, engage 10 or more duty solicitors need to submit additional financial information and their business plan


  • 8 August 2016 – Final date to ask questions about the tender (FAQs)
  • 22 August 2016 – Replies to FAQs published
  • Noon 15 September 2016 – CLOSING DATE to submit tenders
  • November 2016 – Outcome notified
  • 12 December 2016 – Deadline to passs verification for inclusion on the rota from 1 April 2017
  • 23.59 13 January 2017 – Deadline to submit Duty Solicitor information and CRM12s
  • 28 February 2017 – Deadline to submit tender verification
  • 1 April 2017 – Contract start date

There is more information about the tender here.

The 2017 Standard Crime Contract can be found here.

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Merits tests amended from 22nd July

Following its successful appeal in IS in the Court of Appeal, the LAA announced that it would no longer fund cases that were “poor” or “borderline”. We questioned at the time whether it could lawfully take such an approach before the regulations that set out the merits tests were amended.

Amending regulations have now been laid and come into force on 22nd July. However, the LAA has changed its policy in the last month.

Funding for “borderline” cases will now remain in place in much the same way as before. But where cases categorised as “poor” but not “very poor” would be funded pre-IS, from 22nd July they won’t be. A new category of “marginal” prospects of success has been created for cases where prospects are 45% or above, which will be funded with the same stricter criteria that apply to borderline cases. “Poor” now means below 45%, and those cases drop out of funding.

If you didn’t apply for funding in a borderline or marginal case because of the LAA’s erroneous announcement last month, it will now be worth doing so.

The new criteria don’t apply to any cases where the initial application was made before 22nd July 2016.

More on the LAA site here.

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Supreme Court judgment in residence test case

The Supreme Court has issued its judgment in the residence test. As we reported at the time of the hearing, the Court took the very unusual step of upholding the appeal partway through the case. It’s now given its reasons.

In The Public Law Project, R (on the application of) v Lord Chancellor [2016] UKSC 39, Lord Neuburger gave the only judgment, the other six justices agreeing. He only dealt with the first ground of appeal – ultra vires – it being agreed that, as the case won on that ground alone it wasn’t necessary to deal with the other ground (discrimination).

Lord Neuburger held that LASPO defines what civil legal aid services are to be made available by reference to the issue of law, the nature of the services and the need and ability to pay of the individual requiring the services. There is nothing in the Act that excludes groups of people on the grounds of personal circumstances or personal characteristics beyond that – such as resident status – and nothing in the Act that enables such an exclusion to be brought in using the powers given to make secondary legislation. He also noted the strong presumption in statutory interpretation that every Act applies not just to persons belonging to the territory affected by the Act, but also to “foreigners…within its territory”.

We’ve remarked before on the varying interpretations of the statutory purpose of LASPO. Lord Neuburger addressed that as well; “the purpose of Part 1 of LASPO was, in very summary terms, to channel civil legal aid on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and the availability of other forms of dispute resolution. The exclusion of individuals from the scope of most areas of civil legal aid on the ground that they do not satisfy the residence requirements of the proposed order involves a wholly different sort of criterion from those embodied in LASPO and articulated in the 2011 paper.” This is a helpful formulation, putting the emphasis back on targeting need rather than reducing costs.

However, although it’s now clear that the residence test can’t be brought in by statutory instrument, it still could be done by primary legislation. The previous Prime Minister, David Cameron, made clear he supported that – though no legislative plans had been announced. It remains to be seen whether Theresa May – and whoever she appoints as Lord Chancellor – agrees.


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New DV regs – tell the MOJ what you think

Following the successful Rights of Women JR, and the introduction of interim regulations, the Ministry of Justice is now consulting on revised regulations. It’s completely anonymous and the MOJ states that it  won’t know which individuals or firms have responded.

The online survey, which takes around 20 minutes to complete, aims to gather information about:

  • Practitioners’ experience of working with victims of domestic abuse and legal aid requirements
  • Your thoughts on the current arrangements and whether they present obstacles for people in accessing legal aid
  • Your views on the most straightforward way for victims to provide evidence in future

It’s great that the MOJ is asking you to give feedback on your experience and that of your clients (and those people who never became clients because they couldn’t provide the evidence required under the regulations).

Please complete the survey – the closing date is only a week away – FRIDAY 01 JULY 2016

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As you were – merits tests back to 50% or above

We reported the likely impact of the Court of Appeal in The Director of Legal Aid Casework and Lord Chancellor v IS [2016] EWCA Civ 464. The Court found that the merits test, limiting legal aid to cases with a prospect of success over 50% was lawful.

Following the earlier decision by Collins J, the LAA had widened the merits test in 2015 to include the possibility of funding in cases which were poor or borderline. The LAA has now told the representative bodies that with immediate effect, it will no longer fund applications for civil legal aid representation certificates with less than a 50%, or borderline, prospect of success. It says practitioners should do the same when exercising delegated functions.

The LAA says that it is ‘considering’ changes to the Civil Legal Aid (Merits Criteria) Regulations, which set out the merits tests, but no changes have yet been made. It’s not clear to us that the LAA has the power to refuse applications that meet the criteria in the regulations (including the borderline and poor criteria), or that it would be acting lawfully if it did so, unless the regulations were actually amended. However, it has made it clear that it will not fund such cases with immediate effect.

This could change if permission to appeal to the Supreme Court is given; but for now practitioners need to take this into account when using delegated functions or making applications to the LAA.

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LAA announces intentions for crime contracts 

The LAA has announced its intentions for crime contracts. The Contingency Contract will be extended until 31 March 2017 when it will be replaced with a new contract.

The LAA has started a three week consultation with representative bodies on the crime contract – the Law Society, Bar Council and LAPG are the contractual consultees; the CLSA has confirmed it hasn’t been invited to take part.

Following the consultation a procurement exercise will begin. It’s not yet been announced what form that will take.

Providers wanting to accept the extension until 31 March 2017 have until 30 June to do so.

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Scope news

News of a couple of recent cases where the scope of legal aid has been an issue:

Firstly, some welcome news via the Court of Protection Handbook blog (another site supporting a LAG book, and invaluable for practitioners in that field). It is a report from Bindmans confirming that the LAA has conceded that a claim for damages under the Human Rights Act made in the Court of Protection is in scope under para 22 of Schedule 1 of LASPO. More here.

Secondly, another in the list of cases where the family courts have identified loopholes in the funding arrangements for care cases. In JC (Discharge of Care Order : Legal Aid) , Re [2015] EWFC B39, a father was refused legal aid to be represented on an application by the local authority to withdraw discharge of a care order. While such matters are in scope, they are not covered by the non-means non-merits provisions, and the father didn’t qualify on means. HHJ Hammerton said:

      In terms of the provision of legal aid it is impossible to rationalise the distinction between defending an application for a care order and defending an application for the withdrawal of permission to discharge a care order, when both applications are made by the local authority. The outcome being sought by the local authority is the same, namely the removal of the child from his parent. However the application made within original care proceedings will attract non-means tested public funding whereas the application to withdraw a discharge of a care order will not.
      The lack of legal representation inevitably causes an imbalance in the effective presentation of the cases advanced by the parties. When, as here, the subject matter is grave and emotive, the absence of representation is particularly inappropriate and unfair.

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