This article, previewing the new edition of the Handbook, first appeared in the February 2013 issue of Legal Action and is reproduced here with permission and thanks. The new edition of the Handbook will be published for the start of the new scheme in April and you can download the Kindle edition here
The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 is introducing the most fundamental changes to legal aid in a generation, so even experienced legal aid practitioners will need guidance and support. The LAG Legal Aid Handbook 2013/14 is the only comprehensive single-volume guide to the civil, family and criminal legal aid schemes under the LASPO Act. For this edition, the existing editorial team (Vicky Ling, independent legal services consultant, and Simon Pugh, head of legal services at Shelter) has been joined by Tony Edwards, the well-known practitioner who writes and lectures widely on criminal law.
Explaining the new scheme
The Handbook is divided into three parts. Part A is aimed at solicitors and caseworkers. It sets out a step-by-step guide to the way legal aid works and where to find the guidance available on the legal aid website. It contains an explanation of the LASPO Act so that you will understand what is still in scope and what is out. The key parts for legal aid are Part 1 (which contains the enabling powers for the new scheme) and Schedule 1 (which sets out what work is in scope in future).
Schedule 1 is not easy to understand and requires a certain amount of cross-referencing and double, or even triple, negatives to be navigated to understand whether a case is in fact in or out of scope. The schedule is in four parts; Part 1 lists types of proceedings which are in scope, but is subject to Part 2 (which excludes certain types of action) and Part 3 (which excludes certain courts and tribunals), as well as the definitions in Part 4. So, in order to see whether a case is in scope, you need to check that it is included by Part 1 but not excluded by Part 2, and that the venue is included in Part 3 if you wish to provide advocacy. The Handbook contains a useful table summarising what is in and out of scope in each category, which will help you to find the way through this complex framework and focus on your clients.
The Handbook runs through the different levels of funding, and explains what is meant by controlled work and what is referred to as licensed or certificated work, in all their many variations. This will be particularly useful to those not for profit agencies which will be undertaking full legal representation for the first time.
Some changes are significant, others appear cosmetic – it is hard to see why ‘devolved powers’ needed to be renamed ‘delegated functions’ under the LASPO Act. There are subject-specific chapters in the Handbook which deal with categories of law which have their own rules. Private family law will be hardest hit by the LASPO Act, so scope issues and level 2 fees are particularly important. There are also chapters on public family law, mediation, mental health immigration/asylum and crime.
There are chapters on getting paid for your work, tailored to the whole range of civil/family and crime fee schemes. The Handbook also has a useful appendix summarising which casework activities you can claim for, as well as covering costs assessment and appeals procedures.
Part B deals with legal aid advocacy in relation to civil, family and crime, making the Handbook equally relevant to solicitor advocates and counsel.
Management, visits and audits Part C covers the management of legal aid work, which – despite repeated attempts to reform it – remains as challenging as ever. It provides a summary of key contractual requirements and considers tender requirements. It covers the quality standards required for legal aid contracts, including a detailed analysis of what you will need to do if switching from Specialist Quality Mark to Lexcel accreditation. The new service standards in respect of supervision and key performance indicators are covered to ensure that you do not fall foul of the contract. Part C also covers the financial management of contracts, including payment options for controlled work, and payments on account.
The many and various audits are explained. The Legal Services Commission (LSC) has stated that if, from the management information evidence that it has, it appears that you are complying with contractual requirements, it is likely that you will have only one contract manager visit a year and will not be audited further. The LSC distinguishes between a contract manager visit, which it does not count as a formal audit, and formal audits, carried out by members of the provider assurance team. The distinction is lost on many practitioners, who emerge having to repay money, whichever process has been used.
According to the LSC, audits are undertaken to provide the Ministry of Justice with assurance that the legal aid fund has been spent correctly and to eliminate the cause of irregularities and errors identified by the National Audit Office, which have led to the LSC’s annual accounts being qualified in recent years. The LSC needs to achieve an overall level of ‘materiality of error’ of less than one per cent. This means that in the small samples taken by contract managers at on-site audits, you are aiming for a zero per cent error rate. This is not easy! However, the Handbook will ensure that you know what LSC staff (Legal Aid Agency staff from 1 April 2013) are looking for and you can pass any inspection.