In his regular column in the Law Society Gazette, our co-editor Anthony Edwards provides a helpful summary of the new criminal legal aid regulations in force from 1st April 2013. More can be found in his chapters of the Handbook – available now in hard copy and Kindle versions.
Category Archives: Handbook
Housing lawyers – watch the goalposts!
We are grateful to David Gilmore for alerting us to the fact that the LAA has changed an answer to a ‘frequently asked question’, in relation to the evidence required to demonstrate that threatened possession proceedings are in scope.
The question was: Do providers have to wait for housing possession proceedings before providers can grant legal aid?
In the answer dated 12/04/13 the LAA stated:
97. Providers do not need to wait for housing possession proceedings to be issued before providing advice under Legal Help, as long as it appears proceedings will be issued unless there is some intervention. An application for Legal Representation will not be granted before there are proceedings in existence.
However, the answer to the same question (re-numbered 98) on 19/04/14 and still current as at 29/05.13 was:
98. Providers do not need to wait for housing possession proceedings to be issued before providing advice under legal help, as long as the client has received formal written notification that [our emphasis] proceedings will be issued (such as a section 8 or section 21 notice) unless there is some intervention. An application for legal representation will not be granted before proceedings have been issued at court by the opponent.
What does this mean?
There is no other guidance we can look at, which is not helpful. However, if we go back to the Act – schedule 1 para 33 (1) (b) is widely drafted:
33. 1 Civil legal services provided to an individual in relation to—
a) court orders for sale or possession of the individual’s home, or
b) the eviction from the individual’s home of the individual or others
Part 4 of Schedule 1 (definitions), states that “orders” include actual and contemplated proceedings. When proceedings move from the theoretical to the contemplated is not specified. However, we can see that the Legal Aid Agency has a decided preference for written evidence, not necessarily something formal like a letter before action or a notice of seeking possession but at least a letter from the landlord saying “if you don’t pay the rent I’ll evict you / take you to court”.
The problem is that not all tenants are entitled to a written notice and not all landlords will put threats to evict in writing; but we have been warned – advice must be in relation to a realistic prospect of eviction, advice on arrears in themselves is outside scope. If you are advising someone without written evidence, you are going to have to make very careful and thorough notes of your justification as you will probably have a battle on your hands when it comes to an audit – and no -one wants to be in that position. The prudent/cautious will only provide advice when the client has written evidence or wait for proceedings to be issued.
Filed under Civil, Costs, Handbook, Housing, Uncategorized
Introducing the new Handbook
1st April 2013. LASPO day. The day the new legal aid scheme began. Except, for most, it wasn’t. It was Easter Monday. Today is the real LASPO day, the day the cuts bite in earnest, the day that over 600,000 people will no longer get legal aid, the day some organisations won’t open their doors to greet their clients – and never will again.
For those of us left, there is a whole new legal aid scheme to get used to. New contracts, new rules, new legislation. We start again almost from scratch.
What should have happened is that the MoJ and LSC planned an orderly transition. Contracts issued; guidance written; regulations laid. And all in good time to allow us to be trained and understand the new scheme.
What did happen is that many crucial regulations were not laid until a couple of weeks ago; guidance is still being published today, and the LAA’s training programme is only half complete. Those who have attended the training in the last couple of weeks will know that the stock answers to most questions are “we are waiting for the MoJ to issue guidance on that” and “we don’t know, we’ll put it in the FAQ on the website”. Even some of the LAA’s own staff don’t understand the new scheme. Some essential material – like amendments to the crime contract specification – have not yet even been published and so can’t come into force for at least another six weeks.
We have tried to produce a Handbook that practitioners will find useful. As new material has been released we have drafted and re-drafted. The Handbook is the only single volume comprehensive guide to the legal aid scheme, and we want to keep it that way. As of 10 days ago, we had finally got all the crucial civil material and had a final draft of the civil, contract management and policy sections complete. Thanks to the herculean efforts of our publisher, Legal Action Group – and especially Esther Pilger, who has moved heaven and earth – we were able to go from final draft to publication within a week. All that we needed was the amendments to the criminal contract specification, and we were ready to go. The LSC – as it still was – said that they would be implemented by the end of April, which meant publication by mid-March. That came and went with no further explanation, and we still don’t have them.
But without them we can’t finalise the crime chapters. This left us in a real dilemma. If we waited – for who knows how long? – for the crime position to be finalised, those of our readers waiting for the civil sections would not get the Handbook at the start of April, when it is needed most. If we publish at the start of April, our crime readers would not have the correct information about their contracts. And we don’t know – and can’t get the LAA to tell us – how long it will be before the April amendments to the crime contract are published. April? May? Longer?
So we have come up with a solution that we hope will work. We are releasing the new edition of the Handbook as an e-book only today. This contains fully up to date and complete material for everything except the three crime chapters (which are updated as far as we could prior to the publication of all the material). You can download it from Amazon here. As soon as we can, we will finalise the crime chapters and will then release an update of the e-book (entirely free to those who have already bought it) and publish the paper version. We will keep you informed through this website about our progress.
The e-book is a Kindle version, which can be read on a Kindle device, or using the Kindle app on a desktop computer, ipad, iphone or Android phone or tablet, and you can find details of how to do so here
For those who pre-ordered the paper edition, we apologise for the delay in publication and we hope you understand that it was entirely out of our hands. We can not release the paper edition before it is accurate and complete. But rather than just waiting to publish the paper version we wanted to make sure that all those who needed the information from the start of April were able to get it, so we are publishing in two stages. We know this is not an ideal situation; but it is not of our making and this is the best way forward we can come up with. We waited as long as we could; had the crime amendments come out last week, we could have published the paper version this week. But if we waited any longer, the Handbook would not be available to civil lawyers facing the biggest change in a generation.
Perhaps we should have anticipated it; but even with our combined experience of working in legal aid, we did not predict that the MoJ and LSC/LAA would be so shambolic as to not manage to publish the contractual framework governing the implementation of the legal aid Act until after it came into force. This is not tragedy repeating itself as farce, this is both happening at the same time.
Not a good start.
Filed under Civil, Crime, Family, Handbook, Housing, Immigration, LASPO, Social welfare
LASPO: help is at hand
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.
Filed under Civil, Crime, Family, Handbook, Housing, Immigration, Social welfare
LASPO: What do we know now?
With less than three weeks to go, the MoJ and LSC have finally published all the key regulations for the implementation of the new scheme. We now have regulations governing the operation of the civil and criminal schemes, payment rates, financial eligibility and the statutory charge.
Both civil contracts have now been published in full, as have amendments to the crime Standard Terms, but amendments to the crime specification are still awaited. The LSC have said that they will be brought into force by the end of April, so given the six week notice period must be published within the next week or so. Supporting material such as category definitions is also now available.
The LSC’s online training modules are now available, and their face to face training is finally getting underway (though half of the sessions will be in April, after implementation).
Guidance on civil legal aid, on applying for exceptional funding and (released today) on the evidence to prove domestic or child abuse to the standard required to access family legal aid has now been published. We still await further guidance on assessing eligibility, costs assessment and the operation of the statutory charge.
The new forms have been published, but not yet guidance on how they will be completed or the form for applying for exceptional cases.
We have collated key material so far available (including all the above) on our LASPO Resources page, and will continue to add to it as more becomes available. Thanks to the amazing work of our publisher, Legal Action Group, we are also still on course to publish the new Handbook – the only up to date single volume guide to the whole legal aid scheme – at the beginning of April, ready for the start of the new scheme.You can pre-order your copy by emailing direct.orders@marston.co.uk
UPDATE: The Kindle edition is now available here
Get a wriggle on
That’s what our editor says LAG will do to get the new edition of the handbook out for 1st April! The Legal Aid Handbook 2013 – 14 will cover the whole of the post LASPO legal aid scheme in one handy volume.
We have delivered the text and look forward to getting the proofs in mid-February. We know there will be lots of final amendments prior to publication as the regulations are being laid so late; but we are on the case.
Filed under Advocacy, Civil, Costs, Crime, Family, Handbook, Housing, Immigration, Social welfare, Uncategorized
New Office Procedures Manual published
Vicky Ling, writing with Matthew Moore, has just published the Solicitors Office Procedures Manual, essential reading for any firm looking at updating its procedures.
The Solicitors Office Procedures Manual has been designed to enable you to deal with all of your compliance needs from one easy-to-use source. Whatever your type or size of practice the ‘mix and match’ approach adopted by this book will enable you to address any or all of the following:
- The Code of Conduct 2011 and other key elements of the SRA Handbook
- Lexcel version 5
- The procedural elements of the Law Society’s Conveyancing Quality Scheme
- The Specialist Quality Mark (2012 edition)
- The Mediation Quality Mark (current edition 2009)
- The Legal Services Commission’s contract – Crime, Family and Civil
The Solicitors Office Procedures Manual will be particularly helpful to newly designated COLPs and COFAs, addressing also the all-important ‘compliance plan’ as set out in the SRA Authorisation Rules. Whether you need to create a completely new Manual, or simply revise and update particular sections of your existing Manual, you will find all of the policies procedures, templates and forms that you will need. The comprehensive tables and checklists will show you where all of the requirements that you need to address can be found, including links between the 2011 and 2007 Codes of Conduct.
The Manual is provided in book and CD format so that you can download the entire text or particular sections with minimal effort. The easy-to-follow explanatory notes will enable you to adapt the contents for your particular situation. The Manual can be used as a conventional hard copy document, made available to the firm through a shared drive, or uploaded onto your firm’s intranet.
Key topics include:
- Risk management
- Client care and complaints management
- Equality and diversity
- Conflicts of interests
- Compliance with the SRA Accounts Rules 2011
- Data and information management
- Money laundering, mortgage fraud and the Bribery Act 2010
For more information on this vital publication, and to order your copy, see Vicky and Matthew’s website.
Filed under Handbook
SQM updated
The LSC has recently uploaded a revised SQM and guidance onto its website. There is also a guide to the areas that have been updated. The current version is now the one dated May 2012.
The changes are relatively minor, updating terminology and bringing the SQM equality and diversity requirements into line with those in the contract. You will need to take them into account next time you review your office manual.
Filed under Civil, Crime, Family, Handbook, Social welfare
Tough new Point of Principle
The LSC’s Costs Appeals Committee recently certified a Point of Principle (CLA 55), which once again emphasises the importance of obtaining acceptable evidence of means in Controlled Work cases. The PoP says that files without evidence of means should not be claimed, and if they are, will be nil assessed unless you can provide a satisfactory explanation as to why there was no evidence of means.
Historically, the LSC has paid claims for cases where evidence of means was obtained, however late that might have been, as long as the evidence related to the month prior to the date of signature on the form. This PoP changes all that. If you obtain evidence of means late, the LSC will not pay if the assessor does not agree with your justification, even if the client was eligible at all material times.
Handbook updates
The Handbook Updates page has now been updated to include all recent developments, including the October fee cuts and other LSC announcements.
Filed under Handbook
Legal Aid Handbook 