Changes to legal aid for victims of domestic abuse in force on Monday

Funding for private family law cases is generally only available where the applicant for legal aid can show that they are a victim of domestic abuse, or where they can show that the aim of the proceedings is to protect a child at risk of abuse from a third party (such applications are in scope because of Paras 12 and 13 of Part 1 Schedule 1 of LASPO; see also Chapter 6 of the Handbook). Until the successful challenge to the original regulations by Rights of Women, there was a requirement that the evidence in support of the application had to be no more than 2 years old. Following the litigation, that was extended to 5 years.

From Monday 8 January 2018, the five year limit is removed. The existing evidence requirements are also removed, and replaced with a new Schedule 1 of the Procedure Regulations. When the Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017 come into force, acceptable evidence (for civil legal services to be provided to an adult (A) in relation to a matter arising out of a family relationship between A and another individual (B)) will include:

Domestic abuse – para 12 Part 1 Schedule 1 LASPO cases

  • Evidence that B has been arrested for a relevant domestic violence offence.
  • A relevant police caution for a domestic violence offence.
  • Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded.
  • A relevant conviction for a domestic violence offence.
  • Evidence of a court order binding over B in connection with a domestic violence offence.
  • A domestic violence protection notice issued under section 24 of the Crime and Security Act 2010 against B.
  • A relevant protective injunction.
  • An undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) by B provided that a cross-undertaking relating to domestic violence was not given by A.
  • A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by B.
  • An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B.
  • A letter or report from an appropriate health professional confirming that that professional, or another appropriate health professional—
    • (a)has examined A in person; and
    • (b)in the reasonable professional judgement of the author or the examining appropriate health professional A has, or has had, injuries or a condition consistent with being a victim of domestic violence.
  • A letter or report from—
    • (a) the appropriate health professional who made the referral described below;
    • (b) an appropriate health professional who has access to the medical records of A; or
    • (c) the person to whom the referral described below was made;
    • confirming that there was a referral by an appropriate health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence.
  • A letter from any person who is a member of a multi-agency risk assessment conference (or other suitable local safeguarding forum) confirming that A, or a person with whom A is in a family relationship, is or has been at risk of harm from domestic violence by B.
  • A letter from an independent domestic violence advisor confirming that they are providing support to A.
  • A letter from an independent sexual violence advisor confirming that they are providing support to A relating to sexual violence by B.
  • A letter from an officer employed by a local authority or housing association (or their equivalent in Scotland or Northern Ireland) for the purpose of supporting tenants containing—
    • (a) a statement to the effect that, in their reasonable professional judgment, a person with whom B is or has been in a family relationship is, or is at risk of being, a victim of domestic violence by B;
    • (b) a description of the specific matters relied upon to support that judgment; and
    • (c) a description of the support they provided to the victim of domestic violence or the person at risk of domestic violence by B.
  • A letter from an organisation providing domestic violence support services. 
    • The letter must confirm that it—
      • (a) is situated in England and Wales;
      • (b) has been operating for an uninterrupted period of six months or more; and
      • (c) provided A with support in relation to A’s needs as a victim, or person at risk, of domestic violence.
    • (3) The letter must contain—
      • (a) a statement to the effect that, in the reasonable professional judgement of the author of the letter, A is, or is at risk of being, a victim of domestic violence;
      • (b) a description of the specific matters relied upon to support that judgement;
      • (c) a description of the support provided to A; and
      • (d) a statement of the reasons why A needed that support.
  • A letter or report from an organisation providing domestic violence support services in the United Kingdom confirming—
    • (a) that a person with whom B is or was in a family relationship was refused admission to a refuge;
    • (b) the date on which they were refused admission to the refuge; and
    • (c) they sought admission to the refuge because of allegations of domestic violence by B.
  • A letter from a public authority confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment).
  • A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom under paragraph 289B of the Immigration Rules.
  • Evidence which the Director is satisfied demonstrates that A has been, or is at risk of being, the victim of domestic violence by B in the form of abuse which relates to financial matters.  

Protection of children – para 13 Part 1 Schedule 1 LASPO cases

  • Evidence that B has been arrested for a child abuse offence.
  • A relevant police caution for a child abuse offence.
  • Evidence of relevant criminal proceedings for a child abuse offence which have not concluded.
  • A relevant conviction for a child abuse offence.
  • A relevant protective injunction.
  • A copy of a finding of fact made in proceedings in the United Kingdom of abuse of a child by B.
  • A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that the child was assessed as being, or at risk of being, a victim of child abuse by B (or a copy of that assessment).
  • A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that a child protection plan was put in place to protect the child from abuse or a risk of abuse by B (or a copy of that plan).
  • An application for an injunction described in paragraph 5 of this Schedule made with an application for a prohibited steps order against B under section 8 of the Children Act 1989 which has not, at the date of the application for civil legal services, been decided by the court.

Withdrawal of legal aid

The rules on when the Director can withdraw a grant of legal aid have also been revised. The new rule (a revised Reg 42(1)(k) of the Procedure Regulations) says legal aid may be withdrawn where the evidence relied on was:

  • a conviction for an offence and that conviction has subsequently been quashed; 
  • evidence of ongoing criminal proceedings and those proceedings have subsequently been concluded without a conviction;
  • evidence described in paragraph 7 of Schedule 1 or paragraph 5 of Schedule 2 where—
    • (a) the order was obtained without notice to the respondent; and
    • (b) that order has subsequently been set aside by the court;
  • evidence described in paragraph 7 of Schedule 1 where the application for a domestic violence protection order has been made under section 27 of the Crime and Security Act 2010(6) but has been unsuccessful on account of the conditions set out in section 28 of that Act not having been satisfied;
  • evidence described in paragraph 1 of Schedule 1 where no charge is brought for the domestic violence offence (within the meaning of Schedule 1) and the Director is satisfied that it is unlikely that such a charge will be brought;
  • evidence described in paragraphs 16 to 18 of Schedule 1 and a public authority has confirmed in writing that it is satisfied—
    • (a) there has not been domestic violence between A and B; or
    • (b) A was not at any time at risk of being the victim of domestic violence
  • evidence described in paragraph 1 of Schedule 2 where no charge is brought for the child abuse offence (within the meaning of Schedule 2) and the Director is satisfied that it is unlikely that such a charge will be brought;
  • evidence of an application described in paragraph 9 of Schedule 2 and that application has subsequently been withdrawn or refused,

unless there is some other form of evidence which would also justify a grant of legal aid.

Transitional provisions

The new evidence requirements are not backdated. They will only apply to Controlled work applications signed from Monday 8 January onward. Licensed Work applications signed from Monday 8 January will be made under the new rules, but those signed before that date and received by the LAA before 5pm on 15 January will be treated under the old rules. Grants of emergency representation made before 8 January will be treated under the old rules even if the 5 day notification is received by the LAA after 8 January.

Comment

This is a helpful development. Although the requirement to obtain evidence is still in place – with all the practical difficulties that causes – the widening of the range and age of what constitutes acceptable evidence should help make legal aid available more widely than before.

The manner of the change is also a helpful development. We have been saying for some years now – in the Handbook, on this site and elsewhere – that the current system of amending the scheme is not fit for purpose. Post-LASPO, most of the significant rules are no longer in LAA documents, but in primary and secondary legislation. Amendments to the rules are made via amendments to the legislation. Neither the MoJ nor the LAA make consolidated versions of the regulations available, and nor does the legislation.gov.uk website. That means – unless you have the sort of subscription legal research tool that is unaffordable to most legal aid lawyers – the only way to work out the current rules is to cross-reference the original and amending regulations. The civil legal aid merits tests, for example, are not publicly available – unless you read four sets of regulations side by side, manually amending them as you go (or unless you buy the Handbook!). The MoJ and LAA should urgently make available – and keep up to date – a single consolidated version of all the key legal aid regulations. It cannot be right that the fundamental basis of the scheme is obscure to practitioners – and impenetrable to the public using it. It hasn’t yet gone that far, but removing the previous much amended sections of the Procedure Regulations and replacing them with a single up to date Schedule is a welcome step in the right direction. In the meantime, links to all the regulations and other resources can be found on our Resources page.

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HPCDS tender deadline extended

The LAA has issued some clarification regarding the volumes of services available, and as a result has extended the deadline for submitting bids to 11 December at 5pm. Applicants should be using version 3 of the Information for Applicants. More detail can be found here.

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Civil and Family contract extensions acceptance deadline

The LAA has sent emails to holders of civil, family and mediation contract holders to inform them about contract extensions to 31 August 2018.

Holders of 2010 contracts (Mediation) and 2013 contracts (Family, Immigration/Asylum, Housing/Debt) need to send back an acceptance form. The letters attached to emails give a deadline of 5 December 2017, the website says 6 December 2017.

Holders of Housing Possession Court Duty Scheme contracts will receive an extension offer in due course.

Holders of welfare benefits, mental health, and community care contracts will have their contracts extended automatically.

Holders of AAP etc., clinical negligence and public law contracts will have their contracts terminated earlier than originally envisaged, so that they will also end on 31 August 2018.

If you haven’t received an email, you should contact the LAA’s central commissioning team: civil.contracts@legalaid.gsi.gov.uk

More information can be found here.

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Civil and family tender 2018 FAQs published

The Legal Aid Agency has published the frequently asked questions and answers in respect of the 2018 face to face contracts. There are two documents you should consider:

  • FAQs relating to the Seelction Questionnaire
  • FAQs relating to the Face to Face contracts themselves

The LAA has also published a separate FAQ document dealing with the CLA telephone service tender (to be found further down on the same page).

Once you have checked the answers against your response to the tender and made any changes necessary, you will be ready to submit.

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LASPO review finally announced 

The long-awaited review of LASPO, promised by the government within three to five years of implementation, has finally been announced.

In a written statement to Parliament yesterday, the Lord Chancellor said it would be conducted by MoJ officials, with input from interested parties, and would report by the 2018 summer recess (which would take it just beyond five years since LASPO came into force in April 2013).

The statement is here, and the accompanying memorandum is here

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MoJ announces LGFS PPE cut

The MoJ has responded to its consultation on proposals to cut PPE payments in crime LGFS cases. Despite 97% opposition from over 1,000 responses, it is pressing ahead with the proposal. From 1 December 2017, PPE payments will be limited to 6,000 pages, down from the current 10,000. Any extra will have to be claimed as discretionary special preparation fees.

The MoJ also confirmed that the delayed second 8.75% across the board fee cut will now not go ahead. It has yet to announce its  decision on the proposal to cut fees for court appointees.

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Civil and family tender update

There have been several developments since we reported that the LAA opened the tender for face to face civil and family contracts to start in September 2018.

Tender open for HPCDS

The Agency has gone ahead with a complex price competitve tender for Housing Possession Court Duty Schemes (HPCDS), which seems unlikely to solve the crisis in finding sufficient practitioners to provide the schemes; but only time will tell. More information can be found here.

Most people are finding the process straightforward

However, most of the feedback we are receiving from practitioners bidding for face to face contracts is that the process is more straightforward than they anticipated.

People like the button which checks whether they have responded to all the questions they need to.

They also like being able to download a PDF of their bid. On the relevant ITT page, look out for the three little dots in the top right hand corner. If you click on that and then select ‘printable view’, you will be able to download a PDF of your bid.

FAQs

The LAA has issued some initial frequently asked questions – FAQs. These are worth reading. Amongst other things, they confirm that you will be able to withdraw from part of your bid without jeopardising the rest of it (FAQ 10.1).

Miscellaneous NMS

All successful bidders will get 5 miscellaneous NMS; but you can bid for 25 or more to undertake compensation claims for vicitims of trafficking and modern slavery. ATLEU (legal charity the Anti Trafficking and Legal Exploitation Unit) is encouraging practitioners to apply. They point out that this work is ideally suited to employment lawyers, discriminantion lawyers, personal injury lawyers and civil litigators more generally. With claims for failure to pay the National Minimum Wage (which are often a feature of such cases) being worth upwards of £100,000, perhaps this is worth considering? More details can be found on ATLEU’s website.

 

 

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