Tag Archives: eligibility

News round up

In this update:

  • Legal aid and the Olympics
  • Assessing the means of prisoners
  • Devolved powers for judicial review
  • Why LGFS claims are rejected
  • LSC release annual statistics
  • Calling the LSC
  • Regulation of solicitors in NfPs

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New civil keycard

A new civil keycard, effective yesterday, has been issued. Dependant allowances have increased but all other limits remain the same.

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Weekly round up

Payment for legal aid work

The LSC are offering two new ways of being paid for legal aid work done under contract (criminal police station and magistrates court work, and civil Legal Help). Providers can stay on the current arrangements, or opt for variable payments (get paid for what you claim) or a narrower reconciliation band (5% instead of the current 10%). Each provider will need to think carefully about which option to choose; which you go for will depend very much on your own circumstances. More information is available here, and the form to request a change to your arrangements is here.

Legal aid bill

Days 3 and 4 of the House of Lords Committee Stage took place last week, with near unanimous criticism of the terms of the bill met with rigidity by ministers. The Gazette is reporting a small concession affecting Special Educational Needs cases, but otherwise there have been no changes agreed. Hansard reports of the debates can be found on the Parliament website (day 3 and day 4).

Prior authority for experts

Requests to exceed the capped rates for experts in post-October cases should be sent to the Cardiff office of the LSC.

New Forms

New civil and criminal forms become mandatory from 1st February. See the forms section – civil or criminal – of the LSC website for more.

New Criminal Legal Aid Manual

The Manual – which details how applications for criminal legal aid and eligibility checks are dealt with – has been updated. The new Manual is here and a note of the key changes is here.

LSC Reading Office

The Reading office has moved; new contact details can be found here.



Filed under Civil, Crime, LASPO

Two minutes to save legal aid for welfare benefits appeals

The House of Lords is going to debate the removal of social welfare law from scope on Tuesday.

It takes 2 minutes to email Lord McNally to tell him that this will mean that some of the poorest and most vulnerable members of society will be denied benefits to which they are legally entitled because they will no longer be able to get advice.

Please do it.


Filed under Civil, Family, Legal aid bill, Uncategorized

Legal aid reform (3) – civil eligibility

The reforms tighten eligibility, reducing the number of people who can get civil legal aid and increasing the amount they have to pay towards their case.

What’s in the bill?

The bill does not detail the eligibility criteria for the new scheme; that will have to await the regulations published in due course. Clause 20 enables regulations to be made, and requires that services should not be given unless the client qualifies financially (provision is made for exceptions). Clause 21 enables the assessing authority to make enquiries of other government departments. Clause 22 empowers the collection of contributions.

What’s in the consultation response?

The following changes to financial eligibility have been announced:

  1. Clients on passporting benefits will now have to have their capital assessed and be subject to the normal capital limits and contributions;
  2. Extending the £100,000 cap on the subject matter of the dispute disregard to all areas of law and levels of service;
  3. Increasing contributions from income.
The government has decided not to proceed with the following proposals:
  1. Requiring all clients with capital of over £1000 to pay an up-front contribution of £100;
  2. Abolishing the equity and pensioner disregards for capital;
  3. Removing the mortgage disregard but imposing an overall gross capital limit;
  4. Implementing a discretionary waiver from the above.
No implementation date has yet been set for these changes.


Filed under Civil, Family, Immigration, Legal aid bill, Policy, Social welfare

Legal aid reform (2) – civil legal aid framework

The statutory framework

The Legal Aid, Sentencing and Punishment of Offenders Bill talks not about “civil legal aid”, but “civil legal services”. They are defined in clause 7 of the bill, where “legal services” means

  • providing advice on how the law operates in particular circumstances;
  • providing advice and assistance in relation to legal proceedings;
  • providing advice and assistance in relation to the prevention of disputes about legal rights or duties or the settlement or resolution of disputes;
  • providing advice and assistance in relation to enforcement of decisions.

“Advice and assistance” expressly includes representation and mediation.

“Civil” simply means not criminal.

However, civil legal aid will only be available to an individual if for the type of services described in Schedule 1 of the bill and if the Director of Legal Aid Casework has determined that the individual qualifies for the services. There is also limited provision for exceptional cases.

Types of services

Schedule 1 of the bill defines the scope of civil legal aid. The Schedule is in 3 parts, Part 1 listing all the proceedings that are in scope, Part 2 those that are out of scope, and Part 3 the venues in which advocacy services can be provided.

So the task of determining whether a particular case is or is not in scope is not straightforward. First you need to consider the list in Part 1; if it is not there, it is out of scope. But Part 1 (unless expressly stated in the relevant paragraph of Part 1) is subject to Part 2, which lists proceedings that are expressly excluded. So some or all of the case could still be excluded even if it is listed in Part 1. Advice and assistance will only extend to advocacy if the particular venue is listed in Part 3.

To take an example, the government’s initial consultation appeared (it wasn’t entirely clear) to propose taking housing cases for unlawful eviction out of scope. The consultation response now says that they have decided to leave unlawful eviction within scope. So, paragraph 27(1) of Part 1 of Schedule 1 says that civil legal services in relation to the eviction from the individual’s home of the individual or others are in scope. So far so good. But many such cases also involve a claim for damages both for the eviction itself, plus for example claims for trespass to goods or damage to property. Both are excluded under Part 2; so in future victims of unlawful eviction could apply for an injunction to get back into the property, but would go uncompensated for all their belongings that ended up in a skip.

So what is in scope? See our summary, and we will be taking a more detailed look at particular areas of law in the coming days.

Exceptional cases

Cases otherwise excluded from scope may be funded as excluded services, subject to means and merits, if:

  • it is necessary because failure to make services available would be a breach of Convention rights or EU law;
  • it is appropriate to make services available as failure to do so risks such a breach; or
  • the services are advocacy at an inquest into the death of a member of the client’s family and there is a wider public interest justification
See clause 9 of the bill.

Determination by the Director

The Director of Legal Aid Casework – or his staff – determines qualification for legal aid. The Director is a civil servant in the Ministry of Justice and in effect the replacement of the LSC. Clause 10 of the bill allows the Lord Chancellor to make regulations setting out means and merits criteria, which the Director must follow in deciding whether to grant funding in individual cases. The Lord Chancellor must not give directions in relation to individual cases (clause 4). There are a list of factors listed in the clause that the Lord Chancellor must consider in setting merits criteria:

  1. cost benefit;
  2. availability of resources;
  3. the appropriateness of applying those resources, having regard to present and likely future demands for civil legal services;
  4. the importance of the matter to the client;
  5. the nature and seriousness of the act, omission, circumstances or other matter in relation to which services are sought;
  6. the availability of services other than through legal aid;
  7. prospects of success;
  8. conduct of the client in connection with the services sought or an application for them;
  9. conduct of the client in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties;
  10. the public interest

The bill specifically states that the criteria must “reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”. Does this create something approaching a presumption of mediation rather than representation?

This list is similar to that in s8(2) Access to Justice Act for the current scheme, but points 5, 8 and 9 are new (though the latter appear in the existing Funding Code criteria). This clause does not create the successor to the Funding Code, but it does create the factors the Lord Chancellor must have regard to when drawing up the successor Code.

Point 5 appears to reflect the government’s view, underpinning the reform programme, that only certain types of case are sufficiently serious to justify legal aid. That is why whole areas of law have been cut from scope (see above). If it was just about a threshold of seriousness, for example excluding small claims cases, that could be done under 1 and 4, as now. So why is point 5 there as well? Is the government’s judgement that some cases – liberty, roof over the head – are more important than others – benefits disputes, damages claims – to be extended to those cases remaining in scope? Are we going to see cases ostensibly in scope refused because they are not sufficiently “serious”? Presumably nature and seriousness is to be measured against other cases, not in their effect on the client, since point 4 deals with importance to the client.

The bill also makes provision (clause 20)  for regulations dealing with financial eligibility for services, and includes provision for some services to be provided without regard to means – as happens now in, for example, child care and mental health detention cases. The eligibility regulations have not yet been published, and we will deal with the detail of the proposals in this area in the next post.

Costs and the statutory charge

The bill in effect replicates the existing costs protection, costs awards and statutory charge regime, though much of the detail is delegated to regulations yet to be published.

Provision of services

A key clause in the bill is clause 26. This says that the Lord Chancellor’s duty to make legal aid available does not include a duty to make it available in a way of the client’s choosing. Nor must it be provided by a person or firm of the client’s choosing. The clause specifically says that the Lord Chancellor may discharge his duty by arranging for services to be provided by telephone or other electronic means. This is therefore statutory authority for the telephone gateway, and is not limited by any question of for example the circumstances of the client or their case, so the gateway can in future be extended beyond the four initial areas (special educational needs, community care, debt and discrimination).

Therefore, the effect of the clause is that, while legal aid must be made available, it need not be made available in a way or by a provider of the client’s choice.

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Filed under Civil, Costs, Family, Immigration, Legal aid bill, Policy, Social welfare

LSC announcements week ending 24th June 2011

As well as the obvious, a couple of additional matters were announced by the LSC this week. They issued a reminder that clients who have an interest in a trust must declare it, and that failure to do so could lead to revocation of a certificate. Meanwhile, the saga of criminal advocacy payments continues; the LSC have now issued a briefing paper on their IT changes and “recovery plan”. Advocacy payments are not the only area where the LSC’s processing performance is woeful. Civil practitioners will find little to cheer in the news that bill processing is currently running at 10 weeks and certificate applications at 6 weeks (8 for family). The LSC’s service standards can be found here and the complaints procedure is here.


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Child maintenance in the EU – extension of civil legal aid

The Community Legal Service (Financial) (Amendment) Regulations 2011 come into force today. They amend the 2001 Regulations (PDF) to add to Reg 3(1) that the following services (relating to enforcement of child maintenance agreements in other EU states) are available without reference to the client’s financial resources:

(ga) Legal Help, Legal Representation, Family Help (Lower) and Family Help (Higher) for a creditor making an application under Article 56(1) of the Maintenance Regulation concerning a maintenance obligation towards a person under the age of 21 arising from a parent-child relationship;

(gb) Legal Representation or Family Help (Higher), in proceedings under the Maintenance Regulation for recognition, registration or enforcement of a maintenance decision, for a party to those proceedings who, in the country in which that decision was made and in relation to that decision, benefitted from—

(i)complete or partial assistance with, or exemption from, costs or expenses; or

(ii)free proceedings before an administrative authority listed in Annex X to the Maintenance Regulation;”

To the definitions in Reg 3(2) is added:

(a) after the definitions of “control order” and “control order proceedings” insert—

““creditor” has the meaning given by Article 2 of the Maintenance Regulation;”

(b) after the definition of “Hague Convention country” insert—

““maintenance decision” has the meaning given to “decision” by Article 2 of the Maintenance Regulation”;

(c) after the definition of “the Maintenance Orders (Reciprocal Enforcement) Act 1972” insert—

““Maintenance Regulation” means Council Regulation (EC) No 4/2009 of 18th December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to        maintenance obligations, including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.

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Going steady

A practitioner reports being told by a member of LSC staff that her client’s means had to be aggregated with her significant other’s because ‘they were serious about each other and called each other “partner”‘, even though they were not living together (and never had).

That’s not exactly what it says in the Community Legal Service (Financial) Regulations 2000. The interpretation section states:

“partner” except in the expression “partner in a business” means a person with whom the person concerned lives as a couple, and includes a person with whom the person concerned is not currently living but from whom he is not living separate and apart.

I agree that the concept of being a couple when two people are ‘separate and apart’ can be tricky. Guidance can be found in LSC Manual vol 2, part F, para 4.2. Examples given are where you would aggregate means are where the couple are prevented from living together by circumstances, e.g. one of them is in prison. It also suggests that with unmarried couples (or those not in a civil partnership), you would expect to see some pooling of financial resources.

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