Tag Archives: family

Civil/Family contracts for 2018 tender postponed

The Legal Aid Agency has announced today that it has had to postpone the civil and family contracts tender, expected to open in May, until after the election.

No new date has been set and the Agency will issue more information when it is able to do so.

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Legal Aid Agency changes start date for civil and family tender

On the 20th of January, the LAA announced that it intended to run a two-stage tender process for civil and family contracts to start in April 2018 and that stage 1 would probably start in April 2017, with stage 2 in August 2017. In February they announced that a family mediation tender would open at the same time.

On Friday 17 March, they announced that instead they would be running both the selection criteria and invitation to tender stages together in May 2017.

Practitioners will need to remain vigilant and watch out for further LAA announcements. They can be found here.

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Civil and family tender timetable announced

The LAA has announced that the tender process for civil and family legal aid contracts to take effect in April 2018 will actually start this April, 2017. They will announce their intentions for family mediation contracts in due course. The announcement can be found here.

The agency has reverted to a two-stage process. Stage 1, a selection questionnaire (previously known as a pre-qualification questionnaire – PQQ), followed by an invitation to tender (ITT) in Ausgust 2017 for the following categories:

  • Family
  • Housing, debt and welfare benefits
  • Immigration/asylum (including IRCs)
  • Claims against public authorities (currently known as Actions against the police etc)
  • Community Care
  • Clinical Negligence
  • Mental Health
  • Public Law

The LAA stresses that the tender in relation to the above will simply test organisations’ ability to meet minimum tender requirements and all organisations which can do so will be awarded contracts. However, organisations seeking higher numbers of matter starts may need advanced panel accreditation. Family practitioners will be able to apply for licensed work only contracts if they wish.

Timetable

  • SQ opens – April 2017
  • Notification of SQ outcome – June 2017
  • ITTs open (except HPCDS) – August 2017
  • Notification of ITT outcome – December 2017
  • Verifiation process – January – March 2018
  • Contract starts – 1 April 2018

Housing Possession Court Duty Schemes

Those interested in Housing Court Possession Duty Schemes are warned that the government is currently consulting on whether to increase the size of the schemes, so that some could cover a number of courts. They are also considering an element of price competition in relation to HPCDS work. At first sight, it is difficult to see how economies of scale could result by simply grouping courts together as proposed. The consultation opened on Friday 20 January and will close on 17 March 2017. You can download the consultation paper and respond here.

  • Notification of Housing, Debt and Welfare Benefits contracts will be prior to the HPCDS ITT opening – in October 2017
  • HPCDS ITT opens – October 2017
  • HPCDS ITT outcome – January 2018

More flexibility

The LAA says that the new contracts are likely to be more flexible in a number of ways which practitioners may find helpful:

  • Allowing remote working arrangements such as delivery of advice by email, telephone or video conferencing where appropriate
  • Ability to self grant up to an additional 50% of matter starts over those awarded
  • Ability to reallocate up to 50% of matter starts between your own offices (subject to LAA consent)
  • All organisations will receive 5 miscellaneous matter starts in addition to their category matter starts

Likely changes you may need to plan for

  • Stricter definition of ’employ’ in relation to supervisors
  • Changes to the mental health supervisor standard
  • Limits to representation by counsel/agents in mental health
  • New mental health capacity (welfare) accreditation will become mandatory for that work when appropriate
  • The immigration/asylum contract will reflect changes to the IAAS scheme
  • Immigration/asylum bidders in higher lot sizes will also be able to bid for IRC work

Telephone contracts

The LAA will also be tendering for specialist telephone work, including an element of price competition in the following areas of law:

  • Family
  • Housing and debt
  • Discrimination
  • Special educational needs

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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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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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