Tag Archives: welfare benefits

Good news if you need NMS

The LAA has issued new guidance to its Contract Managers which may make it easier for practitioners to get more civil New Matter Starts (NMS) if they run out.

This is less of an issue than it used to be under the Access to Justice Act scheme when more Controlled Work was done; but we still hear reports from some practitioners that they have run out of NMS and when they asked their Contract Manager for more, were told that another practice in their Procurement Area (PA) still had some, so they should send the client there. This is clearly unsatisfactory from both the client’s and the practice’s point of view.

However, from 22 January 2015, whether another practice in the PA has NMS is no longer to be taken into account.

You will need to convince your Contract Manager:

  • you are unable to meet an urgent demand for your services
  • or
  • an urgent need arises because another practice has reduced or stopped providing the service
  • or
  • there is a general increase in demand for services of that type in your PA

The Contract Manager can authorise up to another 50% on top of your original schedule allocation (so if your initial allocation was 100, you can be awarded up to 50 more that year).

If you applied for a lot size in the tender that allowed you to self grant up to an additonal 50%, you cannot apply to your Contract Manager for more.

In exceptional circumstances, the Contract Manager may be able to grant additional NMS to address emergency situations.

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Legal aid in welfare benefits cases

Our thanks to Nick Whittingham for drawing to our attention a case involving Kirklees Law Centre, which was refused legal aid to appear at an oral hearing of the Upper Tribunal in a welfare benefits case. It continued to represent the appellant pro bono, as did counsel Tom Royston. The decision is reported at JC v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 16: coping with social engagement) [2014] UKUT 352 (AAC)

In a three judge decision – the panel including Charles J, the Upper Tribunal president and a First Tier Tribunal president – the Tribunal regretted the refusal of legal aid and set out a series of factors it invited the LAA to take into account when considering future applications (see para 63):

More generally we take this opportunity to invite the Legal Aid Agency in other cases where a three judge panel of the Upper Tribunal (AAC) has been convened to hear an appeal to take account of  the following:

i)                 Paragraph 3(a) of the Senior President’s Practice Direction relating to the composition of that tribunal and thus the reasons why the Senior President or the Chamber President can direct a three judge panel.  They are that: “… the matter involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate …” for there to be a three judge panel.

ii)                These directions are not made lightly.  When they are the legal issues involved will be of that nature, the appeals will involve individuals and the Secretary of State and decision making will be greatly assisted by written and oral argument.

iii)               The role of the Upper Tribunal (AAC) in setting precedent and thus consistency of decision making by First-tier Tribunals in respect of claims for benefits, and thus the wide impact of its decisions on cases heard by First-tier Tribunals.

iv)               The great advantage of resolving differences between decisions of single Upper Tribunal judges by a decision of a three judge panel.  This is based on the long standing practice that three judge panel decisions will be followed by both the Upper Tribunal and the First-tier Tribunal.  That practice avoids the need for such differences between single judges to be determined by the Court of Appeal and so greatly reduces the number of appeals to that court.

v)                The fact that the above points indicate that the grant of legal aid in cases to be heard by a three judge panel is likely to be of great assistance to the Upper Tribunal in resolving difficult and important issues of law that, subject to further appeal to the Court of Appeal, will create precedent and thereby assist in the correct determination of a large number of other cases by the Department and First-tier Tribunals.


Filed under LASPO, Social welfare

Legal aid – tell the NAO what you think but be quick

The National Audit Office is currently undertaking a study into whether the government’s civil legal aid reforms can be considered to represent value for money. The report will go to the respected Public Accounts Committee later this year. The NAO says that the views of the providers of legal aid services will form an important part of the study.

It is seeking your views through a short online survey, which will close on Friday 25th July 2014. It should take 15-20 minutes to complete and all responses will remain strictly anonymous. You can find the survey here.

UPDATE: The closing date has been extended to 1st August.

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Filed under Actions Against the Police, Advocacy, Civil, Clinical Negligence, Community Care, Costs, Family, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare

Exceptional case funding

Exceptional case funding under s10 of LASPO was designed to provide advice and representation to people whose human rights are breached or at risk; but whose cases are outside the scope of legal aid as set out in schedule 1 of the Act. However, an astonishingly small number of cases have actually been funded. 1083 cases were determined by the LAA from April – December 2013 (inclusive), of which 35 were granted. 21 of these were for inquests, 8 in Family, 3 in Immigration, 1 in Housing, and 2 ‘other’.

Judgements in recent cases add to the pressure which has been applied by the Public Law Project (PLP) in its ‘IS’ judicial review.

PLP’s challenge

In April, Ousely J ordered that the systemic elements of the case, relating to the operation of the exceptional funding scheme, should be dealt with in a separate hearing. The issues in the ‘IS’ case itself, relating to article 8 in the immigration context, were heard together with five linked cases by Collins J in May. Judgment is expected in the week commencing 9 June.

Meaning of exceptional

Paragraph 58 in the judgment in M v Director of Legal Aid Casework and Ors [2014] EWHC 1354 (Admin) helpfully clarifies that a case does not need to be highly unusual or very much out of the ordinary to qualify for exceptional case funding. You can read a transcript here. The word ‘exceptional’ refers to a case that is an exception to the general regime of the Act.

The case also highlights how important it is for practitioners to address the standard merits criteria as well as the criteria for s10 funding, and indicates that the LAA should consider the exceptional case criteria in all such applications, even where it considers the standard merits test is not met.

Exceptional case funding in family cases

JG v The Lord Chancellor and Ors [2014] EWCA Civ 656 is an important case in relation to legal aid funding for experts. The COA decided that the then LSC was wrong to refuse to pay the whole of the cost of an expert’s report where it was considered to be genuinely the child’s report alone. You can read a transcript here.

We understand that James Turner QC has suggested that the discussion of article 6 and article 8 rights in the judgment may be a ‘toe in the door’ for exceptional case funding in other family law cases where a party cannot represent him/herself effectively and so legal aid may be required to provide access to justice.

Help with exceptional funding cases

PLP has some funding to help practitioners and members of the public make applications for exceptional case funding. You can find more information here.

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The case behind student child care costs

We reported that from 7 April, child care costs can be deducted from income for people studying outside the home.

We don’t always know why things happen in legal aid; but we now know what led to this change. Cris McCurley and the team at Ben Hoare Bell had a client who was the victim of rape. She was not able to represent herself when the man she said raped her applied for contact with their daughter.

As part of her therapy, the client undertook a university course. The fact that her child care costs were not an allowable deduction meant she was not eligible for legal aid. Ben Hoare Bell tried to negotiate with the LAA; but were told there was no flexibility. The solicitors got Counsel’s advice and sent a letter before action. At this point the LAA agreed that this client’s circumstances were exceptional, and legal aid would be granted. Earlier this week, the firm was informed that the LAA had also decided to change the rule. As Cris said ‘It really does show that we have to keep on fighting.’


Filed under Civil, Family, Social welfare

MOJ publishes exceptional case funding stats

The MOJ has published statistics on the number of cases funded under the exceptional case provisions in s10(3) of LASPO. These allow funding in a case that would normally be outside scope but where the particular circumstances mean that the client’s human rights would be breached if funding were not granted.

There were 1,151 applications between April and December 2013 (rather fewer than the government’s forecast of around 6,000), of which 35 have been granted. 21 were in respect of inquests, 8 in family, 3 in immigration and one each for housing,  an inquiry/tribunal or ‘other’. The government’s view, as expressed recently in the Lords by Lord Faulks, is that these statistics are not a cause for concern, and the system is working as intended.

The Public Law Project has some useful resources on its website to assist in making applications. They also run a helpline to assist with queries on exceptional case funding and civil legal aid more generally – 0808 165 0170. It is open from 10-11 am every weekday except Thursday.




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Welfare benefits: scope narrows again

This week the LSC announced a tender for new contracts for welfare benefits work, starting from October. If you plan to tender, the PQQ opens in a week’s time. But what is there to tender for? There will be four contracts, with a competitive element based on price. The tender outline information says that licensed work hourly rates will apply, and the competition will be for the amount of the Legal Help fixed fee. In the CLA tender last year, bidders in housing debt and family had to specify a maximum fee per case, with no escape or exceptionality, and a hourly rate that sat behind it.  60% of the scoring was on price (10%  for the hourly rate, 50% for the maximum fee) and only 40% for quality. We will know more on the criteria for this tender when it opens.

What we do know now is the very limited scope of the work. During the final stages of LASPO in the House of Commons, Ken Clarke undertook to amend the Act to allow for appeals to the First Tier Tribunal to be in scope where there was a point of law. The regulations brought forward to do this were so restrictive that the House of Lords voted them down and told the government to think again. But rather than honour the original promise, the government withdrew the concession entirely, and now no First Tier Tribunals will be in scope. All that remains are appeals to the Upper Tribunal and onwards to the Court of Appeal and Supreme Court. This week, the government published new regulations tightening scope further; the regulations make clear that the case before the Upper Tribunal is in scope, but the application for permission to appeal to the First Tier Tribunal is not. Previously, it was at least arguable that the wording of LASPO included the permission application as well as the appeal; now, it is not.


For more on the new legal aid scheme, see our LASPO Resources page, follow us on Twitter @legalaidhbk or pre-order the new Handbook by emailing direct.orders@marston.co.uk

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Announcement on welfare benefits legal aid

This afternoon, the Ministry of Justice released a written ministerial statement on the future of legal aid for welfare benefits cases.

You may remember that towards the end of the progress of the legal aid bill, the government lost a vote in the Lords and announced a concession – retaining legal aid for appeals to the Upper Tribunal and onwards, and retaining legal aid for points of law in the First Tier Tribunal.

Today they have announced how that will be given effect to. First Tier Tribunal cases will be in scope where the Tribunal agrees to review its own decision because of an error of law, as will appeals to the Upper Tribunal, Court of Appeal and Supreme Court.

This means that there will be a tender for welfare benefits legal aid. However, it is now too late to include it in the current face to face tender. Instead, there will be a PQQ in February 2013, with a view to contracts starting in October 2013. As yet unannounced interim arrangements will apply in the period from April to October 2013. It is anticipated that the number of cases in scope will be small and therefore the tender is unlikely to be for large amounts of matters; certainly nothing like the volumes currently delivered by social welfare law providers.

See also the concurrent announcement on the LSC website.

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Filed under LASPO, Social welfare

News round up

In this update:

  • Civil tender PQQ outcomes
  • JR of expert fees – Law Society intervene
  • What happens to clients from April 2013?
  • Lost in the post?
  • Welfare benefits – moving the goalposts?

Continue reading

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LSC publishes list of contract terminations

The LSC has recently posted a list of the organisations which had their contracts terminated between January and September 2011. It reinforces the importance of having a qualified supervisor and ensuring that supervision is effective.

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