Introduction
From 1 April 2013 the new Civil Legal Services (Procedure) Regulations will come into force. Although the regulations state that an individual may apply to the director of legal aid casework for a review of a determination regarding controlled work, this function has been delegated to individual legal aid providers. Below is some advice for providers on how they may wish to exercise these delegated functions. It is recommended that a system is developed that broadly reflects your complaints-handling procedure.
Definitions
'The regulations' means the Civil Legal Services (Procedure) Regulations 2012
'LASPO' or 'The Act' means the Legal Aid, Sentencing and Punishment of Offenders Act 2012
A copy of the relevant regulations are below.
Determining controlled work reviews
1. How will clients know they can request a review
When a decision is made to refuse or withdraw controlled work funding the client should be advised of their right to request a review where this is appropriate (see below). If the decision is clearly not subject to review, providers may wish to seek to pre-empt a review application by stating why the decision is not reviewable.
2. Circumstances where there are no grounds for review
Clients should be advised that there are no grounds for review if:
- The provider does not have a legal aid contract for the matter in issue or has exhausted their matter start allocation for the category in which the matter falls. In this situation, the firm should not have made any assessment of the entitlement to legal help, and there will therefore not be a decision to review.
- The matter is clearly out of scope under LASPO, eg it is a conveyancing or defamation case.
- The client has clearly failed the means test. Providers may wish to exercise their discretion to consider a review where the means assessment is complex, for example a self employed person who does not have full supporting evidence of income.
- The provider cannot assist the client because of a conflict of interests.
3. Review procedures
- There is no prescribed pro-forma for requesting a review of a refusal to provide legal help (there is a form for controlled legal representation). Providers should adopt a consistent approach to informing clients of refusal of withdrawal of controlled work and to the procedure for submitting a request for a review. Clients should be asked to state which decision they are requesting a review of, and the reasons for requesting it. Providers may decide that for some or all clients, oral requests will be accepted. If so, the provider should confirm the substance of the request to the client in writing.
- Providers should adopt a clear procedure for the determination of reviews and ensure that all fee earners are aware of it. The review procedure policy should also be available to clients who request it. This procedure should identify:
- to whom a request for review should be submitted
- who will deal with the request for review
- who will inform the client of the determination
- timescales for dealing with reviews (see below)
In drawing up the procedures, providers should consider whether requests for review should be considered by a senior caseworker such as a legal aid supervisor, or a partner or director in the organisation.
4. Issues to consider in determining a review
The issues that may be subject to review are set out in paragraph 43(1) of the regulations. Those that are most likely to apply in respect of controlled work are:
- whether the matter is in scope under part 1 of schedule 1 of LASPO - 43(1)(a)
- whether the individual qualifies for services, ie meets the means and merits/cost-benefit test - 43(1)(b)
- a withdrawal of a determination – 43(1)(e)
Timescales
- Paragraph 43 (1)(e) of the regulations states that for licensed work, applications for a request for a review should be submitted within 14 days of receipt of the provider’s written determination to refuse or withdraw funding. It seems appropriate that this time limit should also be applied in respect of controlled work.
- The regulations are silent on the timescale for determining requests for review but good practice would suggest that providers should aim to notify the applicant of their determination within 14 days of receipt of the request for review. If the matter is urgent, providers should consider issuing a determination within seven days of receipt of the request.
5. Interface between reviews and 'exceptional funding' applications
When a decision to refuse controlled work is made because the matter is not within scope of LASPO, it may be that the matter could be eligible for 'exceptional funding' under section 10 of the Act. This is likely to be a rare event given the strict criteria set out under section10.
Exceptional funding decisions can only be authorised by the director of legal aid casework and cannot be delegated to providers, and the controlled work review process can only consider matters that are in scope under schedule 1 part 1 of the Act. Therefore any refusal that potentially engages section 10 can only be progressed as an exceptional funding application and not as a review. You are not obliged to undertake an exceptional funding application in these circumstances.
Further appeals
A client who is dissatisfied with the outcome of a review may appeal to an independent funding adjudicator (paragraph 28 of the regulations). However, this provision does not apply to legal help, where the reviewer's decision is final. It does however apply to decisions relating to controlled legal representation.
The regulations
The regulations governing the review process are set out as follows: Paragraph 27 is specific to controlled work and paragraph 43 deals with licensed work. The terms of paragraph 43 also apply to controlled work insofar as they are relevant to it.
27. An individual may apply to the Director for a review of a determination or withdrawal of a determination in relation to Controlled Work and the provisions about review in Part 4 (Licensed Work) apply to such applications (paragraph 43 below).
43. – (1) The individual may apply for a review by the Director of–
(a) a determination that the services which are the subject of the application are not civil legal services described in Part 1 of Schedule 1 to the Act;
(b) a determination that an individual does not qualify for particular services;
(c) a determination that an individual does qualify but not on the terms requested in the application (whether because of a limitation or condition to which the determination has been made subject or otherwise);
(d) an amendment of, or refusal to amend, a limitation or condition to which the
determination is subject; or
(e) a withdrawal of a determination, within fourteen days of receipt of the determination, amendment or notice of withdrawal of a determination.
(2)- The application for review must be in a form specified by the Lord Chancellor and must include any written representations supporting the application.
(3) The Director must consider the application and any written representations and may affirm, amend or reverse the determination, amendment or withdrawal of a determination which is the subject of the review.
(4) Where the Director amends or reverses a determination, amendment or withdrawal of a determination –
(a) the determination, amendment or withdrawal takes effect (unless the Director directs otherwise) as if the original determination, amendment or withdrawal had not been made; and
(b) the Director must issue, amend or withdraw a certificate to reflect the decision on the review.
(5) The Director must notify the individual and the provider or proposed provider identified in the individual’s application of -
(a) the decision on the review; and
(b) any right of appeal to an independent funding adjudicator