On Monday 1 April 2013, the Legal Services Commission will be replaced by the Legal Aid Agency, and the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 will take effect.
Below is a high-level summary of the most important things you need to know about the new regime, together with links to some of the source materials (so far as they are available).
LASPO implements substantial scope cuts to civil legal aid. The details of what remains in scope can be found in the LASPO Schedule 1. Part one of schedule 1 lists what is in scope, part two, what is excluded from scope, and part three deals with advocacy remaining in scope.
There is also a summary of the scope provisions on the Ministry of Justice website. This is a useful overview but should not be relied on in itself for determining whether a matter is in scope (for example it does not list immigration detention matters as being in scope) and therefore should not be regarded as a substitute for examination of schedule 1.
Domestic violence: trigger evidence
Under the new family legal aid rules, most private law services are only available to the victims of domestic violence. In order to be entitled to legal aid, the client has to produce 'trigger evidence' proving that they are a victim of abuse. Legal aid will be available in private family law cases for applications for protective injunctions. No 'trigger evidence' is required for legal aid for an injunction application.
Legal aid is also available for divorce, and for children and financial disputes, if the client can produce 'trigger evidence'. Legal aid is not available to help the client get this evidence or to pay any disbursements that may need to be met.
The list of trigger evidence can be found in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012.
The Ministry of Justice has drafted guidance and template letters to help clients get the evidence they need. However, we have major concerns as to whether clients will be practically able to get this evidence for themselves (even if it exists in their case) and as to how quickly the bodies processing these requests will turn them around. We intend to keep lobbying the government on this issue, and would welcome examples of where serious difficulties have been caused as a result of these administrative hurdles.
If you have an example, please email us.
The regulations have been published. There are three major changes regarding eligibility:
- Passporting benefits - all applicants will be subject to means testing regarding their capital. Therefore, those on passporting benefits will only be passported in respect of the income part of the means test.
- Subject matter of the dispute (SMOD) disregard will be capped at £100,000. This will apply for all levels of service including controlled work / legal help.
- Contributions - The levels of income-based contributions will be increased to a maximum of approximately 30 per cent of monthly disposable income.
Under LASPO, if a case is out of scope under schedule 1, it may still be possible to get legal aid for it under section 10, if failure to provide funding would mean that the client's human rights would be breached. This primarily relates to Article 6 and the right to a fair trial, but may relate to other articles as well. Information is available:
While there is nothing in the guidance that we believe is wrong, we would question whether the test should be interpreted quite as narrowly as the guidance suggests. There will undoubtedly be a need for test cases to determine how broadly the law should be read. The Public Law Project has set up a scheme, with help from the Law Society, to support practitioners in submitting exceptional funding applications and in identifying suitable test cases.
More information about the scheme
If an application for exceptional funding is successful, it will generally be backdated to the date you saw the client, so long as that was less than two months previously. However, if the application is unsuccessful, there will be no payment for it. The Law Society's view is that it is permissible for solicitors to charge clients for making an application, on the strict understanding that any such charge is refunded if the application succeeds. If you do so, it is vital to ensure that your client understands the basis of the charge and the circumstances in which it would be refunded.
LASPO implements a mandatory telephone gateway for three categories of work (at Legal Help level).
- special educational needs (SEN)
The exceptions are when the client:
- is in detention (including prison, a detention centre or secure hospital), or
- is under 18, or
- has been previously assessed by the gateway as needing face-to-face advice, has received this advice within the last 12 months, and is seeking further help to solve a linked problem from the same provider.
How the gateway will operate is detailed in part 2 of the Procedure Regulations.
The lord chancellor's guidance section 8.7 - 8.12 provides further detail.
View the guidance (PDF)
The Ministry of Justice published a policy statement (PDF) on the arrangements for the transition of legal aid from the Access to Justice Act 1999 to the LASPO Act 2012.
The Advice Services Alliance has also produced useful guidance on remainder work (PDF). We recommend that you read these documents carefully to ensure you understand what happens to your ongoing cases post-April 2013.
Contract terms changes
From 1 April 2013, all legal aid providers will be subject to new or amended contracts. Face-to-face provision for family, immigration and asylum, housing and debt will be governed by the 2013 standard civil contract. Providers of civil legal aid in categories that have not been re-tendered and crime practitioners will be subject to the amended 2010 civil and crime contracts. Useful links:
The schedule of remuneration rates are no longer annexed to the specification. Instead, all civil payment rates are published in the Civil Legal Aid (Remuneration) Regulations 2013. Rates remain unchanged and there are new fees for family mediation advice and drafting consent orders arising from a mediated settlement.
Training and advice
We published some advice last autumn on the things you needed to take into account before implementation of the Act, and things you need to advise existing clients about in the categories where legal aid is being withdrawn. This advice still holds good, and you may wish to re-read it to help you assess the implications for your firm.
Read the advice
Controlled work reviews: read our advice
Under the new rules, if a client seeks a review of a decision that they are not entitled to controlled work, it is your responsibility to conduct that review. This is the position under the current rules, but the situation rarely arises at the moment. After April, it may well arise more frequently.
Read our advice on how you might approach controlled work reviews
We are providing a number of webinars to help our members cope with the implementation of LASPO:
In addition, the LSC is providing online and face-to-face training.