Public funding

Question 1

Work for children - hourly rates or fixed fee?

Answer 1

Accompanied asylum seeking children - fixed fee

UASCs, and separated children with immigration matters - hourly rates

Question 2

Advice to asylum seekers who do not return to instruct you, or who do not claim asylum

Answer 2

£100 including disbs

Question 3

Advice re merits of applying for PTA to UT

Answer 3

Hourly rates with a costs limit of £100 (inc disbs).

However, if advice has been received under CLR Stage 2, the advice is included in the CLR Stage 2 fee, and you cannot claim anything on top at hourly rates.

Question 4

Cost limit for CLR bail

Answer 4

£500 including disbs

Question 5

Cost limit for LH asylum hourly rates cases

Answer 5

£800, excluding disbs

Question 6

Cost limit for LH immigration, and LH bail, hourly rates cases

Answer 6

£500 excluding disbs

Question 7

Ongoing duty to assess means

Answer 7

You have an ongoing duty to assess your client’s means. For example, if your client was accommodated by a friend but then changed address, you would need to obtain new EOM. Be aware of this as the case progresses.

If you note a change of circumstances that may impact on the client’s financial eligibility, ask questions and place a copy of your attendance note with the CW1 or CW2 form so it is easy for the LAA to spot it in case of an audit.

Question 8

“indirectly” in receipt of benefits

Answer 8

If your client has a partner who receives a passporting benefit, this income has to be aggregated to the client’s income and noted on the CW1 or CW2 form.

Your client will not be passported unless they are directly or indirectly in receipt of passporting benefits.

Being “indirectly” in receipt of these benefits does not mean that the client’s partner receives the benefits. It means that the client must be named on the benefits agency letter, which is extremely unlikely to happen if your client does not have status.

Question 9

Sufficient benefit test - LH

Answer 9

When you open a new legal help matter, you should note on file:
whether you think that there are sufficient benefits to open such matter, and
the specific benefits it will bring to your client.
The test is usually met in asylum claims.

Question 10

Merits test - CLR / appeals stage

Answer 10

At appeal stage, you have to carry out a merits test, which is more stringent.

You can only grant CLR if the case meets the LAA merits criteria, which have been modified many times in the past few years.

The current regulations are the Civil Legal Aid (Merits Criteria) Regulations 2013 (Merits Criteria Regulations) as amended.

You have to be satisfied that the prospects of success are:
very good, good or moderate; or
borderline, marginal or unclear, and –
the case is of significant wider public interest;
the case is one with overwhelming importance to the individual; or
the substance of the case relates to a breach of Convention rights.”
(Merits Criteria Regulations, reg.60(3))

Furthermore, when completing the CW2 form, you will have to be satisfied that the “reasonable private paying individual” test is met (Merits Criteria Regulations, reg.7).

This means that the potential benefit to be gained from the provision of civil legal services justifies the likely costs, such that a reasonable private paying individual of moderate means would be prepared to start or continue the proceedings having regard to the prospects of success and all the other circumstances of the case.

Question 11

Ongoing duty re merits test

Answer 11

The merits test, like the means test, is an ongoing duty. CLR can be refused or withdrawn at some points during the appeal process. In these cases, the practitioner must complete a CW4 form as soon as possible, and in any event within five days from the refusal, and give the client the LAA email address where the form must be sent, or send it themselves

Question 12

CW4 form

Answer 12

If the client wishes to appeal your decision, either the client or the practitioner must send a copy of the completed CW4 form, including reasons for refusing or withdrawing CLR, to the LAA with at least the refusal letter from UK Visas and Immigration (UKVI). Other evidence, such as interview records and an asylum statement, should be submitted.

Once received by the LAA, the email containing the CW4 form and supporting documents is sent to an independent funding adjudicator (IFA) for a review. The IFA can confirm the practitioner’s decision or overturn it.

If a new practitioner wishes to take on an appeal where CLR has been refused, they should send a CW4 form, supporting documents and reasons why the decision was wrong to the LAA in the usual way, rather than granting CLR themselves.

Question 13

Independent funding and costs adjudicators (IFCAs)

Answer 13

IFCAs hear appeals against
the practitioner’s refusal to grant CLR, on non-means issues, or
the LAA’s refusal to grant funds in licensed matters.
Independent cost assessors review costs assessments made by the LAA on individual files or on audit.
If the LAA reduces or nil assesses an escape fee file, or files at audit, the practitioner can appeal to an IFA, via the LAA, by submitting a bundle of documents and grounds of appeal.

Question 14

Special Controls Review Panel (SCRP)

Answer 14

The SCRP is a committee of independent professionals that hears appeals against the LAA’s decision to refuse funds in complex licensed matters, such as:
JRs
Court of Appeal cases
Supreme Court cases.

Question 15

Peer Reviewer ratings

Answer 15

Excellence (1)
Competence Plus (2)
Threshold Competence (3)
Below Competence (4)
Failure in Performance (5)

Question 16

Drafting - time per page

Answer 16

Guideline 6-12m/page straightforward document

IAAS - complex asylum or appeal statement may take 18 or 24 minutes per page.

If this is the case, you need to explain why longer than usual time was required.

You can claim time to draft original content – letters containing template text cannot be charged as drafting.

Question 17

Letters, calls, emails, messages, etc.

Answer 17

Letters and telephone calls can be billed as routine items (six minutes) or as preparation / attendance time respectively if they are non-routine. You must justify the time spent and keep detailed file notes / drafts.

Letters can be disallowed if they constitute duplication of work. For example, you should not send two letters on the same day to your client with different information, if it can be contained in a single letter.

Letters and calls can be disallowed if administrative in nature. Abortive calls may be charged if reasonable.

Routine incoming post / email is non-chargeable. However, you can charge for perusing incoming post such as expert reports, determination, and lengthy / complex letters.

Emails can be charged as routine letters or preparations, and text messages can be charged as routine calls or attendance.

Question 18

If ECF is refused…

Answer 18

you can ask for an internal review by completing form APP9 and submitting it within 14 days from the refusal. The LAA should reply within 10 working days.

Question 19

Do you need to reapply for ECF at each new stage of a matter? Eg LH to CLR

Answer 19

Yes, at each new stage of a matter (e.g. legal help to CLR) an application to the LAA for an extension of ECF authorisation is needed. Files should be marked clearly to ensure this is not forgotten.

No for certificated matters, although the issue is always under review.

Question 20

If your file is nil assessed or costs are reduced, you can…

Answer 20

ask for an internal review. A second LAA assessor will look at the file and either maintain the decision or increase / decrease the amount granted by the first assessor.

If you still disagree with the decision, you can appeal to the IFCA, via the LAA.

When you prepare your appeal bundle, ensure you state your grounds of appeal clearly. Highlight the relevant attendance note and submit a tidy file, with items in chronological order. This will assist the IFCA in locating the relevant attendance or preparation notes.

Question 21

Legal aid for suspected victims of trafficking (VoTs) is available under…

Answer 21

para.32A, Sched.1, LASPO

Question 22

Para.32A, Sched.1, LASPO, states:

Answer 22

“32A (1) Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where

a) there has been a conclusive determination that the individual is a victim of slavery, servitude or forced or compulsory labour, or
b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.”

Question 23

Scope of work for VoT

Answer 23

Legal aid is available in applications for DL to enter or remain as a VoT, whether the application is made formally or informally (i.e. whether or not a form is used to make the application).

Finally, it has been clarified that legal aid is available for receiving advice in relation to whether they are a VoT or not, but only in the context of also receiving advice for leave to enter or remain

Question 24

Non-asylum matters for VoT - how billed?

Answer 24

In non-asylum matters, the available immigration fixed fee is claimable, unless the case reaches the threshold to be billed as an escape fee case.

Question 25

LASPO defines DV at Sched.1, para.29(4):

Answer 25

“‘domestic violence’ means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other (within the meaning of section 62 of the Family Law Act 1996).” The perpetrator does not need to be the partner, and could be another family member.

Question 26

DV survivors can access legal aid under the following sections of LASPO:

Answer 26

para. 28, Sched.1 (“Immigration: victims of domestic violence and indefinite leave to remain”), and para. 29, Sched.1 (“Immigration: victims of domestic violence and residence cards”).

Question 27

The Immigration and Asylum Specification of the 2018 Standard Civil Contract (Immigration Specification) defines a “UASC” as:

Answer 27

“an asylum-seeking child [who] is under 18 or claims on reasonable grounds to be under 18 applying for asylum in their own right and who is separated from both parents and not being cared for by an adult who, by law or custom, has responsibility to do so.”

Question 28

Para.8.81(h) of the Immigration Specification confirms that advice given to UASCs is paid at

Answer 28

hourly rates

Question 29

Determining if a child is unaccompanied

Answer 29

It is not always easy to determine whether a child is accompanied or unaccompanied. The practitioner must make an assessment in cases which are not clear (for example, if the child entered the UK on their own but is supported by a relative who lives in the UK) and make a note on file.

Question 30

“Reserved matters” are matters that can only be dealt by senior caseworkers or advanced caseworkers, and include:

Answer 30

using delegated functions to make a determination that an individual qualifies for CLR conduct of CLR cases working for clients lacking capacity (as defined in s.2, Mental Capacity Act 2005) working for children and UASCs detained work at IRCs.

Question 31

Caseworkers dealing with children, including UASCs, must have an enhanced Disclosure and Barring Service (DBS) certificate not older than

Answer 31

24 months

Question 32

Firms delivering publicly funded work must maintain:

Answer 32

a record of each caseworker’s accreditation, and a ratio of at least one full time equivalent senior caseworker for every two casework assistants / trainee casework assistants, and one supervisor per four caseworkers.

Question 33

According to para.8.54 of the Immigration Specification, legal representation of a client in any application (including for permission): to the UT (including applications to the UT via the First-tier Tribunal), or for JR or appeal either to the Court of Appeal or Supreme Court, is paid for as

Answer 33

as licensed work and cannot be carried out under controlled work. This rule applies to matters opened from 01 September 2018. It appears from LAA correspondence that “matters opened” refers to the date the first legal help form was signed with any provider. Therefore, it is important that a copy of the legal help form is obtained when taking on transfer clients so that the date of signature is known.

Question 34

Investigative representation

Answer 34

According to reg.40(1)(a) of the 2013 Merits Regulations, it is possible to make an application for investigative help where the prospects of your client succeeding at a final hearing in a JR matter are “unclear” and further work is required to assess the merits of the case. Let's look at the details of such applications. Notifying the opponent You are supposed to notify the opponent of the proposed claim before applying for investigative help, and give the opponent reasonable time to respond (reg.54(b)). Work required You need to show that identifiable investigative work needs to be carried out to assess the merits of the case. For example: obtaining an expert report obtaining advice from counsel making a subject access request perusing a large amount of documents liaising with the client and the other party. Hours of work Usually the LAA expects substantive work (i.e. at least six to eight hours of work) to be required in order to fully assess the merits of the case. At this point you can apply for a substantive certificate or close the file if there are insufficient merits to proceed. Scope and cost limits Be careful to not exceed the cost limit of the certificate. Make sure you don’t exceed the scope of the certificate – only work related to assessing the merits of the case will be in scope. Once you have assessed the merits of the claim, you should promptly apply for a substantive certificate to permit you to conduct further work on the case.

Question 35

When applying for permission to apply for JRs in the UT or Admin Court, a certificate for full representation can be granted subject to various criteria

Answer 35

Firstly, the LAA must be satisfied: that the case has at least “moderate” prospects of success (50–60%), or that the prospects are “marginal” (45–49%) or “borderline” (50%) and the case: is of wider public interest, or is of overwhelming importance to the individual, or relates to a breach of a Convention right. Another requirement is that the Pre-action Protocol has been complied with or it was not reasonable to do so, given the circumstances of the case (Merits Regulations 2013, reg.56(2)(a)). Even if the prospects of success of a case are over 50%, funding can only be granted if the proportionality test is met, meaning that the likely benefits justify the likely costs (reg.56(2)(b)). MNG emergency funding - This can be granted in case of urgency, and a full certificate must be applied for within five working days. Beware of limitations of scope and costs, and note the certificate expiry date.

Question 36

At risk JR work

Answer 36

The Civil Legal Aid (Remuneration) Regulations 2013 introduced changes to the funding in JR cases. Under these regulations, payment could only be claimed for the pre-permission work of solicitors and advocates after the court granted permission. If the court refused permission, practitioners would not be paid for any work done. Therefore the providers carried at the work "at risk" of not being paid. The strict regulations were amended in 2015 following the case of R (Ben Hoare Bell and others) v Lord Chancellor [2015] EWHC 523 (Admin), and softened. But there are still many cases where work on a full representation certificate is at risk unless permission is granted. However, disbursements are always payable (if reasonably incurred). The following work is claimable (i.e. it is not “at risk”): work on investigative help work on interim relief if the defendant withdraws the decision and therefore the claim is withdrawn or permission is refused if the court orders a rolled-up hearing, or a permission hearing to determine the matter. If the claim is withdrawn or in any other case where the court does not decide on permission, payment can be made on a discretionary basis, depending on the specific facts of the case.