18 March To all civil legal aid practitioners

Transcription

1 Civil Legal Assistance Update To all civil legal aid practitioners 18 March 2011 This mailshot provides solicitors with information about changes to the clawback and special urgency provisions under advice and assistance and civil legal aid; children s appeals; availability of ABWOR for the Additional Support Needs Tribunal; changes to counsel s fees and the time limit for lodging an account in civil proceedings THE ADVICE AND ASSISTANCE AND CIVIL LEGAL AID (SPECIAL URGENCY AND PROPERTY RECOVERED OR PRESERVED) (SCOTLAND) REGULATIONS 2011[SSI 2011 NO.134] These regulations affect clawback under advice and assistance, and also clawback and the special urgency provisions under civil legal aid. The regulations follow the tripartite discussions between the Scottish Government, the Law Society of Scotland and the Scottish Legal Aid Board to identify savings as a result of the 1.3 billion cuts in the Scottish Government budget next year. The regulations come into force on 1 April A full copy of the regulations is available at the following link /134/made/data.pdf. The Legislation section of the Civil Legal Assistance Handbook will be amended to reflect the changes. The necessary changes are also being made to the Board s online systems to accommodate these amendments. REMOVAL OF CLAWBACK EXEMPTIONS UNDER A&A AND CIVIL LEGAL AID The regulations remove certain categories of property recovered or preserved from the exceptions provided for in regulation 16(2) of the Advice and Assistance (Scotland) Regulations 1996 and regulation 33 of the Civil Legal Aid (Scotland) Regulations 2002, as follows: The partial exemption, currently in force in both advice and assistance and civil legal aid, to the right to prior payment of fees or outlays out of any property recovered or preserved by virtue of (1) an order for the payment of a capital sum under section 5 of the Divorce (Scotland) Act 1976; or (2) an order for payment of a capital sum or transfer of property or an incidental order, under section 8 of the Family Law (Scotland) Act 1985; or (3) any

2 settlement arrived at to prevent or bring to an end proceedings in which such an order may be granted. Any payment of money in accordance with an order made by an Employment Tribunal or an Employment Appeal Tribunal or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made. Any dwelling recovered or preserved as a result of advice and assistance (there is no equivalent exemption under civil legal aid). As a result of these regulations fees or outlays to which sections 12 and 17(2B) of the Act applies are payable by the client, firstly from any contribution payable, secondly out of any expenses recoverable and thirdly out of any property recovered or preserved including the property listed above. These provisions only apply to advice and assistance provided or legal aid granted after the coming into force of these regulations on 1 April Your client remains entitled to the partial exemptions ( 2,500 to 5338) in pre-1 April cases by reference to the dates on which advice and assistance or civil legal aid were made available in the tables to be found in the Keycard. Although these categories no longer provide for automatic exemption, in A&A cases your client is still entitled to make application to the Board where it is considered, in the particular circumstances of the case, that payment out of the property would cause grave hardship or distress. Board guidance on hardship applications can be found at Part VII, Chapter 1 at paragraphs 12/18 of the Civil Legal Assistance Handbook. CHANGES TO REGULATION 18 (SPECIAL URGENCY PROVISIONS) _ Changes to steps specified in regulation 18(2) Regulation 18(1)(a) allows you to undertake any of the steps specified in paragraph (2) which require to be taken as a matter of special urgency to protect the applicant s position subject to intimation to the Board (either within the subsequent application or by way of the special urgency form) and the lodging of an application for legal aid within 28 days of commencement of the urgent work. The following steps have been removed from the list at regulation 18(2). 18(2)(j) moving for interim orders for residence or interdict or interim orders under section 11 of the 1995 Act, including (where not already done) initiating or entering proceedings in which such orders may be sought; 18(2)(n) moving for or opposing a motion for variation of an order relating to parental responsibilities or parental rights under section 11 of the 1995 Act; and 18(2)(p) obtaining reports on residence orders or contact orders within the meaning of section 11(2)(c) and (d) of the 1995 Act when the court so orders. The changes brought about by the regulations apply to steps commenced on or after the coming into force of the regulations on 1 April From this date you will no longer be entitled simply to commence such work subject to intimation and will, instead, require to seek prior certification from the Board, by way of the civil application or the special urgency form, in terms of regulation 18(1)(b).

3 You should only make such an application in circumstances where you believe that failure to take such steps would in some way significantly prejudice the applicant. Any request for certification should set out the circumstances in which you consider the work to be necessary to protect the applicant s position. You should apply for certification, if you believe it to be appropriate, prior to and in anticipation of moving the court to make any order to avoid a situation where such an order is made without the necessary funding being in place. This is particularly important when asking the court to instruct a reporter or curator for the purpose of obtaining a report as lack of regulation 18 cover could be an impediment to payment of the costs incurred. Subject to the circumstances in individual cases, obtaining a report at the outset of a case before further procedure whereby the issues are more focussed, may be considered premature. _ Changes to regulation 18(1)(b) The amending regulations substitute regulation 18(1)(b) as follows. (b) in any other circumstances where (i) the Board is satisfied on application that steps require to be taken as a matter of special urgency to protect the applicant s position; and (ii) paragraphs (3A) and (3B) do not apply. Paragraphs (3A) and (3B) state (3A) This paragraph applies where (a) at the time the Board receives an application under paragraph (1)(b) (i) an application for legal aid by the applicant in relation to the same proceedings has been refused or treated as abandoned; or (ii) the Board has ceased to make legal aid in respect of the same proceedings available to the applicant; (b) the Board has given the applicant an opportunity to show that there is a realistic prospect that legal aid will be granted following an application for review or a further application; and (c) the Board is not satisfied that the applicant has so shown. (3B) This paragraph applies where (a) the Board, on receipt of an application under paragraph (1)(b), has called on the applicant to provide the Board with sufficient information to enable the Board to determine whether prima facie the conditions mentioned in section 14(1) of the Act are met; (b) the Board is satisfied either (i) that the applicant has had sufficient opportunity to provide the information called for; or (ii) that the applicant would have had sufficient opportunity to provide the information called for but for undue delay on the part of the solicitor in submitting the application under paragraph (1)(b); and (c) the Board is not satisfied that prima facie the conditions mentioned in section 14(1) of the Act are met. Under current arrangements there is no restriction on the circumstances in which we require to consider a request for certification of specially urgent work under regulation 18(1)(b) and the only criterion which can be applied is whether or not there is special urgency. These new provisions significantly alter the position and the process.

4 Firstly, the Board can refuse certification under paragraph 1(b) where an application for civil legal aid by the applicant in relation to the same proceedings has been refused, treated as abandoned or terminated and the applicant has not satisfied the Board that there is a realistic prospect that legal aid will be granted following an application for review or a further application. Secondly, we are not obliged to grant certification under paragraph 1(b) where, on receipt of a special urgency application, we have called on the applicant to provide us with sufficient information to enable us to determine whether prima facie the test in section 14(1) of the Act is met. On seeking further information, if we are satisfied that either the applicant has had sufficient opportunity to provide this information, or would have but for undue delay on the part of the solicitor in submitting the application and the Board is not satisfied that prima facie the merits test is likely to be met, we are entitled to refuse certification. You should bear in mind that even in circumstances where we do not consider there to be special urgency or we have reservations, on the information available, as to the merits of the case, you are always entitled to lodge an application for civil legal aid. The average time for processing a civil legal aid application is currently 13 days. CHILDREN S LEGAL AID APPLICATIONS FOR APPEALS TO THE SHERIFFS PRINCIPAL AND COURT OF SESSION The Scottish Children s Reporter Administration (SCRA) have requested information from the Board as to how they can go about lodging representations in children s appeal applications. We have advised SCRA that, unlike civil legal aid applications, there is no statutory duty for us to notify them that an application has been made and that there are no equivalent statutory regulations surrounding the submission of written representations. We have stated, however, that if we receive representations then they will only be taken into consideration where permission is given by SCRA to exhibit them to the applicant and where the applicant is thereafter given the opportunity to respond to them. We will not take representations into account where to do so would lead to unreasonable delay in the appeal proceedings themselves. Chapter 8 of the Children s Legal Assistance Handbook has been updated at Part III, chapter 8, paragraph 16 to reflect this. ADDITIONAL SUPPORT NEEDS TRIBUNAL AVAILABILITY OF ABWOR ABWOR will be made available for representation before the Additional Support Needs Tribunal for Scotland in accordance with Part 3 of Schedule 17 to the Equality Act 2010 (which provides for claims to be made to a tribunal that a responsible body of a school has contravened Chapter 1 of Part 6 of that Act because of a person s disability). You can provide advice and assistance if your client is financially eligible. You must get our prior authority to give ABWOR for proceedings before an ASNT. We must be satisfied that: (a) the case is arguable; (b) it is reasonable in the particular circumstances of the case to make ABWOR available; and (c) the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person. The factors that we have to take into account in considering whether the case is too complex include: (a) determining the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature, and (b) the applicant may be unable to understand the proceedings or to

5 state their own case because of their age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise. In any request for authority, you should address these issues in appropriate detail. The category code assigned to these proceedings is ASNT. The Civil Legal Assistance Handbook will be amended to provide guidance on these matters. CIVIL LEGAL AID (SCOTLAND) (FEES) AMENDMENT REGULATIONS 2011 [SSI 2011 NO. 160] These regulations make changes to the time limit for submission of final accounts from solicitors and counsel and introduce a new table of fees for counsel for work in the sheriff court and new fees for work in the Court of Session. The regulations amend the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (the Fees Regulations) and come into force on 1 April A full copy of the regulations is available at the following link /made/data.pdf and in the Legislation section of the Civil Legal Assistance Handbook. These changes will also affect proceedings arising out of Part II of the Children (Scotland) Act 1995 which are charged under schedule 5 of the Fees Regulations. The main changes are detailed below. Time limits for submission of solicitors and counsel s accounts Regulation 8(1) of the Fees Regulations has been amended and the period within which a solicitor requires to submit an account to the Scottish Legal Aid Board will be shortened from 6 months after the completion of proceedings to 4 months. The submission periods for criminal legal aid and civil legal aid accounts will therefore be the same. The same requirement is being introduced for counsel. This will affect all accounts where the date of completion of the proceedings is on or after the 1 April Changes in respect of counsel s fees Regulation 3 has been amended so that counsel, acting for an assisted person in receipt of legal aid at the conclusion of the proceedings, can now request payment of their fees from the recovered judicial expenses even in circumstances where the solicitor has elected to receive payment of a legal aid account; Regulation 9 has amended the statutory tests for taxation of counsel s fees to provide that the fees allowable to counsel shall be fees for such work as shall be determined by the Board to have been actually and reasonably done, due regard being had to economy this makes the tests the same for both criminal and civil work; Regulation 11 amends the circumstances where counsel can submit a payment to account; The introduction of a new Schedule 4 containing separate tables of fees for counsel for proceedings in the Court of Session and a new table for proceedings in the Sheriff Court. The changes include:- Introduction of prescribed fees in most cases for counsel, depending on the status of counsel (senior or junior), the category of the proceedings and the court in which proceedings take place; and the fees prescribed for counsel in a sheriff court are set at around 90% of the level of the Court of Session fees; The Schedule has moved away from the concept of a prescribed fee capable of being enhanced in

6 the individual circumstances of the case and a standard fee is now prescribed for the majority of work items. For a few work items, there are fees chargeable within a specified range; The fees for drafting any summons, petition, other initiating document, defences or answers include any work involved in revising such a document; The highest fee is reserved for proceedings in the Inner House to reflect the seniority of the court; Counsel are no longer paid on the basis that they have a place of business in Edinburgh or, in the case of solicitor-advocates, on the basis of a solicitoradvocate s place of business in relation to Edinburgh. The fees will apply to cases in any court and a supplementary travel fee of 100 per day is available to counsel where necessary travel is undertaken which exceeds a round trip of 120 miles; For queries about the matters raised in this Update, please contact For clawback issues Cindy Morrice, Assistant Manager, Treasury, Tel , morriceci@slab.org.uk For special urgency issues Catriona Whyte, Head of Legal Services - Civil, Tel , whyteca@slab.org.uk For children s application issues Elizabeth Cuschieri, Solicitor, Tel , cuschierili@slab.org.uk For ASNT issues Nicola Cameron, Solicitor, Tel , cameronni@slab.org.uk For civil counsel s fees Ross Marriott, Technical Specialist, Tel , marriottro@slab.org.uk or Steven Carrie, Senior Technical Specialist, Tel , carriest@slab.org.uk There is clear criteria for the circumstances in which an additional fee for preparation will be payable in connection with a proof, debate or like hearing; Where the tables of fees do not prescribe a fee for any class of proceedings or any item of work, the Board or as appropriate, the auditor, shall allow an appropriate fee that provides reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the tables of fees.