[N.B. This article is incomplete and requires substantial redrafting. The CLS News, and References, sections should be useful for the time being.]

News

See Legal Aid News

Category definition 2010

"1. Legal Help where the primary problem or issue relates to a point of English law concerning mental health, the Mental Health Act 1983 or the Mental Capacity Act 2005, including matters concerning education issues but only where based on mental impairment.

"2. All proceedings before a Mental Health Tribunal (including those arising from criminal proceedings and any related proceedings before the Upper Tribunal, High Court, Court of Appeal or Supreme Court), all other proceedings under the Mental Health Act 1983 or Mental Capacity Act 2005 and any other proceedings where the primary issue is mental health, but excluding any matters falling within the Clinical Negligence or Personal Injury Categories."

Costs assessment

When assessing exceptional cases, the LSC use the following authorities, in addition to the limited decision-making guidance contained in Volume 3 of the LSC manual:

• Legal Services Commission, 'Costs Assessment Guidance' (November 2011)
• The contract and mental health specification

Payments

Guidance

Most mental health legal work is done under a legal aid fixed fees scheme introduced by the Legal Services Commission in January 2008 following the Carter review. The latest piece of guidance, called "Principles of Mental Health Fees", was updated in March 2009. The changes between the February 2009 and March 2009 version of the Principles document is a new paragraph on page 7 ("If a provider references a social circumstances report as proof of means it is important that both the nature of the benefit (i.e is it passported?), the entitlement, the amount and the computation period must be considered and this is cross referenced to the CW1") and an addition to a sentence on page 9 ("Whether there are any other parties suitable and willing to provide assistance on behalf of the patient (such as an Advocate) should the need for specialist legal advice not be necessary"). An FAQ document dated 17/1/08 is also available.. The LSC have published a guidance to staged billing of contract workLSC, 'Guide to the changes in reporting Civil Legal Help work' (15/4/11) (staged billing)</ref>

Hourly rates

	Pre July 2008		Post July 2008		From 3/10/11				Certificate	CDS2	CDS3
	LH	CLR	LH	CLR	LH London	LH Country	CLR London	CLR Country
Letters	4.40	4.40	4.50	4.60	4.05	3.78	4.14	3.87	7.50	3.85	4.05
Telephone	”	”	”	”	”	”	”	”	4.15	”	”
Preparation	57.35	61.20	58.50	64.25	52.65	48.24	57.83	54.09	79.50	49.70	60.00
Attendance	”	”	”	”	”	”	”	”	75.00	”	”
Travel	30.30	30.30	30.90	31.80	27.81	27.00	28.62	27.81	33.25	26.30	26.30
Waiting	”	”	”	”	”	”	28.62	27.81	”	”	”
Advocacy	n/a	69.60	n/a	73.10	52.65	48.24	65.79	65.79	n/a	n/a	68.25
Att with csl	n/a	32.55	n/a	34.20			30.78	30.78	37.00	n/a	31.95

The pre-3/10/11 LH and CLR rates shown are the London rates.

The Certificate rates shown are the pre-3/10/11 London, Higher Court rates. Certificate rates in mental health are split into (a) 'Higher Courts' and 'County Courts and Magistrates Courts' and also (b) (for preparation and attendance) London and non-London. The new rates can be found in section 10 of the Schedule of revised legal aid fees.

A fixed fee scheme in prison law (CDS2 and CDS3) has been introduced, but the details have not been included here yet.

Fixed fees

	Pre July 2008			Post July 2008			From 3/10/11
	Fee for level	Cumulative	3x threshold	Fee for level	Cumulative	3x threshold	Fee for level	Cumulative	3x threshold
Non Tribunal	275	275	825	281	281	843	253	253	759
L1 Tribunal	140	140	420	143	143	429	129	129	387
L2 Tribunal	340	480	1440	357	500	1500	321	450	1350
L3 Tribunal	311	791	2373	327	827	2481	294	744	2232
Adjournment x1	124	915	2745	130	957	2871	117	861	2583
Remote (L1)	75	n/a	n/a	77	n/a	n/a	69	n/a	n/a
Remote (Non, L2, L3)	150	n/a	n/a	153	n/a	n/a	138	n/a	n/a

Fee levels

The following fees, which were revised on 1 July 2008 for matter starts on or after that date, are payable:

• Non-MHRT work: £281 (increased from £275) per case.

• MHRT work:

1. Level 1: "Initial Advice" - £143 (increased from £140). Covers one visit to the client and a small amount of immediate follow-up work.
2. Level 2: "Negotiation and Preparation" - an additional £357 (increased from £340). This covers all preparation work for the tribunal and any negotiation with third parties.
3. Level 3: "Representation at the Mental Health Review Tribunal" - an additional £327 (increased from £311). This covers representation at the final tribunal hearing.

• Additional payments:

• "Adjourned hearing fees" of £130 (increased from £124) for attendance at tribunal hearings which are adjourned

• "Remote travel payments" for travel to a small number of hospitals - £77 (increased from £75) for Level 1 MHRT work plus £153 (increased from £150) for each of Levels 2 and 3; alternatively, £153 (increased from £150) for non-MHRT cases. There are no hospitals qualifying for this fee, so it is never paid.

• "Exceptional cases" are paid by the old hourly rate (either Legal Help or Controlled Legal Representation) if the hourly rate would amount to at least three times as much as the fixed fees.

Appeals

The position in relation to work done in (a) applying to the Tribunal for a review (s9 TCEA 2007; Tribunal rule 45) and/or (b) applying for permission to appeal (s11 TCEA 2007; Tribunal rule 46) is something like this (but please read the original LSC document):

• If the review/application for permission to appeal is unsuccessful, all the work forms part of the level 3 payment, i.e. unpaid-for unless it turned the case into an "exceptional case".

• If the Tribunal sets aside its decision (s9 TCEA 2007) and a certificate (for Upper Tribunal work) is not subsequently issued, then you can claim an additional fee equivalent to the "adjourned hearing fee". Then you would recalculate whether or not you have an exceptional case.

• If a certificate is subsequently issued, then the work done can be claimed under the certificate. Unless the work is already being claimed as an exceptional case.

• If a fresh Tribunal hearing is held then this is a new matter start. You can claim level 3 and, if justified, level 1 and 2 payments.

• If you do work on a review/appeal but didn't represent the patient at the original Tribunal hearing, then you can claim level 1 and 2 payments as appropriate, but not level 3 or bolt-on payments.

In relation to withdrawals and reapplications, see Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications under the Legal Aid paragraph.

Types of Legal Aid

Legal Help and Controlled Legal Representation

There is now a single Legal Aid form for both of these. CLR is for Tribunal work and LH is for non-Tribunal work (although now the LH hourly rates are used for Level 1 Tribunal cases, in addition to non-Tribunal cases). Level 2 and 3 work is calculated at CLR rates.

Generally, non-Tribunal work is means tested; Tribunal work is not. Clients on certain state benefits, including Income Support, are automatically eligible for Legal Help. Evidence of the client's benefits situation should be placed on the file, although there are exceptions. Evidence could be from:

• a letter to the client from his benefits office;
• the hospital MHA/Patient Affairs office;
• the Benefits Agency;
• information in social circumstances reports.

In relation to merits, LH has a "sufficient benefits test"; the grant of CLR must be "reasonable" (it invariably is).

If you have a MHRT file open then any work related to the same period of eligibility (hospital managers' hearings, CPA meetings, etc) must be claimed as part of that MHRT file. This is because non-MHRT mental health work becomes part of any MHRT case within the current period of eligibility (whether before or after the MHRT case). For further guidance on matter start boundaries, "rolling-up" of files, and when files should be billed, see the various LSC guidance documents.

Public funding certificate

A public funding certificate is required for Investigative Help or Legal Representation. In summary, Investigative Help is used where the merits of a case need to be investigated before further funding is granted, and Legal Representation is needed for judicial reviews or other court work such as s29 displacement proceedings.

It is means and merits tested. The relevant forms are the application forms (initially APP1) and the means forms (usually just MEANS2 or MEANS1).

An emergency certificate can be granted under devolved powers in any category where the firm has a contract. So mental health firms can grant an emergency certificate in a JR relating to mental health law. The full forms need to be sent to the LSC within 5 working days. If devolved powers do not apply then the LSC make the initial decision as to whether a certificate should be issued. The certificate will have costs and scope limitations: form APP8 is used for amending these.

Legal Aid forms

All the legal aid forms can be obtained from the Legal Services Commission's website; they change fairly regularly so check there for updates. A guide to civil application forms is available on the LSC website.

There are new civil Legal Aid forms which are mandatory from 15/11/10 and which may not be used before that date (see October 2010 version list). The following have new versions: CLS APP1, 6, 7, 8; CLS MEANS1, 1A, 1B, 1C, 2, 3, 4, & 5; Means Guidance & Checklist (CK3); CLS POA1; CW1, CW1&2 (MH), CW2 (IMM), CW Counsel (MH), CW3A, 3B & 3C; Civil Codes Guidance & Guidance for Reporting Controlled Work. See the description of changes.

Contracting forms

The main ones are:

• "Controlled Work 1 & 2 Mental Health"

• "Controlled Work Counsel - Mental Health" (an application for Prior Authority to incur enhanced rates for counsel)

• "EC Claim 1: Exceptional Cases"

Application forms

These are required for judicial reviews and some other matters. The non-family application forms are:

• "CLS APP 1 Application for CLS Funding Certificate: Legal Representation"

• "CLS APP 6 Emergency application via fax"

• "CLS APP 8 Application for amendment or prior authority in civil cases"

• "CLS APP 11 Application for discharge"

Means forms

These are required in conjunction with the application forms. The main ones are:

• "CLS MEANS 2: Means assessment form for people who receive Income Support" - for clients on IS, income-based JSA, income-based Employment and Support Allowance or Guarantee Credit.

• "CLS MEANS 1: Financial assessment form" - for clients who can't fill in MEANS2. There are some associated forms (e.g. CLS MEANS 1A, 1B, 1C, L17) which may be relevant, depending on employment circumstances.

Where work is processed

In September 2009 the LSC published an interactive guide to which LSC offices process which types of work. It is regularly updated, the most recent at the time of writing being February 2011. None of the documents makes clear what changes have been made so have fun checking.

Legislation

• Community Legal Service (Financial) (Amendment) Regulations 2009 — These Regulations increase the financial eligibility limits for civil legal aid and ensure the non-means-tested provision of legal representation in certain ‘deprivation of liberty’ cases (s21A appeals). In force 1/4/09 (DOL funding) and 6/4/09 (uprating).

Changes

• The LSC announced on 31/7/09 that it will postpone the tender for the new civil legal aid contracts until late 2009 or early 2010, the new 3-year contracts will commence in October 2010, and current contracts will be extended for 6 months.

• See Consultations page for details of the LSC's consultation on civil bid rounds for 2010, which closed on 23/1/09.

• See Consultations page for details of the consultation on proposed amendments to the Community Legal Service (Financial) Regulations 2000; see Community Legal Service (Financial) (Amendment) Regulations 2009 for the response.

• See this letter from the MoJ about the Coroners and Justice Bill 2009 and its effects.

• Community Legal Service (Financial) (Amendment No 2) Regulations 2009 — In force 6/8/09. These Regulations make it clear that in assessing whether a person is, or is any longer, financially eligible, the LSC must be satisfied that the person is not only in receipt of the benefits but also entitled to them.

See also

• Peer review
• Transaction criteria

Other resources

• LSC home page

• LSC, 'RM Assurance Process: Guidance for RM Visits', version 8, 21/10/10

• "Mental health and other civil areas" from LSC website

• Legal Services Commission, 'Community Legal Services: Keycard No 47' (April 2011). This document is helpful if working out financial eligibility for Legal Help. The changes in this edition are that: (1) references to LSC Manual 2F are changed to 2E; (2) dependents' allowances are increased. In force 11/4/11.

• Carter review website (archive)