From Mental Health Law Online
[N.B. This article is incomplete and requires substantial redrafting.]
See Legal Aid News for news stories (up to 2012).
- 01/04/13: To coincide with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the abolition of the Legal Services Commission, both of which take effect on 1 April, the Legal Aid Agency has announced that neither the fixed fees system nor the matter start system is 'fit for purpose'. A spokesman stated that (a) the mental health fixed fee system has reached a level of complexity of which Heath Robinson would have been proud, so from today future payments will be based on a reasonable hourly rate for work reasonably incurred; and (b) the matter start system is unnecessary because of the abolition of fixed fees (in any event, ECHR obligations mean the total number of cases is determined by the number of patients detained by the state), so from henceforth individual firms may carry out as many cases as reputation and market forces permit. The Federation Of Outpatient Lawyers issued the following initial statement: 'This common sense approach seems too good to be true.' [April Fool!]
- Legal Aid Agency, 'Applications for emergency funding in judicial review cases: processes and procedures from 1 April 2013' (March 2013)
- Legal Services Commission, 'Guidance on the use of agents' (10/10/11). This document sets out the LSC's interpretation of the Standard Civil Contract 2010 that a firm with a high secure hospital contract may do the following, either separately or in combination: (1) use agents to allow firms without HSH contracts to represent HSH patients, or (2) use 30% of their own HSH matter starts at HSHs for which they do not have a contract.
Non-means-tested non-tribunal matters
- Non-means-tested non-tribunal matters — If the reasoning given in a Costs Appeal Committee decision on a proposed Point of Principle on 17/10/12 were to be followed, it appears that means-testing would not apply to any matters where 'advice about the Tribunal and possible applications and timing of such' is provided to the client.
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."
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
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 work
|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|
|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.
|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|
|Remote (Non, L2, L3)||150||n/a||n/a||153||n/a||n/a||138||n/a||n/a|
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:
- Level 1: "Initial Advice" - £143 (increased from £140). Covers one visit to the client and a small amount of immediate follow-up work.
- 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.
- 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.
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
See Legal Aid forms
- 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.
- ↑ 2010 category definitions and related guidance
- ↑ "Mental Health Standard Fee Scheme from January 2008", Unified Contract Civil Specification, updated 3/11/08
- ↑ "Principles of fixed fees", March 2009; "Principles of Mental Health Fees", November 2008 (old version - hosted on wiki as as LSC link broken)
- ↑ Mental Health Fee Scheme and Specification: Additional Questions and Answers following Provider Workshop Events, 17/1/08
- ↑ LSC, 'Guide to the changes in reporting Civil Legal Help work' (15/4/11) (staged billing)
- ↑ MH fees table on LSC website
- ↑ Contract Notice: Mental Health amendments from 3/11/08, Mental Health Specification, November 2008
- ↑ Eligibility calculator
- ↑ LSC announces postponement of civil bid rounds for 2010 contracts - press release 31/7/09
- 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.