This page contains information about the Legal Aid system for mental health law.
- Legal Aid Agency, 'Headline intentions for civil legal aid contracts from April 2018 (20/1/17)†. The LAA anticipate the procurement process for 2018 contracts is likely to start in April 2017, with services commencing on 1/4/18. Details of the process can be found in the document. It states the following in relation to mental health law: "We intend to change the case requirements under the current mental health supervisor standard to increase the number of tribunal cases to be evidenced from 5 to 10. We also intend to introduce a secondary route for supervisors that supervise a mixture of tribunal work and mental capacity work. Supervisors following this route will need to evidence 5 tribunal cases and 5 mental capacity cases. All supervisors following either route will additionally need to evidence 2 non-tribunal mental health cases. We also intend to limit the number of hearings where representation can be conducted either by counsel or an agent who do not carry out contract work for the provider for at least 14 hours per week. The Law Society is currently developing and implementing specialist panel accreditation for Mental Capacity (Welfare) Cases. Once introduced we wish to use this panel accreditation as the basis to restrict authorisation for Court of Protection work to offices with at least one accredited individual who is actively involved in delivering this work. We intend to implement this at the earliest practical opportunity and further information will be published once details of the accreditation scheme and implementation timescale are clearer."
Under the Standard Civil Contract 2014, commencing on 1 August 2014, all advocates, except external counsel, appearing before the Mental Health Tribunal must be members of the Law Society’s mental health accreditation scheme.
The current version of all Legal Aid forms should be used: they are available online on the Government website: see Legal Aid forms.
The mental health category covers civil legal services in relation to the Mental Health Act 1983 and Mental Capacity Act 2005. This includes tribunal advocacy. Details of which cases are included can be found in the Category Definitions 2014, and schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Note that the Legal Aid Agency’s interpretation of the contract has historically been inconsistent, and this is likely to continue, so no document (including this one) can be relied upon as authoritative. In cases of doubt the LAA should be contacted directly.
Main types of funding
Certificated (licenced) work
Here is a non-exhaustive list of work requiring a public funding certificate:
- Cases before the Upper Tribunal (judicial reviews and appeals of First-tier Tribunal decisions).
- High Court judicial reviews.
- Court of Protection ‘best interests’ or ‘deprivation of liberty’ cases.
- High Court or county court damages claims.
- Nearest relative displacement actions in the county court.
There are two types of Legal Representation funding under a certificate: (a) ‘Investigative Representation’, which is limited to the investigation of the strength of contemplated proceedings (there is some overlap with Legal Help); (b) ‘Full Representation’, which is the main type.
There are two types of certificate: (a) a ‘substantive certificate’, which is granted by the LAA; (b) an ‘emergency certificate’, which is granted by the firm under delegated functions (if it has a contract in the relevant category) for urgent steps.
Certificated work is means-tested, except in certain ‘deprivation of liberty’ cases.
The relevant forms are the application forms (initially APP1) and the means forms (usually MEANS1 or MEANS2). When the costs (e.g. £2,500) or scope limitations (e.g. up to a certain hearing) on the certificate need to be amended, form APP8 is used.
Most work in mental health law is carried out under the contract as controlled work. Each firm is allocated a certain maximum number of matters (‘new matter starts’) per financial year.
|Types of funding:
||Sufficient benefit test
|Types of matter:
||Level 1 tribunal
||Level 2 tribunal
||Level 3 tribunal
There is now a single Legal Aid form for both funding types (CW1&2 MH).
The remainder of this page considers in detail the table above.
The following are the criteria for qualification for Legal Help (Civil Legal Aid (Merits Criteria) Regulations 2013):
- (a) it is reasonable for the individual to be provided with legal help, having regard to any potential sources of funding for the individual other than under Part 1 of the Act; and
- (b) there is likely to be sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the cost of provision of legal help.
The sufficient benefit test has previously been described as ‘primarily a test of whether a reasonable private paying client of moderate means would pay for the legal advice and assistance’ (LSC Funding Code 4.11 at Manual para 3C-037.1).
The following is the criteria for qualification for Legal Representation in Tribunal cases:
- it would be reasonable in all the circumstances of the case for the individual to be provided with full representation.
In Mental Health Tribunal cases it invariably is reasonable.
For means-tested matters, the relevant part of the Legal Aid form needs to be completed fully.
Tribunal matters (i.e. where the client applies to the tribunal) are non-means-tested. Appeals against DOLS under MCA 2005 s21A are also non-means-tested while the DOLS authorisation remains in force or is extended by the court (UF v A Local Authority  EWHC 4289 (COP),  MHLO 105).
Most non-Tribunal matters are means-tested, but some are non-means-tested. One interpretation of the regulations is that means-testing does not apply to any matters where advice about the Tribunal and possible applications and timing of such is provided to a client who is subject to the MHA. However, it would be wise (and usually not difficult) to follow the April 2014 LAA guidance which states that the following conditions must be met:
- 1. The client must be eligible to apply to the MHT (or the representative could not have reasonably discovered either before or during the first attendance that the client was ineligible to apply).
- 2. The advice given must satisfy the sufficient benefit test.
- 3. “There must be a reasonable expectation on behalf of both the client and provider to pursue an application to the MHT (notwithstanding where a client subsequently changes their mind and decide not to apply).” The footnote gives these examples: (a) decision to apply to MHT made at initial attendance (OK); (b) client says to provider ‘I want a tribunal’, ‘I want to get out of hospital’ or ‘I am thinking about a tribunal application but want to discuss it’ (OK); (c) client says to provider ‘I want to get out of hospital but I don’t want a tribunal’ (not OK).
- 4. The reasons for not means testing must be stated on file, for example if the representative advises the client not to proceed.
- 5. Where the client has capacity to do so, he must have instructed the representative to give Tribunal advice.
In means-tested cases, if the client is on a ‘passported’ welfare benefit (e.g. Income Support) then the ‘income’ part of the form can be left blank, but the capital part must be filled in fully. The Keycard (edition 51, April 2015) is helpful when completing the form.
No independent evidence of capital eligibility is required, unless you have some reason not to believe what the client tells you. If you believe that the potential client’s apparent ineligibility is delusional then you may wish to look into this also.
For income, evidence of means must be sought, as outlined in the LAA’s April 2014 guidance. The Legal Aid form itself provides guidance on steps to take if the patient does not have evidence to hand (although the LAA take a stricter view than this in practice):
- If no, please record justification or exceptional circumstance. In relation to clients detained under the Mental Health Act, you are required to attempt to obtain oral or written confirmation of the position (e.g. type of benefit received) from the ward manager or social worker where practicable.
You can also write to the hospital’s Mental Health Act/Patient Affairs office or the Benefits Agency, or rely on social circumstances reports which specify which benefit is received. The evidence should relate to the month preceding the client’s signature and should state which benefit the client receives.
Further details are available on the Government website.
The ‘mental health fee scheme’
The rules are set out in paras 9.48ff of the Civil Specification.
Cases are paid either:
- (a) on a fixed-fee basis, depending on the type of case and level reached; or
- (b) on an hourly rate, if that would amount to at least three times as much as the fixed fee (these are called ‘escape fee cases’).
This section will consider the payment system in detail.
This fee covers all work which does not include an application to the Tribunal (whether because the client was ineligible to apply or chose not to) – for example attendance at a hospital managers’ hearing.
If a non-tribunal fee is claimed for a matter then none of the MHT fee levels can be claimed (and vice versa).
MHT Fee Level 1 – Initial advice
This covers the following (specification para 7.63):
- This fee level covers initial advice in any case where the Client is eligible and submits or has submitted an application to the MHT. It covers the work done in making an initial visit to the Client, and follow-up work such as sending initial letters of instruction or making the application to the MHT if none has been made.
If a Tribunal application has been made before your meeting with the client then you can apportion part of your initial meeting as ‘Level 1’ and part as ‘Level 2’.
MHT Fee Level 2 – Negotiation & Preparation
This covers the following (paras 7.65 and 7.66):
- This fee level begins once the initial advice has been given and an application has been made to the MHT. It includes all negotiation with third parties (such as doctors and hospital managers) and all preparation for the MHT hearing
- .… You can claim the Level 2 fee only when you have carried out 30 minutes of preparation or advice or had separate communication with other parties on legal issues.
It covers all hospital managers’ hearings, CPA meetings, or other meetings, which take place prior to the Tribunal hearing, in addition to considering reports and medical records, further attendances on the client, etc. Prioritise making the application to ensure that level 2 is claimable.
MHT Fee Level 3 – Representation before the MHT
This covers the following (para 7.69):
- This fee level primarily covers the act of representing the Client at the MHT and any aftercare services.
This fee is payable for attendance at the Tribunal hearing (or, if there is more than one, for attendance at the final one).
Adjourned hearing fee
This covers the following (para 7.70):
- When a MHT hearing is adjourned or is postponed or cancelled on the day at the request of the MHT or Responsible Clinician, or in circumstances where you make a request to adjourn, postpone or cancel, and where you could not have otherwise reasonably avoided making such a request, and you have already incurred travel costs and/or some representation costs, then you may claim an Adjourned Hearing Fee.
In cases where a hearing is adjourned (or there is a deferred conditional discharge) the Level 3 fee can be claimed for the last hearing which takes place; the ‘adjourned hearing fee’ (below) is payable for all other hearings – alternatively, it is possible to elect to claim the adjourned hearing fee for all hearings (this would be preferable if it leads to the case becoming an escape fee case).
Remote travel payment
This ‘bolt-on’ payment is potentially payable for travel to certain hospitals. At the time of writing there have never been any hospitals attracting this payment. The fee is payable once per level, and is different for different levels.
Escape fee cases
In order for a matter to become an escape-fee case its hourly-rate costs must exceed
- Three times the total of all fee levels payable plus
- The total of all additional payments payable (not three times this element).
The example given in the specification (para 7.81), which involved a Tribunal case with two adjournments followed by a final hearing, is:
- (3 x (L1 fee + L2 fee + L3 fee)) + Adjournment fee + Adjournment fee
The LAA scrutinise all escape-fee case claims, in order to check that the proper amount has been claimed (in other words, to nil assess or reduce the claim to below the escape-fee threshold if possible). There is an appeal procedure.
Issues arising out of one period of eligibility are all ‘rolled up’ into one matter start, with the exception of the situations under paragraph 7.23 discussed below. So hospital managers’ hearings and CPAs will get rolled up with the appropriate Tribunal matter. These ‘rolling up’ rules do not apply to:
- Conditionally-discharged patients. These patients have a new matter for each legal problem, without any rolling up.
- Automatic reference Tribunal matters (LAA policy). These matters are treated as ‘standalone’ and do not roll up with other matters.
A hospital managers’ renewal hearing belongs to the eligibility period during which the RC’s decision to renew was made (i.e. possibly not the period during which the hearing takes place). It will be rolled up with the previous period’s matter (if any) OR claimed as a separate matter (if there was no matter in the previous period).
Matter start boundaries
For detained patients, new matter starts have to be opened ‘Upon the following events … for any subsequent work on a new legal issue’ (specification 7.23):
- The client enters a new eligibility period.
- There is a change in section type.
- The client is discharged, including onto a CTO.
- The client withdraws and (within the same period of eligibility) reapplies.
The LAA’s April 2014 guidance, and the August 2014 specification, make clear the LAA position that a change in section type between Tribunal application and hearing does not result in a ‘new legal issue’. Part 3 of that guidance considers the matter further.
Hourly rates and fixed fees
The following are the relevant hourly rates for this purpose (Civil Legal Aid (Remuneration) Regulations 2013/422 ). Hourly rates and fixed fees were reduced by 10% for cases started on or after 3/10/11: the current rates are shown in the tables below.
||Pre July 2008
||Post July 2008
|Att with csl
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.
The following are the relevant fixed fees:
||Pre July 2008
||Post July 2008
|Fee for level
||Fee for level
||Fee for level
|Remote (Non, L2, L3)
The position in relation to work done in applying to the Tribunal for a review and/or permission to appeal is:
- 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 ‘escape-fee case’.
- If the Tribunal sets aside its decision then you can claim an additional fee equivalent to the ‘adjourned hearing fee’. Then you would recalculate whether or not you have an escape-fee case.
- If a certificate is subsequently issued, then the work done may be claimed under the certificate. Unless the work is already being claimed as an escape-fee case.
- If a fresh Tribunal hearing is held then this can be claimed as a new matter start (you can claim level 3 and, if justified, level 1 and 2 payments) or as a continuation of the previous one.
- 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.
LAA contact details
If you have queries about the fixed fee scheme then the LAA’s Liverpool office can be helpful. Their phone number is 0151 235 6750 (this is a new number for use from August 2014).
Since July 2016, all mental health high cost case bills are being processed by the High Cost Case Team in South Tyneside (no longer by the Liverpool team). The address is: Legal Aid Agency, Unit B8, Berkley Way, Viking Business Park, Jarrow, South Tyneside NE31 1SF. DX 742350 JARROW.
Disbursements, including independent experts
Maximum hourly rates for experts are as follows.
|On or after 1/4/13: Civil Legal Aid (Remuneration) Regulations 2013/422
|On or after 2/12/13: Civil Legal Aid (Remuneration) (Amendment) Regulations 2013/2877
Travelling can be claimed at £40 per hour.
There are no fixed rates for social workers and the LAA will accept ‘reasonable’ rates, and want to see three quotes.
Clear and detailed justification for obtaining expert reports, and attendance at hearings, should be given on the file.
There is no mechanism (except in certificated cases) of obtaining prior authority from the LAA to incur disbursements.
Some firms include a ‘you get paid when and as much as I get paid’ clause into letters of instruction.
From 1 September 2014 the LAA will not pay travel expenses to court for journeys within a 10 mile radius of the court unless there is justification on the file, although the hourly rate for travel time is still payable. They do not treat the Tribunal as a court for this purpose.
The most recent LAA guidance is ‘Contract Management: Mental Health Guidance April 2014 v2.1’ (updated 1 August 2014) (which replaces the April 2014 version‡).
The 'Escape Cases Electronic Handbook' (v1.1, 17/7/14)‡, used by LAA caseworkers, is available online and includes a section on mental health escape fee cases.
A document entitled Legal Aid Agency, 'Mental Health Common Errors' (v1, 6/2/15, published April 2015) contains the following headings: Claiming Errors; Tackling poor quality; Web links to documents. Details in relation to the following claiming errors are set out in the document:
- 1. Incorrect coding.
- 2. Failure to conduct a means assessment for the client in a non-MHT matter, where no advice has been given with regards the Tribunal process, or any advice given was not necessary.
- 3. Failure to evidence of client’s means in a non-MHT matters where the client is in detention and there is little/no evidence on file that the fee-earner has undertaken reasonable steps to check whether the ward manager, social workers, family members etc. can confirm the client’s financial position.
- 4. Opening a separate non-MHT matter start and claiming a separate non-MHT fee when it should have been rolled up’ into a concurrent MHT fee.
- 5. Failure to understand matter start rules where the client is the Nearest Relative (NR), particularly with regard to non-MHT and MHT matter start rules.
- 6. Claiming a MHT fee for standalone non-MHT work such as a Hospital Managers Meeting/Review or S117 meeting.
- 7. Claiming the MHT Level 3 Fee where an effective MHT has not taken place, or the provider has not carried out any representation.
- 8. Claiming the MHT Level 2 Fee before an MHT application has been submitted, or where neither 30 minutes work has been done nor negotiations with a third party have been carried out.
- 9. [I]f the provider makes [an s2] application too late for it to be considered by the tribunal ... only the MHT level 1 fee should be claimed.
- 10. Failure to open a new NMS in circumstances where an informal patient is detained under Section.
- 11. Claiming a separate fee in relation to a renewal hearing [in the wrong circumstances].
- 12. Claims for Remote Travel Payments.
- 13. Excessive travel cost claims: the Cost Assessment Guidance indicates a limit of 5 hours unless reasonable justification is evidenced on file.
- 14. Excessive disbursement claims: includes the claiming of Counsel fees (which should be paid out of the fees claimed except where prior authority has been granted to incur a higher rate) and multiple independent expert reports (where they are not justified by the case).
- 15. Consideration must be given to whether attendance at HMH, s117 or CPA meetings is necessary and/or appropriate.
Other relevant guidance documents include the Costs Assessment Guidance 2013 and the Escape Cases Electronic Handbook (July 2014).
The Government website has a page entitled Legal aid: points of principle of general importance (PoP).
Court of Protection
Under the proposed residence test, civil Legal Aid would only be available to those who are lawfully resident (in the UK, Crown Dependencies or British Overseas Territories) at the time the application for civil Legal Aid was made, and also had been so resident for a continuous period of at least 12 months at any point in the past.
There are some proposed exceptions to the residence test. In the mental health context, these are services in relation to ‘the discharge of a patient liable to be detained or recalled’ under the MHA 1983 or deprivation of liberty authorised by the MCA 2005 (draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014).
The Ministry of Justice is, at the time of writing, appealing a High Court decision that the residence test was unlawful (R (Public Law Project) v SSJ  EWHC 2365 (Admin),  MHLO 46).
Firms awarded Legal Aid contracts from 2014
Extension of contract
Details of tender process
This section contains information about the tender process for the 2014 contract
The tender process closed at noon on 25/4/14 and the new contract starts on 1/8/14. All advocates, except external counsel, appearing before the Mental Health Tribunal must be members of the Law Society’s mental health accreditation scheme.
- (1) In the mental health and community care categories, the existing 2010 contract will be extended to 31/7/14, and the proposed timetable for the new contract is as follows: (a) PQQ and ITTs open, mid-Feb; (b) PQQ and ITTs close, mid-March; (c) notification of outcome, late-April; (d) verification process, May to late-June; (e) issue contracts, July; (f) contract start, 1/8/14.
- (2) All organisations meeting the tender requirements will be awarded a contract. Matter starts will be awarded based on lots (details of which have not yet been published). Those bidding in the smaller lots will be guaranteed what they bid for (with the ability to self-grant 50% extra). Those bidding in the highest lot may need to meet additional requirements; they will be allocated the minimum number in that lot, plus whatever matter starts remain after allocation of the guaranteed matter starts.
- (3) In mental health, all representatives before the Mental Health Tribunal must be accredited under the Law Society's mental health accreditation scheme. In community care, it will no longer be possible to qualify as a supervisor via the housing route, and licensed work will no longer be able to be done under tolerance. In both categories an authorised litigator (usually a solicitor or barrister: see Legal Services Act 2007) must be employed.
- (4) Details for other 2010 categories (including public law) will follow, but the intention is to extend the contract to 31/10/15, and tender from late-2014 with contracts starting on 1/11/15.
- This week (week beginning 12 May 2014) we will start to notify Applicant Organisations of the outcome of the tender process for Contracts to deliver face-to-face Community Care and Mental Health Services in England and Wales from 1 August 2014.
- Applicant Organisations that tendered for Community Care Contracts as well as any Applicant Organisation assessed as failing the Mental Health tender process will be notified first towards the start of the week. Notifications of all other Mental Health tender outcomes will then follow a few days later.
A separate letter, detailing the outcome of assessment, will be sent for each Individual Bid an Applicant Organisation has submitted. Letters will include a request for any outstanding information required to verify an Applicant Organisation’s Tender ahead of contract documentation being issued.
- Where an Applicant Organisation has been unsuccessful, rights of appeal are limited and set out at paragraph 10.33 of the Information for Applicants (IFA) document. Details of how to submit an appeal will be included in notification letters sent to unsuccessful Applicant Organisations. If you have been unsuccessful and consider that a right of appeal applies and you wish to appeal you must use the appeals pro forma found in the ‘Tender Documentation’ section of this webpage below.
- 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.
- Legal Aid Agency, 'Mental Health Common Errors' (v1, 6/2/15, published April 2015). This document contains the following headings: Claiming Errors; Tackling poor quality; Web links to documents. Details in relation to the following claiming errors are set out in the document: (1) Incorrect coding. (2) Failure to conduct a means assessment for the client in a non-MHT matter, where no advice has been given with regards the Tribunal process, or any advice given was not necessary. (3) Failure to evidence of client’s means in a non-MHT matters where the client is in detention and there is little/no evidence on file that the fee-earner has undertaken reasonable steps to check whether the ward manager, social workers, family members etc. can confirm the client’s financial position. (4) Opening a separate non-MHT matter start and claiming a separate non-MHT fee when it should have been rolled up' into a concurrent MHT fee. (5) Failure to understand matter start rules where the client is the Nearest Relative (NR), particularly with regard to non-MHT and MHT matter start rules. (6) Claiming a MHT fee for standalone non-MHT work such as a Hospital Managers Meeting/Review or S117 meeting. (7) Claiming the MHT Level 3 Fee where an effective MHT has not taken place, or the provider has not carried out any representation. (8) Claiming the MHT Level 2 Fee before an MHT application has been submitted, or where neither 30 minutes work has been done nor negotiations with a third party have been carried out. (9) [I]f the provider makes [an s2] application too late for it to be considered by the tribunal ... only the MHT level 1 fee should be claimed. (10) Failure to open a new NMS in circumstances where an informal patient is detained under Section. (11) Claiming a separate fee in relation to a renewal hearing [in the wrong circumstances]. (12) Claims for Remote Travel Payments. (13) Excessive travel cost claims: the Cost Assessment Guidance indicates a limit of 5 hours unless reasonable justification is evidenced on file. (14) Excessive disbursement claims: includes the claiming of Counsel fees (which should be paid out of the fees claimed except where prior authority has been granted to incur a higher rate) and multiple independent expert reports (where they are not justified by the case). (15) Consideration must be given to whether attendance at HMH, s117 or CPA meetings is necessary and/or appropriate.
- Non-means-tested non-tribunal matters — The reasoning given in a Costs Appeal Committee decision on a proposed Point of Principle on 17/10/12 would mean means-testing does not apply to matters where 'advice about the Tribunal and possible applications and timing of such' is provided to the client; however, the LAA has since published detailed guidance on the topic.
- Legal Aid audits. Different mental health firms have reportedly been given different information about the current round of audits: (a) that larger firms are selected based on contract size, or (b) that every firm will be audited in the next year or so. The official position is that: (1) the focus is on higher-risk providers, and volume of work will not by itself lead to an audit; (2) "higher risk" is not tightly defined, but is a combination of: (a) does the firm have a history of claiming errors? (b) if so, when these have been brought to the firm's attention, is a fix effectively made? (c) are bills rejected or assessed down higher than the norm? (d) are there significant changes in people at the firm? (3) towards the end of the summer, recent audits will be reviewed to see whether the published guidance has reduced problems (source: John Sirodcar, Head of Contract Management, 8/5/15).
- "Principles of fixed fees", March 2009; "Principles of Mental Health Fees", November 2008 (old version). 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").
- LSC, 'Guide to the changes in reporting Civil Legal Help work' (15/4/11) (staged billing)[Add link]
Other external links can be found throughout the page.