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.
This page is largely of historical interest as the LAA has now published guidance on the subject (Legal Aid Agency, 'Contract Management: Mental Health Guidance April 2014 v2.0' (14/4/14) - see Legal Aid page).
The Legal Services Commission has developed an unpublished policy in relation to non-tribunal matters:
- In order to invoke means-free funding in accordance with 3(1)(e) of the Community Legal Services (Financial) Regulations 2000 (as amended) the main focus at the outset of the case must be to apply for a tribunal.
This policy is not in accordance with the regulations, specification or published guidance. It can cause problems, in particular, when EC1 claims are rejected; however, it appears that the LSC invariably backs down on appeal, at least when an appeal is considered by an independent assessor.
[UPDATE: The LAA have published guidance which covers non-means-tested non-tribunal work. Legal Aid Agency, 'Contract Management: Mental Health Guidance April 2014 v2.0' (14/4/14) is linked to on the main Legal Aid page.]
There are three main ways to appeal against a rejection decision: to argue that the incorrect test has been applied, to argue that the incorrect test is met in any event, and to obtain evidence of means covering the relevant period. These will be considered below. In the quotations below, emphasis has been added by the use of italicisation.
Arguments against the old LSC position
The incorrect test has been applied
Regulation 3(1)(e) of the Community Legal Service (Financial) Regulations 2000 provides for non-means-tested funding in the following circumstances:
- Legal Help in potential proceedings, or Legal Representation in proceedings or potential proceedings, under the Mental Health Act 1983 or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984, where the client's case or application is, or is to be, the subject of proceedings before the First-tier Tribunal or the Mental Health Review Tribunal for Wales.
The natural reading of these words clearly encompasses a case where a patient is subject to the Mental Health Act and is advised about potential tribunal proceedings.
Paragraph 9.15 of the mental health specification states:
- All services provided to a patient whose case is the subject of the proceedings or potential proceedings before the MHT will not be subject to a means assessment.
Paragraph 9.16 of the specification states:
- Where the matter started covers advice to the patient in relation to both the MHT as well as other Non-MHT issues you should not conduct a means assessment.
The LSC's unpublished policy cannot be reconciled with these paragraphs, which make clear that in a case where the client is advised in relation to the tribunal (whether or not alongside non-tribunal issues) there should not be a means assessment.
The 'rolling-up' rules in the specification require that many real-life problems, over the course of an eligibility period, must be subsumed into one Legal Aid matter. This means that it is often impossible to say whether one thing is or is not the 'main focus at the outset of the case', and therefore it is impossible sensibly to have a general rule based on that question.
The 'Principles of Mental Health Fees' document (February 2009, version 5) refers to the Unified Civil Contract but it is assumed that the guidance remains valid because (a) it remains available on the LSC's website on the main 'Pay rates and fee schemes page' and (b) the regulations and specification on which is based have not changed in any material way. It states the following:
- Matters conducted under Legal Help (eg those attracting the L1 non-MHRT Fee) will ordinarily require you to carry out a means assessment. However, if advice has been provided on an application to the tribunal at the outset and such an application is a realistic possibility, provided that this is clearly recorded on the file the means assessment need not be carried out. For the avoidance of doubt, if the client is not eligible to apply for a tribunal at the time of the initial attendance a means assessment must always be carried out.
Again, this is inconsistent with the criteria in the unpublished policy. There is no mention in the 'Principles' document of any requirement for the tribunal advice to be the 'main focus'; it is sufficient that the advice has been given.
Question and answer document
The 'Mental Health Fee Scheme and Specification: Additional Questions and Answers following Provider Workshop Events' document (dated 17/1/08)‡ which is available on the LSC's website is assumed still to be valid for the reasons given above. It contains questions and answers which are relevant to the issue under consideration:
- 27. The client is given initial advice on an MHRT application, no application takes place and a complaint arises which the provider then deals with. Should the client be means tested and at what point?
- No – and the case should be recorded as non-MHRT non-means tested.
- 29. I receive an urgent telephone query from client and I advise them not to pursue an MHRT hearing yet. The client subsequently has a Hospital Managers' Review, for which further advice is given. Is this wrapped up as an MHRT matter, or should the client be means-tested at the outset in order to safeguard against future non-MHRT matters?
- No – this is not an MHRT matter. The case should be recorded as Non-MHRT and is not means-tested.
- 34. Why is there a box for Non-means tested Non-MHRT on the combined LH/CLR form?
- This is for cases where initial advice on the MHRT is given (so no means test is applied), but as a result of advice no application is made, so any issues that are progressed will attract the Non-MHRT fee.
For obvious reasons these are all inconsistent with the test proposed in the unpublished policy.
The incorrect test is met in any event
The reasons for rejecting the claim will be along the lines of 'the initial attendance note states that you attended on the client to advise your client on his current section', or 'although limited advice about routes to discharge via Hospital Managers hearings and Tribunal applications was provided, the focus of the case was the CPA itself and as such a means assessment should have been carried out'.
The following matters, which may be raised by the LSC, are irrelevant: (a) the fact that the client was advised about other matters (e.g. a CPA, or other routes to discharge), as it would be improper not to give this advice where necessary; and (b) the fact that the client made no application, as this is the situation non-tribunal matters were designed for.
The LSC assessor is unlikely to have given the file any detailed consideration, so it may be possible to provide quotations from the file to demonstrate that on a proper reading of the file the main focus of the case at the outset was advice in relation to a tribunal application.
Evidence of means covering the relevant period
If evidence of financial eligibility can be obtained then the file should be paid for. It is possible to seek a 14-day extension to the usual 28-day deadline for making an appeal (specification paragraph 6.69), so that evidence can be obtained from one of the usual sources.
Point of Principle
The LSC asked for the issue to be considered by a Costs Appeals Committee, seeking the following Point of Principle of General Importance in the hope of reinforcing the unpublished policy:
- A means assessment must be undertaken at the outset where there is no immediate intention to pursue an application to the MHT. There must be reasonable expectation to pursue an application to the MHT at the outset of the matter. Merely advising on the possibility of an application is not enough to claim the non-means tested fee as by its very nature Legal Help must be means tested.
However, on 17/10/12 the Costs Appeals Committee rejected the Point of Principle, giving the following reasons:
- The proposed PoP appears to be an attempt by the LSC to cut down the scope of 12.46 of the Unified Contract Specification. The Committee considered the matter and agreed that such a reduction of scope was wholly inappropriate. It is obvious that advice about the Tribunal and possible applications and timing of such will be given on each and every consultation with a detained mental health client. This is clearly envisaged in the wording of 12.46 and it would be thoroughly undesirable to seek to circumscribe that in any such way proposed. The PoP would not be certified.
(The reference to paragraph 12.46 of the Unified Contract Specification is an error: the current provision is paragraph 9.15 of the 2010 Standard Civil Contract Specification.)
The logical conclusions of the CAC decision are:
- 'Advice about the Tribunal and possible applications and timing of such' comes within the scope of paragraph 9.15.
- If this advice is given then, by virtue of paragraph 9.15, the matter is non-means-tested.
- The CAC decision is based on the advice coming within the scope of paragraph 9.15, so:
- Although the decision mentions 'a detained mental health client', the reasoning applies equally to any client who is subject to the MHA and receives the relevant advice (such as a CTO or conditionally-discharged client).
- Eligibility to appeal to the tribunal is not mentioned as relevant to whether the advice comes within the scope of paragraph 9.15.
- In summary, therefore, 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.
The specification states that a Point of Principle certified by the CAC is binding on all future assessments and appeals (para 6.87). However, in this case no Point of Principle was certified and the LSC intend to carry on as before. However, it is submitted that a refusal to follow its reasoning would not withstand challenge.