Legal Aid guidance documents

The most recent LAA guidance for mental health law generally is ‘Contract Management: Mental Health Guidance April 2014 v2.1’ (updated 1 August 2014) (which replaces the April 2014 version ) Legal Aid Agency, 'Contract Management: Mental Health Guidance' (v2, 3/4/17) . The press release (4/4/17) for this updated guidance states: "Updated guidance has been published which helps providers with questions about mental health work under the 2014 Standard Civil Contract. Development of this update follows constructive discussions with the Mental Health Lawyers Association and the Law Society. The updated document clarifies a small number of provisions in the 2014 Standard Civil Contract. For example, the requirements for triggering a Level 2 (Mental Health Proceedings) Fee. The questions covered in the document are the most common ones raised by providers since the introduction of a standard fee scheme for this work in 2008."

The LAA has published Legal Aid Agency, 'Tribunal appointed representatives in mental health (rule 11(7) cases)' (8/6/17). This is guidance which has been provided to LAA auditors. In its summary section it states that: (1) No work on a client's case should be started before an application for legal aid has been made and properly signed. (2) The provider should in general always seek to visit the client to see if he has capacity and is willing to apply for legal aid himself (subject to bullets 6 and 7 below). (3) If the client lacks capacity then any person can make the application for legal aid on his behalf. That individual does not otherwise have to be involved in the case. (4) If the client lacks capacity or is unwilling/unable to sign the application form (and it is not appropriate for a third party to apply on his behalf) the provider can sign the application form in accordance with paragraph 9.40 of the contract specification. (5) In all Rule 11(7) cases, we expect to see the authority from the tribunal appointing the firm/individual on the file (usually an email). (6) If it is clear from the outset of the case that client lacks capacity or will be unwilling to sign the application form then the provider does not necessarily need to visit the client to see if he is unable/willing to apply. (7) In these circumstances, the provider should justify on file why he has not made any such attempts (e.g. the client clearly lacks capacity and/or has informed staff that he does not wish to see a solicitor).

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.

The Government website has a page entitled Legal aid: points of principle of general importance (PoP).

All pages in this "Legal Aid" category...

Legal Aid archive

Legal Aid eligibility

Main types of funding

Disbursements, including independent experts

Escape fee cases

Hourly rates and fixed fees

Legal Aid Agency Liverpool Office

Legal Aid for appeals

Legal Aid forms

Legal Aid guidance documents

Legal Aid in the Court of Protection

Peer review

Standard Civil Contract 2018

Standard Civil Contract 2024

The mental health fee scheme

Transaction criteria