Legal Aid information archive
This page gives some basic information on how the Legal Aid system works in mental health law. You should consult the three lever arch files of the LSC Manual for details. [More detail, and references to the manual will be added shortly.]
Proposed changes from January 2008
This page deals with the current scheme, but bear in mind that from January 2008 the Legal Services Commission propose to introduce a new scheme based on graduated fixed fees (see External Links below). In summary, the following fees will be payable:
- Non-MHRT work: £275 per case.
- MHRT work:
- Level 1: "Initial Advice" - £140. Covers one visit to the client and a small amount of immediate follow-up work.
- Level 2: "Negotiation and Preparation" - an additional £340. This covers all preparation work for the tribunal and any negotiation with third parties.
- Level 3: "Representation at the Mental Health Review Tribunal" - £311. This covers representation at the final tribunal hearing.
- Other payments:
- "Remote travel payments" for travel to a small number of hospitals - £75 for Level 1 MHRT work plus £150 for each of Levels 2 and 3; alternatively, £150 for non-MHRT cases.
- "Adjourned hearing fees" of £124 for attendance at tribunal hearings which are adjourned
- "Exceptional cases" are paid by the old hourly rate if the hourly rate would amount to three times as much as the fixed fees.
Types of Legal Aid
Controlled Legal Representation
This type of Legal Aid is used for Mental Health Review Tribunal matters. Attendance at CPA meetings prior to a MHRT hearing (which the peer review guidance says should always be considered) is claimable under CLR. However, the LSC's position now is that attendance at hospital managers' hearings, even if held prior to a MHRT hearing, must be claimed under Legal Help instead.
The relevant form is CW2.
CLR is non-means-tested. The only other non-means-tested Legal Aid is for legal advice when detained in a police station, and when the state is taking your children from you.
In theory CLR is merits-tested, as the grant of CLR must be "reasonable". In practice is heard to envisage it ever not being reasonable, although form CW4 is designed for this circumstance.
Legal Help
This is used for non-MHRT mental health work, such as:
- initial advice on mental health law;
- CPA meetings, where there is no pending MHRT hearing;
- hospital managers' hearings;
- initial work on potential judicial review cases;
- non-mental health "tolerance" work, where the firm's contract permits this.
The relevant form is CW1.
It is means-tested. See the Keycard mentioned below for eligibility details. Clients on certain state benefits, including Income Support, are automatically eligible for Legal Help. Evidence of the client's benefits situation is required to be placed on the file, for example from:
- a letter to the client from his benefits office;
- the hospital MHA/Patient Affairs office;
- the Benefits Agency;
- information in social circumstances reports.
Legal Help is also merits tested. The "sufficient benefits test" should be considered.
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.
Methods of payment
Most firms still are paid under hourly rates, but some are paid using "tailored fixed fees" for controlled work (i.e. CLR and LH). Work done under public funding certificates continue to be paid under hourly rates for all firms.
The government hopes to introduce a national scheme of graduated fixed fees in January 2008, where every firm is paid the same fixed fee which depends on the stage that the case reaches.
Hourly rates
The following are the London rates for CLR and LH.
- Preparation & attendance: CLR £61.20; LH £57.35
- Travel & Waiting: £30.30
- Routine letters & calls: £4.40
- Advocacy: £69.60 (CLR only)
Upper costs limits
The usual upper costs limit is £500 for Legal Help and £1500 for Controlled Legal Representation. A firm could request a higher initial limit for its files, such as £1500 for LH and £3500 for CLR.
If it will be necessary to go above the UCL then an extension request must be sent to the LSC in advance. This is done on form CW3.
Tailored fixed fees
Some firms opted to be paid via fixed fees. The hourly rates and upper cost limits do not therefore apply. The fees vary from firm to firm, and were initially linked to the case average for the year before the scheme came into force.
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.
Contracting forms
These are the main forms which are needed day-to-day.
The main ones are:
- CW1 - Legal Help (LH). For non-MHRT cases. Means tested (see "Keycards").
- CW2 - Controlled Legal Representation (CLR). For MHRT applications. Non-means tested.
- CW3 - Application for extension of upper costs limit.
- Guidance on CW3.
Application forms
These are required for judicial reviews and some other matters.
The main ones are:
- CLSAPP1 - The application for Legal Representation (or Investigative Help)
- New applications checklist
- CLSAPP8 - Application for amendment (e.g. costs or scope amendment) or prior authority
- CLSAPP11 - Application for discharge, at the end of the case
Means forms
These are required in conjunction with the application forms.
The main ones are:
- CLS MEANS2 - for clients on IS, income-based JSA, or pension credits.
- CLS MEANS1 - 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.
- CLS MEANS1 'The guide'
Keycards
The keycards provide useful guidance on filling in the means assessment and CW1 (Legal Help) forms.
External links
Mental Health Standard Fee Scheme from January 2008