Legal Aid

Guidance

Legal Aid Guidance
Created: Friday, 20 August 2021 11:58 | Changed: Friday, 20 August 2021 12:01 | Size: 470.24 KB

Purpose

The purpose of this page is to provide guidance to practitioners and applicants of Legal Aid.

The Legal Aid Ordinance provides that a function of the legal aid administrator is to publish guidance for applicants and assisted persons about the operation of the legal aid scheme.

The Legal Aid Ordinance and Regulations provides detailed provisions and this guidance does not cover every provision or regulation. The aim of this guidance is to provide supplementary information to clarify areas where there has been a need, request for more detail or where it may assist you in your processes.

This guidance will be reviewed annually.

Glossary:

LAO- Legal Aid Ordinance 2020

LAR- Legal Aid Regulations 2020

LAA- Legal aid administrator

Application forms

The forms have been revised to bring them in line with the requirements LAO and LAR. Drafts were shared with practitioners for comment in the early part of 2021.
The forms are now finalised and implemented for use. They are published on the court website at Legal Aid (courts.gov.fk)
Individual practitioners and firms may wish to convert the forms into different formats eg word, PDF, excel and this is perfectly acceptable.
The forms seek to incorporate all information required by the LAA to make an assessment on both merit and means.
Only the information on the form will be considered in the assessment and any detail in covering letters or emails will be disregarded, save where the LAA seeks clarification.
A covering letter does not need to accompany the application as the submission of the form does not require further explanation; covering letters are therefore not billable.
The Court encourages and promotes service of forms by electronic means.
Where an application form is not fully completed and/or the supporting documents are not provided, the LAA may request the form/documents to be re-submitted. Any correspondence in relation to this will not be billable.
The forms will be reviewed on an annual basis.

Forms

Circumstances when Criminal Advice and Assistance applies to a witness -Form LA1

This is not an exhaustive list but may include:
A victim in a domestic abuse investigation who wishes to retract their statement, in such circumstances independent legal advice should be available.
A young witness where their parent, guardian or appropriate adult is the person being investigated.
A witness who requires the support of an appropriate adult and the appropriate adult is the person being investigated.

Form LA6

Date first instructed

For the purposes of LA6 this is when the practitioner is instructed in relation to court proceedings.
Any work they are instructed in earlier advice and assistance is claimed for separately.

Is the Applicant the subject of proceedings?

In the civil context this means the applicant or respondent.
In family cases it includes the child who is subject to the application.
It also includes a person who is patient in a Mental Health Tribunal or the subject in an application in the court of protection.

Motor vehicle value

An allowance is made in capital assets for the value of any motor vehicles but disregarding the value of one motor vehicle up to £5,000.
If a car is subject to hire purchase it is the equity in the vehicle and therefore the balance of the value of the vehicle minus the loan outstanding.

Partner’s signature

The spouse is no longer required to sign the declaration.
This is because the LAO does not impose a duty on them, whereas s.19 does impose a duty on the applicant and assisted persons;

‘An applicant or assisted person must ensure that all the information provided in connection with an application for, or grant of, legal aid, whether provided by the person or on their behalf, is true, accurate and complete in all material respects’.

Marital Status

In the interpretation section of the Legal Aid Ordinance “spouse” is categorised as:

the person’s husband, wife or civil partner; or
the person with whom the person habitually lives together in a relationship with some or all of the characteristics of a marriage.

The application forms seek to replicate and allow clarity as some applicants may not describe a co-habitee as a spouse.
There are some people who are married but not co-habiting, eg if their partner works overseas.
There is no requirement to provide this information and the purpose of including this section is to act as a prompt for both the applicant and LAA in assessing eligibility, eg for allowance for spouse and to ensure income details of spouse are provided.

Merits test

The applicant should provide sufficient detail to enable the LAA to reach a decision as to whether it is in the interests of justice to grant legal aid.
There should be no assumptions of knowledge and if any reference to a document is made it should be provided with the application.

Eg custody likely due to nature of the offence, reference should be made to sentencing guidelines, save where sentence of imprisonment is mandated by legislation.

Means test

The assessment is based on the applicant’s circumstances at the time of the application.
Income, capital assets, allowance for family members and allowable housing costs are all matters which the LAA considers when assessing eligibility.
Supporting documents should be provided eg bank statements for the previous 3 months, tenancy agreement, payslips for the last 3 months.
Welfare allowances are not taken into account when calculating relevant income and therefore provision of the detailed information to this is discretionary. Documentary evidence that an applicant is in receipt of welfare allowances must be provided, Regulation 8.

Electronic Submission and decisions

The LAA promotes and encourages the use of digital technology.
With this in mind the default is that any application or claim should be submitted electronically with supporting documents, and outcomes will be communicated electronically.
The LAA will accept electronic signatures of applicants and assisted persons.
This is to the streamline the process and save resources in terms of time and paper.
Whilst this is the preferred method, paper applications and claims will continue to be accepted if this is the preference of the applicant or practitioner.

Timescales

The LAA will aim to process applications within 3 working days of receipt.
This includes representation, advice and assistance and prior approval.
Timescales will be subject to other priority work, volume of work and court commitments.
Claims for payment will be processed once a week on a Friday in line with the Courts and Tribunals financial procedure. If claims are submitted by Tuesday we will aim to process this on the Friday of the same week.
Timescales for taxing of bills will vary subject to the volume of documents to consider in the file to be taxed. The LAA will aim to complete the assessment within 2-4 weeks.
The LAA understands there may be occasions when there is an urgent need to consider and process an application, eg late instruction for a court hearing. In these cases the LAA will and does endeavour to expedite the application and communicating the decision.

LAA discretion

Regulation 12, LAR allows discretion to be exercised to grant or vary legal aid to a person who would not otherwise be eligible.
In addition ss.9 and 12 LOA enables the LAA to grant representation for whole or part of criminal proceedings.
Regulation 15(2) states that a legal practitioner must not charge an assisted person privately for legal services provided under the legal aid scheme except with the prior approval of the Administrator.

Examples of circumstances where the LAA may exercise discretion:

Where there is a court direction prohibiting the defendant from cross examining a witness. The LAA may provide funding to cover the cost of this part of the representation and grant approval for a legal practitioner to cover the remainder on a privately funded basis. This is because the court would otherwise be appointing an advocate to cross-examine and therefore it is cost neutral.
Where the matter requires a high level of counsel to attend from overseas eg due to complexity, the legal aid fund may partially fund their attendance.
Where an applicant is unemployed and has savings just above the eligibility threshold, the LAA may grant partial funding from the legal aid fund.

Example of circumstances where the LAA is unlikely to exercise discretion:

Where an applicant has savings and the case does not satisfy the merits test.
Where the individual is just above the threshold for eligibility and has a high proportion of disposable income available to them ie not expended on necessities. If an applicant is choosing to spend disposable non-essential goods or services, it is not with in the spirit of the legal aid purpose allocate public funding.
Where the individual is above the threshold for eligibility and is using a high proportion of disposable income to support their adult children.

Overseas Practitioners

Prior approval must be given before an overseas practitioner can claim a fee. The LAA will apply this only to where the overseas practitioner is attending in person.
Prior approval may be granted where it is in the interests of justice to do so, for example:
- Complexity of the case and capability of practitioners to conduct the matter on the Falkland Islands;
- Where there a number of co-defendants and there is a conflict of interest which prevents the local practitioners from representing all or any of the defendants, eg cut throat defence.
If prior approval is granted the LAA may seek to agree the following fees and disbursements:
- Fixed fee for the instruction and representation. This will be based on the nature of the case, including complexity of issues for trial, volume of evidence, duration of the trial and number of witnesses.
- As with other disbursements, the firm instructing or the individual practitioner is responsible for making all of the arrangements including flights, transfers to and from the airport, accommodation except if express agreement has been obtained from the LAA for the court to undertake any or all of the arrangements. The LAA will ordinarily be agreeable to do this and understands this may be preferable and more practical, but will not undertake task without being requested to do so.
- Regulation 17(2) allows for payment of account without approval for a disbursement of less than £500 and with prior approval for a disbursement exceeding £500. In most cases the LAA will allow payment on account for disbursements in relation to the travel and accommodation of an overseas practitioner.

Reasonable level of funding

This will be assessed on a case by case basis to determine a fair and appropriate amount to adequately advise, assist, prepare and represent, depending on the nature of the case and the whether the matter is disputed.
A legal practitioner must not claim payment from the Fund for any work done that does not progress the case.
It is recognised client’s must be kept up to date but there is a balance to be struck between a need to be updated and client care. For example, where a client regularly and repeatedly makes contact without the need to do so and where this does not progress the case, this will not be funded.
The LAA is unlikely to approve payment for the following:
- Unanswered phone calls.
- A phone call and then an email confirming the content of the call where this adds nothing further.
- An email or covering letter attaching a document only, the fee is payable for the completion of or drafting of the document.
- Client conference soon before a hearing and then on the day of hearing pre-hearing unless there has been a change to instructions.
- Researching law unless it is an unusual point.
- Chain of emails where points could all been covered in one email.
- Internal correspondence.
- Duplication of work eg where is file is re-allocated to practitioner with in the same practice.

Waiting time

Claims from scheduled hearing time to the time the case is called. Includes if case stood down for enquiries save if the practitioner then becomes engaged in representation of another client in another case.

Claim for fees

Fees are to be claimed in 6 minute units rounded up or down to the nearest unit.

Eg 3hrs 22 minutes = 34 units as rounded up

3hrs 20 minutes = 33 units

Information about Guidance

Version 1

Published August 2021

Review August 2022