Legal Aid

From WikiMentalHealth

[Draft article]

Payments

Fixed fee scheme

Most mental health legal work is done under a legal aid fixed fees scheme introduced by the Legal Services Commission in January 2008^[1] following the Carter review. The latest piece of guidance, called "Principles of Mental Health Fees", was published in November 2008.^[1]

The following fees, which were revised on 1 July 2008,^[1] are payable:

• Non-MHRT work: £281 (increased from £275) per case.

• MHRT work:

1. Level 1: "Initial Advice" - £143 (increased from £140). Covers one visit to the client and a small amount of immediate follow-up work.
2. Level 2: "Negotiation and Preparation" - an additional £357 (increased from £340). This covers all preparation work for the tribunal and any negotiation with third parties.
3. Level 3: "Representation at the Mental Health Review Tribunal" - an additional £327 (increased from £311). This covers representation at the final tribunal hearing.

• Additional payments:

• "Adjourned hearing fees" of £130 (increased from £124) for attendance at tribunal hearings which are adjourned

• "Remote travel payments" for travel to a small number of hospitals - £77 (increased from £75) for Level 1 MHRT work plus £153 (increased from £150) for each of Levels 2 and 3; alternatively, £153 (increased from £150) for non-MHRT cases.

• "Exceptional cases" are paid by the old hourly rate (either Legal Help or Controlled Legal Representation) if the hourly rate would amount to at least three times as much as the fixed fees.

The position in relation to work done in applying to the Tribunal for a review can be summarised as follows (but please read the original LSC document):^[1]

• If the appeal is unsuccessful all the work was part of the level 3 payment, i.e. unpaid-for unless it turned the case into an "exceptional case".

• If the Tribunal sets aside its decision and a certificate (for Upper Tribunal work) is not subsequently issued then you can claim an additional fee equivalent to the "adjourned hearing fee". Then you would recalculate whether or not you have an exceptional case.

• If the Tribunal sets aside its decision and a certificate is subsequently issued then the work done already can be claimed under the certificate. Unless the work is already being claimed as an exceptional case.

• If a fresh Tribunal hearing is held then this is a new matter start. You can claim level 3 and, if justified, level 1 and 2 payments.

• If you do work on an appeal but didn't represent the patient at the original Tribunal hearing, then you can claim level 1 and 2 payments, but not level 3 or bolt-on payments.

Hourly rates

The following were the London hourly rates before the fixed fees scheme was implemented:

• Preparation & attendance: CLR £61.20; LH £57.35
• Travel & Waiting: £30.30
• Routine letters & calls: £4.40
• Advocacy: £69.60 (CLR only)

[Insert current rates, rates for other areas, certificate rates.]

Types of Legal Aid

Legal Help and Controlled Legal Representation

There is now a single Legal Aid form for both of these. Whether a case would be Controlled Legal Representation or Legal Help is now only relevant in relation to "exceptional" cases. Non-MHRT and Level 1 work is calculated at Legal Help rates. Level 2 and 3 work is calculated at CLR rates.

LH is means tested;^[1] CLR is not. Clients on certain state benefits, including Income Support, are automatically eligible for Legal Help. Evidence of the client's benefits situation should be placed on the file, although there are exceptions. Evidence could be from:

• a letter to the client from his benefits office;
• the hospital MHA/Patient Affairs office;
• the Benefits Agency;
• information in social circumstances reports.

In relation to merits, LH has a "sufficient benefits test"; the grant of CLR must be "reasonable" (it invariably is).

If you have a MHRT file open then any work related to that (hospital managers' hearings, CPA meetings, etc) must be claimed as part of that MHRT file. Non-MHRT work covers such things as:

• initial advice on mental health law;
• CPA meetings;
• hospital managers' hearings;
• initial work on potential judicial review cases;
• non-mental health "tolerance" work, where the firm's contract permits this.

However, non-MHRT mental health work becomes part of any MHRT case within the current period of eligibility (whether before or after the non-MHRT case). For further guidance on matter start boundaries, "rolling-up" of files, and when files should be billed, see the various LSC guidance documents.

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^[1] 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.

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.^[1] At the time of writing the most recent forms were dated 1 October 2008.

Contracting forms

The main ones are:

• "Controlled Work 1 & 2 Mental Health"

• "Controlled Work Counsel - Mental Health" (an application for Prior Authority to incur enhanced rates for counsel)

• "EC Claim 1: Exceptional Cases"

Application forms

These are required for judicial reviews and some other matters. The non-family application forms are:

• "CLS APP 1 Application for CLS Funding Certificate: Legal Representation"

• "CLS APP 6 Emergency application via fax"

• "CLS APP 8 Application for amendment or prior authority in civil cases"

• "CLS APP 11 Application for discharge"

Means forms

These are required in conjunction with the application forms. The main ones are:

• "CLS MEANS 2: Means assessment form for people who receive Income Support" - for clients on IS, income-based JSA, income-based Employment and Support Allowance or Guarantee Credit.

• "CLS MEANS 1: Financial assessment form" - 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.

References

Resources

• LSC home page

• "Mental health and other civil areas" from LSC website