Post by Colin Henderson on Oct 19, 2013 10:58:31 GMT
It's not something you have to check for clients in the housing line of work very often, but it's worth noting that the new capital rules really are much tighter than before April.
In the old days the capital limit above which legal aid could not be granted was £8,000 for most cases. Simple. And that still applies now for all Legal Help work apart from certain immigration matters. But for certificates there is now a lower limit of £3,000. And as we know it now applies to all clients, even those on so-called "passporting" means-tested benefits. There is no consistency; those benefits themselves pay out in full for everyone with less than £6k capital (though its £10k for housing benefit) and there is a taper up to an upper limit of £16k (but no upper limit for Pension Credit). So what happens between £3 - £8,000 in legal aid land? Is there also a sliding scale of notional contributions to income which will mean a greater contribution to the certificate? Without looking I had assumed it was something like that.
This week I had a client who has lots of health issues and receives IBESA, but it turned out she had £4000 in her (only) account due to an inheritance a while back - it's her rainy day money and she's been carefully preserving it through all sorts of difficulties. So I looked up the new rules on capital contribution which for once are helpfully brief, if brutal, and which I will reproduce in full in case like me you haven't made it to page 121 of the relevant Guidance: "An individual whose disposable capital exceeds £3,000 is required to pay a contribution of either the capital exceeding that sum or the likely maximum costs of the funded service whichever is the lesser."
Blimey ! They want it all, and they want it now. So I had to ask my client if she thought my representation at court to save her home was worth handing over £1000 upfront. She declined, and I don't blame her really. Given that in possession claims it is rare for us not to make a claim for costs to the LAA, she would probably lose that contribution even if (as was very likely) we saved her home under a suspended order. She said she'd rather give up her defence of the claim, surrender her assured tenancy now and use her savings to move into the private sector, because she'd have to do that anyway if we lost and she may not be able to afford it after giving the Agency a quarter of her life savings.
Another minor dent to my ego and another certificate application in the shredder, but more importantly another saveable tenancy lost. Do warn any clients whom you may find with more than £3000 that they will have to pay all the balance, which could be up to £5,000, up front to the Agency if they want so-called legal "aid".
Post by Colin Henderson on Nov 4, 2013 17:04:45 GMT
Because the Agency are generous sorts, if you ever do get a certificate, it's sent out three times! Yes indeed,
First you get a covering letter saying the emergency cover has been granted and reminding you to send the complete application within five days of using emergency powers, though inevitably you get this many days after that time limit has expired. Then you get the emergency part of the cert confirming what emergency steps you are permitted to take. Behind that you get a piece of pure absurdism. It is a blank A4 sheet bearing the enigmatic legend :
THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY
As an enthusiast for conceptual art I think the addition of this unexpected existential thought-provoker is an excellent use of public funds. Long may it continue!
Having pondered the meaning of this for a week or two you get a second letter plus the full printed certificate. Your hopes are raised, but no, it is still just for the emergency cover. This time it proclaims:
THIS IS AN IMPORTANT DOCUMENT. KEEP IT SAFELY
And it is. Because although there is nothing new here this time it’s been personally signed by Agency Director Shaun McNally on the last page (he’s a CBE you know). He didn’t draft it though – the real signature is the first four letters of the caseworker’s surname and their initial at the bottom left of each page.
By now the means assessment game will have started in separate correspondence. I’ve described this very one-sided contest above and we have a separate thread on it now, so let’s skip forward and assume you battle through and get the prize of a substantive certificate after a couple of months of hair-tearing
This will be the third certificate you get. It will look very similar to the last set, but beware – the challenge is not over. Your job now is to check this very carefully because at this part of the game it is turn of the LAA caseworker to bury at least one deliberate error to catch you out – it might be mis-spelling the client’s details, the opponent’s name, it might lie in the scope limitation being restricted (requiring a report or Counsel’s opinion on merits before trial is a common one) or the costs limit being half what you asked for. In which case you have to reply with an immediate request for amendment of the errors/restrictions on the APP8 form which of course requires you to repeat most of the information you just gave them. If you don't spot the bomb, it will blow up on assessment and destroy your chances of being paid.
Given the Agency’s love of duplicating paper I always wondered why they don’t also reissue the emergency certificate with the limitations removed, but a few nights ago when studying the latest edition of the Points of Principle Manual (as you do) I discovered a recent ruling which clarifies that and offers a way out of the emergency-only purgatory:
CLA 58 - MERGER OF EMERGENCY AND SUBSTANTIVE CERTIFICATES
Where an emergency certificate is subsumed into a substantive certificate, the scope of the substantive certificate will apply to all work done since the initial grant of emergency legal aid. Any restrictions on the emergency certificate which are not replicated in the main certificate therefore become retrospectively inapplicable.
However, if there is no substantive grant made, the scope of the emergency certificate remains in force. In order to comply with the requirements of the Funding Code in relation to scope and exercise of devolved powers in emergency grants, the supplier should ensure that the scope is specific to the single immediate step which is required to be taken. Failure to do so means the supplier runs the risk of the LSC approving the grant of emergency funding in more restricted terms. Should further work become essential within the 4-week life of the emergency grant, an amendment should be self-granted under devolved powers, again limited to the single immediate step required, and the amendment reported to the LSC.
The LSC-era references to Funding Code etc. dates this to March 2013, but given the LAA's chronic delays this last point is useful – it confirms you can continue to grant further emergency cover on a step by step basis whilst you are playing cat and mouse over the means assessment which has to be completed before they will grant a substantive certificate. It’s also important to realise that despite what it says on the face of them and in the PoP above, an emergency certificate currently lasts for 8 weeks, and maybe longer if you extend it as above.
Time is only relative after all. It's an existential, conceptual thing, and it's been left ambiguous intentionally.
Post by Colin Henderson on Feb 19, 2014 23:48:42 GMT
"The snow this year is better at Innsbruck"
So to update the blog somewhat, we now know the wonderful new CCMS system (see separate post here) is indefinitely delayed. This is probably a good thing if it was going to crash anyway. The latest spin from LAA-LAA land on this:
"Our absolute priority is to ensure that the system is stable and that we can put in place enhancements, that will improve the user experience, before we invite further providers to use the system. In the meantime, we would like to push ahead with preparing you for online working via CCMS. For instance, we will be contacting you shortly to encourage you to complete administrative tasks so that your organisations are properly set up on the system. By encouraging set-up now, we can focus our resources on providing support at a later date."
I'm afraid I don't speak corporatese so I don't know what that actually means - we were already set up and ready to go when they pulled the plug only a few days from launch.
So for now we are left with the old paper system of throwing envelopes full of documents into a black hole in Newcastle and crossing our fingers.
You may have read my rant about lack of effective communication with the LAA. To be fair since then I have managed to get the phone answered a couple of times (much to the annoyance of colleagues listening to the preceding 20 minutes of ansaphone musak on speaker with me while I got on with proper work). I have also sent a few emails. On one query (whether enforcement proceedings of damages-only judgements obtained under the old scheme are in scope under the new one) I have sent several emails to the designated address. Initially I had a conversation going with a chap who just couldn't seem to understand the question, but he's gone all silent and moody on me now despite several reminders.
But the bit about this I really love is that we now have to encode our subject lines with "keywords" so that they can sift them at the other end! Ooh the glamour - it's just like being in a Cold War spy thriller! Here is the actual guidance on this:
Your email subject header must contain: - Key word (s) to signal where the case sits in the legal aid process. - Application/claim form number (if needed). - Client reference number or client’s name and date of birth or address (to give us extra information to search)
The key word or words you use for your subject title will depend on which part of the application process your case is sitting in: 1. Initial application = keyword MERITS 2. Means assessment = keyword MEANS 3. Solicitor’s bill = keyword, err, SOLICITOR'S BILL 4. Counsel bill = Keyword (you've guessed it) COUNSEL BILL
Which makes it so much more ambiguous and exciting than having four now moribund email addresses, even though if you look closely you'll see they roughly corresponded to the same four stages anyway: email@example.com firstname.lastname@example.org email@example.com FGF-FAS.firstname.lastname@example.org
So now all I need to do is think up an intriguing subject line keyword for that outstanding query which will catch the eye and establish I'm worthy of a reply. It's quite creative really - after some thought I'm going with "The snow this year is better at Innsbruck" (it's a classic line from For Your Eyes Only). I'm guessing the topical response from my reluctant LAA oppo will be "Too right, it's just raining in Sochi"
Post by Colin Henderson on Mar 8, 2014 15:24:14 GMT
He who pays the piper
Last week I denied a state benefit to a claimant: I refused to take legal action to readmit a young unlawfully-evicted and homeless tenant. I was not acting as an independent lawyer, weighing up only the merits of his case. Primarily I was acting as a contracted agent of the state, applying the “sufficient benefit” test which rations legal aid to cases which will produce clear results (he was at war with his co-tenants) and the parsimonious means testing regulations (he had several chaotic and variable bank accounts).
It was a bad day for that young lad and troubling day for me. On the way home I realised I was no different from the DWP employee who sanctioned his benefits. The next day I watched as the food parcel crowd descended. My colleagues had to vet their applications – for example checking with the DWP that they really had their benefits suspended. We know that there is a trade in the vouchers and parcels which are swapped for alcohol and worse. Some were refused, some of them got angry. All of us wondered how it had come to this. It was another bad day for everyone.
Yesterday someone reminded me that for years many of us in the advice sector have been telling each other quietly that the worst thing that ever happened was accepting dependence on state contracts such as legal aid. For many years on ilegal we supported each other through the increasingly bizarre, cruel and eventually ruinous rules imposed on the legal aid scheme by successive governments. From initial accreditation through the increasing restriction of advice to only the poorest, to matter splitting, audits and clawbacks and the inevitable demise under LASPO - they pulled the strings and we danced along.
Such contracts turned local advice sector charities into little more than state-funded outlets. Decades ago DWP staff would advise on entitlement, but for many years they have told claimants to “go to CAB”, and we gladly did that part of their job for them. Then we started distributing non-cash benefits such as legal aid and other help directly. Now it’s food parcels. And the sector’s bosses wonder why the public see us not as charities but as extensions of the state! Isn’t that exactly what they have encouraged us to become?
Independent? No. Impartial? Not really. Confidential? Not from our paymasters. Free? Not for long.
Following the capitulation of the Law Society on criminal legal aid cuts Grayling is on a roll. This week he was invited by some of the well-paid new breed of commercial realists heading up many charities these days to hand down a few home truths about continuing with lefty campaigning window dressing while eating the cake of government contracting. He said; “I disagree strongly with the campaigning side... I see there are big national organisations with active, well-funded campaigning groups at the centre, but with cash-strapped branches trying to provide services on the ground in communities.... From the point of view of a constituency MP it doesn't feel right at all. The sector itself has to behave in a reasonably commercial way. If you want to win a government contract, you’ve got to be able to do a genuine business deal. We try to facilitate opportunities for the sector but we can't provide it on a plate.”
Another unreported part of Grayling’s justice system destruction is the privatisation of 70% of the probation service. No, just like legal aid this hasn’t been on the news either. Some 50 private and voluntary sector organisations in 30 consortia have begun formal contract talks to bid for the work of supervising 225,000 medium and low risk offenders from later this year. Only the “high-risk” and public protection cases are to remain with a rump national probation service. It’s an ideological move to generate profits for G4S, Serco etc. from every possible part of the state. It will lead to the scrapping of many probation officers jobs and conditions in the medium term – the Probation Trusts are prevented from bidding for the work they currently do! The NAPO union is desperately organising strike action in protest.
Back at my job as an undead state lackey I read an internal bulletin produced by my network and see the following:
"The Ministry of Justice has announced the shortlist of 30 Primes which can bid to become Community Rehabilitation companies - managing and delivering rehabilitation services for offenders serving less than 12 months in prison or those on suspended sentences or community orders.
“Citizens Advice has registered with the MOJ as a specialist tier three provider on behalf of the whole service for this potential opportunity. We are also providing details to all short listed companies and organisations to let them know of our experience and interest in this work and presenting various service models. There is a sub-contracting opportunity for bureaux to provide services for offenders as part of this national commissioning-out process.
Citizens Advice will be meeting and negotiating with these potential Primes in February, March and April. Where Primes indicate a particular interest in one local area we will ensure bureaux that have experience and have expressed an interest in this work are informed.“
First we advised on benefit entitlement, then we rationed legal advice and representation.
Now we are deciding who gets food, and soon we could be rationing liberty itself.
Post by Colin Henderson on Apr 25, 2014 12:25:47 GMT
As a post-script to the previous piece many of you may have seen the fuss on social media over the Easter weekend following the latest bit of barrel-scraping by the Daily Heil's Sunday equivalent Mail on Sunday (it's not actually the same paper but you couldn't tell).
Ross Slater, a piece of lowlife whom I won't dignify by the title journalist or reporter, scammed staff at Nottingham CAB into supplying him with a voucher for a food parcel by lying that he was unemployed. The staff did question him closely but believed him and didn't go as far as an independent check with the DWP (as I am aware some CAB staff now do). Result? A disgusting piece claiming that food parcels are easily available to all and that's why they are so popular.
However the story backfired spectacularly and prompted a flood of donations to the Trussel Trust. I refuse to link to the article but here is a Guardian piece on the fallout:
Food banks see donations surge after being criticised by Mail on Sunday
Number of Trussell Trust donors jumps after article accuses charity of failing to run proper checks on food parcel claimants
Britain's biggest food bank provider has seen a surge in donations after a Mail on Sunday article criticised the charity for failing to run proper checks on people claiming food parcels. Before the article, there had been about 250 public donations since the Trussell Trust launched its JustGiving page in late January. That jumped to more than 3,300, worth more than £36,000. Several donors cited the article as the reason for contributing.
"The Mail on Sunday story appalled me. This is the least I can do to apologise for their crime," said Anonymous after donating £10. Another, Spitting Feathers, said: "I am insensed by the disgraceful article. Call this journalism? I don't. I'm not a Christian and admire the work being done by human beings for their fellow human beings. Thank you."
The Mail on Sunday said it carried out an investigation which found that volunteers did not carry out adequate checks on those who claim vouchers and one of its reporters obtained three days' food simply by telling staff at a Citizens Advice bureau – without any proof – that he was unemployed. Many claiming food parcels were also asylum seekers, the paper reported. The newspaper also cast doubt on the trust's widely reported claims that almost 1 million people would use one of its food banks this year, up 163% on the previous year and part of a trend that has seen use of the trust's food banks increase tenfold since 2010.
Officials at the Department for Work and Pensions accused the trust of "misleading and emotionally manipulative publicity-seeking" and "aggressively marketing their services". But David Cameron has praised the provision of food banks, indicating the government's ambivalent attitude towards them. Chris Mould, chairman of the Trussell Trust, told the Observer the prime minister had a constructive half-hour meeting with the charity in February. Iain Duncan Smith, the work and pensions secretary, had refused to deal with the charity, accusing it of scaremongering and advancing a political agenda."
I was as disgusted as anyone by the Mail's gutter press "story" but I was also totally unsurprised. Could someone tell me when Citizens Advice nationally or bureaux individually ever had any sort of debate about the propriety of gatekeeping the distribution of emergency food to the desperate? Personally I simply won't do it - if someone, anyone swallows their pride sufficiently to ask me for a food voucher I'd give it to them - even if they presented as a dishonest, lying, unprincipled low-life such as a lackey of the Tory press.
I wonder if Citizens Advice would agree with me - I can't see any statements in response to this story from them this week. Perhaps it would be too "political"
Post by Colin Henderson on Jun 5, 2014 16:27:42 GMT
Fee fie fo fum...
“It’s like something Orwell predicted” That was the reaction of a TV producer I was chatting to yesterday (as you do). She was on the hunt for media willing (and of course media friendly) clients to appear in a programme about the harm done by evictions. Inevitably I had become sidetracked into the assaults on the advice sector, specifically the imminent outrage of the Legal Aid Residence Test.
We have known for months this would deny our services to everyone unable to show they had been lawfully resident in the UK for the last 12 months but then I read this recently-published draft guidance Legal Aid Residence Test Draft Guidance.pdf (68.06 KB) Then it dawned on me that this might be the final straw that sinks the few of us still relying on a turnover of legal aid clients to survive.
Of course it’s a discriminatory, racist, arbitrary and unlawful outrage – the Public Law Project are judicially reviewing the whole concept – permission and protective costs was granted in January but I can’t find an update – can anyone at Bindman’s update that?
If I need to spell out the harm it will cause to the most marginalised and vulnerable members of our communities then frankly you shouldn’t be reading this blog so I won’t. Instead I’ll refer you to Nat Matthews latest blog post.
I think us advisers and lawyers suspected it would cut a swathe through the client base in many metropolitan areas – the destitute rejected asylum seekers and so on, but we didn’t realise it would catch out thousands more –such as European migrant workers and possibly even gap year students and that it has been designed to also discourage many of our UK born and bred clients.
The test is in TWO parts: - On the day they ask for legal aid they must have the right to be and actually be lawfully resident in the United Kingdom, the Channel Islands, the Isle of Man or a British overseas territory AND - They must have been lawfully resident for a continuous 12 month period in the past with no gap of over 30 days Exception are only made for babies under 12 months old (think about it) refugees or pending asylum seekers and squaddies returning from abroad or their immediate family members.
So far so bad, but it’s the evidential requirements which are the real killer. This applies to every single client and comes in THREE separate parts.
How would you prove you have a right of residence in this country? The answer in the guidance is either by producing: - a current passport - a Home Office letter of permission or - a long-form birth certificate together with official proof of your National insurance number.
Most of my clients try and prioritise feeding their kids over ski-ing holidays so they don’t tend to have passports or be able to afford them at £72.50 each. They might be able to find the dog-earred short-form birth cert their parents gave them years ago (could you?), but actually that won’t do anyway – it’s an original long form cert that’s needed, and that has to be ordered at a cost of £9.20 and takes weeks.
But proving you have the right to be here is not enough. Clients next have to prove they are actually living at a UK address on the day they present and to do that requires their name on one of these: - Bank or building society statement confirming full name and residential address less than 3 months old - Council tax bill, tenancy agreement or mortgage statement less than 12 month old - DWP letter, utility bill, notice to quit or court summons less than 3 months old
But proving you currently live here is still not enough. Clients still have to prove they have lived here for a continuous 12 month period in the past and to do that requires their name and address on : - 12 months bank or other account statements showing a year’s continuous Council tax payments, or rent or mortgage payments, or benefits or wages received. - Other documents such as travel tickets might also be required.
The only exceptions to the evidence requirements are for the mentally disabled or homeless and then the supplier is always at risk the case will fail an audit.
It’s utterly crushing to think of the effect this will have on trying to give emergency help, in fact any help, even to clients who have never left the UK in their lives. From 4 August all of them will be turned away and instead given a crazy shopping list of documents to find, copy, order and bring back.
Most will not return. Casework numbers will plummet, contracts will be unviable and the few of us left will be made redundant. No pressure guys, but we really do need that JR to be successful and to happen pronto.
Thinking about it, as a way of killing off what’s left of civil legal aid AND proving your xenophobically racist credentials in the post-UKIP era all in one go this really is inspired work by the LAA, whose Chief Exec came from – you should have guessed by now – the Borders Agency.
But I have a plan. We’re going to get round this. I’m ordering syringes, tourniquets, canulas and vials. I’m going to extract the blood of every client and keep it on file. Then if the file is audited and failed for the possibility of helping a Johnny Foreigner I’m going to have it DNA tested for evidence of good English (or Scottish or Welsh) Yeoman stock.
“Fee fie fo fum – I smell the blood of an Englishman”
Post by Colin Henderson on Jul 15, 2014 22:58:57 GMT
“I’ve assumed we’ll lose so I can cope with it.” So said my client last week as we waited nervously for a reserved judgement. We were fighting a novel point of law against opponents with money to burn, but if we won it meant saving my client’s home of 12 years and if we lost he had nowhere else to go.
It was comparatively quiet at court on the duty desk today so I had time to search twitter for the residence test judgement. Given the years of defeats and betrayals legal aid lawyers have suffered I too had been assuming we’d lose just so I could cope. The week before my colleagues and I had glumly read through the detailed guidance on the evidence required to satisfy the test and concluded that it would indeed finish our legal aid contract. I’ve explained why in the last post and since writing that I’d heard from a very reliable source that the guidance had indeed been written with an eye to driving us out of business. I’d come to almost welcome it – Grayling’s silver bullet would finally kill off civil legal aid and with it us struggling zombies, releasing us to perhaps start new lives. Not as lawyers, hell no – the market is so flooded now with unemployed graduates and sacked PI litigators that jobs are fewer and salaries lower than when I started out 20 years ago. No, I was just thinking of evicting our teenagers and putting out the B&B sign.
But then Lord Justice Moses, in a fearsome final judgement before retiring, goes and kicks Grayling and the MoJ square in the balls. Oh yes, it was so worth the agonising wait. The judges unanimously and elegantly demolish the statutory instrument which the disgusting LibDems voted for last week and which must now be withdrawn or voted down in the Lords. To do so they used no fancy new human right principles but simple statutory interpretation of LASPO. The Act, for all its faults, simply does not allow Grayling the power to create an extra residence test. Similarly traditional principles of justice are used to find it is also unlawful and objectionable to discriminate against foreigners and others in accessing our courts. And then the simmering contempt for the bully boy who currently disgraces the office of Lord Chancellor is shot through. The best bits are already well known after only a few hours but here they are again:
“Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgement, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test”
“Feelings of hostility to the alien or the foreigner are common, particularly in relation to welfare benefits. But they surely form no part of justification for discrimination amongst those who, apart from the fact that they are “foreign” would be entitled to legal assistance... In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice”
In judicial speak, Moses was really calling it as it is - Grayling is an arrogant, ignorant thug and his residence test was a piece of offensive racism. Whatever the LAA say or do, I now intend to ignore it utterly. I am an officer of the Supreme Court which has told me the test is unlawful so I will not implement it. (And wouldn't it have been nice if rather than underplaying this crucial victory, LAG had today made a similar call to boycott it if it ever raises its ugly head again)
So today it seems us zombies can live on, perhaps we will even still be in work after Grayling has shuffled off (pity that wasn’t today too but you can’t have everything).
With all the fresh ordure hanging about I’ve been a bit quiet lately – it’s really tough keeping going when the LAA constantly marks down your bills without reason, refuses your certificates or pulls your existing ones. It often means you just can’t see a way through as the money is so tight. So last week it wasn’t just my client hoping that we’d won – without the inter-partes costs that came with a win, I could be out of a job. And thanks to a sensible judge and very good barrister (he knows who he is) we did indeed win. Tenancy saved, costs at triple legal aid rates and bear hugs in the foyer: it felt very, very good. So screw you Grayling, us lefty lawyers will survive you and all your destruction, simply because we’re tougher than you.
And just to annoy bully boy some more here’s a suitable lefty quote which I’m going to try and remember next time the bureaucrats get me down. Raymond Williams, the Marxist academic said “to be truly radical is to make hope possible rather than despair convincing”. Today hope became possible.
Post by Colin Henderson on Aug 25, 2014 14:19:59 GMT
Housing work is now emergency work by definition. As Steve Hynes graphically put it, we are the ambulance paramedics at the bottom of the cliff, no longer the catchers in the rye at the top. Our clients cannot access a legal aid certificate until they have been pushed over the edge into litigation freefall. If they are persistent and organised they may find some help before possession day arrives. More likely, if they are lucky they might be intercepted by a duty solicitor/adviser before they hit the courtroom.
So every application for a legal aid certificate starts with an emergency application, completed at the first appointment and therefore usually without all the financial assessment paperwork needed for a full certificate to get granted. I described the process in general last year in my November blog post. And you have to get it done within a week or you won’t even get the eight week cover.
But the emergency certificate is only to cover the steps needed in the first eight weeks. If you or your client can’t promptly supply the proof of income then you’re unlikely to get the substantive certificate within that 8 weeks, which means you have to stop work, or work unpaid for everything you do until the full certificate comes through (and it might never). This is regardless of the urgency with which you may need to get on with gathering evidence or attending the next hearing, and regardless of the scope limitations you have on the emergency certificate. It’s also regardless of the new much tighter rules on relief from sanctions in the civil courts. If you miss a court deadline it’s now a serious business - civil lawyers will know all about being “Mitchelled” – and may mean your client’s case is struck out, and you get sued for negligence.
When I first blogged about this (see Certifiable above) I postulated that a recent Point of Principle - number 58 – could rescue the situation. It says:
"Where an emergency certificate is subsumed into a substantive certificate, the scope of the substantive certificate will apply to all work done since the initial grant of emergency legal aid. Any restrictions on the emergency certificate which are not replicated in the main certificate therefore become retrospectively inapplicable.
However, if there is no substantive grant made, the scope of the emergency certificate remains in force. In order to comply with the requirements of the Funding Code in relation to scope and exercise of devolved powers in emergency grants, the supplier should ensure that the scope is specific to the single immediate step which is required to be taken. Failure to do so means the supplier runs the risk of the LSC approving the grant of emergency funding in more restricted terms."
The underlined sentence implied that if you carried on work after eight weeks or outside of the emergency scope you were effectively working “at risk” – not paid if no substantive certificate ever granted, but still paid if it was retrospectively.
But be warned - I have found out to my cost that my interpretation was very wrong. As my recent unsuccessful appeal to the Independent Costs Assessor proved, the eight week time limit is strict and work done after its expiring but before the substantive is granted will NOT be paid, and in July they quietly amended their own online costs guidance handbook and which hadn't dealt with the point. Which is annoying as in my case the delay in granting the substantive certificate was down to the mistakes and unreasonableness of the means assessing caseworker and it took a formal complaint to resolve it. Oh and my client couldn’t have fended for himself after the eight weeks expired because.... he was a prisoner!
The POP wording carries on: "Should further work become essential within the 4-week (that’s wrong; its now 8 weeks) life of the emergency grant, an amendment should be self-granted under devolved powers, again limited to the single immediate step required, and the amendment reported to the LSC."
So that’s OK then – we can self-extend emergency certificates as we need and and just report the fact? Nope – you’d be wrong again. I recently wrote to clarify exactly what bit of POP58 actually still works. This was treated as a complaint (!) and I was told this:
"You have queried the procedure for applying to extend an emergency certificate and whether sending an electronic APP8 will result in a faster turnaround. I can confirm that the LAA is currently processing 99% of properly completed APP8’s within 10 working days with the majority of this 99% being expedited within five to six working days. If you have a matter that is particularly urgent and needs dealing with quicker than this, I would advise emailing the APP8 explaining the reasoning for the urgency.
There is no regulatory bar on emergency certificates being extended beyond 12 weeks. However, if it is likely that the work cannot be completed within the initial eight week period, then it may be more appropriate to submit a substantive application to allow further scope and cost limit."
This last sentence is a good example of the sort of tosh one gets from the Agency these days. You have already made a substantive application! They suggest sending another App1 with another set of means forms to get another 8 weeks?! So you end up with two separate certificates for the same matter? Good luck with all that at billing...
So if you are eight weeks in and still no sign of your substantive you have to urgently contact the LAA and send in a progress report on the detailed 11 page APP8 form. As you are prevented from acting further until you get that back I’d certainly say do it by email – using the paper system takes 4 days in the postroom at each end – those statistics of 99% of APP8s within two weeks don’t bear any relation to my experience and don’t count postage delays.
As an interesting aside that there IS now one situation where you can work “at risk” for your client. This is the now common experience of receiving a “Show Cause”. In the pre LASPO days this meant you had to stop work and reply to the Notice explaining your client’s failure to co-operate with yet another bank statement request, contribution payment or the like from the agency, and weait to hear that the certificate was reinstated before continuing. Now you may carry on, and if the certificate stays in force because the alleged breach is remedied promptly, you will still get paid for work done throughout.
But here’s something you won’t find publicised by the Agency itself. If it all falls apart and your bill ends up being slashed and you can show the LAA have been at fault themselves during the battle to get and keep certificated cover, there is in fact an internal ex-gratia scheme whereby you can argue that you acted reasonably and should still be paid despite a technical transgression. I have my first case going into this process now and I’ll let you know how I get on, keeping my cap in hand and being ever so ‘umble, as it's clear legal aid lawyers have no right to be paid anything at all.
Post by Colin Henderson on Nov 6, 2014 16:43:10 GMT
In the end it didn't prove necessary to "ex-gratiate" myself - a substantive certificate which had been wrongly date limited (they can only do that to emergency certificates) nevertheless had most work refused on assessment. I appealed via the normal route and it was paid in full. Don't know why I feel so pathetically grateful for being paid 30% of court rates for saving someone's home, but I am.
However my warm towards the LAA was shortlived... see below.
Post by Colin Henderson on Nov 6, 2014 17:40:23 GMT
Kafkaesque? More like Joycean
I love the internet, me. Even like the twitter now. If I can do it online and avoid paper and post or call centres, that's where I do it.
So I was (cautiously) hopeful when CCMS - the new totally online system for making and managing legal aid applications - was launched by The Agency around a year ago. I suppose it was Hobson's choice as they've deliberately made their post system as slow as communicating with Australia in the days of Empire. I've moaned about all that before.
But then legal aid bods began to swap tortuous tales of frustration and "computer says no" nonsense. I went to the training and realised the system wasn't ready yet and had been designed as a data entry application by people who had never sat down with an upset, incoherent client in crisis and tried to get emergency legal aid online.
Nevertheless, with pressure on from contract managers and the realisation that they would announce Compulsion Day soon, I dipped my toe in last month.
My client had been the victim of a really nasty unlawful eviction. In response to complaints of disrepair to her private landlord, she'd endured repeated threats of eviction over several weeks, including written and physical intimidation. The Local Authority wrote to the landlord in question, warning him that his behaviour was a criminal offence and of the need to obtain a possession order by due process. The landlord ignored that letter and changed the locks. Our client was able to re-enter and remove most of her possessions, but further incidents of intimidation followed so understandably the client and her witnesses were clear they would not proceed unless we made a without notice application for an injunction protecting all of them from the landlord and his named accomplices.
We spent most of one day and the next morning gathering evidence, interviewing our client and her witnesses and obtaining emergency accommodation for her, all for the huge fee of £157. With her immediate needs met we ventured online to completing the application with the client and her partner present, as they are required to be. Very unusually in such cases our client had managed to get most paperwork out of the house and so we were able to complete even the more obscure enquiries. Most applicants in evictions can't do this and it didn't seem possible to “skip” stages once commenced.
Naturally we applied for an emergency certificate, but apparently this was our first mistake – we should have attempted a substantive application as there was an option later to include emergency actions under delegated powers.
We were able to verify receipt of passporting benefits, however we couldn't submit post-office account statements – as is usual the client’s last received written copies some months ago, and they couldn't request that up-to-date copies be sent to their home address following their eviction. Instead we had to write to the Post Office for the statements to be sent to our office - we are still waiting.
The application was for full representation to take legal action for unlawful eviction and for wrongful interference with goods. This was our second mistake. The system took it that the wrongful goods claim was out of scope and then made us answer an irrelevant and lengthy series of questions on why exceptional funding should be granted, for example on Human Rights grounds! Nevertheless after some three hours with our ultra-patient clients we made it as far as the client signature screen
Then we went on to complete the merits section of the application. This asked us to insert a statement of the circumstances of the case. In anticipation of this, and with no little effort, my colleague had written up a comprehensive description of events to date - over 13,000 characters. We were told the dialogue box would accept only 8,000 and so we split that into two parts. We pasted each in and then the real fun began. The system would not accept the text – stating there were unauthorised characters in the text box, but refusing to say what they were! We attempted to edit the text - no luck - computer still says no. We rang the CCMS queries line just before it shut for the day and were told that most forms of punctuation were unacceptable! The adviser mentioned ampersands and apostrophes being particularly problematic but confessed he didn’t know the exact extent of the disallowed characters himself. He wished us the very best of luck!
By this time there were three staff remaining in the office after hours and we all spent the next hour repeatedly re-editing the text of the statements of case until it resembled nothing less than a stream of unpunctuated consciousness worthy of James Joyce. Eventually by some miracle which seemed to followed no rule or reason the system accepted that we had expunged all offending characters and the whole application was finally confirmed as “submitted”. Surely with this mammoth effort of modernist styling we would soon be able to get to work for our client.
We checked more guidance the next morning and noted that there was a procedure to amend emergency applications to substantive, but the status of our new application didn't allow us to do this – the initial emergency application would first have to be granted.
Coincidentally we had enrolled on a CCMS online “Master Class” scheduled for the same morning. Surely this would be an opportunity to find out answers. We were wrong – the online tuition software proved too difficult for some participants to master (no-one being told, for example, that Java has to be installed first), and when even the LAA’s own presenter was unable to log on the session was abandoned!
A week went past and we heard nothing more . We kept reassuring our frightened client that legal aid would be through soon - this was supposed to be so much faster than postal applications. We attempted another online master class, but it was short and simplistic and aimed at family providers making straightforward Children’s Act applications which involve no means and minimal merits assessment.
After two weeks a request was notified and we eagerly logged on to review it, only to find that precisely no information had been included specifying what was required! The relevant box read simply “No Notes”,
We raised a complaint letter and sent it to everyone we could think of. Another week passed and we were given the text of the queries which had been raised - one of which was nonsensical and others irrelevant. Nevertheless we replied and are still waiting - 4 weeks on. Thank God we didn't attempt this on a case which required us to get an emergency injunction.
It's clear that CCMS has not been designed for real world use in housing cases and is not fit for purpose: - It takes far too long - The question trees appear to be flawed - The data entry problem with numerous “impermissible” characters is farcical - Their own staff send out blank requests - The training is chaotic and inadequate. - No thought has been given to the partial client information which is the daily reality of all emergency, and therefore most housing, applications.
I asked around other housing lawyers. Seems most were still on paper. One had tried it and had exactly the same Joycean challenge but sensibly just gave up and wrote a note saying they could request a statement telling them what the case was actually about later. Another had organised training on it but the LAA couldn't get their own system to work.
And all the time I get a stream of spam emails from LAA-laa-land which are veritably North Korean in their unremitting praises of CCMS.
As Jimmy Joyce put it in Finnegan's Wake: "bababadalgharaghtakamminarronnkonnbronntonnerronntuonnthunntrovarrhounawnskawntoohoohoordenenthurnuk!”