Post by Colin Henderson on Nov 2, 2013 10:02:43 GMT
The new harsh practices of means assessment for certificated cases are becoming reknowned among us happy few still trying to practice civil legal aid. We all have so many anecdotes of outrageous cases that we start swapping them when we meet (which isn't often give what rare beasts we now are, but it's been conference season). I went through the issues in my blog but this ongoing scandal needs a separate thread.
If you have a client living alone on passporting benefits with their 3 months of post office card account or bank statements showing they have no savings to speak of then after a few weeks you will usually get a certificate through. But if there is the slightest divergence from that paradigm, woe betide you (as my mum used to say).
So recently Carol Storey of LAPG has raised a whole series of appalling examples with the LAA in an exchange of letters available on their site. They are worth a read to get a flavour of the real barriers applicants and their lawyers are experiencing. Here are a couple of examples:
A Council tenant living with her disabled partner who receives a passporting benefit faced with an imminent possession hearing for rent arrears and with a substantial counterclaim for disrepair. By mistake LAA phone the DWP and check her rather than her partner and then refuse to rectify over phone but insist that the practitioner obtain a letter from the DWP confirming the current award to her partner. At the same time they write with numerous questions on the bank statements provided in relation to income and expenditure – much of these relate to DLA income and disability connected expenditure. The client is severely distressed. The client risks revocation of the Emergency Certificate if the queries are not answered.
A report back from a practitioner: ‘We still do not legal aid for a client for whom we delegated functions in a Children Act matter in the last week of March (substantive application sent mid March) because the LAA is querying 2 payments of £30 and £20 out of her bank account. We have now provided evidence from the friend to whom she was making those payments. He has MS and cannot get out of the house. She borrowed £30 from a friend. It is now July and we cannot represent this client on a fact finding because of these queries. In the same letter our client who is on a previously passporting benefit is being asked to provide further bank statements (in the context of capital means testing ) which she had not received by the initial deadline for submission of the App 1 and Means 2. Our client speaks no English.’
The LAA's response from McNally (wonder if he is related to that other legal aid hatchet man?) the Director of Case Management is faux polite and occasionally blames poorly-trained caseworkers but ultimately it defends much of the madness. Vicky Ling has helpfully summarised the principles which the LAA seem to have. Apparently there is detailed guidance in development and LAPG still intend to take Counsel's advice on the legality of that.
As it's important to get this information out I reproduce Vicky's summary in full:
Means assessment – where we are now
Following numerous reports from members concerning inappropriate means enquiries by the LAA, Carol Storer wrote to Shaun McNally, the LAA’s Director of Case Management. Mr McNally’s prompt reply took members’ concerns seriously and acknowledged that some of the examples showed there were training needs. However, his view was that staff had made inappropriate enquiries in some; but not all, of our case examples. LAPG considers that in some important respects, the LAA is still interpreting the regulations incorrectly, and will be taking Counsel’s opinion in due course. This note provides information about areas where practitioners should no longer experience problems, issues to be aware of, and where further enquiries are likely.
Where the LAA should not be asking for more information: In the following examples, it was agreed that it was not appropriate to ask for more information and additional training/consistency checking measures have been put in place: 1. Where the client has a former partner. Where a relationship has come to an end, it is important to make this clear due to the LAA rules which allow them to take partners’ resources into account even if they do not live together. 2. Where clients are on an income passporting benefit, they should not be asked about their income or expenditure. 3. LAA staff should now understand that statements are only issued for Post Office accounts at three-monthly intervals and not ask for additional statements. 4. In possession cases, LAA staff should not be asking for information about the means of people living with the client if it is clear that they will be unable to contribute to legal costs, e.g. full time students, people who are unemployed and/or in receipt of means tested benefits. If such is the case, please give this information in the ‘extra information’ section of the CIV Means2 form. 5. In possession cases, LAA staff should not be asking for information about the means of people living with the client if it is clear that there is a conflict of interests, e.g. rent arrears have arisen because a non dependent has not contributed to the rent. If this is the case, it should be clearly explained on the application form. 6. If a client is being given a small fixed sum of money by a benefactor, that sum will be taken as income; but the benefactor’s means will not be taken into account – but see below regarding clients who are being ‘substantially maintained’ by a third party.
Issues to be aware of: 1. If someone is street homeless and has a bank account, the LAA will still want evidence of the balance, even if the client is unable to supply three months bank statements. 2. If the DWP’s records show that a client is not in receipt of an income passporting benefit, and the application contains evidence that they are, the LAA should carry out a further check with the DWP. 3. The LAA will want evidence about the means of adults living in the property if it appears they could contribute to legal costs. If they are unable to contribute due to their own circumstances, the reason should be provided in the ‘extra information’ section of the CIV Means2 form. 4. If a member of the client’s family is supposed to contribute financially; but is not in fact doing so, do not include the figure in the client’s income. The LAA will only take money into account if it is paid. 5. Money paid by a family member in relation to household bills should be counted as the client’s income. 6. If a client’s partner/family provides support from abroad, but cannot produce evidence of their means due to forces outside their control such as UN sanctions, being in a warzone, foreign exchange regulations etc., full information should be provided so that the decision will be escalated to a senior member of staff.
Where further enquiries are likely: 1. Where entries on a bank statement show movements to another bank account held by the client. The LAA will want statements from all accounts, held solely or jointly. 2. If a client is being substantially maintained by another person, e.g. where the third party is providing all the support an individual receives, even where this is on a subsistence basis, the LAA will generally use its powers under regulation 16(5) of the Civil Legal Aid (Financial Resources and Payment for Services Regulations 2013, to ask the benefactor to complete a Means1. LAA staff should take into account the degree of affiliation with the person supporting the client and the closer the relationship, e.g. family member, the more likely it is that the LAA will ask for full information about the benefactor’s means. In our examples, where someone was providing board and lodging or where they were giving a client small amounts of money; but these appeared to be the client’s sole means of support, the LAA responded that it was generally appropriate to ask for a Means1. 3. If a client gives a figure for board and lodging, rather than rent, the LAA is likely to want to establish the element which is attributable to rent (which is an allowable expense) and food/utilities (which are not). This may include enquiries to the landlord.
Vicky Ling, co-author of Legal Aid Handbook 18.9.13
The exact wording is as follows: Q:Can the LAA reconsider what level of additional financial information is asked for from passported clients?
A: We have recently reviewed this and changed the evidence required to one month’s worth of bank statements in relation to civmeans 2 cases. We’ve also reminded caseworkers of the discretion available when dealing with applications from vulnerable clients, e.g. those who are homeless.
We need to ask about third party finances where the client may be supported by a third party but, again, the caseworker should exercise discretion, taking the relevant circumstances into account.
It's a welcome change as benefits passporting covers 90% of applicants these days (because the contribution regime for working people is so punitive) Let's hope this does indeed make applications slightly easier.