Advice for legal aid providers setting out what the Legal Aid Agency is putting in place to help them continue to provide service for their clients during the coronavirus (COVID-19) outbreak.
This page sets out our commitment to supporting the legal aid sector, and the changes to our ways of working during the coronavirus (COVID-19) outbreak to help them keep providing access to justice to their clients.
The arrangements outlined below will apply until 30 June 2020 but we will keep this under review on at least a monthly basis and amendments may be necessary, based on wider Government advice.
Legal Aid Agency ways of working
During this outbreak our focus is to maintain levels of service whilst identifying new ways of working and flexibilities we can make to our processes to make it as easy as possible for legal aid firms to continue to provide advice to their clients.
Our plans take into account the impact of coronavirus (COVID-19) on your ability to operate according to the contract, as well as prioritising the protection of your staff health and well-being.
We will keep the position under regular review, including any changes in wider Government advice and operations and in response to queries from providers. Where needed we will issue updated information and answers to queries.
Our contingency plans
We have robust business continuity plans covering all aspects of our work, including client applications and claims for payment (including payments not made under contract, for example direct payments to advocates).
These established plans have now been put in place to enable continuity of operations.
We are identifying further options to reduce administrative and audit burdens on providers to help you focus on your clients and staff and will communicate these through updates to this document.
We will continue to work closely with other parts of government connected to the provision of legal aid, including HM Courts & Tribunals Service (HMCTS), the police, prisons, and immigration removal centres, to ensure our contingency arrangements are aligned.
- priority courts announcement, including a tracker of which courts are open, staffed or closed
- updated guidance on security cleaning and social distancing in courts
- updated guidance on telephone and video hearings
- courts and tribunals planning and preparation
We recognise the current situation will have cashflow implications for firms, and as a priority we are processing bills and other payments as rapidly as possible.
We are working with Ministry of Justice (MoJ) and provider representative bodies to investigate what other immediate actions we can take to support firms.
We have also collated the current options already available to practitioners facing cash-flow problems when carrying out legal aid work.
The Budget 2020 announced plans to provide support for public services, individuals and businesses affected by coronavirus (COVID-19). This includes Statutory Sick Pay funding, support on Business Rates, and guarantees to enable more lending via banks.
Other schemes to support business are now available:
- Coronavirus Job Retention Scheme
- VAT deferrals
- HM Revenue & Custom’s Time to Pay service
Claiming police station attendance fee
Providers are still required to provide advice and assistance to clients in custody suites.
Depending on local police practices and their own health concerns, you may not be able to physically attend on those clients.
Should an attendance be made by other means (phone or video), either because of a police force’s contingency arrangements or because current Government safeguarding guidelines mean you cannot physically, you can claim the Police Station Attendance Fixed Fee appropriate to the location.
A file note should be kept as to the circumstances of the arrangements, confirming both the police and the client were happy to proceed without a physical attendance.
Providers should claim as usual for the Telephone Advice Fixed Fee as appropriate, but they should not claim for Telephone Advice Fixed Fee and the Police Station Attendance Fixed Fee for the same matter. A DSCC Reference Number will also be required as normal.
Mental Health Tribunal Level 3 fees
Most Mental Health Tribunal (MHT) hearings will now be heard remotely. We can confirm the MHT Level 3 Fee will be payable where representation is carried out at a remote hearing intended to dispose of a case and would have ordinarily taken place in person.
We are now accepting electronic forms in 3 areas of Civil Finance. Guidance for each can be found on our training website:
- Contingency measures for civil escape cases
- Mandation of electronic civil billing appeals
- Emergency payment process on non-CCMS cases
- Contingency for paper claims
- POA contingency form POAC1
Civil contribution payments
We recommend providers and clients make online banking payments using their invoice or certificate number as a reference. This will avoid funding delays.
Office working restrictions mean we are currently unable to process or receipt cheques sent through the postal system to the Cash Office and Collections team.
Rejecting bill payments
To maintain cashflow for civil and crime matters, we continue to only reject bills which are missing information fundamental to the assessment process. Bills which we are able to agree will be paid promptly.
Advocacy attendance forms in Family Cases
Attendance notes already suffice as evidence where the hearing is held by video or telephone conference, as per 6.5 of the electronic handbook. The handbook states:
An advocate’s attendance form may not be available in hearings undertaken by video or telephone conference. In these cases, notes of the hearing on the brief or an attendance note will suffice as evidence of the hearing.
If bolt-ons are included as part of the claim, you should include details in the attendance note.
HMCTS are moving to facilitate as many remote hearings as possible, which will reduce the likelihood of being able to get completed Advocates Attendance Forms (form EX506). LAA and HMCTS have jointly drafted guidance on what evidence is acceptable for remote hearings.
Claiming travel costs
Using a taxi or your personal vehicle is claimable from the LAA where travel is necessary, and the use of public transport is reduced due to the coronavirus outbreak.
Please keep a note on your file and ensure this is submitted with your claim.
Provider debt collection
We have suspended the usual process of demand letters to providers. We will continue to ensure providers are given full information on their financial position, and will accept repayment of any balance where the provider wishes to do so.
Working with clients and making applications
We understand in the current situation it may not be possible to meet clients in person. Your well-being and that of your clients is important to us. You should read the latest advice about avoiding catching or spreading coronavirus (COVID-19).
Public Health England (PHE) advice on the risk of handling post or freight is there is no perceived increase in risk (as of 20 March 2020) in using post services.
Crime Telephone advice
If a client stays at home following advice from the NHS, or PHE guidance, we would consider this a good reason for non-attendance at your office, as per section 9.121 of the crime specification.
Assessing financial eligibility where a client cannot attend
The contract specification allows you in certain situations to assess means without accompanying evidence where it is not practicable to do so:
- section 3.6 crime
- section 3.24 civil
Where a client is staying at home, it may still be possible to collect evidence by email or post. Reasonable efforts to collect evidence should still be made and recorded, before assessing without evidence if that is not possible.
When the LAA assess Civil or Crime Applications under any scheme we will exercise the same discretion as above. Providers should submit what evidence they have available and highlight any issues they have had collecting other documentation.
Using digital signatures
Digital client signatures will be acceptable as an alternative to handwritten (‘wet’) signatures and will meet our contract requirements.
The Law Society has guidance and practice notes in this area:
We will accept all digital methods which meet the requirements outlined as Simple Contracts in the Law Society practice note.
Text messages are not considered an acceptable method of digital signature and are not covered by the Law Society.
In situations where it is not possible to get a client signature, digitally or otherwise, please make a note on the file explaining why, countersigned by a supervisor, and also make a note on the application/form when submitted to avoid delays or issues with processing. Please seek a signature at the earliest possible opportunity.
For avoidance of doubt, supervisor signatures may also be provided digitally to enable effective remote supervision, as long as they are clearly related to the relevant file notes.
Criminal legal aid applications, reassessments & reviews
We will allow additional time for the provision of evidence for Crown Court applications where possible and will accept uploaded photographs of relevant evidence.
When considering Income Evidence Sanctions for the non-provision of evidence, we will take account of any issues related to COVID-19 when considering whether the client has demonstrated a “reasonable excuse”. We will adopt appropriate flexibility in relation to evidence provision surrounding additional expenditure incurred by Defendants on Hardship applications and eligibility reviews.
Increased submission timescales
We have suspended time limits for delegated function applications, substantive amendments and appeals against LAA decisions.
We will review this arrangement in the summer and inform you of any resumption of time limits to allow you to submit final submissions.
We have extended the time limit of emergency certificates to 12 weeks, a wider scope limitation will be granted appropriate to the proceedings and a cost limit extension to £2500.
Client finances & contributions
Where an applicant’s financial position changes, we will exercise our discretion in allowing more time for the applicant to provide evidence relating to a ‘change in financial circumstances’ (CIFC) if required. We will also exercise our discretion when considering the evidence provisions surrounding expenditure incurred by applicants.
If an applicant’s financial situation changes due to them being furloughed, they should explain their employer’s furlough approach on a CIFC and we will reassess their application and or contribution. An applicant should also notify us if they are furloughed but have a second job (either pre-existing or new).
They should notify the LAA of CIFC when their furlough ends.
Civil contribution collection and enforcement
Civil contributions will continue to be collected.
If a client experiences a change in financial circumstances making payment difficult, we will suspend chasing contributions for them, and make the reassessment of means process as simple as possible.
Where a client misses a monthly contribution, we have currently suspended the show cause process and expect that this will last for a period of up to 12 weeks. This will be kept under review.
When a debt is created, we will continue to allow the client to pay us as normal, but we will suspend the usual process of demand letters/enforcement action.
Crime contribution collection and enforcement
The Marston contact centre is operating a remote service by email. Clients can still make their payments via the Marston’s website, by online bank transfer or by following the automated instructions on Marston’s phoneline to be transferred to their payment line.
If your client needs to speak with someone at Marston, for example regarding their payment plan, they can email the support team at firstname.lastname@example.org
If your client has experienced a change in household financial circumstances or hardship as a result of COVID-19, please notify the LAA. Hardships should be e-mailed and flagged in the subject line.
In relation to Crown Court contributions, the LAA (and Marston Holdings Ltd.) will pause chasing arrears and enforcement activity until changes in financial circumstances and hardship applications have been fully resolved.
Where appropriate and a request for reassessment has been made, or a review has been requested, we will seek to hold enforcement activity (such as pursuing Charging Orders or an Attachment of Earnings) in order to clarify an individual’s financial position.
Charging order will be applied for where there is consent, for example where the value of the contribution is not being disputed.
Our approach to emergency certificates
If the client has had an emergency certificate and does not accept the offer of substantive funding, the emergency certificate may be discharged (i.e. withdrawn from that date) or revoked (i.e. cancelled with the loss of cost protection and liability to pay any costs previously incurred).
We will consider discharging the certificate, rather than revoking it, if there has been a change in financial circumstances between initial grant and substantive application, however revocation remains where a client is assessed as ineligible at the substantive stage or in respect of fraud.
Operation of the statutory charge
The approach to the Statutory Charge remains unaltered; the Statutory Charge will attach to the value of the recovery.
Where enforcement of the Statutory Charge is postponed, interest is payable on the principal amount as determined by the regulations and interest on the statutory charge will continue to accrue.
Clients can voluntarily set up monthly payments to reduce the liability via direct debit and can cancel this at any time or adjust the amount. These liabilities are not currently actively chased or pursued by the LAA as our position is secured by a land charge.
Working with contract management
We are reducing the levels of contract administration to allow you to focus on supporting your clients.
It remains important that you please keep your contract manager informed of any issues so we can maintain an overview of the impact coronavirus is having on provision of legal aid services, and so we can better understand how we can continue to support you and other parts of the justice system.
We do not expect you to consult with your contract manager when you are taking reasonable action to balance supporting your clients with wider Government advice, and no reasonable action you take to appropriately protect the health and safety of your staff in line with Government advice will result in contract action by your contract manager.
Contract managers will prioritise resolving queries which relate to impacts of coronavirus, and contract management focus will be reprioritised from provider visits to ensure we can respond consistently and quickly to your queries.
Responses to common queries will be reflected in future versions of this document.
Reducing administrative activity for providers
Routine contract manager visits to provider offices will not take place at this time and we will not be undertaking new contract audit or peer review work unless exceptionally needed.
We will keep this under review as advice changes. We have paused our routine reporting and recoupment activity on unrecouped payments on account and are only undertaking recoupment work needed to accurate pay final bills.
Office and supervisory arrangements
We understand the current context may mean you are unable to meet the office and supervisory requirements set out in your contract, and that reasonable actions will be needed to follow wider Government advice and to maintain the well being of your staff and clients. We will not take any action in this situation.
Please consider and share with your contract manager your planned approach to:
- dealing with urgent matters
- ensuring general supervision of work, including remote supervision
Please continue to document evidence on how supervision has been applied in line with accreditation and professional standards where applicable.
Designated Accredited Representatives in Mental Health cases
We understand the current situation may mean you are unable to meet the requirements of the contract regarding designated accreditation representatives, including where an individual is not able to meet the 14-hour requirement.
Please document the reasons why, but we will not take any action in this situation.
It will remain a requirement all advocates before the tribunal except self-employed counsel must be members of the Law Society’s Mental Health Accreditation Scheme.
Duty solicitor absence
The impact of coronavirus (COVID-19) might have an impact on the operation of and activity at courts and police stations, as well as duty solicitors personally.
Where duty solicitors are unable to meet the requirements of the contract, you should document the reasons why. In such circumstances we will not take any contract action.
To ensure continued provision of service to clients, we will use existing duty solicitor arrangements which already operate 24 hours a day, 7 days a week.
Providers are able to swap slots with other providers on the scheme who are unaffected. In addition, we are will allow providers to swap slots with those in neighbouring schemes.
In the event a Provider is unable to cover a slot or swap it, the Defence Solicitor Call Centre may:
- offer the slot to other members of the specific duty scheme
- if the slot cannot be accommodated within the existing duty scheme, invite duty solicitors from neighbouring schemes to provide cover
Should the local Police Station be closed then detainees may be moved to another Custody Suite. In that scenario, the LAA will consider on a case by case basis whether it would be reasonable for the scheme members to “follow” the work to the new location. In this scenario the LAA will consult on an urgent basis with affected duty scheme members.
We continue to work closely with other CJS agencies, including HMCTS, the police, and prisons, to ensure our contingency arrangements reflect theirs, particularly in relation to attendances in the police station and courts.
Police station accredited representatives
We are extending by 3 months the current 12-month period for a probationary representative to complete the tests to become an accredited representative. This is in response to the postponement of critical incident tests because of coronavirus.
It means that probationary representatives will be able to continue to carry out contract work as normal during the extension period.
The Defence Solicitor Contact Centre will be in touch with relevant probationary representatives to confirm the 3-month extension. This will happen once the 12-month period has passed without the relevant tests being completed.
We will monitor the situation and consider a further extension if appropriate.
Details of the scheme are set out together with the police station register arrangements on the 2017 crime contract page.
Working with the exceptional and complex case team
Paper applications for clinical negligence cases
Clinical negligence applications, including applications to amend older Corporate Information System (CIS) certificates and pre-Legal Aid Sentencing and Punishment of Offenders Act certificates, should no longer be posted or sent by DX.
Please follow these steps to send applications to the exceptional and complex case team:
- email ContactECC@Justice.gov.uk copying the case manager in if you know who it is, with the following header: Clinical Negligence – Client Name and CIS reference number
- attach all necessary APP8s, Clinical Negligence Funding Checklists, medical reports, pleadings, joint statements, Counsel’s Opinions and correspondence
- if any documents are password protected, send this in a separate email at the same time as the document email, using the same heading
- if you are unable to send all the documents by email due to inbox capacity email the completed Clinical Negligence Funding Checklist and specify in the covering email what additional information is available should we need it to make a decision
If necessary we will ask you to email any additional documents. When we make a decision to amend or modify a certificate, we will specify the exact terms by email in the event that a paper copy cannot immediately be sent to you.
Counsel Acceptance Forms
As an alternative to counsel signing Counsel Acceptance Forms, we will accept an email from counsel attaching the Counsel Acceptance Form and confirming their agreement to it.
Stay up to date
If you have any questions about your contract, please talk to your contract manager.
We are monitoring the situation and will update any changes to operational guidance in the first instance on our digital channels:
We will also share information with representative bodies to share with their members.