The Legal Services Commission’s contract managers have been conducting informal assessments of files and I have been receiving a number of queries from not-for-profit (NfP) agencies because cases advising on entitlement to benefits appear to be disallowed on a fairly regular basis, writes Vicky Ling. It is clear that the goalposts have moved since the introduction of fixed fees in 2007, and cases that would previously passed audit are now been nil assessed.
It’s almost as though the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) is being implemented early. However, after a long and arduous appeals process, some agencies are being successful and are retaining their fees; but others are not.
This article discusses the issues to help you ensure, as far as possible, that you will not suffer a clawback in future.
No need for a dispute
Let’s be clear – in principle, welfare benefits advice is in scope of legal aid funding. Section 4(2) of the Access to Justice Act 1999, does allow advice as to how the law applies in particular circumstances and does not require that there is a dispute, as is sometimes suggested by LSC staff.
Change in emphasis
On 20 December 2010, a point of principle of general importance (the LSC version of costs case law) was certified in relation to completion of welfare benefits forms, and this has changed the context of costs assessments. It states:
‘Assisting a client with IB50 (and other forms) can fall within Paragraph 16.3 of the Unified Contract Specifications where an issue of law arises and advice on that issue is necessary for the form to be completed correctly.’
Although the point of principle itself is helpful, the guidance sent a clear warning shot across the bows that the LSC is likely to give organisations a hard time if they claim matter starts for advice on entitlement to benefits.
‘However, where assistance with an application for (or review of continuing entitlement to) a welfare benefit is the only matter dealt with, the question of whether a matter start was justified at all will also depend on whether the provisions of Paragraphs 5.11 (funding code criteria), 16.1 (restrictions on welfare benefits checks) and 16.2 (whether the matter could easily have been dealt with by the client). These provisions are reproduced at Paragraphs 3.41(a), 10.76 and 10.77 of the 2010 Standard Civil Contract Specification. Given that the client will always be able to submit an application or review form without specialist legal assistance, and the client themselves will not know whether such assistance will affect the benefit they will obtain, it is particularly important for Providers to assess whether the individual circumstances of the client mean that there is sufficient benefit in incurring legal costs when deciding whether to grant funding pursuant to Criterion 5.2.1.’
Appeals and reviews only?
The message is pretty clear – the LSC will take some convincing that advice has added anything to the client’s application and unless so convinced, the case will not be deemed to meet the sufficient benefit test. Some agencies have decided to play safe and only to claim welfare benefits cases involving appeals, reviews or supersessions. In such cases the LSC is generally prepared to accept that the cases meet the merits test.
This is undoubtedly the safest course of action; but some organisations cannot afford to restrict their service to appeals, as they will then not generate enough funding to keep their caseworker(s) employed and could fall foul of the key performance indicator requiring that 85% of matter starts are used.
Disability Living Allowance (DLA) cases
If you need to claim some cases other than reviews/appeals, you may find that the LSC is more likely to accept claims for Disability Living Allowance (DLA) cases, as this benefit is explicitly referred to in the contract (Specification paragraph 10.78); but you will have to be careful to ensure that the tests set out in CLA 51 are met:
Sufficient benefit test
The LSC’s guidance to the Funding Code states that in relation to Legal Help, it is essentially a private paying client test – so would a private client of moderate means be prepared to pay for the advice? Well, probably not if he or she would be quite likely to get the benefit anyway, or with a bit of free general advice.
You need to make several things very clear in your case notes:
- That there are features in that particular client’s case which make it unclear how the regulations and Tribunal decisions would be applied in his / her case and that legal advice is required to help the client present their circumstances in such a way that they meet the qualifying conditions.
- That you are providing specialist legal advice and that this would not be available from the DWP, which would not apply the relevant Tribunal cases etc at the application stage.
- That you are applying the relevant regulations and case law and that by so doing, you are significantly improving the chances of the client being granted the benefit in question and so a private paying client would pay for advice in the circumstances.
Many agencies simply include a long list of Upper Tier Tribunal cases in their case notes, in the hope that these will indicate that they are giving legal advice. I’m afraid that is not enough. Agencies need to make sure that they only include the relevant cases and add a short explanation of why they think the cases are relevant to that particular client, and how the wording of the claim form should be expressed.
It is very important to avoid ‘cut and paste’ standard text unless it is carefully tailored to the client’s circumstances, as ‘cut and paste’ does not demonstrate specialist legal advice.
There is also useful guidance on what should be recorded on files provided by the LSC’s peer reviewers – in the documents box on the right hand side – HERE.
- Transforming legal aid survey - 30th September 2013
- PCT: incredible alternatives - 7th June 2013
- What was that we signed? - 28th March 2013
- The Low Commission: ‘no magic solution’ - 15th January 2013
- Legal Services Commission’s Standard Contract 2010 (article 8) - 11th January 2013
- ‘Massively oversubscribed’: legal aid contracts from April 2013 - 4th January 2013
- Legal Services Commission’s Standard Contract 2010 (article 7) - 1st November 2012
- Legal Services Commission’s Standard Contract 2010 (article 6) - 9th October 2012
- Welfare Benefits: in scope or not? - 3rd August 2012
- Legal Services Commission’s Standard Contract 2010 (article 5) - 27th July 2012