Key messages for legal suppliers - March 2020

Date published: 30 March 2020

The LSA has issued the key messages for suppliers for March 2020.

Advice and assistance for Historical Institutional Abuse Scheme

Practitioners will be aware that the compensation scheme run by the HIA Redress Board is now open. The powers of the HIA Redress Board are contained within the Historical Institutional Abuse (NI) Act 2019 and in the Historical Institutional Abuse Redress Board (Applications and Appeals) Rules (Northern Ireland) 2020 (“the 2020 Rules”). These Rules came into operation on 31 March 2020.

Practitioners will note that under Rules 14 and 15 of the 2020 Rules a solicitor who is acting for a person making an application for compensation may make an application to the Redress Board to recover the costs of providing that legal advice and assistance. The Rules set out the fees that may be claimed.

As such, the Legal Services Agency does not expect to receive applications for advice and assistance under Civil Legal Services for matters covered by the Redress Board. Any such applications received will be refused as there is a bespoke funding mechanism.

 

Financial assessment

Domestic Violence Scheme

Practitioners are reminded of the availability of the Domestic Violence Scheme which allows legal aid to be made available to applicants for Non Molestation Orders who ordinarily would be financially outside the scope of legal aid, subject to a contribution from capital and/or income and the merits tests being met. 

In all cases where an applicant’s disposable weekly income exceeds £234 or their capital exceeds £3000, please complete a Financial Assessment form which can be located on the Agency’s website on the ‘LAMS legal aid supporting documents’ page and upload it as a supporting document to your application on LAMS.

Change of circumstances

There is a duty on assisted persons to notify the LSA of a change in their financial circumstances. This takes on a particular significance within the current circumstances. If an assisted person is paying contributions and their circumstances change, they should immediately seek a redetermination of their contributions. A Change of Circumstances request should be submitted on LAMS along with all relevant supporting documentation which evidences the change. Failure to pay contributions will lead to the suspension of a certificate and prompt request for a redetermination could avoid this situation. Practitioners should encourage assisted persons to seek a redetermination if their circumstances have changed.  

Request for redetermination of payment in extradition cases

This note is to refresh practitioner’s understanding of the redetermination and appeals processes available in extradition cases. There are a number of paths which a request for redetermination may take depending on the initial assessment outcome.

When a request for redetermination of payment in extradition cases has been received it will be taken forward by the Agency Appeals Unit. This may, in the first instance, include the appeals unit asking the original assessor to review and confirm the original decision and calculations.

In the case of remuneration paid without reference to the Master, where no uplifts have been granted, or counsel fees are within the maximum amounts set out in the 'Lord Chancellor’s Direction No. 10 - Extradition Cases' given under the ‘Legal Aid in Criminal Proceedings (Costs) Rules (Northern Ireland) 1992’, the request for appeal will be taken forward by the Agency Appeals Unit.  If the Agency Appeal panel amends the original decision and the payment is moved into a category which required certification by the Master, the amended decision is forwarded to the Master.

Where remuneration was certified as proper, or certified not proper in a greater amount by the Master, the request is also taken forward by the Agency Appeals Unit. If the supplier is not content with the findings of the appeal, they can then appeal to the Master.

Where remuneration was certified as not proper, in a lesser amount by the Master, the request for appeal is made by the supplier to the Master.

Where the supplier is not happy with the decision of the Agency Appeals panel, they have the right to appeal to the Master and where the supplier is not happy with the decision of the Master, they have a right of appeal to the High Court.

 

Payment requests in exceptional preparation and exceptional funding cases

Practitioners are reminded that when submitting their request for payment in the form of contemporaneous records they are only to include work relating to their Certificate of Exceptionality or Certificate of Exceptional Funding. If practitioners include standard fee elements, e.g. travel or mileage, the entire request will need to be queried and resubmitted.

 

Remuneration arrangements for asylum and immigration proceedings before the first-tier tribunal and the upper tribunal

When an appeal is withdrawn by the Home Office, in such cases the Agency shall interpret and apply the fees payable pursuant to Table 1 in Part 6 of Schedule 4 to the 2015 Order. The following fees (incl. VAT) shall be payable:

i.   Appeal withdrawn on the day of the substantive hearing following the decision being withdrawn by the Respondent that same day - Full Composite Fee: £1,200

ii.  Appeal withdrawn at any stage following the decision being withdrawn by the Respondent prior to the day of the substantive hearing - 20% of Composite Fee: £240

The withdrawal of the decision is effective when communicated by the respondent to the appellant or his/her solicitor; for example, by phone call to the appellant or his/her solicitor, email or letter received by the appellant or his/her solicitor, or in person. Any withdrawal decision communicated after 5pm on the day preceding the substantive hearing is taken to be made on the day of the substantive hearing.

The Agency shall require written confirmation before either of the above payments will be authorised, evidencing when the decision was withdrawn. This confirmation shall be in the form of the Notice of Decision signed by the Judge of the First-Tier Tribunal or Upper Tribunal, together with any withdrawal decision letter or email issued by the respondent, either of which must state clearly when the decision was withdrawn.

This shall apply for the determination of remuneration payable to solicitors where the work is done under a certificate granted on or after 7 January 2020, the date of the Departmental Direction, or where any extant claim for costs has yet to be determined or redetermined by the Agency pursuant to Articles 9 or 13 of the 2015 Order. In respect of these extant claims, the Agency shall not expect an application for the appellant’s costs to have been made.

 

Children’s Order – 5% uplift

Solicitors are entitled to a 5% uplift for proceedings on the amount of the prescribed fees that fall under the following Children (Northern Ireland) Order 1995 heard in the Family Proceedings Court or the Family Care Centre; under a certificate granted on

or after 1st April 2015. Prescribed fees relates to work undertaken in Table 1 or Table 2 in Part 2 of Schedule 3 (Family Proceedings Court), or in Table 1 in Part 2 of Schedule 4 (Family Care Centre), to the Remuneration Order.

 

Associated party

When submitting applications on LAMS, the “associated party” field should only be used for a patient or a minor to insert the Next Friend or Guardian Ad Litem’s details. Practitioners sometimes put the name of the Opponent in this field which then causes issues when we are generating certificates as the opponent is named inappropriately on the Certificate which causes delay in the adjudication process. 

 

Non molestation proceedings

When seeking legal aid for a non-molestation order, it is imperative that the application sets out clearly how the parties are associated persons for the purposes of the legislation.  We cannot infer from the use of the word “partner” that the parties live or lived together so this must be set out explicitly on the application.  Failure to do this will require us to issue a query which may render any Representation Lower Emergency Notification void. 

 

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