Archive for January 2015
Civil legal aid – review of the ‘mandatory gateway’
Legal practitioners have long argued that the only way to deliver proper legal advice and assistance is by face to face interviews with clients. With the development of new technologies, this view has come under increasing attack. It has been argued that remote contact via phone or email can often be just as effective and will often be more economical. An important research report on the issue by Alan Paterson and Roger Smith was published in 2014: see http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons
One of the fundamental changes made to the legal aid scheme as the result of the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is that, from April 1, 2013, in a number of matters that are still within the scope of the legal aid scheme, potential users of the legal aid scheme can only access the civil legal aid scheme through a ‘gateway’. Clients cannot get assistance by going direct to, for example, a solicitor.
(There are three exceptions, for those who are:
- in detention (including prison, a detention centre, or secure hospital);
- children (defined as being under 18); or,
- where the matter for which they need assistance is one where the user has previously been assessed as requiring face-to-face provision, has accessed face-to-face within the last twelve months, and is seeking further help to resolve linked problems from the same face-to-face provider.)
The Gateway is delivered by the Civil Legal Advice (‘CLA’) advice helpline for England and Wales, paid for by legal aid. It provides, for people who qualify for civil legal aid, specialist legal advice, primarily by telephone, online, and by post, in relation to
- debt,
- discrimination,
- Special Educational Needs,
- housing, and
- family issues.
It is available Monday to Friday 9am to 8pm and Saturday 9am to 12.30pm. Outside these times users can leave a message and CLA will call back within one working day.
Clients who qualify for legal aid in the first 3 Gateway categories listed above must usually receive any advice remotely. Clients who qualify in the other 2 categories of law have a choice about whether to receive any advice remotely or via a face-to-face provider.
The gateway provides a two-tier system. At tier one, the operator will determine whether the matter is within the scope of legal aid and will also determine the financial eligibility of the client to legal aid. If both these tests are satisfied, the client is referred to a specialist second tier advice provider. In cases that fall outside the scope, operators are training to inform people about possible alternative advice providers, e.g. in the charitable advice or third sectors.
Where a case is found to be within the scope of CLA, the client is referred to a second tier provider – a specialist who will normally provide advice remotely without a face-to-face meeting with the client.
The one exception to this is that where a client needs legal representation, arrangements will be made for a face-to-face meeting.
Because the compulsory element of the scheme was new, the Government undertook to review how the scheme was working within the first two years of its operation. In December 2014, it published the outcome of this review (and four separate research reports that were commissioned by the Government).
The broad conclusion was that, while there were matters that needed tweaking, the basic operation of the gateway was working satisfactorily,
My prediction is that, as policy evolves, there will be more use of these modes of accessing legal advice and assistance.
The Government’s view is available at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-review. Annex A gives more detail about the issues within scope. Annex B gives details about the agencies currently providing the gateway service.
The related research reports are at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-research-findings
Court fees: further changes
In June 2014, new fees for taking civil proceedings were introduced, designed to bring in additional revenue to the Court Service/Ministry of Justice.
In January 2015, a further paper was published by the Ministry of Justice which announced further decisions relating to court fees, and which raised for consultation yet other suggestions for increasing court fees. These proposals are set against a background where the income which the initial changes had hoped to generate has not been realised.
The principal change is that the fee to issue proceedings for the recovery of money is raised to 5% of the value of the claim for all claims over £10,000, up to a maximum of £10,000. The fees for claims of less than £10,000, which represent over 90% of all money claims, will remain at their current levels. Discounts of 10% will apply to these fees where the claim is initiated electronically using the Secure Data Transfer facility or Money Claims Online.
The Government has decided not to implement the proposed increase to the fee for a divorce, or either of the options for charging higher fees for commercial proceedings.
The Government is now consulting on proposals
- to raise the fee for a possession claim by £75.
- to increase the fee for a general application in civil proceedings from £50 to £100 for an application without notice or by consent; and from£155 to £255 for an application on notice which is contested.
It is proposed that the latter proposal should be subject to an exemption for:
- applications to vary or extend an injunction for protection from harassment or violence;
- applications for a payment to be made from funds held in court; and
- applications made in proceedings brought under the Insolvency Act 1986.
The consultation period is only 6 weeks. Final decisions will be announced in due course.
For full details see https://www.gov.uk/government/publications/enhanced-court-fees-the-government-response-to-part-2-of-the-consultation-on-reform-of-court-fees
New financial penalties for claims management companies
At the end of December 2014, the Government introduced a new scheme for the imposition of financial penalties on claims management companies (CMC) that fail to adhere to the regulations that control this sector of the legal services market. Made under provisions in the Financial Services (Banking Reform) Act 2013, from 29 December 2014, the imposition of a financial penalty becomes an additional available enforcement sanction for use against non-compliant authorised persons under the following circumstances:
• As a consequence of a failure to comply with the Conduct of Authorised Persons Rules
• As a consequence of a failure to comply with requirements regarding the provision of
information or documents to the Regulator
• As a consequence of a failure to comply with a requirement to take out a policy of
professional indemnity insurance
• As a result of the Regulator being obstructed in its execution of a warrant to enter and search
premises for the purposes of investigating a complaint about the activities of a regulated
CMC, or assessing the regulated CMC’s compliance with the conditions of its authorisation
• As a result of the Regulator being obstructed from attempting to take possession of, or copies
of written or electronic records found when executing a warrant to enter and search premises.
It should be noted that these penalties are not imposed by a court but by the regulator of CMCs. The guidance states:
“In practice under the CMR Unit’s revised Enforcement Policy, a financial penalty is likely to be
considered where:
– Breaches have continued despite previous compliance advice or warnings
– Detriment caused to consumers or third parties in general can be clearly monetised
– Any financial gain or loss avoided by the business can be monetised
– The business has sufficient financial means to pay a penalty
– No previous formal enforcement action has been imposed
– Action to vary, suspend or cancel the authorisation of a business would be disproportionate
under the circumstances
This list is non-exhaustive but sets out some relevant indicators that are likely to be considered when
deciding whether to initiate the penalty calculation process or move to consider the other formal
enforcement sanctions.”
Full details of the scheme are set out at https://www.gov.uk//government/publications/claims-management-companies-financial-penalties-guidance
In addition it should be noted that from January 2015, the Legal Ombudsman will have power to deal with complaints about bad practice by CMCs.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 