New NILSC Circular

Posted on by Briege Williamson

2nd Floor Waterfront Plaza

8 Laganbank Road

`Mays Meadow

Belfast BT1 3BN

 

Office of the Chairman and Chief Executive                                                          Tel:  028 9040 8805

Email:  accesstojustice@nilsc.org.uk

 

LSC Circular 19/14

29 October 2014

Dear Practitioner

Legal Advice and Assistance Scheme (Green Form Scheme) – not PACE

  • Introduction of New Rep 5 Form
  • Procedures to be followed when seeking prior authority for expenditure

 

  

Introduction of New Rep 5 Form

In January 2014 the Commission published LSC Circular 02/14 “Ensuring the Continued Financial Eligibility of Assisted Persons”.  This circular related to the continued financial eligibility of applicants under the Civil Legal Aid Scheme.  The measures detailed in that circular were to address criticism from the Northern Ireland Audit Office that there is insufficient evidence to establish that assisted persons remain financially eligible throughout the life of Civil Legal Aid Certificates.

 

  1. The Comptroller and Auditor General, in his report for the year ending March 2013 which is contained in the Commission’s published Annual Report and Accounts 2012/13, expressed concerns about the level of potential Legal Aid fraud.  The Commission has considered the implications of this concern in relation to the Legal Advice and Assistance (LAA) and Assistance By Way of Representation (ABWOR) Schemes.  The main weakness which has been identified is the lack of supporting evidence submitted with Green Forms under both these Schemes to verify financial eligibility.

 

  1. The Commission has, therefore, introduced a revised REP5 form, for advice and assistance which will come into effect on 31 October 2014. From that date, any new forms signed by clients MUST be in the revised format.  The Commission will accept the current forms which have been signed by clients prior to 31 October 2014 provided the evidence used to verify financial eligibility is attached to the form.  Practitioners are asked to note that the main change is that Green Forms submitted under the LAA or ABWOR Schemes will not be accepted unless the documentary evidence which practitioners have relied upon to establish financial eligibility is submitted with the REP5.

 

  1. Practitioners are asked to note that if they are faced with an emergency situation in which less satisfactory evidence has been accepted, they must specify this on the REP5 form, together with details of the nature of the evidence and submit the evidence available to them when the REP5 was signed.

 

  1. I would also remind Practitioners that this form should not be used for PACE advice.  The PACE Green Form CDS1 is available in the Legal Profession section of the website at the address given below.

 

  1. Practitioners should continue to use Form REP5 DV continuation sheet to complete the means assessment in respect of applications under the Domestic Violence Scheme.  Form REP5 DV is also available in the Legal Profession section of the website.

 

Statutory Time Limits

 

  1. Regulation 23(2) of the Legal Advice and Assistance Regulations (NI) 1981 provides that solicitors shall submit their claims for payment under the LAA and ABWOR Schemes within 6 months from the date on which the advice and assistance was given, or the proceedings in which assistance by way of representation was given were concluded.  The Commission has received claims in which the solicitor has relied on a letter to the client confirming that the file has been closed to demonstrate adherence to the time limits.  For the avoidance of doubt, practitioners are asked to note that the time limit runs from the date of the last substantive work or hearing date, and not from the date of such a letter, or a delay by the solicitor in seeking confirmation from the DHSSPS of their client’s benefits.

 

Introduction of new Rep 5 Form

 

  1. Whilst reviewing the form, the Commission has also taken the opportunity to change the layout.  The Commission’s intention is to assist practitioners by making the form more straightforward with each section being a natural flow from the previous section.  At a future date, the revised layout will also assist when the Commission moves to electronic business.  The revised REP5 is available in the Legal Profession section of the Commission’s website at: www.dojni.gov.uk/legalservices.

 

Seeking Prior Authority for Expenditure

 

  1. I am also taking this opportunity to remind practitioners of the procedures to be followed when seeking Prior Authority under the Green Form Scheme, once the limit of £88 has been expended or is likely to be expended shortly.  The 1981 Order, Part II, Article 6(1) states that the practitioner shall not give advice and assistance, or, as the case may be, not instruct counsel to give it so as to exceed the stated limit, except with the approval of the Commission.  Prior authority must, therefore, be sought on each occasion.

 

  1. It has come to my attention that, on occasions, particularly when such requests are submitted urgently, that practitioners are relying on the premise that provided the request is submitted to the Commission before the advice and assistance is provided, they are complying with the legislation.  There have been occasions where such requests have been authorised.

 

  1. This is to remind practitioners that prior authority requests must be made in good time, and that practitioners must have received written authority from the Commission before providing any further advice and assistance. Similarly, practitioners should also not instruct counsel to give advice and assistance without having received the Commission’s prior approval in writing to do so.

 

  1. The fact that the practitioner’s request is received in the Commission in advance of the advice and assistance being given, e.g. the request is made the day before the consultation is arranged, will not be considered as prior authority being in place.  Practitioners are advised to await the formal confirmation from the Commission to be clear on the authority that has been given.  Any advice and assistance provided before the authority has been given will not be covered by the Legal Aid Fund

 

  1. Practitioners are, therefore, urged to make such requests in a timely manner.  LSC Circular 3/14 issued March 2014 http://www.dojni.gov.uk/index/legalservices/northern-ireland-legal-services-commission-legalprofession/lsc_03_14_interim_payment_scheme_civil_18march14.pdf

 

advised practitioners of the procedures and the suggested ‘turnaround’ times for the handling of such requests, together with details of the procedures for handling of ‘Urgent’ requests.

  1. The Commission recognises that there will be occasions when an urgent request for authority is necessary and the Commission will work with practitioners as far as possible.  However, in such circumstances it is important that any requests marked ‘Urgent’ must comply with the procedures and full reasons for the urgency should be provided.  Any requests marked as ‘Urgent’ without reasons provided will not be treated as ‘Urgent’ and will be processed in the normal way.  As noted above, practitioners should not proceed to provide advice and assistance, or assume that authority will be given, until they have received formal confirmation of the details of the authority that has been given.

 

Requests under Regulations 15 and 23 of the Legal Advice and Assistance Regulations (NI) 1981

 

  1. I am also taking this opportunity to remind practitioners that only a solicitor can make an application for prior authority requests for extensions of time and the submission of bills for payment under the LAA and ABWOR Schemes.
  2. All such requests and report forms must be dated and signed by the solicitor.  Any requests made by an Office Manager or other member of staff will be returned.

 

 

Yours sincerely

Paul Andrews

Paul Andrews

Chief Executive

LSC 19 14 Revised Green Form Version 10 (Rep5) 29October 2014