Legal Aid Agency, 'Contract management: mental health guidance' (v4, 20/3/23)
Contract management guidance The reason given for this version is: "Amended to include Rule 11(7)(a) & 13(5)(a)(i) appointments & information on remote communication with clients". These sections are new: (4) Remote Hearings; (5) Remote Communication with Clients; (6) Rule 11(7)(a) and 13(5)(a)(i) Appointments. The full text of those sections is reproduced here. The remainder is unchanged.
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4. Remote hearings
In March 2020, in the response to the COVID pandemic, the MHT began to list tribunals for hearing remotely. While mental health tribunal hearings are still being heard remotely providers will be able to claim the Level 3 (Mental Health Proceedings) Fee where representation is undertaken remotely at a final hearing intended to dispose of the case.
An adjourned hearing fee can be claimed in instances where remote hearings are adjourned, postponed, or otherwise cancelled on the day at the request of the mental health tribunal or responsible clinician, or in circumstances where you make a request to adjourn, postpone or cancel where you could not have otherwise reasonably avoided. Details on the conditions that need to be met in order to claim this fee for a remote hearing are set out in paragraphs 9.85A and 9.85B of the Category Specific Rules.
The reasons behind the adjournment, postponement or cancellation of the remote hearing should be documented on file along with a justification, and any relevant evidence, that the circumstances warrant an adjourned hearing
5. Remote Communication with Clients
The Specification to the Contract sets out the circumstances where remote advice can be given to a client under Controlled Work without any attendance on that client to obtain a signed form.
In the first instance, 3.18 of the Specification states that providers may give advice to clients over the telephone, email, post, fax, or other means of remote communication in all cases before the client has signed the application form where:
- a.) the client has requested that the application is made in this way, and it is not necessary for the interest of the client to attend in person; or
- b.) the Client has been referred by the civil legal advice telephone operator service; and
- c.) In the case of either a.) or b.), the Client meets the criteria in the Merits Regulations and Financial Regulations for the provision of Legal Help.
Providers will be able to submit a claim on the basis that the client subsequently signs the application form.
Paragraph 3.15 of the Specification states the provider can also accept an application for Controlled Work may be accepted via post, fax, email or other such method of communication as we may agree from time to time where the Client requests that the application is made in this way and it is not necessary for the interests of the Client or his or her case to attend you in person.
Where the provider does not see the client in person because they have accepted an application under paragraph 3.15 or 3.18 of the Specification (as set out above), the provider must ensure that this does not exceed 50% of their total matter starts opened in any schedule period.
However, there are provisions in the contract that allow flexibility in terms of the 50% requirement:
- Firstly, where the reason that the postal/email application has been permitted is to meet a provider’s obligations under the Equality Act 2010 (e.g. as a reasonable adjustment) then than application is not included in the calculation of the 50% limit.
- Secondly, the contract specifies that providers can seek written notice from their contract manager in advance if they think they might exceed the 50% requirement and have a justified reason for doing so. This could include the fact that you are unlikely to meet this threshold because your clients have chosen remote advice (although clients should always have the option of face-to-face advice).
If the provider does visit the client in person to obtain a signed Controlled Work form as part of their initial actions on a case, it is not a requirement that any subsequent attendance or communication with the client needs to be done in person.
6. Appointments under Tribunal Rule 11(7)(a) (England) and 13(5)(a)(i) (Wales)
Under Rule 11(7)(a) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 and 13(5)(a)(i) of the Mental Health Review Tribunal for Wales Rules 2008, the relevant tribunal can appoint a representative for a client where “the patient has stated that they do not wish to conduct their own case or that they wish to be represented.”
We have received feedback that in some circumstances clients refuse to engage with the representative appointed for them under these rules. This means that providers are unable to obtain a signed Controlled Work form for these client. We have, therefore, introduced provisions into the Category Specific Rules to deal with these cases.
Paragraph 9.105 of the category specific rules states that where you are appointed to represent a client by the relevant tribunal under Rule 11(7)(a) or Rule 13(5)(a)(i) of the Mental Health Review Tribunal for Wales Rules 2008 and are unable to make contact with the Client or they refuse to engage with you, you are entitled to claim a Level 1 (Mental Health Proceedings) Fee as long as you meet all of conditions as set out at paragraphs 9.105 of the category specific rules.
The matter will be considered an end when the client fails to give instructions for two months as set out at paragraph 9.106 of the category specific rules.
Escape fees will not apply to claims under these appointments and the level 1 fee is the only fee payable in any circumstances.
No changes have been to the process for applying for legal aid for client who lack capacity, including where a representative has been appointed on behalf of these clients under Rule 11(7)(b) of Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 and 13(5)(a)(ii) of the Mental Health Review Tribunal for Wales Rules 2008. The existing rules for accepting applications on behalf of “protected parties” set out in the Civil Legal Aid (Procedure) Regulations 2018 and the Contract should continue to be followed in these cases