4 August 2023
This update gives further details on the current position with regard to applicants’ and solicitors’ signatures on the legal aid declarations forms, and the requirement for solicitors to see financial verification when admitting clients to Advice and Assistance or ABWOR.
It follows on from the guidance we issued on 12 December 2022.
As advised in December 2022, the current position is that you should sign all the declaration forms.
In all types of Legal Aid and Advice and Assistance and ABWOR cases, you have two choices for completion of the declaration:
The ‘Signature of the Solicitor’ is populated with the name of the nominated solicitor and the ‘Date Signed’ in A&A/ABWOR cases where this is printed off after the grant of A&A/ABWOR has been submitted to us, and in all other types of application.
At the start of the pandemic in March 2020, we advised that applicants did not need to sign the declarations due to the increasing health concerns at the time over face to face meetings with clients, and sharing pens. This was introduced to help solicitors and clients at the time, but was never intended to be a permanent change.
With all of the formal Covid restrictions now removed, you must always get clients to sign the declaration form when you are seeing them face to face.
We have heard that some clients are not being asked to sign the forms despite being present to do so, as it is thought that they no longer needed to do this.
This is not the case.
However, if your client is not present or there are other reasons why they cannot sign the form you must provide this information for us to consider.
This can still be noted on the online system for the time being, although the specific Covid-19 reason has now been removed – see ‘System changes’ below for changes being made from 8 August 2023.
We recognise that getting signatures has been difficult over the past few years, and that the way in which you now consult with your clients has changed since lockdown.
However, a signature on the declaration is important as it provides assurance to us that the applicant understands the existence of, and has accepted, certain terms and conditions. An important element of this is that the applicant is also aware that there are consequences if they breach those terms and conditions, and their signature captures their acceptance of that. In addition, the applicant’s signature confirms:
Where the client is present and able, you must get them to sign the declaration form.
We are, however, considering our longer term approach to signatures/authentication (see ‘Long term approach to authentication’ below).
Signed declarations are also important for applications for transfers of legal aid.
They confirm that the client is seeking a change of solicitor, is giving us permission to check the circumstances in the request, and has agreed with the reasons for the transfer being submitted.
All of this allows us to consider if a good reason has been advanced for the transfer.
The signed transfer declaration can also be used to obtain the case papers from the first solicitor, if the transfer has been agreed by us.
Therefore, the Transfer Declaration forms (CIVTR/LAO, CHILDTR/LAO or CRIMTR/LAO) should always be signed by clients who are seeking to change their solicitor where this is possible.
If it is not possible to get these Transfer Declaration forms signed by the client, then you need to satisfy us that you have some other form of signed authority from the client confirming their agreement to the terms set out in the Transfer Declaration.
You can provide these details to us in the online system where you are asked why the applicant hasn’t signed the transfer, which is the Transfer Declaration.
You should still sign the Transfer Declaration yourself, and send a copy of this to the first solicitor as required by the Solicitor’s declaration.
On the Advice and Assistance/ABWOR system, the “Covid 19” reason for no signature obtained from the client will be removed from Tuesday 8 August, and replaced with “Client not present and agrees with the declaration terms”.
Once you have confirmed with your client that they agree with the declaration terms you can use this reason for the time being where you are not seeing the client in person at the initial consultation. “Other” should be used for all other reasons, with a full explanation given of the circumstances for us to consider.
It has not been possible to make a similar change to the online system for all other legal aid applications. In these cases the system requires a date to be entered when the applicant signed the form. For the time being, the guidance we issued about this on 7 October 2020 still applies.
“In applications where this option is not given: you should indicate that you are signing on behalf of the client and give the date for this.”
Where it has not been possible to get the client to sign the declaration, the date entered here can also be the date of the remote consultation. You can add a brief explanation about the circumstances elsewhere in the application, for example in the “additional financial information box”.
We expect that it is should now be possible for clients to sign the Form 2, but where this is not possible, a full explanation should be provided.
The measures described above are intended to be in place on an interim basis while we consider our longer term approach to authentication.
We are looking at technical developments in the areas of electronic signatures, and how these can be used for legal aid applications.
We will issue updated guidance on this as these matters develop.
During the Covid-19 restrictions, solicitors still had to be satisfied that clients were financially eligible, but we accepted that there might well be difficulties in seeing financial verification in all cases, where this was needed. With the removal of all the formal Covid-19 restrictions, we now expect you to see verification in the vast majority of cases where this is required.
We accept that there may still be a small number of cases where you are representing vulnerable clients, or clients who may have recently tested positive for Covid, and it may be difficult for you to see verification in these cases.
In these cases, you should record in a file note that you have discussed the eligibility tests for A&A with your clients and how you satisfied yourself that the clients are eligible. Relying on the information provided verbally by the client is acceptable in these circumstances.
However, we expect these cases to be the exception, and verification is needed in all but exceptional circumstances.
When completing online applications for these Covid cases, in the sections where you are asked if you have seen “the most recent evidence of the applicant’s capital and income”, you should:
For further details, please contact:
Head of Criminal Legal Assistance
Head of Civil and Children’s Legal Assistance
Manager of Civil Finance
18 January 2024
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