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Streamlining the legal aid process for Civil practitioners
Thursday, Jun 02, 2016
This update outlines six initial enhancements developed as part of the civil streamlining strand of work that the Scottish Government asked SLAB to carry out as part of a review of the government’s strategy for legal aid.
These changes have been drawn up after meetings and discussions held with firms in which they’ve provided their experiences of, and suggestions for, current civil legal aid procedures.
Based on this feedback we have reviewed current processes and are making these changes. We expect they will make both our processes more effective and bring benefits to you as professionals working with legal aid.
The following changes come into effect immediately, except for No.2, which will take effect from Monday 6 June and No.4, which needs changes to our civil system. We will provide an update once this change is ready to be implemented.
- Removing the need for multiple applications
- Removal of time-based stage reports
- Revised approach to special urgency applications seeking contact orders
- Introduction of joint applications - adults with incapacity with a welfare component
- Supervised and supported contact available under Advice & Assistance
- Funding for family therapy
At present in adoption and permanence order proceedings we ask for one application for civil legal aid in respect of each child involved in these proceedings. This gives additional work for an applicant, their solicitor and SLAB. The information supporting each application varies little if at all with documents often just copied on to each application.
In contrast in children’s legal aid we ask for one application only irrespective of the number of children involved in a case. The different approach between civil and children’s cannot be justified and potentially only causes confusion. It is not a streamlined approach.
From now on we will only need only one application per applicant in adoption and permanence order proceedings. This reduces unnecessary work for everyone at all stages in the case, including lodging an account, as there will no longer be any need to apportion costs across a number of accounts, which can be time consuming and complex for all involved. Back to top
In February 2012 changes were made to the time-based reporting system to require reports:
- six months after the initial grant of civil legal aid; and
- every 12 months thereafter.
Time-based stage reports are completed in the vast majority of cases simply to fulfil SLAB’s requirements, but the content of such reports is rarely of real worth in terms of SLAB’s overall examination of the appropriateness of civil legal aid continuing.
Of far greater use, both to the profession and to SLAB, are the unprompted reports which are completed when a material change in circumstances takes place in a case.
It is these reports which are far more likely to call into question whether or not a grant of civil legal aid should continue at all, or whether it should continue but subject to a condition being placed on a grant of civil legal aid about the scope of the continuing grant.
In the calendar year 2015 we received 15,500 stage reports and of these 1,616 were unprompted reports and 13,984 were time-based reports. The work involved in submitting time based reports and in having them examined by SLAB is significant and yet this work is disproportionate to the benefits the reports bring.
We expect that the removal of the time-based stage reports, which have limited practical benefit for SLAB and the profession, will be welcomed by the profession. They are evidence of SLAB’s commitment to the streamlining process and the removal of any unnecessary processes that do not benefit solicitors, the applicant or SLAB.
Time based reports will not be asked for from Monday 6 June. However you will still need to send us reports requested prior to 6 June.
When stage reporting was introduced it was a good way of checking on the progress being made in any one case as previously there was no means of doing this. However, with the introduction of cost limits in March 2013 there is little need for routine reporting.
If a case needs more funding than is available under the cost limit our prior approval has to be obtained. This gives SLAB an opportunity to look at the progress being made in a case and to determine what factors might be increasing the overall cost of that action.
In order to continue to provide assurance to SLAB about the worth of a case, we will be reinforcing the importance of providing unprompted reports where there is a material development in a case.
We will also ask for more detailed information about the progress of a case where any request is made for an increase in the cost limit.
We will also introduce sample checks on applications to provide reassurance that the unprompted reporting requirements are being met. Back to top
We are amending our approach to granting special urgency cover in cases where contact had previously been operating satisfactorily but the parent with care suddenly ends this contact for, on the face of it, no good reason.
In those situations it is appropriate for us to grant special urgency cover to allow an immediate court action to be raised to reduce the possibility of:
- elongated litigation;
- the need for a child welfare report;
- the need for several child welfare hearings; and
- the need to introduce supervised or supported contact.
Long delays are not beneficial to the child or children who were previously enjoying contact with their non-resident parent and it could cost the public purse more.
The approach taken to applications seeking special urgency cover to raise a contact action will not be amended beyond this. Where contact was not operating just before the request for special urgency cover is made we will continue to view this as a matter that can wait until the legal aid application is decided.
This approach was established after the ability to raise an action seeking interim orders in terms of section 11 of the Children (Scotland) Act 1995 without SLAB’s prior approval was removed from the scope of regulation 18 of the 2002 Regulations in April 2011.
When the changes were made to regulation 18 we issued guidance on the approach we would take to such applications.
Guidance on contact applications
The guidance on contact applications was that applications seeking special urgency cover to raise an action seeking interim contact would generally only be granted in the context of a variation of existing orders or where there had been a failure to obtemper a court order.
It also stated that there would only be very limited situations where SLAB would be satisfied that obtaining an interim contact order prior to the determination of a legal aid application was a matter that would meet the test of special urgency.
The change in the regulation was intended to reduce unnecessary costs to the Fund by reducing the scope to raise court actions at a very early stage.
The changes gave us the opportunity to determine whether or not the statutory tests for civil legal aid were met before publicly funded litigation was entered into thus ensuring that funding was only made available for appropriate and relevant cases.
While this has been largely achieved one unintended consequence is that, in a small number of cases, the overall cost to the public purse may have increased because of the absence of early cover for a court action.
Added to this, in this same smaller number of cases, the outcomes for all involved in the litigation including, most importantly, the child or children at the centre of the litigation may not be as satisfactory as they would have been had an earlier action been raised. Back to top
At present, we ask for individual applications where more than one party is seeking to be appointed as a joint guardian under both advice and assistance and civil legal aid.
This involves unnecessary administrative work on the part of applicants, their solicitor and SLAB in cases where the guardianship order being sought has a welfare component and no financial assessment is needed. We are making changes to our systems to allow joint applications to be made where joint guardianship orders are being sought.
For advice and assistance, a change in process to allow a joint application may benefit the adult involved because financial eligibility under advice and assistance is not disregarded. As it is assessed based on the resources of the adult if a contribution is found to be payable then this has to be paid twice.
A change to the system to require only one grant of advice and assistance removes this unfairness.
There will be no change to the process of needing single applications where parties are not in agreement about the order or where there is a contested application for guardianship.
In addition, we will not be changing the process for applications where a financial guardianship order only is needed. Back to top
We are extending the availability of funding for supervised and supported contact to advice and assistance.
We have been meeting the costs of supervised and supported contact under civil legal aid since 2012. Since then the number of requests for funding has increased steadily.
It is a remedy that is often favoured by the court where there has been:
- a gap since contact was last exercised
- the child or children involved in the court case are young (under the age of 5); or
- allegations of poor behaviour are made about the party wishing to exercise contact.
Where possible, we want to encourage parties to resolve contact disputes without going to court. Reducing conflict in relationship breakdowns where there are children involved and offering less contentious ways of settling such disputes will benefit the children involved.
Our revised contact guidance requires parties to show that they have engaged in meaningful negotiations in an attempt to resolve contact disputes without recourse to litigation.
One option to help with this is to extend the availability of funding for supervised and supported contact to advice and assistance. If supervised contact can be used to set up or reinstate contact this early intervention can be useful and help to resolve matters.
As an example, if a mother is hesitant about allowing an individual unsupervised or unsupported contact, at least initially, a staged approach to the introduction of contact, including where necessary supervised or supported contact, it is preferable to raising a court action.
Information we require
If you are making a request for funding to cover this cost then you should:
- tell us how many supervised or supported contact sessions are needed
- confirm that it is anticipated that allowing such contact will help parties to reach a final settlement in respect of any contact dispute; and
- let us know why any supervised or supported contact sessions were not successful should any additional funding be sought to negotiate matters further under advice and assistance or should an application for civil legal aid be made.
The courts are increasingly referring cases to family therapy as a possible means of resolving difficult family disputes It can be used to resolve the tensions between parties rather than increasing this tension through the court process. Previously we did not make funding available for this but we will be doing so from now.
Family therapy’s key objective is that any work carried out with a family must fulfil the needs of the child. It is an important part of the process that parties understand they have different relationships with the different parties involved.
They have one role as a separated couple and another as parents. These different relationships need separate consideration and this aspect is explored fully in trying to reach a satisfactory outcome.
The option of family therapy is not available in all locations given the limited number of available therapists but where it is, it is another useful option to try to resolve disputes between parties without excessive intervention by the court.
Where a request for funding for family therapy is made we will require:
- to be given information about the issues to be considered by the family therapist;
- clarification on the likely cost of the therapy and its duration; and
- details of the potential prospects for successfully undertaking therapy.
Please contact Catriona Whyte, Head of Civil Legal Services.
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