The Community Legal Service (Funding) (Amendment) Order 2011

Made: 30th March 2011

Laid before Parliament: 1st April 2011

Coming into force: 9th May 2011

The Lord Chancellor has consulted the General Council of the Bar and the Law Society in accordance with section 25(2) of that Act and has had regard to the matters specified in section 25(3) of that Act.

Citation, commencement and interpretation

1

• (1) This Order may be cited as the Community Legal Service (Funding) (Amendment) Order 2011 and comes into force on 9th May 2011.

• (2) In this Order “the 2007 Order” means the Community Legal Service (Funding) Order 2007[^f00002] and words and phrases used in this Order have the same meaning as in the 2007 Order.

Amendments to the 2007 Order

2

The 2007 Order is amended as follows.

3

In article 3(1)—

• (a) after the definition of “the 2007 Act” insert—

• “2010 Standard Civil Contract” means the contract so named between the Commission and a provider for the provision of funded services, including the contract for signature, the standard terms, the schedules and the specifications[^f00003];
• “advocacy services” means work done— by an advocate at a court hearing; by an advocate, as such, in connection with an advocates’ meeting; by counsel in connection with a conference, and by counsel in connection with an opinion; and fees and rates for advocacy services include (unless different provision is made in this Order) remuneration for preparatory work, attendances, travelling and waiting in relation to those services;
• “advocate” means a person exercising a right of audience as a representative of, or on behalf of, a party;
• “advocates’ meeting” means an advocates’ meeting directed by the court pursuant to the Public Law Outline;
• “certificate” means a certificate issued under Part 2 of the Funding Code;
• “child abduction proceedings” means proceedings within section 11.13 of Part 1 of the Funding Code

• (b) after the definition of “Commission” insert—

• “counsel” means— a barrister in independent practice; and a solicitor or Fellow of the Institute of Legal Executives who does not work in a partnership and who does not hold a Unified Contract;

• (c) in the definition of “family proceedings” omit everything after sub-paragraph (i);

• (d) after the definition of “family proceedings” insert—

• “final appeal” means any appeal against a final order in family proceedings but does not include— an application to the court of first instance for permission to appeal; and advice on the merits of appealing against a final order;

• (e) after the definition of “Mental Health Proceedings” insert—

• “provider” means a party to the 2010 Standard Civil Contract other than the Commission;
• “Public Law Outline” means the outline set out in the table following paragraph 10 of the Practice Direction ‘Public Law Proceedings: Guide to Case Management, April 2010’, made by the President of the Family Division;

• (f) in the definition of “Unified Contract” before “between” insert “so named”.

4

In article 3(2)—

• (a) after ““Family Help (Lower)”” insert ““Family Help (Higher)”, “Investigative Help””;

• (b) for “and “Legal Representation”” substitute ““Legal Representation” and “Full Representation””.

5

For article 5(1)(a) substitute—

(a) after competitive tendering as to price has taken place;

6

• (1) For article 5(2) substitute—

(2) Any contract for the provision of funded services under section 6(3) of the Act— (a) must provide for payment by the Commission at the fees and hourly rates set out in Schedules 1 and 2; (b) may provide for a percentage enhancement to the hourly rates set out in Schedule 1, provided that the percentage enhancement must not exceed— (i) 200% for non family proceedings in the Upper Tribunal, High Court, Court of Appeal or the Supreme Court; and (ii) 100% for all other proceedings; (c) must, if it relates to family proceedings, include provisions that accord with those in Schedules 3 and 4 insofar as they are relevant; and (d) must include provisions relating to payment of disbursements that accord with those in Schedule 5, insofar as they are relevant.

• (2) For the Schedule to the 2007 Order, type=start slip=2011-07-01 time=1309945875405substitute Schedules 1 to 5 set out in the Schedule to this Order.type=end slip=2011-07-01 time=1309945875405

7

After article 5 insert—

(5A) (1) Subject to paragraph (2), the Commission must fund advocacy services in family proceedings as part of the Community Legal Service in accordance with— (a) the fees and rates set out in Schedule 2; and (b) the provisions of section 2 of Schedule 4. (2) Where paragraph (3) applies, the Commission must fund advocacy services as part of the Community Legal Service in accordance with the provisions of section 3 of Schedule 4. (3) This paragraph applies to advocacy services in family proceedings provided— (a) to any party in child abduction proceedings; (b) in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975[^f00004]; (c) in proceedings under the Trusts of Land and Appointment of Trustees Act 1996[^f00005]; (d) in proceedings under Part 4A of the Family Law Act 1996[^f00006]; (e) in defended proceedings for divorce or judicial separation, for dissolution of a civil partnership or the legal separation of civil partners; (f) in proceedings for nullity of marriage or annulment of a civil partnership; (g) in applications for a parental order under the Human Fertilisation and Embryology Act 2008[^f00007]; (h) in proceedings under the inherent jurisdiction of the High Court in relation to children; (i) where the advocate separately represents a child in proceedings which are neither specified proceedings within the meaning of section 41(6) of the Children Act 1989[^f00008] nor are heard together with such specified proceedings; (j) in proceedings in the Court of Appeal or the Supreme Court; (k) in a final appeal; (l) by Queen’s Counsel acting as such under a prior authority given by the Commission; (m) under an individual case contract for a high cost case issued under rule A3 of Part 2 of the Funding Code. (5B) Subject to the provisions of Schedules 4 and 5, nothing in this Order prevents the Commission from paying reasonable disbursements.

Saving provision in relation to the 2007 Order

8

Where funded services are provided under a certificate and—

• (a) the application for the certificate was signed before 9th May 2011, regardless of whether the scope of the certificate is extended on or after that date; and

• (b) the application was received by the Commission before 16th May 2011,

the 2007 Order continues to have effect as if this Order had not been made.

Revocation of the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001

9

• (1) Subject to paragraph (2), the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001[^f00009] is revoked.

• (2) Where funded services are provided under a certificate and—

• (a) the application for the certificate was signed before 9th May 2011, regardless of whether the scope of the certificate is extended on or after that date; and

• (b) the application was received by the Commission before 16th May 2011,

that Order continues to have effect.

SCHEDULE

Signed

Signed by authority of the Lord Chancellor

J Djanogly — Parliamentary Under Secretary of State — Ministry of Justice — 30th March 2011

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order amends the Community Legal Service (Funding) Order 2007 (S.I. 2007/2441) and imposes conditions on the funding of services as part of the Community Legal Service, by limiting the powers of the Legal Services Commission to pay remuneration under contract for the provision of funded services.

The Order inserts five new Schedules into the 2007 Order.

The first Schedule replaces the existing Schedule to the 2007 Order and sets out revised remuneration fees and rates which will be payable for funded services. Words and expressions used in the Schedule, unless otherwise provided, carry the same meaning as in the Legal Services Commission’s 2010 Standard Civil Contract or (in relation to services continuing to be provided under the Unified Contract) that contract. These contracts are available on the Legal Services Commission website www.legalservices.gov.uk.

The second Schedule sets out fees and rates payable for advocacy services in certain family proceedings. The Order requires the Commission to pay remuneration for advocacy services in those proceedings in accordance with the fees and rates in that Schedule and section 2 of the fourth Schedule. It also requires the Commission to pay remuneration for advocacy services in other family proceedings in accordance with section 3 of the fourth Schedule.

The third Schedule contains provisions relating to payment for Family Help (Higher) and Legal Representation services in family private law proceedings. The Order requires the Commission to pay for those services in accordance with the provisions of that schedule.

The fifth Schedule contains provisions relating to the payment of certain types of disbursements.

An impact assessment in respect of the changes given effect by this Order was published on 21st October 2009 by the Legal Services Commission as part of “Family Legal Aid Funding from 2010: a Consultation Response” and is available from the Commission at 4 Abbey Orchard Street, London SW1P 2BS or at www.legalservices.gov.uk.

Footnotes

[^f00001]: 1999 c. 22. The reference in section 6 to the Lord Chancellor was changed to the Secretary of State by S.I. 2003/1887 and changed back to the Lord Chancellor by S.I. 2005/3429. Section 25(8A) was inserted by section 153 of the Coroners and Justice Act 2009 (c. 25).

[^f00002]: S.I. 2007/2441, amended by S.I. 2008/1328, 2008/2704, 2009/2468 and 2010/95.

[^f00003]: Published by the Commission on 26th March 2010 and available on its website at www.legalservices.gov.uk.

[^f00004]: 1975 c. 63.

[^f00005]: 1996 c. 47.

[^f00006]: 1996 c. 27. Part 4A was inserted by section 1 of the Forced Marriage (Civil Protection) Act 2007 (c. 20).

[^f00007]: 2008 c. 22.

[^f00008]: 1989 c. 41. Section 41(6) was amended by section 122(1)(a) of the Adoption and Children Act 2002 (c. 38).

[^f00009]: S.I. 2001/1077, amended by S.I. 2003/2590, 2005/184, 2006/2364, 2007/2443, 2007/3169 and 2008/666.

[^f00010]: 1996 c.52.

[^f00011]: 1989 c. 41.

[^f00012]: 1975 c. 63.

[^f00013]: 1996 c. 47.

[^f00014]: 1989 c. 41. Section 41(6) was amended by section 122(1)(a) of the Adoption and Children Act 2002 (c. 38).

[^f00015]: 1996 c. 27. Part 4A was inserted by section 1 of the Forced Marriage (Civil Protection) Act 2007 (c. 20).

[^f00016]: 2008 c. 22.

[^f00017]: 2000 c. 43.

[^f00018]: 1989 c. 41.

[^f00019]: 2004 c. 31.

[^f00020]: 1989 c. 41.

[^f00021]: 1983 c. 20. Section 1(2) was amended by sections 1(1) and 1(2) of the Mental Health Act 2007 (c. 12).

[^f00022]: S.I. 2001/1077, amended by S.I. 2003/2590, 2005/184, 2006/2364, 2007/2443, 2007/3169 and 2008/666.

[^f00023]: 1989 c. 41. Section 16A was inserted by section 7 of the Children and Adoption Act 2006 (c. 20).

[^f00024]: 1989 c. 41. Section 11A and section 11C were inserted by section 1 of the Children and Adoption Act 2006 (c. 20).

[^f00025]: 1989 c. 41. Section 11A was inserted by section 1 of the Children and Adoption Act 2006 (c. 20).