The Civil Legal Aid (Procedure) (Amendment) (No. 2) Regulations 2017

Made: 7th December 2017

Laid before Parliament: 8th December 2017

Coming into force 8th January 2018

The Lord Chancellor makes the following Regulations in exercise of the powers conferred by sections 12(2), (3)(e), (f) and (g), and (4), 41(1)(a) and (b), and 41(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00001].

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Civil Legal Aid (Procedure) (Amendment) (No. 2) Regulations 2017.

• (2) These Regulations come into force on 8th January 2018.

• (3) In these Regulations, the “Procedure Regulations” means the Civil Legal Aid (Procedure) Regulations 2012[^f00002].

Amendment of the Procedure Regulations

2

• (1) The Procedure Regulations are amended as follows.

• (2) In regulation 33 (supporting documents: domestic violence)[^f00003]—

• (a) in paragraph (2), for the words from “following forms” to the end of that paragraph, substitute “forms that is described in Schedule 1 to these Regulations”;

• (b) omit paragraphs (3) and (4).

• (3) In regulation 34 (supporting documents: protection of children)[^f00004]—

• (a) in paragraph (2), for the words from “following forms” to the end of that paragraph, substitute “forms that is described in Schedule 2”;

• (b) omit paragraph (3).

• (4) For regulation 42(1)(k) (withdrawal of determinations)[^f00005], substitute—

(k) in relation to services described in paragraphs 12 and 13 of Part 1 of Schedule 1 to the Act, the evidence included with the application was— (i) a conviction for an offence and that conviction has subsequently been quashed; (ii) evidence of ongoing criminal proceedings and those proceedings have subsequently been concluded without a conviction; (iii) evidence described in paragraph 7 of Schedule 1 or paragraph 5 of Schedule 2 where— (a) the order was obtained without notice to the respondent; and (b) that order has subsequently been set aside by the court; (iv) evidence described in paragraph 7 of Schedule 1 where the application for a domestic violence protection order has been made under section 27 of the Crime and Security Act 2010[^f00006] but has been unsuccessful on account of the conditions set out in section 28 of that Act not having been satisfied; (v) evidence described in paragraph 1 of Schedule 1 where no charge is brought for the domestic violence offence (within the meaning of Schedule 1) and the Director is satisfied that it is unlikely that such a charge will be brought; (vi) evidence described in paragraphs 16 to 18 of Schedule 1 and a public authority has confirmed in writing that it is satisfied— (a) there has not been domestic violence between A and B; or (b) A was not at any time at risk of being the victim of domestic violence and in this sub-paragraph “public authority” has the meaning given by Schedule 1 to these Regulations; (vii) evidence described in paragraph 1 of Schedule 2 where no charge is brought for the child abuse offence (within the meaning of Schedule 2) and the Director is satisfied that it is unlikely that such a charge will be brought; (viii) evidence of an application described in paragraph 9 of Schedule 2 and that application has subsequently been withdrawn or refused, unless the individual provides another form of evidence (excluding evidence described in paragraphs (i) to (viii)) which would have been permitted in accordance with these Regulations at the date of the application.

• (5) After regulation 69 insert Schedules 1 and 2 as set out in the Schedule.

Transitional provision

3

• (1) The amendments made by regulation 2 do not apply to an application for civil legal services that is made before the commencement date.

• (2) For the purpose of this regulation, an application is to be treated as being made before the commencement date if the application is—

• (a) for Controlled Work and the application is signed and dated before the commencement date;

• (b) for Licensed Work, other than an application for emergency representation, and the application is—

• (i) signed and dated before the commencement date and received by the Director by 5.00 pm on the seventh day after the commencement date, or

• (ii) submitted through the Client and Cost Management System before the commencement date, or

• (c) for emergency representation and the application—

• (i) results in a determination being made by a provider before the commencement date and that determination is notified within five working days of the determination to the Director;

• (ii) is emailed or faxed to, and received by, the Director before the commencement date, or

• (iii) is submitted through the Client and Cost Management System before the commencement date.

• (3) In paragraphs (1) and (2)—

• “Client and Cost Management System” means the client and cost management system used by the Director in relation to applications for civil legal services;

• “commencement date” means the date specified by regulation 1(2);

• “Controlled Work” has the meaning given in regulation 21(2) of the Procedure Regulations;

• “emergency representation” has the meaning given in regulation 2 of the Procedure Regulations;

• “Licensed Work” has the meaning given in regulation 29(2) of the Procedure Regulations;

• “provider” means a person who provides civil legal services under Part 1 (legal aid) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00007];

• “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday, or a day which is a bank holiday in England and Wales for the purposes of paragraph 1 of Schedule 1 to the Banking and Financial Dealings Act 1971[^f00008].

SCHEDULE — New Schedules 1 and 2 to the Procedure Regulations

Signed

Dominic Raab — Minister of State — Ministry of Justice — 7th December 2017

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend regulations 33, 34 and 42 of, and insert new Schedules 1 and 2 to, the Civil Legal Aid (Procedure) Regulations 2012 (S.I. 2012/3098). Those Regulations make provision about the making and withdrawal of determinations that an individual qualifies for civil legal services under sections 9 and 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) (“the Act”).

Regulation 2(2) amends regulation 33 which sets out the forms of evidence of domestic violence which must be provided with an application for civil legal services under paragraph 12 of Part 1 of Schedule 1 to the Act. The amended regulation 33 removes the time limit of sixty months for certain types of evidence of domestic violence, or risk of domestic violence, and introduces new forms of evidence, listed in new Schedule 1, where the victim has sought the help of an appropriate health professional, public authority, or domestic violence support organisation.

The new Schedule 1 introduces a new definition of “protective injunction”, for the purpose of the evidence requirements in regulations 33(2) and 34(2) (supporting documents in relation to domestic violence and protection of children).

Regulation 2(3) amends regulation 34(2) which removes the time limit of twenty-four months for certain types of evidence of child abuse, or risk of child abuse.

Regulation 2(4) substitutes a new regulation 42(1)(k) which widens the Director of Legal Aid Casework’s power to withdraw a determination in circumstances where the evidence submitted with the application was a court order that has subsequently been set aside and where the evidence was in the form of a letter from a domestic violence support organisation or housing officer and a public authority subsequently confirms that it is satisfied there was no domestic violence.

Regulation 2(5) inserts new Schedules 1 and 2 describing the forms of evidence referred to in regulations 33 and 34.

Regulation 3 provides that the amendments made by regulation 2 do not apply to an application for civil legal services made before these Regulations come into force.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from the Ministry of Justice, 102 Petty France, London SW1H 9AJ and is published with an Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.

Footnotes

[^f00001]: 2012 c. 10. See section 42(1) for the meaning of “regulations”.

[^f00002]: S.I. 2012/3098.

[^f00003]: The relevant amending instruments are S.I. 2014/814, 2015/1416 and 2016/516.

[^f00004]: Amended by S.I. 2014/814 and 2015/1416.

[^f00005]: Amended by S.I. 2014/814 and 2015/1416.

[^f00006]: 2010 c. 17

[^f00007]: 2012 c. 10.

[^f00008]: 1971 c. 80.

[^f00009]: 2010 c. 17.

[^f00010]: 1996 c. 27. Section 63E added by section 1 of the Forced Marriage (Civil Protection) Act 2007 c. 20 and amended by section 120(3) of the Anti-social Behaviour, Crime and Policing Act 2014 c. 12.

[^f00011]: 1985 c. 69.

[^f00012]: 1971 c. 77.

[^f00013]: 2003 c. 31.

[^f00014]: 2008 c. 4.

[^f00015]: 1998 c. 42.

[^f00016]: 1989 c. 41.