Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015

Monday 23rd November 2015 Grand Committee

Motion to Consider

16:26

Moved by

[Lord Faulks]

That the Grand Committee do consider the Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

[The Minister of State, Ministry of Justice (Lord Faulks)]

I beg to move that the Committee has considered the draft Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015.

The statutory instrument before us today amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to specify the merits criteria that must be met in order to qualify for civil legal aid for applications for post-adoption contact. This statutory instrument also makes amendments to the Legal Aid (Information about Financial Resources) Regulations 2013—the information regulations. The amendments provide that the director of legal aid casework at the Legal Aid Agency may make an information request to the relevant Secretary of State to find out whether a legal aid applicant is in receipt of direct payments for special educational needs or direct payments under Section 17A of the Children Act 1989. That information is relevant for the purposes of the means assessment that the director must carry out.

Orders for post-adoption contact were introduced by the Children and Families Act 2014, which inserted Sections 51A and 51B into the Adoption and Children Act 2002. Applications can now be made for a post-adoption contact order when the court is making an adoption order or when an adoption order has been made. These provisions came into effect on 22 April 2014. The Children and Families Act 2014 also amended Part 1 of Schedule 1 to LASPO. This means that legal aid may be available for any application for post-adoption contact where the person applying for legal aid provides evidence of domestic violence or child abuse or where they are a child who is a party to the proceedings.

Why is this necessary? As I have already mentioned in this Committee today, the merits criteria regulations set out the merits criteria that must be applied by the director of legal aid casework at the Legal Aid Agency when determining whether an applicant qualifies for civil legal services under Part 1 of Schedule 1 to LASPO. Regulation 2 of the merits criteria regulations sets out the interpretation and definition of terms used within those regulations. This instrument adds certain civil proceedings in relation to post-adoption contact orders to the definition of “private law children case”. As a result, the merits criteria which apply to such proceedings when determining an individual’s eligibility for legal representation will be those set out in Regulations 64 and 68. This means that some elements of the standard merits test will not apply, such as the requirement for the case to be unsuitable for a conditional fee arrangement.

Separately, Regulation 69 of the merits criteria regulations sets out the criteria for determinations for legal representation in relation to family cases to which specific merits criteria apply, other than those specifically provided for elsewhere in the merits criteria regulations. The amendments made by this instrument will also exclude from the scope of Regulation 69 determinations in relation to certain post-adoption contact order proceedings. This exclusion is necessary because, as I mentioned, the applicable criteria for such matters will be those in Regulations 64 and 68.

16:30

Turning to the amendments to the information regulations, where a child has a special educational need they may be eligible for an education healthcare plan, which brings a child’s education, health and social care needs into a single, legally binding document. Cash payments may be made directly to the child’s parent or guardian, the young person or their nominee, allowing them to arrange provision of necessary services such as transport, as identified in the individual’s plan. These direct payments are currently made under the Special Educational Needs (Personal Budgets) Regulations 2014, made under Section 49(3) of the Children and Families Act 2014. Direct payments may also be made under Section 17A of the Children Act 1989 to parents of disabled children, a disabled person with parental responsibility for a child or disabled children aged 16 or 17 to meet their assessed needs.

These direct payments are disregarded for the purposes of a legal aid financial eligibility assessment following amendments previously made by the Legal Aid, Community Legal Service and Criminal Defence Service (Amendment) Regulations 2015, which came into force on 13 April. Therefore, these direct payments are not included when calculating a person’s disposable income.

Why is this necessary? The information regulations give the director of legal aid casework the power to request information from the relevant Secretary of State about a prescribed benefit an individual is receiving, in order to make a financial assessment of legal aid eligibility. The Government intend that the director should be able to make an information request to the Secretary of State to find out whether a legal aid applicant is in receipt of direct payments that are disregarded for the purposes of the legal aid financial eligibility assessment. The amendment to the information regulations will enable the director to make such a request.

The statutory instrument makes relatively minor but important changes to the civil legal aid scheme to provide for the application of specific merits criteria when determining a person’s eligibility for legal aid for applications for post-adoption contact—a relatively new concept—and to provide for efficiency in the assessment of legal aid eligibility through the power to make information requests. In those circumstances, I commend the statutory instrument to the Committee and beg to move.

[Lord Bach (Lab)]

My Lords, I again thank the Minister for his clear outlining of both parts of this regulation. I must tell the Committee that we, on behalf of the Opposition, welcome this regulation in both its parts. It is slightly worrying for the Opposition to agree to two regulations, one after the other, concerning Part 1 of LASPO. The Minister knows very well that we think LASPO has been an absolute disaster, certainly as far as Part 1 is concerned and as forecast by many Members of this House.

However, this is not the occasion to debate Part 1 of LASPO in general terms. I know the Minister will be looking forward as much as I am to the debate on Thursday 10 December on the future of legal aid—it is something he may not be aware of, but it will be a thrill for him to come to it. These regulations seems perfectly sensible. We have taken some advice on the effects of the two parts and they seem extremely sound. We are happy to support them.

[Lord Faulks]

I am very grateful to the noble Lord for his comments on the two parts of this statutory instrument. I look forward to the debate on 10 December —it comes as news to me, but no doubt I would have been informed in due course—if I am lucky enough to respond to that report on the Government’s behalf. I know that the noble Lord has been assiduous in his opposition to Part 1 of the LASPO Act. I noticed that he did not mention Part 2, to which there was also opposition, but that seems to have rather faded away. However, that is a debate for another day and we look forward to engaging in it.

In the mean time, I respectfully say to the Committee that the instrument makes important and necessary amendments to the merits criteria regulations to ensure that legal aid will continue to be provided in any case where refusal would be unlawful. It does so while maintaining the underlying purpose of civil legal aid eligibility criteria and the legal aid scheme, which is to ensure that the limited legal aid budget is directed at the cases that most justify public funding. I therefore commend the statutory instrument to the Committee.

Motion agreed.