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

• Citation: S.I. 2011/1027
• Sections: 151

Section 1 Citation, commencement and interpretation

(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 and words and phrases used in this Order have the same meaning as in the 2007 Order.

Section 2 Amendments to the 2007 Order

The 2007 Order is amended as follows.

Section 3 Amendments to the 2007 Order

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 ;

“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”.

Section 4 Amendments to the 2007 Order

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””.

Section 5 Amendments to the 2007 Order

For article 5(1)(a) substitute—

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

Section 6 Amendments to the 2007 Order

(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, substitute Schedules 1 to 5 set out in the Schedule to this Order.

Section 7 Amendments to the 2007 Order

After article 5 insert—

Advocacy services in family proceedings

(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 ;

(c) in proceedings under the Trusts of Land and Appointment of Trustees Act 1996 ;

(d) in proceedings under Part 4A of the Family Law Act 1996 ;

(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 ;

(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 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.

Disbursements

(5B) Subject to the provisions of Schedules 4 and 5, nothing in this Order prevents the Commission from paying reasonable disbursements.

Section 8 Saving provision in relation to the 2007 Order

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.

Section 9 Revocation of the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001

(1) Subject to paragraph (2), the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001 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.

Section 1 Interpretation

In this Schedule—

“aspect” means any of the three types of family private law proceedings to which the Higher Standard Fee Scheme applies, namely—

children;

domestic abuse; and

finance;

“children” and “private law children” mean proceedings within section 11.11 of Part 1 of the Funding Code;

“domestic abuse” and “domestic abuse proceedings” mean proceedings within section 11.10 of Part 1 of the Funding Code;

“Family Advocacy Scheme” means the scheme of fees for advocacy services set out in Schedule 2 and supplemented by the provisions of section 2 of Schedule 4;

“family private law proceedings” means any type of family proceedings other than public law proceedings;

“finance” and “private law finance” mean proceedings within section 11.12 of Part 1 of the Funding Code and include any family proceedings (other than children and domestic abuse proceedings) that are not public law proceedings;

“Higher Standard Fee Scheme” means the scheme of standard fees for Family Help (Higher) and Legal Representation in family private law proceedings set out at Table 3 (e), Table 3 (f) and Table 3 (g) of Schedule 1 and supplemented by the provisions of this Schedule;

“other public law cases” means proceedings within section 11.7, 11.8 or 11.9 of Part 1 of the Funding Code (other than care or supervision proceedings under section 31 of the Children Act 1989 );

“public law” means—

care or supervision proceedings under section 31 of the Children Act 1989; and

other public law cases;

“relevant hourly rates” means the hourly rates in Part 3 of Schedule 1 applicable to the service provided;

“standard fee” means one of the fees set out in Table 3 (e), Table 3 (f) or Table 3 (g) of Schedule 1.

Section 1

In this Schedule—

“aspect” means any of the three types of family private law proceedings to which the Family Advocacy Scheme applies, namely—

children;

domestic abuse; and

finance;

“bolt-on fee” has the meaning given at paragraph 41;

“children” and “private law children” mean proceedings within section 11.11 of Part 1 of the Funding Code;

“domestic abuse” and “domestic abuse proceedings” mean proceedings within section 11.10 of Part 1 of the Funding Code;

“Family Advocacy Scheme” means the scheme of fees for advocacy services set out in Schedule 2 and supplemented by the provisions of section 2 of this Schedule;

“family private law proceedings” means any type of family proceedings other than public law proceedings;

“finance” and “private law finance” mean proceedings within section 11.12 of Part 1 of the Funding Code and include any family proceedings (other than children and domestic abuse proceedings) that are not public law proceedings;

“final hearing” has the meaning given at paragraphs 9 to 15;

“interim hearing” has the meaning given at paragraph 16;

“officer of the Children and Family Court Advisory and Support Service” has the same meaning as in the Criminal Justice and Court Services Act 2000 ;

“other public law cases” means proceedings within section 11.7, 11.8 or 11.9 of Part 1 of the Funding Code (other than care or supervision proceedings under section 31 of the Children Act 1989 );

“particular activity” means an activity listed in the column heading to a table in Schedule 2;

“public law” means—

care or supervision proceedings under section 31 of the Children Act 1989; and

other public law cases;

“relevant hourly rates” means the hourly rates in Part 3 of Schedule 1 applicable to the service provided;

“Welsh family proceedings officer” has the meaning given by section 35 of the Children Act 2004 .

Section 1 Contact related activities

(1) The costs and expenses relating to the activities listed in paragraph 2 are not payable by the Commission as disbursements in family proceedings.

(2) The activities are—

(a) risk assessments made under section 16A of the Children Act 1989 ;

(b) activities required under a contact activity direction or contact activity condition made by the court under section 11A or section 11C of the Children Act 1989 ;

(c) consideration of making a contact activity direction under section 11E of the Children Act 1989 ;

(d) child contact centre activities, including assessments and reports on supervised contact and any other professional assessments of contact.

Section 2 Exclusions from the Higher Standard Fee Scheme: excluded proceedings

(1) In proceedings to which this paragraph applies, the Higher Standard Fee Scheme does not apply.

(2) Where sub-paragraph (1) applies, payment for services provided in respect of the excluded proceedings must be in accordance with the relevant hourly rates in Schedule 1.

Section 2 General

Subject to the provisions of this Schedule, there is no limit on the number of fees under the Family Advocacy Scheme that may be claimed in a case.

Section 2 Independent social work

The costs and expenses of independent social work services provided by any person are not payable by the Commission as a disbursement in family proceedings where such services are provided outside England and Wales

Section 3 Exclusions from the Higher Standard Fee Scheme: excluded proceedings

Paragraph 2 applies to the following proceedings—

(a) child abduction proceedings, including where the supplier represents any party to those proceedings;

(b) proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 ;

(c) proceedings under the Trusts of Land and Appointment of Trustees Act 1996 ;

(d) proceedings in which the supplier provides separate representation of a child in proceedings which are neither specified proceedings within the meaning of section 41(6) of the Children Act 1989 nor are being heard together with such specified proceedings;

(e) proceedings under Part 4A of the Family Law Act 1996 ;

(f) defended proceedings for divorce or judicial separation, dissolution of a civil partnership or for the legal separation of civil partners;

(g) proceedings for nullity of marriage or annulment of a civil partnership;

(h) proceedings under the inherent jurisdiction of the High Court in relation to children;

(i) applications for a parental order under the Human Fertilisation and Embryology Act 2008 .

Section 3 General

(1) A maximum of one fee may be claimed in respect of each occasion that a particular activity is undertaken.

(2) Accordingly—

(a) an advocate who represents more than one party in relation to a particular activity is entitled to the same fee for that activity as an advocate who appears for only one party;

(b) where a particular activity relates to more than one set of proceedings to which the Family Advocacy Scheme applies, the advocate is entitled to the same fee as if the activity related to only one set of proceedings; and

(c) only one legal representative may claim a fee in relation to a particular activity.

Section 3 Independent social work

Where independent social work services are provided within England and Wales, the costs and expenses of such services are payable as a disbursement at rates not exceeding the rates routinely paid for such services by the Children and Family Court Advisory and Support Service or the Children and Family Court Advisory and Support Service Wales.

Section 4 Exclusions from the Higher Standard Fee Scheme: excluded proceedings

A certificate covering child abduction proceedings may not cover any other family proceedings.

Section 4 General

Where a particular activity—

(a) relates to more than one set of proceedings; and

(b) one or more of those proceedings are proceedings to which paragraph (3) of article 5A applies,

the activity must be remunerated as if all of the proceedings were proceedings to which that paragraph applies.

Section 4 Experts

(1) The costs and expenses relating to experts listed at paragraph 2 are not payable by the Commission as disbursements.

(2) The costs and expenses are—

(a) any administration fee charged by an expert, including (but not limited to)—

(i) a fee in respect of office space or provision of a consultation room;

(ii) a fee in respect of administrative support services, such as typing services;

(iii) a fee in respect of courier services; and

(iv) a subsistence fee.

(b) any cancellation fee charged by an expert, where the notice of cancellation was given to the expert more than 72 hours before the relevant hearing or appointment.

Section 5 Exclusions from the Higher Standard Fee Scheme: excluded proceedings

Subject to paragraph 4, a certificate may cover proceedings excluded from the Higher Standard Fee Scheme by virtue of paragraphs 2 and 3 as well as proceedings that fall within that scheme.

Section 5 Agents and Counsel

Where a supplier instructs a person (other than counsel) to provide services to which the Family Advocacy Scheme applies, the services are treated as having been provided by that person as the agent of the supplier and any fee for those services under the Family Advocacy Scheme is payable to the supplier as if the supplier had supplied the services directly.

Section 5 Experts

The maximum amount that the Commission may pay as a disbursement in respect of an expert’s vehicle mileage is £0.45 per mile.

Section 6 Exclusions from the Higher Standard Fee Scheme: excluded proceedings

Where paragraph 5 applies services provided in respect of the excluded proceedings—

(a) may only be claimed for payment if those proceedings are expressly covered by the certificate;

(b) must be recorded separately; and

(c) must be claimed at the relevant hourly rates in addition to any standard fee claimed under the certificate.

Section 6 Agents and Counsel

Where a supplier instructs counsel to provide services to which the Family Advocacy Scheme applies—

(a) any fee payable for the services must be paid directly to counsel;

(b) the supplier may not instruct counsel to provide the services at an amount lower than that which would be due under the Family Advocacy Scheme; and

(c) the supplier may not instruct counsel on the basis that any fee, or any part of a fee, payable to counsel under the Family Advocacy Scheme must be paid by counsel to the supplier.

Section 6 Experts

The maximum amount that the Commission may pay as a disbursement in respect of an expert’s travel time is £40.00 per hour.

Section 7 Exclusions from the Higher Standard Fee Scheme: excluded proceedings

In paragraphs 2 to 6 “excluded proceedings” means the proceedings listed in paragraph 3.

Section 7 Agents and Counsel

This paragraph applies where a supplier—

(a) instructs counsel to provide services in proceedings to which the Family Advocacy Scheme applies; and

(b) the services do not involve any particular activity for which a fee is payable under the Family Advocacy Scheme.

Section 8 Exclusions from the Higher Standard Fee Scheme: excluded services

In respect of proceedings to which the Higher Standard Fee Scheme applies, the scheme does not apply to—

(a) advocacy services, subject to paragraph 29;

(b) services provided in a final appeal; and

(c) services payable at hourly rates by virtue of the provisions of paragraphs 23 to 28.

Section 8 Agents and Counsel

Where paragraph 7 applies—

(a) any fee for the services provided by counsel is payable by the supplier at a rate agreed between the supplier and counsel; and

(b) any such fee may not be charged to the supplier’s client or claimed by the supplier from the Commission as a disbursement.

Section 9 Higher Standard Fee Scheme: general

A certificate may cover more than one aspect.

Section 9 Meaning of “final hearing”

Paragraphs 10 to 15 apply for the purposes of determining whether a hearing is a final hearing.

Section 10 Higher Standard Fee Scheme: general

Where a certificate covers more than one aspect, each aspect and level of service covered by the certificate must be specified on the certificate.

Section 10 Meaning of “final hearing”

Subject to paragraph 11, any hearing listed by the court for the purpose of making a final determination—

(a) in respect of the whole of the proceedings; or

(b) in respect of all the issues relating to an aspect,

is a final hearing.

Section 11 Higher Standard Fee Scheme: general

A certificate may cover different levels of service in respect of different aspects.

Section 11 Meaning of “final hearing”

A hearing—

(a) falling within paragraph 10 or 14 which is listed for the purpose of disposal by way of a consent order; or

(b) which is otherwise not expected to be contested or effective,

is not a final hearing.

Section 12 Higher Standard Fee Scheme: general

Any combination of fees may be claimed under a certificate, provided that the criteria for funding set out in Part 1 of the Funding Code are met in respect of each aspect and level of service claimed.

Section 12 Meaning of “final hearing”

Subject to paragraphs 13 and 14, there may only be one final hearing in respect of an aspect.

Section 13 Higher Standard Fee Scheme: general

Where a certificate covering Family Help (Higher) is extended to cover Legal Representation, the standard fee for each level of service may be claimed.

Section 13 Meaning of “final hearing”

Where in public law proceedings a case is concluded at an Issues Resolution Hearing, that hearing is also a final hearing.

Section 14 Higher Standard Fee Scheme: general

Subject to paragraphs 31 and 36, the standard fee for an aspect may not be claimed more than once under a single certificate.

Section 14 Meaning of “final hearing”

Subject to paragraph 11, where in private law children proceedings a fact-finding hearing is listed pursuant to the ‘Practice Direction: Residence and Contact Orders: Domestic Violence and Harm’ issued by the President of the Family Division on 14th January 2009, that hearing is also a final hearing.

Section 15 Higher Standard Fee Scheme: general

A supplier who, under separate certificates, represents more than one party in proceedings to which the Higher Standard Fee Scheme applies is only entitled to payment as if the supplier was acting under a single certificate.

Section 15 Meaning of “final hearing”

Where in public law proceedings a final hearing is listed for more than one separate hearing so that particular issues may be heard or determined in advance of others, all the hearings must be treated for the purposes of the Family Advocacy Scheme as a single final hearing.

Section 16 Level of court

In Table 3 (e), Table 3 (f) and Table 3 (g) of Schedule 1—

(a) “High Court” means proceedings in the High Court or the Court of Protection; and

(b) “Other” means proceedings in any other court.

Section 16 Meaning of “final hearing”

Any hearing that is not a final hearing is, for the purposes of the Family Advocacy Scheme, an interim hearing.

Section 17 Level of court

Where—

(a) a case is transferred from a court to a different court; and

(b) a supplier carries out work to which a particular standard fee relates before and after the transfer,

the standard fee payable for the work is the fee relating to the court at which the case concluded at first instance.

Section 17 Payment for hearings

Final hearings must be remunerated in accordance with the applicable final hearing fee specified in Schedule 2.

Section 18 Extending from Family Help (Higher) to Legal Representation

An application to extend a certificate to cover Legal Representation for any aspect may only be made when all work that could be carried out under Family Help (Higher) has been carried out.