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

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(1) 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(2);

“advocacy services” means work done—

(a)

by an advocate at a court hearing;

(b)

by an advocate, as such, in connection with an advocates’ meeting;

(c)

by counsel in connection with a conference, and

(d)

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)

a barrister in independent practice; and

(b)

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—

(a)

an application to the court of first instance for permission to appeal; and

(b)

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

7.  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(3);

(c) in proceedings under the Trusts of Land and Appointment of Trustees Act 1996(4);

(d) in proceedings under Part 4A of the Family Law Act 1996(5);

(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(6);

(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(7) 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.”.

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(8) 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.

Signed by authority of the Lord Chancellor

J Djanogly

Parliamentary Under Secretary of State

Ministry of Justice

30th March 2011