Does the payment of any Universal Credit - even just the housing costs element - count as a passported benefit for Legal Aid eligibility purposes?

This is an important question because if someone can demonstrate that they are in receipt of a "passported benefit" when completing a Legal Help form they do not have to give details of their income and outgoings. They can just tick the box saying that they are in receipt of a passported benefit.

Before Universal Credit was introduced there were a number of passported benefits including Income Support, income based Jobseeker's Allowance and income related Employment & Support Allowance. The last two benefits also had "contribution based" versions which were not passported. It was very often difficult to see whether the client was receiving the passported or non passported version of Employment & Support Allowance or Jobseeker's Allowance. It was common for the Legal Aid Agency to "nil assess" a claim for payment because the provider had not completed the full income section of the Legal Aid form and had not provided proof that the client was receiving the passported version of Employment & Support Allowance and Jobseeker's Allowance.

If you are still with gets a bit more complex before we get to the answer...

Also in the old days people's housing costs were not paid through their main DWP benefit (Income Support, Employment & Support Allowance etc) but by the local authority via Housing Benefit.

Universal Credit replaced the above old benefits and also Housing Benefit for most applicants - see Moving to Universal Credit from other benefits for more details. This means that where you might once have received Employment & Support Allowance and Housing Benefit you now just get Universal Credit.

Where people are working and their income fluctuates their may be months where they themselves are paid zero by way of Universal Credit but their landlord still receives a payment from the DWP for the Universal Credit housing costs. This raises the question for Legal Aid case workers of whether the client is "in receipt of a passported benefit". Alarm bells as to a possible future nil assessment by the Legal Aid Agency start to ring when the client's bank statement shows no Universal Credit payment into their account during the one month assessment period. The good news is that as long as something is being paid, including by way of Universal Credit including payments of housing costs to the landlord the client is "in receipt of Universal Credit" and can be treated as receiving a passported benefit.

The Legal Aid guidance is not very clear on this but I have recently seen a response to a question from the Legal Aid Agency about this confirming that the payment of housing costs to the landlord will count as establishing that the client is in receipt of Universal Credit. The screenshot from the client's phone confirming what is being paid to the landlord will be sufficient proof.

This means that Universal Credit entitles a lot more people to be treated as receiving a passported benefit and means that Legal Aid case workers can spend less time worrying about carrying out income assessments for them.

I would recommend that Legal Aid suppliers ask their contract managers to confirm in writing that they agreement with the above and keep the response in a safe place if it is positive or leave a comment here if they get a negative response.


Can I Claim Payment If I Do Not Have The Original Legal Help Form Anymore?

Legal Aid Agency staff are trained to "nil assess" or rejects claims for payment under the Legal Help Scheme where the Legal Help form which is submitted to them is not the original. This will arise either where an Escaped Case is being claimed via an EC1 Claim Form, if the claim was just for the fixed fee, on audit.

The rejection usually comes with the following standard wording

The Legal Help Form on file is a photocopy, including the declaration. The original must be retained on file. This is in accordance with CLA Contract Rule 5.4. It is noted that all documents appear to be photocopies. If the file is scanned, including the Legal Help Form then this should be made clear to the case workers on submission of the file to prevent claims being reduced unnecessarily. It is suggested a cover letter is provided with your claim. 

This means that although a photocopy of a Legal Help Form is not acceptable, a print out of a scanned image is impossible. There will of course be no way of telling a photocopy from a print out of a scanned form. The Legal Aid Agency case workers will therefore treat all non original Legal Help forms as photocopies unless they are told that the document is a print out of a scanned image.

What this means is that if you have lost the original Legal Help form for a case and you did not scan but only have a photocopy you will not be able to claim payment. If on the other hand you did scan the original Legal Help you will be alright. To avoid being nil assessed it is a good idea to attach a covering letter or note to the Legal Help Form confirming that this is not .a photocopy but a print out of a scanned form.

The above standard wording refers to CLA Contract 5.4. I think that this reference may be out of date now.  I may be looking at the wrong documents but Rule 5.4 of the CLA Contract Standard Terms for Housing 2018 does not appear to have anything to do with Legal Help Forms. You can find confirmation of the rule that photocopies are unacceptable but scanned copies are acceptable in the Escape Cases Electronic Handbook at page 13.

Now that I have written all this out it seems obvious, even from the Legal Aid Agency's reject wording that a nil assessment of a claim based on a print out of a scanned Legal Help form can be easily appealed by confirming that it was a print out of a scanned document that is relied on rather than a photocopy. Until then I kept struggling to remember where I had seen this rule so that I could rely on it when appealing a rejection.

One way to avoid rejections of this kind it to submit an Escape Claim for payment digitally and sending a PDF or number of PDFs of the whole file. The Legal Aid Agency have been accepting files in this form for assessment of Escape Claims for some time now.

Lastly I would like to add this whole rejection of photocopies of Legal Help forms seems daft to me The thinking behind it is presumably that a photocopy of more likely to be a forgery or somehow less bona fides. The implication is that a supplier would be risking getting struck off as a solicitor for the sake of making a claim for fixed fee £157.00 or an escape claim of not that much more. It is unlikely that dishonest suppliers would be that stupid. It is more likely that those who are dishonest and wish to take a risk will simply send a forged original form. They are likely to get away with this as the Legal Aid Agency does not have samples of the client's signature to check against. Dishonest suppliers are likely in any event to be looking for ways of obtaining larger sums than this. This rule about Legal Help forms is a token gesture to give the appearance of fraud control and is a nuisance for suppliers and Legal Aid staff.