Questions and Answers

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 I think that this reference may be out of date now.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.

William Flack   13 July 2019  

Simple Answer

To be eligible for support services the person must be an adult with a medical condition which means that they are unable to achieve at least two of the outcomes set out in the national eligibility criteria.

Detailed Answer

Section 13 of the Care Act 2014 provides that where some of an adults needs for support services meet the eligibility criteria the local authority must consider what could be done to meet the needs.

The Act itself does not set out what the eligibility criteria are but refers at Section 13 (7) (a) to these being set out in regulations. The criteria are set out at Paragraph 2 of the The Care and Support (Eligibility Criteria) Regulations 2015 and are known as the National Eligibility Criteria

The effect of the Act and the Regulations is that adults will be eligible for support under the Care Act 2014 if they have needs which arise from or are related to a physical or mental impairment or illness as a result of which he or she is unable to achieve two or more of the outcomes listed below and as a consequence there is, or is likely to be, a significant impact on the adult’s well-being. The Act does not apply to children. Their rights are set out in the Children Act 1989.

Further details are set out in the  the Care and Support Statutory Guidance  which sets out Paragraph 6.123 the following:-

Criteria Examples of how to interpret the criteria
(i) carrying out any caring responsibilities the carer has for a child Local authorities should consider any parenting or other caring responsibilities the carer has for a child in addition to their caring role for the adult. For example, the carer might be a grandparent with caring responsibilities for their grandchildren while the grandchildren’s parents are at work.
(ii) providing care to other persons for whom the carer provides care Local authorities should consider any additional caring responsibilities the carer may have for other adults. For example, a carer may also have caring responsibilities for a parent in addition to caring for the adult with care and support needs.
(iii) maintaining a habitable home environment Local authorities should consider whether the condition of the carer’s home is safe and an appropriate environment to live in and whether it presents a significant risk to the carer’s wellbeing. A habitable home should be safe and have essential amenities such as water, electricity and gas.
(iv) managing and maintaining nutrition Local authorities should consider whether the carer has the time to do essential shopping and to prepare meals for themselves and their family.
(v) developing and maintaining family or other significant personal relationships Local authorities should consider whether the carer is in a position where their caring role prevents them from maintaining key relationships with family and friends or from developing new relationships where the carer does not already have other personal relationships.
(vi) engaging in work, training, education or volunteering Local authorities should consider whether the carer can continue in their job, and contribute to society, apply themselves in education, volunteer to support civil society or have the opportunity to get a job, if they are not in employment.
(vii) making use of necessary facilities or services in the local community Local authorities should consider whether the carer has an opportunity to make use of the local community’s services and facilities and for example consider whether the carer has time to use recreational facilities such as gyms or swimming pools.
(viii) engaging in recreational activities Local authorities should consider whether the carer has leisure time, which might for example be some free time to read or engage in a hobby.


The Social Care Institute for Excellence has also provided this useful guidance

William Flack   17 July 2019  

I have added this question because I had forgotten the answer myself when a client of mine who is staying in a refuge went to two different London Homeless Persons Units this week  (ending 23 August 2019 ) to ask for assistance but was told that she was not homeless and needed a letter from the refuge requiring her to leave  before she could be assisted by a council.

It has been established law since 2009 that women’s refuges are not to be treated as accommodation which is reasonable to continue to occupy and that women staying in such accommodation are entitled to be treated as homeless. This was decided by the Supreme Court in the case of Birmingham v Ali and Moran v Manchester [2009] UKHL 36. Further the Code of Guidance states at paragraph 6.39 (b):-

“some types of accommodation, for example women’s refuges, direct access hostels and night shelters are intended to provide very short-term, temporary accommodation in a crisis and should not be regarded as being reasonable to continue to occupy in the medium and longer-term;”

This means that a woman is entitled to be treated as homeless if she is staying in a refuge and that the council staff should not have told my client that she could only be homeless when she was required to leave the refuge. They should also have processed the application and issued a Section 184 Notice rather than turning her away with only incorrect verbal advice.

William Flack   23 August 2019  

It took me ages to find this....

There is no set time limit for carrying out an assessment in the Care Act 2014 or in the Statutory Guidance. However, paragraph 6.29 of the Care And Support Statutory Guidance provides:-

6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.

This means that assessment should be completed, which should include providing a report or record of the outcome of the assessment within a timeframe appropriate to the needs of the applicant. This could give rise to a very short timescale in an urgent case.

Where support is needed urgently councils can be required to provide this before completion of an assessment - see the case of R (AA) v Lambeth LBC [2001] EWHC Admin 741, QBD. That case was before the Care Act 2014 was introduced but Forbes J stated at [14]‑[17]

"Nothing shall prevent an authority from temporarily providing or arranging the provision of community care services for any person without carrying out a prior assessment of needs if, in the opinion of the authority, the condition of that person is such that he or she requires those services as a matter of urgency"

Section 19(3) of the Care Act 2014 contains a wider power to provide services in urgent cases, before completing an assessment but it is still contingent on the local authority forming the view that the situation is urgent; therefore, the overarching power of the High Court to grant interim relief remains important. It states:

19 (3) A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a)carried out a needs assessment or a financial assessment, or

(b)made a determination under section 13(1).

William Flack   15 September 2019  

The duty to carried out an assessment as to whether a person is in need of support services arises under Section 9 of the Care Act 2010 which provides

Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—

(a)whether the adult does have needs for care and support, and

(b)if the adult does, what those needs are.

A similar duty in relation to assess whether a carer has a need for support arises under Section 10 of the Act 

William Flack   14 September 2019  

A Rent Repayment Order occurs when a tribunal orders a landlord or agent to repay rent to tenant(s) because they have broken the law. This is usually between 6 months and 1 year of rent.

For more information visit the Justice for Tenants Web site and check out this site and the links Tribunal decisions here on the Nearly Legal site

William Flack   29 September 2019  


This is a tricky question made more difficult by the fact that the answer keeps changing as the government introduce new rules or update and vary the old ones as to when a Section 21 notice purporting to trigger the termination of an assured shorthold tenancy is valid. The government is supposed to be abolishing these notices altogether but as at 29 September 2019 when this was written they had not done so.

The best way to answer this question is to visit the Nearly Legal Flowchart page where you can go through the steps set out to establish whether particular notice might be valid.

For more information on the related subject of tenancy deposits visit the Justice of Tenants site

William Flack   29 September 2019  

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.


William Flack   16 June 2020  


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