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Legal Aid Reform

Volume 550: debated on Tuesday 18 September 2012

During Commons consideration of Lords amendments stage of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill, the Government undertook (17 April 2012: column 226)1 to consider whether to extend legal aid for advice and assistance to welfare benefits cases in the first-tier tribunal where these involved a point of law. The vast majority of tribunal appeals do not involve points of law, but the Government said that where these could be identified by an independent person they would consider making legal aid available.

Having considered the matter carefully, the Government consider that a system of independent verification is not feasible. But they will make available, subject to merits and means tests being satisfied, legal aid in the form of advice and assistance for those welfare benefit cases in the first-tier tribunal where the first-tier tribunal has itself identified an error of law in its own decision.

Under tribunal rules, when the first-tier tribunal receives an application for permission to appeal, it must first consider whether to review its own decision. The tribunal may only undertake a review of its decision if it is satisfied that there was an error of law in the decision. If the tribunal reviews its decision, it may invite representations from parties as part of that review. Alternatively, it may take action as a result of the review (in effect, to change its earlier decision) without first giving every party an opportunity to make representations; in that case any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.

Legal aid will be available to assist appellants in these two situations: to make representations when invited by the tribunal, and in relation to an application for action to be set aside and for the decision to be reviewed again where representations were not sought. We intend in due course to lay an order under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for approval by each House, to reflect this position.

The Legal Services Commission intends to begin a tender for welfare benefits work in 2013. The tender will cover the work described above, and advice and assistance for onward appeals on a point of law in the Upper Tribunal, Court of Appeal and Supreme Court as described in paragraph 8 of part 1 of schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. One of the criteria for awarding contracts in this tender will be price competition.

The indicative timetable for the welfare benefits contract is:

Pre-Qualification Questionnaire Stage

February 2013

Invitation to Tender

May 2013

Contract Commencement

October 2013

Existing welfare benefit contracts are due to expire in March 2013. In order to ensure that advice and assistance will be provided for welfare benefit cases within the scope of legal aid, we will put in place appropriate interim measures from April 2013.