Law Society president Andrew Caplen has called for legal aid to be exempt from the Consumer Contracts Regulations 2013.

The Society has a number of concerns about the requirements, in particular those relating to ‘off-premises contracts’ and ‘distance selling’, which require solicitors to provide certain information to clients ahead of delivering the service, and a client’s written instruction to proceed within the ‘cooling off’ period.

Andrew Caplen said:

‘This is clearly impractical – if not impossible – in cases started away from the office and telephone-only legal advice, where the service is delivered immediately, and we question whether these regulations were ever intended to apply to such services.’

In a letter to the parliamentary under secretary of state for employment relations and consumer affairs, he argues that legal aid should be exempt from the regulations, as are a number of other services, including social care.

There are numerous examples of the impracticality of trying to apply some of the key provisions within the regulations to specific areas of legal aid work, or clients with particular difficulties – including:

1. police station and court duty advice in crime cases
2 .urgent advice provided at court to housing clients under the housing possession court duty solicitor scheme
3. disabled clients seen at home eg home visits for education clients
4. care cases involving children which often start in court
5. crime or immigration clients in detention or prison
6. cases involving other detained people who cannot come to the office: this may include children and mentally ill people (who may be seen in hospital or their own home)
7. clients who cannot read or write

Andrew Caplen added:

‘We do not believe that the original EU directive on which the regulations are based was ever intended to apply to services such as legal aid, where advice is often delivered immediately; sometimes by phone, and where any contract with the client may be concluded as soon as the advice has been given. The 14 day-cancellation period stipulated in the regulations is thus rendered meaningless. Work undertaken by solicitors under the legal aid scheme is also primarily funded by the government – via the Legal Aid Agency. This again makes references in the regulations to payments made for the service by the consumer redundant.’

The regulations allow for an exemption from the requirement not to commence work ‘before the end of the cancellation period’ provided the consumer ‘has made an express request …. on a ‘durable medium’.

Again this regulation appears to have been drafted without consideration of legal aid telephone advice – which is being increasingly promoted by government – the contracts for which require the solicitor to provide the client with immediate advice once a call is routed to them. Any delay while waiting for the client to send a written request that advice be provided within the cancellation period would be in breach of contract.

Caroline McGann, a crime solicitor from Northampton comments:

‘We will have done most – if not all – of the client’s case by the time the ‘cooling off’ period applies – courts demand progress on the first day and we have clients who cannot read or write and who would need to have letters countersigned before they would be binding and thus causing further delay.

‘We have some clients who can barely afford to survive above the poverty line and could not afford pay anything, not even the cost of a stamp to return the document.

‘But most importantly even if the clients did want to go elsewhere, regulation 16 would prevent the legal aid order being transferred/withdrawn unless the court transferred or withdrew the order. It makes no sense to offer this to a client and then have the judge refuse to allow us to withdraw or transfer in an effort to protect what is a dwindling public purse.’

Laura Janes, legal co-director at the Howard League for Penal Reform, explains:

‘Some of the people who benefit from legal aid most, such as children and mentally ill people may not be deemed as being able to enter into a meaningful contract. Despite this, the regulations appear to place an onus on providers to require such clients to sign terms and authorisations to commence immediate work.

‘We are very concerned about the regulations as we provide the only national service for young people in prison. Almost all our clients are likely to struggle to navigate the new requirements. We have already heard of cases where vulnerable clients have signed immediate work authorisations and cancellation notices at the same time. This suggests the requirements pose obstacles to legal help rather than assist in promoting consumer rights. It is also misleading in fixed-fee legal aid cases to suggest that a contract can be cancelled after 14 days if urgent work has been authorised, as it is highly unlikely that any new provider will be able to obtain fresh legal aid when a claim has already been made for the work.’