Civil news: Backdating Powers Now Available For Civil Cases

Regulations giving the Director of Legal Aid Casework (DLAC) the discretion to backdate the effect of certain legal aid determinations are now in force.

The Legal Aid Agency (LAA) has also closed its ‘out of hours’ service. This service can no longer be used to obtain urgent determinations on emergency representation.

 

When can the backdating power be used?

The new backdating power gives the LAA a discretion to backdate an initial grant of licensed work (or special case work) or determinations on an amendment.

It will only be possible to use the backdating power where the following requirements are met:

·         the application was made as soon as reasonably practicable; and,

·         The LAA is satisfied that:

a.    it was in the interests of justice for the services to be carried out prior to the date of the determination; and

b.    the services could not have been carried out as Controlled Work.

For determinations made on review or following an appeal DLAC can also consider whether it is appropriate to backdate having regard to all the circumstances. This includes the information that was available to the provider when the application for services or a review was made.

 

How do I request a determination be backdated?

When submitting an application for legal aid that you want backdated you should include this request in the merits report on CCMS. Please provide the following information:

·         The date you want the determination to take effect from

·         A brief justification why it is appropriate to backdate, with reference to the requirements in the regulations

 

You can also ask for the effect of a determination to be backdated at any point by submitting a case enquiry.  This should include the information set out above.

 

Are there any transitional provisions?

Yes, the new power is only available for applications for a determination submitted on or after 20 February 2019 (i.e. after midnight on 19 February 2019).

This includes applications for an amendment made on or after this date, even if the original certificate was issued earlier.

 

Are you issuing guidance about this power?

The LAA has updated relevant CCMS user guides to reflect the process for applying for the effect of a determination to be backdated.

 

When will the ‘out of hours’ service close?

The last day of operation for this service was 19 February 2019. Providers are no longer be able to contact caseworkers to obtain a determination using this service.

 

 

Further information

 CCMS Quick Links:

Immigration Out of Hours Process

How to Request an Application or Amendment to be Backdated.

The Civil Legal Aid (Procedure) (Amendment) Regulations 2019 (SI 2019/130) – the regulation making these changes