17 November 2020
Following consultation with state CLC peak bodies, CLC Funding Program Managers, the National Data Standards Working Group, and others, Ongoing Legal Support Service has now been added as a new service type to the National Legal Assistance Data Standards Manual.
It will be available in CLASS from January 2021, pending the outcome of discussions on how this service should be mapped for the purposes of NLAP reporting.
In an Ongoing Legal Support Service, a Centre makes an up-front commitment to a Service User to provide them with ongoing support in their own efforts to resolve a legal matter. The Centre does not take carriage of the legal matter or represent the Service User in any legal proceedings.
This could be described as the Centre “shadowing” the Service User throughout the legal process, providing them with advice and support when requested, but never representing or acting for them.
Importance of setting out the scope of services upfront
The existence of a clear scope of services in which the Centre agrees to provide ongoing legal support through a particular legal matter, but not to represent or act for the Service User, is the way in which an Ongoing Legal Support Service can be differentiated from a series of discrete Legal Advices + Legal Tasks, or from any of the other ongoing Services.
The Centre needs to be clear with the Service User about the scope of the services. Although it is possible to verbally set out the intended scope of services, Centres are strongly encouraged to write a letter or email to the Service User setting out their decision to provide ongoing support, as well as the scope of the services – for example, if the support is through just one stage of a legal process, or through several stages.
Examples of scope of services:
- We will provide ongoing support to you as you represent yourself in the first stage family court proceedings including advice and assistance in lodging applications, preparing submissions/statutory declarations, advising on the other party’s documentation and preparing for court hearings. We will not represent you in your negotiations or communication with the other party, or in any court hearings. We will review the scope of our support to you by/on [insert date].
- We will provide ongoing support to you as you represent yourself in your dispute with the Department of Housing. This includes help filling out and lodging an FOI application, review of your documents, advice and assistance with writing letters/emails to the Department. We will not act for you or communicate to the Department. If your matter progresses to the Tenancy Tribunal, we will review the scope of our support.
CLCs Australia will also update the Risk Management Guide to include this information.
Ongoing Legal Support Service v Representation Services
Where a Centre is providing a Representation Service to a Service User, they are acting for / representing that Service User. Correspondence to third parties are on Centre letterhead and/or will name the Centre as the Service User’s legal representative eg on court documents. If there are communications with third parties, these always make it clear that Centre is representing the Service User.
In an Ongoing Legal Support Service, correspondence and documents are in the name of the Service User, and third parties are told to communicate with the Service User rather than directly with the Centre.
However, there are some exceptions to this:
- A Service User can provide the Centre with a limited Authority/Consent to Disclose Information Form which allows the Centre to obtain information from third parties to assist the Centre in providing advice to the Service User – this form must make it clear that the Authority is limited to obtaining information from third parties and does not authorise the Centre to represent the Service User, or
- A Centre might agree that the Centre address can be used as a way for third parties to get in touch with the Service User, for example where the Service User is homeless or does not want to disclose their address to the Other Party (eg due to domestic/family violence).
Ongoing Legal Support Service v series of Legal Advices + Legal Tasks
Where a Centre has not agreed to support a particular Service User throughout a particular process, but the Service User keeps coming back for more help, the work should continue to be recorded as a Legal Advice or Legal Task as appropriate. At a certain point, which each Centre may wish to set out in their legal practice management policy, the Centre will probably need to make a decision about how best to manage the Service User, keeping in mind the resource constraints and service eligibility policies of the Centre.
Each time the Service User contacts the Centre asking for further help in relation to the same legal matter, the Centre can choose to:
- Provide another Legal Advice or Legal Task without promising more support when/if they next return, or
- Stop assisting and refer the Service User to another legal service provider, or
- Make a commitment to the Service User to now provide ongoing support and open either an Ongoing Legal Support Service or a Representation Service.
The trigger or criteria for a Centre to either refer the Service User away or commit to ongoing support will be different for each Centre, and therefore should be set out in the Centre’s legal practice management policy. For example, a particular Centre might have a casework policy that requires review of a Service User’s matter once they have had 3 Legal Advices and/or 2 Legal Tasks in relation to the same legal matter. Another Centre might set the review trigger at 2 Legal Advices.
How will CLASS record and report on this new service type?
CLCs Australia is currently in discussion with State and Territory CLC Program managers about how Ongoing Legal Support Services should be reported.
Once these have been resolved, it will be available in CLASS as a new Service type when you create a new Service. The fields and Action types within the new Service will be the same as the fields and Action types for the Other Representation Service.
I don't do this kind of work, do I have to use this Service?
No. If you don’t provide ongoing support to self-represented Service Users then you won’t need to use the new service.
Not all Centres undertake this kind of ongoing legal support work. Some Centres have a service model of providing Legal Advice and the occasional Legal Task through advice clinics, and then taking on any Service User identified as being in need of more help as a Representation client.
Background: what is the rationale for this new service type?
As part of the 2018-19 Data Consistency Project, CLCs Australia identified that one of the main sources of inconsistency in how CLCs were recording services was in relation to ongoing work undertaken for a Service User where the Centre had committed to (and was) supporting a Service User throughout a legal dispute or legal proceedings, but where the Centre was not acting for or representing the Service User.
Most Centres have been recording this work as separate Legal Advices and Legal Tasks, as required to by the National Data Standards. However other Centres were recording all this work under one Service - Representation-Other - even though this work clearly did not fit within the definition of Other Representation Service contained in the National Data Standards. They were doing this because they were frustrated with the inefficiency of:
- having to record multiple Legal Advices and Legal Tasks
- trying to determine when one Legal Task ended and another Legal Task began, and
- viewing the chronology of the matter in CLASS when it is recorded aa a bunch of different Services, compared to viewing file notes within an Ongoing Service.
Importantly, many Centres advocated strongly to CLCs Australia that in their view, these ongoing legal support matters were substantially different to simply providing a series of discrete Legal Tasks and Legal Advices. They argued that providing ongoing legal support to a self-represented person is a model of legal practice common to – and perhaps one of the defining features of – community legal centre practice. The people helped by Centres in this work are usually people who some have described as the “missing middle” - people who:
- have capacity to represent themselves through the process provided they have advice and support along the way, but
- cannot afford to pay for a private solicitor, and
- cannot access a grant of legal aid either because they are just above the means test, or because the state/territory Legal Aid Commission does not assist in that area of law.
CLCs Australia agrees that this type of legal service provision which is substantially different to other service types, and tells an important story about the nature of work done by legal assistance services.
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