The following points of principle have been decided by the Legal Aid Board's (LAB's) costs appeals committee.

The commentaries are prepared by the policy directorate of the Law Society.

Practitioners obtaining certificates of points of principle from their legal aid area committee can obtain advice on the presentation of their written arguments from David Hartley, policy directorate, The Law Society, 113 Chancery Lane, London WC2A 1PL/DX 56 Chancery Lane.

Requests for advice prior to that stage should be directed to the Law Society's practice advice service at 50/52 Chancery Lane, London WC2A 1SX (same DX).LAA 10: REGULATION 10 ATTENDANCE ON BEHALF OF A CLIENTDecision: Whilst it may be usual for the 'another person' authorised under reg 10 of the Legal Advice and Assistance Regulations 1989 to be independent of the firm undertaking the advice and assistance, there may be circumstances in which the 'another person' may be an employee of the firm other than the fee earner advising.

In such circumstances a full record of authorisation and the physical attendance on the solicitor should be made.

The cost for authorisation (written or otherwise) of work done prior to the physical attendance by the 'another person' should not form part of the solicitor's costs.

This guidance is being issued by the LAB:1.

This decision was reached following certification of a point of principle of general importance by an area committee in a green form matter.2.

The solicitors acted for immigrants held in detention.

As asylum seekers they either had no friends or relatives in the UK or were wary of involving them.

The persons to be assisted ('the client') instructed the solicitor's clerk to sign the application for advice and assistance on their behalf under reg 10 of the Advice and Assistance Regulations 1989.3.

The solicitors submitted that where the client was unable 'for good reason' to attend the office and no friend or relative was available, it would be appropriate for an employee of the firm to be the 'another person' and attend on the solicitor.4.

The circumstances in which reg 10 can be used are where the client is unable to attend upon the solicitor for 'good reason'.

This includes mental patients, prisoners or persons detained by immigration officers.

It may also include other circumstances, eg hospitalisation.

The good reason relied upon should always be noted by the solicitor.

Good reason may not be established if the incapacity is temporary and the solicitor may, without disadvantage to the client, postpone giving advice.

5.

If good reason can be established, the client may authorise another person to attend on the solicitor on his behalf.

The costs appeals committee recognised that a reg 10 authority would ordinarily be given to a friend or relative of the client independent of the solicitor's firm.6.

The person authorised as the 'another person' would need to physically attend on the fee earner advising in their capacity as the 'another person'.

The attendance would need to be in accordance with the regulations.7.

The costs appeals committee's decision accepts that in unusual circumstances an employee of a firm could be the 'anoth er person'.

It should not be the solicitor advising.8.

The requirements for the physical attendance are set out in the regulations and covered by Point of Principle LAA 7.

The 'another person' must on the attendance provide enough information to allow the solicitor to determine the client's financial eligibility; provide the client's details and the brief facts of the client's case.9.

If advice on a will is sought, the information must be sufficient to enable the solicitor to determine whether the advice or assistance would fall within reg 4(2) of the Legal Advice and Assistance (Scope) Regulations 1989.10.

If an employee of the solicitor's firm is authorised to be the 'another person' a full note of authorisation and physical attendance would need to be filed.

All work in respect of the authorisation and the attendance should not be included in the solicitor's claim for costs.11.

If the client writes to the firm to provide authority, that letter should be kept.

If the authorisation was by telephone a full telephone attendance note should be made.12.

The point of principle makes it clear that the use of a fee earner in the solicitor's firm to be the 'another person', would be unusual.

It may be reasonable for solicitors to enquire of the client as to the availability of a friend or relative.

In the particular case considered by the committee the clients were asylum seekers who either had none or were wary of letting relatives become involved in the asylum application.13.

Area offices should seek further guidance from Head Office where necessary.Commentary: Paragraph 12 is open to interpretation as nothing in regulation 10 requires the client to give any reason for choosing one person rather than another to give the solicitor the necessary information.LAA 11: NO PREVIOUS GREEN FORMDecision: Where an applicant has deliberately misled his solicitor that no green form has been signed previously, or that previous advice was not provided by a solicitor and even though the solicitor has no information that a green form has been signed, no payment is able to be made given the mandatory nature of reg 16(1) of the Legal Advice and Assistance Regulations 1989.Solicitors should exercise care when asking the client whether previous advice has been given.

If a solicitor has received any indication that any previous advice has been given, it would be reasonable to expect the solicitor to check whether it was a solicitor who previously provided that advice and how it was funded.

If there is any indication previous advice may have been given, or if in doubt, the solicitor should assume a green form has been signed.

The onus will be on the solicitor advising to satisfy the LAB that none has previously been signed.If, after providing advice, it becomes clear that the applicant has deliberately misled his solicitor and the solicitor has taken all reasonable steps, payment may not be made under the Legal Advice and Assistance Regulations but it may be appropriate for an extra statutory payment to be made.Commentary: This decision arose from a case where the client signed a green form confirming no previous advice under the scheme but where the solicitor's file note showed the name of another solicitor whom the client, involved in an immigration case, had asked to see.

There was no evidence that advice had been received elsewhere, let alone any green form signed.

The issue was whether the solicitor may be required to go behind the client's declaration.

Accordingly, so long as the solicitor does check the position when advice from an other solicitor has been given, a payment should be made.LAA 12: REGULATION 20 AND SUPERVISIONDecision: The words 'employed in his office' within reg 20 refer to persons employed by the solicitor or firm under the normal principles of employment, including payment of PAYE.

Those persons who carry out work within a solicitor's office who are, for example, self-employed, or those who work outside the office must be under the solicitor's immediate supervision.A breach of reg 20 of the Legal Advice and Assistance Regulations prevents payment for the advice and assistance work undertaken including any disbursements directly connected with it, eg interpreter's fees.

Costs claims for such work will thus be disallowed.Commentary: This decision conflicts with the Society's view of the meaning of 'employed in his office or is otherwise under his immediate supervision'.

It raises issues of principle which the Society is considering with the solicitor concerned, with a view to judicial review.