Practitioners should note the decision of the Divisional Court in R v Legal Aid Board ex parte Rafina (12 February 1998 -- unreported) which involved an application for judicial review by a firm of solicitors which specialised in immigration work.The Board had concerns about the use of unsupervised representatives by the firm to provide immigration advice under the legal advice and assistance scheme.

The Board placed a temporary stop on the firm's legal aid account while it investigated.

The area office disallowed a number of claims after determining that the firm's supervisory arrangements did not satisfy reg 20 of the Legal Advice and Assistance Regulations 1989.

The area committee upheld the decision of the area office on appeal.

The solicitors appealed to the costs appeals committee which certified a point of principle of general importance known as LAA12.The solicitors challenged the Board's interpretation of reg 20, the failure of the area committee to give proper reasons and the Board's decision to impose a temporary stop on the solicitor's account.

The firm's application for judicial re view was dismissed by the court.Mr Justice Latham upheld the costs appeals committee's interpretation of reg 20 as set out in the point of principle.

This means that if unqualified representatives undertake work under the legal advice and assistance scheme, they must be competent and responsible, and either be employed in a solicitor's office under a contract of service or be under the immediate supervision of a solicitor.

It is not sufficient for an unqualified person to be employed in a solicitor's office as an independent contractor unless the person is being immediately supervised by a solicitor.The court adopted an interpretation of 'immediate supervision' put forward by the Law Society, which is as follows:'The Society's interpretation of "immediate supervision" is that it requires the solicitor be empowered to direct the work of the clerk and to review it as necessary.

If the solicitor is able to direct the work of the representative, is able to monitor its quality and to take immediate and effective action if the quality is unsatisfactory as well as being able to insist that the representative cease to act as necessary then in the Society's view adequate and immediate supervision has taken place.'his should be read in conjunction with note for guidance 2.51 in the 1997/1998 edition of the Legal Aid Handbook.The court confirmed that the consequences of a breach of reg 20 would be no entitlement to any payment under the legal advice and assistance scheme.

It would prevent payment of both profit costs and disbursements, for example interpreter's fees.This case also determined that area committees have an obligation to provide reasons for their decisions on appeals.

The Board has been looking into the issue for some time and will shortly be issuing new guidance to area offices.The Board's primary duty is to protect public funds.

The judgment implicitly accepts that the Board has power to impose a temporary stop on a solicitor's account where appropriate.