This may be a long shot but we had a situation where we made an application on behalf of P to withdraw his Tribunal application midway through the hearing, due to information disclosed by the Care Co within her evidence (frustratingly not before the hearing). The panel suspended the hearing and invited us to take our client’s instructions on that information. The application to withdraw was approved.
Considerable costs were incurred in this case as P required a lot of support. Is it possible to claim the lvl 2 fee as there was no ‘effective final hearing’ and/or an adjourned hearing fee, or should we claim the full lvl 3 fee? One option will take us over the threshold for an escape fee claim, the other will not. I suspect the answer is the latter but wanted to check.
The guidance says -
9.87 If an MHT is adjourned, postponed or cancelled on one or more occasions in circumstances which would entitle you to claim an Adjourned Hearing Fee but no final hearing ever takes place you may claim a Level 3 (Mental Health Proceedings) Fee in substitution for the final Adjourned Hearing Fee.
Does the term ‘may’ rather than shall/should suggest that you may not, and so could claim the lvl 2 fee with an adjourned hearing fee?
Any thoughts gratefully received!
My understanding always was that you claim either L1+L2+Adj or L1+L2+L3, whichever suits you best.
Under the heading “Withdrawals”, Legal Aid Agency, ‘Contract management: mental health guidance’ (v4, 20/3/23) says:
Subject to the above, if a provider appears before the MHT to request a withdrawal that could not reasonably have been anticipated in advance of the hearing day, the Level 3 (Mental Health Proceedings) Fee may be claimed. As with other cases of adjournments and postponements on the day of the hearing where there is no final substantive hearing (which will always be the case in this example) the provider has a choice of whether to claim the Adjourned Hearing Fee or substitute the Level 3 (Mental Health Proceedings) Fee for it (see paragraph 9.87 of the Category Specific Rules).
Having said that, here’s an extract from Legal Aid Agency, ‘Escape Case Electronic Handbook’ (v2.3, 1/8/23) which seems to be about the word “may” in para 9.85 (“When a MHT hearing is … cancelled on the day … you may claim an Adjourned Hearing Fee”). It seems that you could just claim L1+L2.
Adjourned Hearing Fees
Q: MHT decision is Deferred Conditional Discharge. How do I treat adjourned hearing fees
in this matter?
A: It is not uncommon for the MHT to issue a client a deferred conditional discharge at an MHT hearing. This effectively means that the panel is satisfied that the client can be released, but usually subject to certain criteria being in place. This criterion is not usually in place on the date of the Tribunal hearing and will often require further work to organise. The MHT will set a future date for a reconvened hearing to ensure that their directions are being complied with and the necessary arrangements are being made to allow the client to be discharged.
Providers can claim in this scenario in the following ways:
- The first hearing can be claimed as an adjourned hearing and the reconvened hearing can subsequently be claimed as the final (Level 3 fee) hearing. This is as long as the usual criteria for claiming an adjourned hearing fee is met, (i.e. attendance, possibility of adjournment/postponement not possible etc.).
- The provider can treat the first hearing as the final (Level 3) hearing and the subsequent reconvened hearing will also fall under the Level 3 fee. This is on the basis that the Level 3 fee will cover all the sittings of the MHT until a decision (disposal) is reached.
Given the above the discretion as to how to claim such an issue lies with the provider, and either way is acceptable for LAA assessment purposes. The claim should not be rejected by Caseworkers for either approach.