CANSFORD LABS
on Jun 17, 2021
If you’re involved in family law cases, this article should answer your questions about legal aid to cover drug and alcohol testing expenses.
In family law cases, drug and alcohol test results can influence court decision making in child custody, access agreements and care proceedings. In some cases, legal aid - administered by the Legal Aid Authority (LAA) - will cover the costs of testing. However, legal aid claims are only granted if certain conditions are met.
In the past, we’ve discussed how drug testing works, how to prepare for court, and the costs associated with drug and alcohol testing in family law cases. Here, we’ll briefly explain the legal aid application process, what it covers, and why claims are sometimes rejected.
Who is eligible for legal aid for drug and alcohol testing?
In most private family law cases - such as custody disputes - the individuals involved carry the burden of drug and alcohol testing fees.On the other hand, drug and alcohol testing in public law cases - usually handled by local authorities - may be eligible for legal aid to cover the expenses.
So what are the eligibility criteria? At minimum, two conditions must be met:
- Drug and alcohol testing must be requested by the judge
- Testing must be consistent with the court order
But as you’ll see, it’s a little more complicated than that in reality.
What is the process for claiming legal aid for drug and alcohol testing in public family law cases?
Local Authorities are typically responsible for arranging drug and alcohol tests requested by the judge in a public law case. Usually, it’s not necessary to apply for prior authority - with certain exceptions we’ll explain later. Instead, the tests can be carried out in accordance with the court order and legal aid applied for retrospectively.
How much is covered by legal aid for drug and alcohol testing?
Legal aid can cover the fees for the three stages of drug and alcohol testing: (1) sample collections, (2) testing, and (3) reporting. The specific rates are determined by The Civil Legal Aid (Remuneration) Regulations 2013 and The Criminal Legal (General) Regulations 2013.
Codified rates are defined for most types of “expert witnesses”. Although the regulations cover drug and alcohol testing, there are no specific codified rates. But fear not: with some reading between the lines (and based on our experience) here’s what you can claim for.
How much can you claim for drug and alcohol sample collections?
The LAA says that DNA test fees can be used as a guide. Meaning, a claim for £50 to £110 per address (covering hair and blood samples) is considered reasonable. Please bear in mind, though, that if you claim nearer the higher end of that range, you’ll need to justify it on your assessment.
How much can you claim for drug and alcohol testing?
As with collections, there is no codified rate for drug and alcohol testing. So again, it is best to use DNA testing as a guide - which means you can claim £252 per test.
How much can you claim for drug and alcohol reporting?
Finally, to claim for legal aid to cover drug and alcohol test reporting, use the guideline rates for Toxicologists: £108 per hour.
Can you ever claim in excess of the suggested fees for drug can alcohol testing?
In most cases, it’s best to stick to the suggested fees/rates. There are, however, certain conditions under which you can claim in excess:- Prior authority has been granted to exceed the fees/rates
- The court directs additional testing/work AND prior authority has been granted to exceed the fees/rates
- It is justified on assessment why prior authority was not applied for and why the fees needed to exceed the maximum rates
In each of these cases, have a read of the guidelines for further conditions before acting.
Why are legal aid claims for drug and alcohol testing sometimes rejected?
Legal aid claims are generally straight forward, but only if you meet the requirements and avoid a few common pitfalls. Here are four mistakes to avoid when claiming legal aid for drug and alcohol testing:
Mistake 1: Exceeding the standard testing period
The standard time period for drug and alcohol testing in public law cases is three months. You can only claim legal aid for longer periods if specified in the court order and you’ve been granted prior authority to exceed the standard fees. If you don’t meet both of those conditions, your entire claim could be rejected, leaving you with no remuneration.
Mistake 2: Using segmented testing
Overview testing is the standard approach to drug and alcohol testing. Therefore, it is the default testing method in public law cases. Segmented (or month-by-month) testing is more expensive and therefore must be specified in the court order to be eligible for legal aid. Claims for segmented testing not specified in the court order and without prior approval will be rejected.
Mistake 3: Testing for drugs outside the scope of the court order
Legal aid is only granted for the testing of drugs specified in the court order. Claims for drug tests outside of this scope are rejected.
Mistake 4: Using the wrong testing method(s)
The court order should always specify which tests are to be used for drug and alcohol monitoring, e.g. hair, blood and/or liver function tests. Claims for tests not specified in the court order will be rejected.
Is legal aid capped for drug and alcohol testing?
In essence, legal aid for drug and alcohol testing is not capped. Yes, there are limits on what and how much can be remunerated. But if testing is requested by a judge, carried out as directed in the court order, and maximum fees are not exceeded without prior authority, then the Legal Aid Authority should pay.
For more information, download The Complete Guide to Hair Drug and Alcohol Testing for free. Or, if you’d like some complimentary advice on drug and alcohol testing in family law cases - including legal aid - email or call us.
Image: By Maksym Yemelyanov via Adobe Stock
