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3.9 File Requests
Before you begin working on a case you need to be confident that you have all the information you need. Where a client has made previous applications or claims, you need to know what information the home office has and what decisions were made. Your client will usually be able to tell you some of this, but they are unlikely to remember everything. If you are very lucky, your client may have kept a file themselves, however this will not be usual and may not be complete.
There are two ways you can get hold of previous applications and claims:
- Request the file from a previous representative, if there is one
- Make a Subject Access Request (SAR) to the Home Office
This can be done with a letter to the representative asking for the file, enclosing a copy of your authority to act for the client, signed by the client. OISC advisers are required to provide the file within 3 working days. However solicitors and barristers are subject to less stringent rules and may withhold the file where the client owes them money. This is referred to as a ‘lein.’ While this is technically permitted it is doubtful it will be consistent with the duty to act in the client’s best interests where the client is unable to pay and may be prevented from resolving their status as a result.
You can find information on how to make a subject access request on GOV.UK. This may give you access to some or all of the documents and information that the Home Office has concerning a client, depending on the type of request you make. You do not need to be regulated to help a client to make a subject access request. However, when a client makes a request, they may be giving information to the Home Office that the Home Office does not already have - for example their current address. Therefore you must ensure that your client is fully aware of the information that has been included in the form and consents to that information being passed on to the Home Office.
The OISC’s Code of Standards requires you to respond to file requests as soon as possible and not later than 3 working days from the date of the request. In that time you should provide everything: all documents, correspondence, casenotes, handwritten notes etc. in a tidy, well-ordered file (which can be in digital format, encrypted as necessary.)
Before handing over the files to either the client or the new reps you should note the following.
- Original documents sent to the organisation by the client (unless ownership was intended to pass to the firm).
- Documents sent to or received by the organisation as agents for the client e.g. correspondence with counsel or experts.
- Final versions of documents which go to the object of the provision of legal advice e.g. agreements or written representations.
- Final versions of documents prepared by a third party and paid for by the client e.g. counsel's advice or expert reports.
- Documents prepared for the organisation's own benefit or protection e.g. file copies of letters written to the client, notes regarding time taken or made for protective purposes regarding advice to the client.
- Drafts and working papers.
- Internal emails and correspondence.
- Emails and correspondence written by the client to the organisation.
- Accounting records including disbursement vouchers and timesheets.
This guidance includes information about the intention to destroy files and/or papers after a certain period of time following the conclusion of a matter.