Tag Archives: audit

LAA annual report 2014-15

The LAA’s recently published annual report shows how much less money has been spent on securing legal advice and representation for the poorest people in England and Wales. There was an overall net reduction in expenditure of £244 million (all figures in £000), a further decrease from 2013-14, which was the first year of the LASPO scope cuts.  The reasons for the increase in crime higher were given as higher numbers of sitting days and more pages of prosecution evidence in more complex cases.

Funding type                                                          2014-15               2013-14

Civil legal help                                                       112,165                 129,776

Civil representation                                             510,212                  693,527

Crime lower                                                           332,578                 367,304

Crime higher                                                          586,457                 553,677

Central funds                                                          44,238                    89,070

The costs of legal aid administration reduced by £3.1 million, when calculated on a cash basis; although total administration costs rose by £3.3 million, largely due to the development of the widely criticised CCMS system for civil applications and bill processing, which will now not become mandatory until February 2016.

Key milestones noted include:

  • Sustained monthly above target levels for processing civil applications (97% in 20 working days)
  • Quicker processing of civil bills (99% in 25 days)
  • Reject rates for civil bills brought down to 9.2% (against a 15% target)
  • Call waiting times for the civil certificated helpline below 2 minutes 48 seconds
  • Abandoned call rate for the civil certificated helpline 10.47% (target 12%)

In relation to internal issues, the LAA:

  • Launched a management skills programme for their staff
  • Increased participation in their staff survey to 89%
  • Had lower staff sickness than the civil service average (7.1 days against 7.6 days)

Plans for the future include:

  • Concluding the legal aid change programme
  • Making CCMS compulsory
  • Finalising the transfer of crime application processing from HMCTS
  • Developing crime online billing
  • Improving telephone answering and support for digital working by providers
  • Making the LAA a better place to work

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Filed under Actions Against the Police, Advocacy, Civil, Clinical Negligence, Community Care, Costs, Crime, Family, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare

Civil forms change 4th August

Practitioners should note that the bulk of the civil legal aid forms are changing with effect from next week. The new forms can be found here (UPDATE: all forms can now be found on gov.uk here). Following the successful JR, it appears references to the residence test that were on the draft forms have been removed.

Old versions signed on or before 3rd August will be accepted up to 31st August, but any signatures dated from 4th August should be on the new forms.

UPDATE 31st July: The LAA has now said it will accept old versions provided they are signed before 1st September and received by 5th September.

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Filed under Civil, Community Care, Family, Housing, Immigration, Mental Health, Public Law, Social welfare

New free resources for keeping up with legal aid changes

We have updated our ‘LASPO resources‘ page – which is one of the most used features on this site and is recommended by LAPG.

It now has links to all the updated civil and crime regulations. If you are not sure what has changed, check out the 2013-14 Handbook Updates page.

We have also provided links to the peer review ‘improving your quality’ guides on the old LSC website. Although peer reviews are still being carried out and there is information on the process there are regrettably no support materials to help practitioners on the Legal Aid Agency website.

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Permanent presence – some clarification

I recently represented an NfP agency at the Contract Review Body (CRB). The successful result has not yet been confirmed in writing; but the Legal Aid Agency did suggest that they would be providing guidance on this issue soon. This is to be welcomed as it has been causing anxiety and confusion, as we reported recently.

In the meantime, it may be helpful to other practitioners to have some information from some of the points raised in the appeal and at the hearing.

The NfP agency (A) is delivering services from the premises of a separate organisation (B). Under the terms of their agreement, B gives A a dedicated office within their premises and provides reception services, including booking appointments and carrying out an initial eligibility assessment. B’s offices are open during office hours from Monday to Friday. Members of A’s staff are not present five days a week on B’s premises. However, legal aid services can be, and have been, provided on any day of the week.

One of the reasons the LAA’s National Contract Manager gave for terminating the contract schedule was that there were no longer consortium provisions in the 2013 Standard Civil Contract. It was argued that the consortium provisions were irrelevant, as they concerned the provision of the three social welfare law categories. Each member of a consortium was required to meet the ‘permanent presence’ requirements in the 2010 Contract and these are identical in the current one.

It appeared that the LAA’s concern was first and foremost about public access. They wanted to have confidence that face-to-face services would be consistently available and suitable for clients for whom telephone or other remote methods of service delivery are not suitable. A and B did not initially have a written agreement. This was rectified prior to the CRB hearing and seemed to reassure the LAA that the service would continue to be reliable.

The LAA also appeared reassured to know that usage of matter starts was around the target for the schedule and supported a need for the service at the location.

The LAA was concerned that staff members worked on that particular contract part time and could possibly be over-stretched. However, it was noted favourably that A had passed the contract audit element of the Contract Manager’s visit with flying colours and so understanding of the contract and supervision were clearly not a problem.

The CRB’s decision was to set aside the National Contract Manager’s decision, which means that A will be able to continue providing services under a schedule at B’s offices.

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When can CFAs replace legal aid?

Many practitioners are concerned about the implications of recent delays in granting legal aid whilst the LAA is making detailed investigations about whether CFAs are available – even in cases where they clearly are not.

This issue has arisen since the LAA re-designed the CIVAPP1 form.  Under the Civil Legal Aid (Merits Criteria) Regulations 2013 (Reg 39), the Director of Legal Aid has to consider whether the case is ‘unsuitable’ for a CFA and the LAA has changed the wording on the form so that it matches the regulation.

 Lots of people have mistakenly ticked ‘no’, to the question on p.8 of the form, indicating that they think the case IS suitable for a CFA, and the LAA is now coming back to them for more information.

 The Lord Chancellor’s Guidance on Civil Legal Aid says:

 7.17 The test of suitability for a CFA is an objective one, rather than a question of whether an individual provider is willing to act under a CFA. In principle a non-family case may be considered suitable for a conditional fee agreement if:

– Prospects of success are considered at least at 60%

– The opponent is considered able to meet any costs and/or damages (or other sum of money) that might be awarded

–  After-the-event insurance can be obtained by the applicant

7.18 An applicant without after-the-event insurance seeking services otherwise considered suitable for a CFA will be expected to provide evidence of attempts to secure such insurance. Even where evidence is provided of refusals of insurance, the Director him/herself may make enquiries of insurers to see if they would support a CFA in the individual circumstances

7.19 The absence of after-the-event insurance, perhaps because the applicant cannot afford or defer the premium, will not necessarily be fatal to CFA suitability. In particular, whilst cost protection may be an important consideration for an applicant, in a very strong case the risk of an adverse costs order will clearly be small. For example, if prospects of success are considered at least 80% and substantial disbursements are not required, the case is unlikely to satisfy this criterion.

7.20 The fact that the applicant may wish to obtain legal aid rather than a CFA because of the potential deduction from damages in respect of a success premium or damages agreement, will not of itself prevent a case being suitable for a CFA

What can you do?

 Obviously –make sure everyone ticks ‘yes’ in future!

 Ideas you might try in response to queries by the LAA:

 In cases where there will be no claim for damages (or no counterclaim) the client would not be able to obtain ATE insurance, so a CFA would not be realistic.

 You could try a pre-emptive ‘shopping around’ exercise of trying to attempt obtaining ATE in a couple of typical scenarios, so that you could use those as examples of why a CFA would not be available.

 If you are an NfP agency that does not offer CFAs, you could try asking a friendly firm whether they would accept some typical case scenarios on a CFA basis and again use their response as evidence that such cases are not commercially attractive. If you are a private firm that does offer CFAs, you could set out your criteria for accepting CFAs and why this case would not meet them.

 In many cases, urgent action is required so exploring the possibility of a CFA could jeopardise the client’s case, so not a realistic alternative to legal aid.

 The Legal Aid Practitioners Group understands the LAA’s view is that it may be possible for CFAs to be obtained, perhaps by a limited number of firms with good links to the insurance market and is seeking more information about this.

 LAPG, with ILPA and the Law Society have written a letter to the LAA, which they hope will be discussed at the Civil Contracts Consultative Group meeting on 9th September. This is another example of why it is a good idea to become a member of the appropriate representative body – they can take up issues on your behalf with the LAA. Don’t forget the bargain offer on LAPG membership if you mention the Legal Aid Handbook blog.

Simply email conference@lapg.co.uk and mention the fact that you saw the 14 months for the price of 12 offer on Legal Aid Handbook and tell them you want to sign up. Alternatively, you can go straight to their membership page.

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Permanently baffled

LAA staff seem very confused about the provisions of the 2013 Standard Civil Contract in relation to ‘permanent presence’. I have dealt with several consultancy queries from NfP and private practices delivering services from more than one office which are variations on the same theme –  the Contract Manager does not consider that their arrangements meet the requirements and unless they can satisfy him/her pretty quickly, the contract schedule for that office will be terminated.

In some cases, the arrangements are exactly the same as those approved by the same Contract Manager under the 2010 Contract, following a personal visit to inspect them in person. When the practitioner queries why the arrangements are no longer acceptable, the Contract Manager explains, vaguely, that the contract is different – but it isn’t.

Paragraphs 2.49 and 2.50 under the 2010 Contract Specification are EXACTLY the same as paragraphs 2.33 and 2.34 under the 2013 Contract Specification.

In one case, the Contract Manager objected because the organisation did not have a room permanently set aside for its exclusive use; but did not raise an issue about using a reception service provided by a host organisation as part of the agreement for use of the premises. In another case, the organisation did have its own room, but this was considered unacceptable because they did not have a  member of staff there all the time. The Contract Manager also stated the arrangement was not acceptable because the receptionist was not directly employed by them…… Go figure as they say.

So, if you are experiencing much the same thing, you are not alone. Appeals are pending, so the issue should be clarified definitively soon. We will keep you posted.

 

 

 

 

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Housing lawyers – watch the goalposts!

We are grateful to David Gilmore for alerting us to the fact that the LAA has changed an answer to a ‘frequently asked question’, in relation to the evidence required to demonstrate that threatened possession proceedings are in scope.

The question was: Do providers have to wait for housing possession proceedings before providers can grant legal aid?

 In the answer dated 12/04/13 the LAA stated:

97. Providers do not need to wait for housing possession proceedings to be issued before providing advice under Legal Help, as long as it appears proceedings will be issued unless there is some intervention. An application for Legal Representation will not be granted before there are proceedings in existence.

However, the answer to the same question (re-numbered 98) on 19/04/14 and still current as at 29/05.13 was:

98. Providers do not need to wait for housing possession proceedings to be issued before providing advice under legal help, as long as the client has received formal written notification that [our emphasis] proceedings will be issued (such as a section 8 or section 21 notice) unless there is some  intervention. An application for legal representation will not be granted before proceedings have been issued at court by the opponent.

What does this mean?

There is no other guidance we can look at, which is not helpful. However, if we go back to the Act – schedule 1 para 33 (1) (b) is widely drafted:

33.  1 Civil legal services provided to an individual in relation to—

a) court orders for sale or possession of the individual’s home, or

b) the eviction from the individual’s home of the individual or others

Part 4 of Schedule 1 (definitions), states that “orders” include actual and contemplated proceedings. When proceedings move from the theoretical to the contemplated is not specified. However, we can see that the Legal Aid Agency has a decided preference for written evidence, not necessarily something formal like a letter before action or a notice of seeking possession but at least a letter from the landlord saying “if you don’t pay the rent I’ll evict you / take you to court”.

The problem is that not all tenants are entitled to a written notice and not all landlords will put threats to evict in writing; but we have been warned – advice must be in relation to a realistic prospect of eviction, advice on arrears in themselves is outside scope. If you are advising someone without written evidence, you are going to have to make very careful and thorough notes of your justification as you will probably have a battle on your hands when it comes to an audit – and no -one wants to be in that position. The prudent/cautious will only provide advice when the client has written evidence or wait for proceedings to be issued.

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Filed under Civil, Costs, Handbook, Housing, Uncategorized