by Simon |
October 30, 2011 · 7:57 am
Fee cuts continue to dominate; the LSC have published FAQs on the criminal and civil legal aid reform pages of their website. Where you are instructing an expert in a post-cut case and are seeking to exceed the prescribed maximum fee you will need to apply for prior authority. The LSC is developing a new form – APP8A – specifically for these cases but until it is released continue to use APP8s. See this post for the contract rules on when you can exceed the rates. They have also published a guide to common mistakes in criminal claims.
Payment delays for both civil and criminal cases are improving, if at the expense of customer service in other parts of the LSC. Only criminal advocacy claims are now outside the service standard, though criminal litigator fees and civil bills are not far behind. You can see the latest information for civil and criminal bills on the LSC site.
The LSC are writing to civil firms who have not met the key performance indicator to use 85% of matter starts awarded in each category of law at each office. This is technically a breach of the contract, so contract notices and/or sanctions may be issued. Practitioners who receive such a letter may wish to rely on what John Sirodcar, head of contract management at the LSC, told LAPG this week:
We contacted John Sirodcar Head of Contract Management at the LSC to ask about this. He said that “the LSC are not looking to issue Contract Notices in scenarios where there is good reason why the allocated NMS have not been used or where usage is close to the allocation. There are however many providers who have used very low volumes of NMS compared to the allocation and contract notices or other contract action will be focused on such scenarios”.
The legal aid bill reaches third reading in the Commons tomorrow. Senior Lib Dem backbenchers
have put down amendments bringing some work back into scope. Is this the first sign that the coalition may have to offer concessions to get the bill through? We will know more after Wednesday, but there is still a long way to go.
Finally, yet more litigation from the last tender round. This time a solicitor, Yvonne Hossack, who incorrectly filled out the tender forms has lost her judicial review. This judgement is of wider interest because of comments made about incorrect information given in previous litigation by the LSC about how far they were willing to go in allowing bidders to clarify their bids after submission. One year on, the fall-out from the last tender round is far from over.
Filed under Civil, Crime, Family, Immigration, Legal aid bill, Social welfare
Tagged as civil, crime, experts, forms, KPIs, legal aid bill, legal aid reform
by Simon |
October 23, 2011 · 3:28 pm
The LSC have now published the revised civil Costs Assessment Guidance for cases affected by the October fee cuts. The key points to note are the passages concerning payment of experts’ fees from para 3.39 onwards. Para 3.41 sets out the LSC’s approach to joint experts where one party is non-legally aided; this will be vital for clinical negligence and housing practitioners, among others, to note. In short, the position is that the LSC will pay half (or other fraction depending on the number of parties) the hours incurred at a rate not exceeding the prescribed maximum. Where there are different maximum rates for London and non-London, it is the location of the expert’s office that decides which applies. Barristers will want to note para 13.11 onwards, dealing with the new prescribed rates for counsel in non-family cases.
The third reading of the legal aid bill in the House of Commons has been delayed a week and will now take place on 31st October and 1st and 2nd November. This gives you an extra week to use Justice for All’s tool to email your MP.
Finally, the invitations to tender for immigration contracts announced last week have been delayed, and will be published on Monday 24th October.
Filed under Advocacy, Civil, Costs, Immigration, Legal aid bill
Tagged as advocacy, civil, costs, disbursements, experts, legal aid, legal aid bill, tenders
by Vicky |
October 1, 2011 · 7:49 pm
Even those legal aid practitioners who generally take a more optimistic view than the Boomtown Rats may find themselves concurring this week. There’s a lot happening and none of it is exactly good news.
- The Family with Housing tender closes at noon on 3rd October.
- New maximum experts fees come into force for cases started on or after 3rd October for both civil and criminal cases
- 10% fee cuts apply to civil cases (both controlled and certificated) for cases strated on or after 3rd October (fees for family and family with housing cases under the Unified Contract will notbe cut until 1st February 2012)
- In Crime new fees will apply in the Magistrates’ Court, and London weighting will cease for such cases
- In particular, solicitors will no longer be paid for representing defendant clients in either way cases under a representation order, if clients are committed for trial
- There will also be changes to the online reporting system for civil and crime
Filed under Advocacy, Civil, Costs, Crime, Family
Tagged as advocacy, civil, costs, crime, disbursements, experts, family, tenders
by Simon |
September 20, 2011 · 7:51 pm
Following our post last week HHJ Altman has revised his guidance to take account of the need to apply for prior authority as a pre-condition of exceeding the prescribed maximum rates for experts. The revised guidance is available here.
Practitioners should note that it is the date of application for the certificate, not the date of the hearing, that determines which rules apply and the new rules only apply to cases where the certificate was applied for on or after 3rd October 2011, or the application received by the LSC on or after 10th October 2011 (see para 13 of the Funding Order and new para 1.58 of the Unified Contract Specification).
by Simon |
September 17, 2011 · 8:20 pm
The family tender has been open now for almost two weeks, and the LSC have published the first tranche of FAQs. The deadline for the submission of questions – which must be sent via the e-tendering system – is noon on the 19th September, and the final FAQs will be published on the family tender page of the LSC website on 23rd September. The Law Society has issued a practice note to assist firms in tendering for contracts. See our earlier post if you are considering relying on Lexcel accreditation as part of your tender.
Processing times at the LSC are improving. The latest processing dates for civil and crime indicate that the LSC is now working about 4 to 6 weeks behind. The LSC is urging practitioners to sign up to submit POA1, CDS4, CDS5 and CDS7 forms online, on the basis that they will be dealt with more quickly than those submitted on paper.
The LSC continues to show no sign of having a sense of irony; the latest manifestation of this is an article on its website remonstrating with practitioners for not paying expert witnesses on time. The article is, though, useful as a reminder of the circumstances in which a payment on account can be claimed.
With just two weeks to go before the first tranche of fee cuts, the LSC is now offering training for practitioners on the new arrangements. Revised civil costs assessment guidance is currently undergoing the required consultation with representative bodies, and we hope the final version will be published in time for the 3rd October. The revised criminal legal aid manual has now been released and is available here.
Elsewhere, the committee stage of the Legal Aid, Sentencing and Punishment of Offenders Bill continued. Scrutiny and debate of the legal aid clauses has now finished and the committee has moved on to other parts of the bill. Regrettably, there have been no changes to the bill as published, except for some small government amendments affecting housing legal aid. Nearly Legal has a good analysis of those clauses.
Finally, well worth reading is a post on Lucy Reed’s Pink Tape blog; both an outburst of frustration at the state of legal aid and a moving tribute to her grandfather, it should be compulsory reading at the LSC and MoJ.
Filed under Civil, Costs, Crime, Family, Legal aid bill, Policy
Tagged as civil, costs, crime, experts, forms, LASPO, legal aid bill, legal aid reform, news, payments on account, tenders
by Simon |
September 16, 2011 · 7:32 am
UPDATE 20th September 2011: The guidance has now been revised. See our later post. The original post follows below.
As the countdown to 3rd October continues, concern is growing among practitioners not only about their own fees but about the position regarding experts. There are very real worries that experts will simply be unwilling to work for the new prescribed rates.
HHJ Altman, the Designated Family Judge for London, has issued guidance on the approach the Courts should take to these cases, particularly childcare matters. The guidance is available here.
However, the order suggested in paragraph 2b, which appears to say that the Court deems a fee above the prescribed rate appropriate and further deems that an application for prior authority would cause undue delay and therefore presumably can be dispensed with, does not fit with what the Contract says.
The contractual position – see new Unified Contract specification para 8.38 / Standard Contract specification para 6.62 – is that the prescribed rates can only be departed from IF the LSC have given prior authority and IF particular circumstances – which are not quite the same as those in the suggested Order – exist.
The Court can not disapply the contractual rules (which directly replicate what is in the Funding Order) and it would be a brave practitioner who instructed an expert at more than the prescribed rates on the basis of such an Order, in the hope that the LSC would therefore not rely on the Contract. The Judge does go on to say that the expert “may be vulnerable” to assessment down of their rates; whether it is the expert or the solicitor who in fact suffers any reduction will depend on the terms of the letter of instruction and if expecting experts to be subject to assessment, solicitors should be upfront with them about the risks – in this situation, they are considerable.
An Order in the terms suggested can authorise you to instruct the expert in the proceedings, but it can’t require the LSC to pay the bill.
This is the wording of the new Contract rule:
Where you instruct an expert to deliver services of a type set out in Part 14 of the Payment Annex we will not pay fees in excess of those set out in that Part unless:
(a) we consider it reasonable to increase such fixed fees or rates in exceptional circumstances; and
(b) we have granted prior authority to exceed such fixed fees or rates on such basis.
Subject to such limits where applicable, the amounts claimed for the provision of expert services must be justified on detailed assessment by the court or Assessment by us in the usual way. For the purpose of this paragraph 8.38, “exceptional circumstances” means that the expert’s evidence is key to the client’s case and either (i) the complexity of the material is such that an expert with a high level of seniority is required; or (ii) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
by Simon |
September 5, 2011 · 7:53 pm
The LSC have published more documentation on the implementation of the October fee cuts. It is important to read the full announcement on their website, which covers civil, crime and family, and solicitors, barristers and experts. In short everyone working in legal aid needs to know how their cases and their income will be affected.
- Unified Contracts (for family and housing with family firms)
- Standard Civil Contracts (all other providers)
- Standard Criminal Contracts
- The payment annex and Funding Order Schedule containing the revised fees
- A new form – LAC1 – which must be completed by advocates acting at committals and signed by the Court legal adviser in all cases where the Court directs the case to be heard at the Crown Court. Presumably this form is to prevent the LSC from paying the £362 litigator / £203 advocate fee applicable in cases where the Court accepts jurisdiction but the defendant elected jury trial.
The LSC have created a training programme which can be accessed here.
How are you affected?
- Civil (non-family) solicitors and agencies – fees are cut by 10% on all cases started on or after (or certificates applied for after) 3rd October
- Civil barristers – payment rates are specified by contract and included in the payment annex for the first time, again only for new cases
- Criminal practitioners – advocate and litigator fees are cut for all cases started on or after 3rd October
- Experts – fees are now prescribed for all cases starting on or after 3rd October whether civil, crime or family. “Expert” is defined broadly to include not just those traditionally thought of as “expert witnesses”, but also almost all professionals whose services are commissioned as part of a case, such as for example interpreters, process servers, etc. Practitioners should study the list of prescribed expert fees to ensure that any services they commission are done so within the fees. There is provision for exceeding the fees in the respective contracts but 0nly in limited exceptional circumstances. This document summarises the position for both civil and criminal cases.
Filed under Advocacy, Civil, Costs, Crime, Family, Immigration, Social welfare
Tagged as advocacy, civil, costs, crime, disbursements, experts, family, immigration, legal aid reform, social welfare
by Simon |
September 2, 2011 · 4:43 pm
September arrives, and judging by the outpouring of announcements from the LSC this week the summer break is definitely over.
The contract amendments to give effect to the fees cuts from 3rd October have now been published. There will be amendments to the Standard Civil and Crime Contracts and the criminal High Costs Case Contract. Family with housing and family practitioners will not have their fees cut until February 2012, but there are also amendments to the Unified Contract to implement the codification of expert fees. Even before the cuts come in, there are significant problems both with payment of expert fees (as we reported last week) and with finding experts willing to accept the rates.
All amendments apply only to cases started on or after 3rd October. In practice, this means the old rules will apply where:
- Legal Help / Criminal Advice and Assistance – form signed before 3rd October
- Certificates – APP1/3/5 signed before 3rd October and received by the LSC before 10th October
- Representation orders – granted before 3rd October
So practitioners should ensure that all applications for certificates and representation orders are made as soon as possible.
The wider legal aid reform programme comes under discussion next week when Parliament returns from recess. The committee scrutinising the legal aid bill will next sit on Tuesday; it is not yet too late to submit evidence to the committee. The bill itself and all amendments proposed to date are available here; evidence submitted to date and transcripts of hearings are available here.
Elsewhere, the most important new information is regarding audits (see separate post). Equally important for family practitioners is a reminder that tenders for contracts from 2012 open on Monday 5th September (see our posts).
Some progress is apparently being made in resolving the processing backlog. The LSC again asks practitioners only to call them with queries relating to urgent cases, and has published an article setting out the most common errors in means assessment (both civil and criminal) in an attempt to reduce the number of rejected applications. The current state of the backlog can be found on the relevant civil and criminal pages of the LSC website. The approach of restricting telephone opening hours to allow LSC staff to focus on paperwork has been criticised by the profession; see for example today’s Gazette. We hope that the LSC is not resolving one problem by creating another.
Over the summer, the LSC held a series of provider reference group meetings, and a note of the discussions and the LSC’s presentation can be found here.
Finally, there is advance warning that the forms will change yet again in October. New forms will be mandatory from 3rd October, and the civil and criminal ones are available for preview in the meantime.
Filed under Advocacy, Civil, Costs, Crime, Family, Immigration, LASPO, Social welfare
Tagged as advocacy, civil, costs, crime, experts, forms, LASPO, legal aid bill, legal aid reform
by Vicky |
August 27, 2011 · 9:54 am
There is an ongoing dispute between the LSC and practitioners about experts fees in public law family cases. Amongst other things, the LSC is reducing fees on assessment and blaming practitioners for failing to obtain prior authority.
This puts practitioners in a difficult position, to put it mildly, as the expert will usually have been paid long before the case is closed. The practitioner may well have to bear the loss.
However, we have found evidence that explains why practitioners have not been protecting themselves to a great extent by obtaining prior authority – the LSC asked them not to!
See Focus 48:
‘ Solicitors are urged not to seek prior authority in cases subject to the Protocol for Judicial Case Management in public law Children Act cases unless the expense involved is exceptional in amount or nature (for example it relates to a residential assessment or is in excess of £5,000 per funded client). This is because the process is discretionary and generally no prior authority is justified to incur costs in relation to obtaining a report or to a court attendance by an expert whose instruction and work has been authorised specifically by the court. Applications for prior authority may serve only to delay the instruction of the expert and the court timetable for the proceedings. However, an amendment to the costs limitation may still be necessary.Where prior authority or an amendment to the costs limitation is sought, details of the work to be undertaken, the rates applied and the total cost apportioned to the funded client must be provided (including, in any case where it is relevant, confirmation that any charges for or expenses in relation to treatment, therapy, training or other interventions of an educative or rehabilitative nature have been identified, costed and excluded).’
by Simon |
July 12, 2011 · 8:00 am
Much of social welfare law has been removed from scope altogether, or severely restricted.
- Education cases – special educational needs cases remain in scope; everything else is removed. SEN cases will be required to go through the mandatory telephone gateway.
- Mental health – cases under the Mental Health Act 1983 and the Mental Capacity Act 2005 are in scope, with the exception of the creation of lasting powers of attorney and the making of advance decisions.
- Community care – this category remains in scope, though the full extent of it is defined in paragraph 6 of Schedule 1 of the bill in a more specific way than in the current category definitions. Instead of a discursive description – “services or facilities in the community, in residential or nursing accommodation and/or hospital” – the bill lists a series of statutory provisions under which cases may be brought. If it is not on the list, it is out of scope – though there is power to add further provisions by regulation. Community care cases will be required to go through the telephone gateway.
- Judicial review is in scope even where the substantive area of law is not, provided the action has the potential to benefit the client, a member of their family or the environment (this re-imposes the restriction overturned in the Maya Evans case)
- Habeas corpus is in scope.
- Actions against public authorities for abuse of power or position, but not for clinical negligence, and only where the alleged act is deliberate, dishonest and resulted in harm that was reasonable foreseeable are in scope
- Actions against public authorities for claims in tort or other damages claims where a significant breach of Convention rights is alleged, but not for clinical negligence are in scope
- Housing or debt cases concerning court orders for sale or possession of the home or eviction from the home are in scope, but not where there are no grounds for arguing that the client is occupying otherwise than as a trespasser and their occupation began as a trespasser (this is the “squatters” exemption that has dominated discussion of the legal aid proposals in the tabloids). This is subject to Part 2 of Schedule 1 of the bill, which excludes a number of types of case even if Part 1 keeps them in scope. Relevant exclusions here include allegations of assault and trespass to goods land or property, which may be part of the claim in unlawful eviction cases, and welfare benefits issues, which will often be relevant in possession proceedings. The government has so far been oblivious to the argument that, where rent arrears are caused by benefits problems – often housing benefit – it is an essential part of the case to resolve the underlying cause as well as represent the client in the possession proceedings.
- Bankruptcy orders are in scope where the client is being (or was) made bankrupt on the application of someone else and the estate includes their home.
- Homelessness – services under Part 6 or 7 Housing Act 1996 to an individual who is homeless or threatened with homelessness are in scope
- Housing disrepair is in scope but only where there is a serious risk of harm to the health or safety of the client or a member of their family, and where services are provided with a view to securing the removal or reduction of the risk. So actions to compel the landlord to make repairs are in scope, but not damages claims. Presumably if repairs are carried out part-way through a case and the action becomes one for damages only, legal aid will be withdrawn.
- Anti-social behaviour cases are in scope where they concern orders under s1B, 1D or 1G Crime and Disorder Act 1998, or an injunction under s153A Housing Act 1996, as are gang-related injunctions under Part 4 Policing and Crime Act 2009
- Protection from harassment injunctions are in scope
- Victims of sexual offences are entitled to civil legal aid in relation to the offence, including actions for personal injury, negligence, assault, battery, false imprisonment, breach of statutory duty and breach of Convention rights by a public authority, but not criminal injuries compensation scheme applications.
- Some Proceeds of crime Act cases remain in scope
- Injunctions for nuisance remain in scope where environmental pollution is alleged
- Equality Act cases remain in scope but will be required to go through the telephone gateway.
- Cross-border disputes within the EU remain in scope.
The above list is exhaustive (apart from areas covered in our previous posts on family and immigration) and therefore if an area of law or type of proceedings is not on the list, it is out of scope. These include welfare benefits – all services in relation to benefits, allowances, payments, credits or pensions under any social security enactment are out of scope. The sole exceptions are judicial review and allegations of breach of the Equality Act. Other areas removed wholesale include clinical negligence, employment (except Equality Act cases) criminal injuries compensation and consumer and contract.
Scope cuts will come into effect following the passage of the bill and a tender process for new contracts, so not before autumn 2012 at the earliest.
Eligibility has been cut across all areas of social welfare law, and our post on eligibility gives more details. No implementation date has yet been announced.
Fees have also been cut by 10% with effect from 3rd October 2011 (February 2012 for housing under family and housing contracts). The fees schedule sets out the changes to individual fees, but the broad structure of the payment regimes remains unchanged. The revised fees start at page 50 of the schedule. Enhancements in hourly rates cases will be capped at 50% in the County Court and 100% in the High Court and above, with the proviso that there will be no pro rata reduction below that – so a case that currently attracts 30% enhancement now will get 30% in future, but a case that currently gets 60% will in future get 50%.
Barristers’ fees will be codified, also from October, and the fees can be found at page 67 of the fees schedule.
Expert fees will be codified and reduced by 10%, with provision for exceptional cases, and there will be further work on moving to a system of fixed and graduated fees for experts in the longer term. The full table of expert rates can be found at page 72 of the fees schedule.
There is to be a telephone gateway. The gateway will be the only way for clients to access advice in certain areas of law – they will not be allowed to get face to face advice or use a provider of their choice. The gateway will decide whether the case can be dealt with over the phone and if so the client will only be able to get telephone advice; if the gateway decides that face to face advice is required, it will make a referral. What face to face providers will be left to refer to – given that most of their cases will be swept into the gateway – is not clear.
The gateway will initially be restricted to debt (where it remains in scope), Special Educational Needs, discrimination and community care. Exceptions will apply in emergencies and where the client’s problem has previously been assessed by the gateway as requiring face to face advice; detained clients; and children. The effectiveness of the gateway will be reviewed before any decision is taken to extend it to other areas of law. There will also be a phased expansion of the existing voluntary telephone advice service to all areas of law and a pilot on extending it to offer paid for advice.
Filed under Advocacy, Civil, Costs, Legal aid bill, Social welfare
Tagged as advocacy, civil, costs, experts, housing, legal aid bill, legal aid reform, social welfare, welfare benefits