The Ministry of Justice has announced a further analysis of expert witness fees paid in legal aid work. It is seeking the support of civil and criminal legal aid solicitors in a data collection exercise being conducted on their behalf by the Legal Services Commission.

This follows a consultation exercise carried out last year on legal aid funding reforms. A response to the main consultation was published in December last year, but this did not include the proposals relating to experts’ fees. A further analysis, published in March this year, showed that 270 responses were received to the part of the consultation paper on experts’ fees. The majority of respondents were against imposing either fixed fees or the suggested hourly rates on the basis of current knowledge. There was a strong message from all categories of professional expert witness that if inadequate remuneration rates are imposed, this would lead to more experienced practitioners refusing to undertake the work, potentially leading to access and quality problems across England and Wales. It was accepted that something should be done to regulate rates charged as they were often variable and too high.

MoJ felt that several expert groups would be keen to assist them in gaining a better understanding of their work and better control over both price and quality. They therefore proposed a data gathering exercise to increase their understanding of the type of work experts undertake and what current rates are paid for this. Undoubtedly this is in response to the National Audit Office’s highly critical report to Parliament on the procurement of criminal legal aid in England and Wales and the Public Accounts Committee’s savaging of the Legal Services Commission. The PAC said: “Because the Commission is the sole buyer of legal aid, it is important that it knows it is paying the right price for this and the effects its policies are having on the sustainability of providers. But it does not know enough about the costs and profitability of firms to know if it has set its fees at an appropriate level”. To help analyse and validate the findings of this exercise, and work towards establishing fixed fees and hourly rates, where appropriate, MoJ also propose to set up a working group including expert witness representative bodies and other interested stakeholders.

The LSC has issued a request for participants in a file review of  experts costs in legal aid work to ensure that the information collected is as comprehensive and representative as possible. The Commission has asked that practitioners send any recently closed legal aid case files that include invoices for expenditure on one or multiple expert witnesses, for inclusion in the review. They need to receive a representative sample across Family (certificated); Clinical Negligence (certificated) and Crime, for a list of specified matter types. The exercise will not include an examination of the costs of instructing interpreters. Practitioners willing to contribute to the file review should contact the LSC’s Chester office as soon as possible. The data collection exercise will be taking place over 7 or 8 weeks from the beginning of May.

For the text of the letter of invitation go to:

http://www.justice.gov.uk/consultations/docs/legal-aid-expert-witness-fees-letter.pdf

For the full text of “Legal Aid: Funding Reforms Part Three: Experts’ Fees” see:

http://www.justice.gov.uk/consultations/docs/legal-aid-funding-experts-response.pdf

Hard on the heels of the National Audit Office’s highly critical report to Parliament on the procurement of Criminal Legal Aid in England and Wales comes the Public Accounts Committee’s savaging of the Legal Services Commission, the body charged with administering the programme.

The Legal Services Commission (LSC) spends £2.1 billion a year on buying civil and criminal legal aid, mainly from solicitors and barristers, and a further £125 million on administration. While accepting that the Commission has successfully arrested the increase in legal aid spending in the last five years, the PAC nevertheless found it to be an organisation with poor financial management and internal controls and

deficient management information. These weaknesses resulted in the Commission having its annual accounts qualified for 2008–09 and an assessment that its procurement and administration of criminal legal aid posed risks to value for money.

The Committee was very concerned that such weaknesses in the Commission’s

performance had occurred when the Ministry of Justice spends over £2 million a year itself on legal aid policy matters and on overseeing the Commission. In the words of the report: “We found confusion and uncertainty about the respective roles of the two organisations which had led to duplication of effort on some issues and a lack of clarity about who should be responsible for others. Because the Commission is the sole buyer of legal aid, it is important that it knows it is paying the right price for this and the effects its policies are having on the sustainability of providers. But it does not know enough about the costs and profitability of firms to know if it has set its fees at an appropriate level”.

The gaps the Committee found in the arrangements to assure the quality of criminal legal aid procured made it harder to assess whether the services delivered represent good value for money. The LSC considered the introduction of tendering would remove the imperative for it to know the market, because prices would be set by competition. But the recently announced abandonment of its plans to introduce its tendering proposals following representations from the legal profession leaves the Commission not able to assess if it is paying a reasonable price for legal aid.

The LSC has been responsible for implementing significant reforms to legal aid recommended by Lord Carter, but the PAC concluded that constant changes in staff at senior level, and poor planning of the changes, has meant that reforms have often been delayed, have not always kept to their timetable, and have not been properly evaluated to assess their impact.

The full text of the Committee of Public Accounts’ report “The procurement of legal aid in England and Wales by the Legal Services Commission (Ninth Report of Session 2009–10)” can be found at

http://www.publications.parliament.uk/pa/cm200910/cmselect/cmpubacc/322/322.pdf

The National Audit Office’s latest report to Parliament on the procurement of Criminal Legal Aid in England and Wales will make uncomfortable reading for the Legal Services Commission.

In 2008-09 the Commission spent more than £1.1 billion on criminal legal aid, £112 million of which was spent on 432 Very High Cost Criminal Cases.  871,000 acts of assistance at police stations and 125,000 acts of assistance at the Crown Court were funded. The LSC spent £22 per capita on criminal legal aid, more than any other comparable developed nation except Northern Ireland. At the other end of the scale France spent £0.9 per capita, though differences are partly attributable to the greater defence costs inherent in an adversarial legal system, in contrast to jurisdictions where judges play a greater investigative role.

The NAO found that the data used by the LSC to make payments for criminal legal aid services is inaccurate and incomplete. The existing controls over the quality of data and the accuracy of payments made to firms are not effective, and the impact of reforms has not been evaluated consistently. At present, gaps in the LSC’s knowledge about its supplier base mean that it has not developed a good understanding of the market, such as the cost structures of different types of firms and their profit margins. The NAO concluded  that “there are significant weaknesses in the way criminal legal aid has been administered…New schemes have not always been piloted…(and) the Commission’s ability to make payments to criminal legal aid suppliers is undermined by poor administration”.

An NAO survey of 369 firms delivering criminal legal aid found that it accounted for almost 60 per cent of turnover. Firms reported an average profit margin of 18.4 per cent in the last financial year, a fall from 21.6 per cent three years ago. They reported a wide range of profits, with 16 per cent of firms reporting no profit in the last financial year. Almost 80 per cent of firms which also conducted private legal work reported that criminal legal aid was less profitable, and firms which had withdrawn from contracts reported the main reason was that remuneration compared unfavourably with other types of legal work.  In their survey, 28 per cent of firms reported it unlikely they would be conducting criminal legal aid work in five years’ time, due mainly to lack of profitability and the prospect of tendering. The survey also revealed tensions in the relationship between the profession and the LSC. Of those who responded to the survey, 36 per cent of solicitors perceived the LSC as ‘unhelpful’, 29 per cent believed the LSC did not fully understand the legal system and 18 per cent cited the Commission’s “constant change of the system, processes and rules.”

The Law Society has welcomed the report. Legal aid manager Richard Miller said:

“This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system. Many of them are not even earning any income from the work they do at all. This is a picture of a supplier base on the point of crumbling into insolvency. It is those requiring access to justice who will lose out in the long run if there are not enough solicitors providing legal aid criminal defence services.” He called for a major overhaul of the system to simplify criminal defence contracts so that they are easier and less expensive for the legal aid solicitors and LSC to administer.

For the full text of the NAO report ‘The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission’ go to: http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx 

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