In the hiatus following the cancellation of family contracts last autumn two new family fee schemes, due for implementation, were postponed. The Legal Services Commission (LSC) has now announced their belated introduction from 9 May. The new schemes are:

The Family Advocacy Scheme. Under this scheme both solicitor advocates and barristers claim a single, graduated fee for advocacy work done on public and private family law cases.

The Private Family Law Representation Scheme. Under this scheme solicitors claim a standard fixed fee for work done (excluding advocacy) from the issue of proceedings to the conclusion of the final hearing.

The LSC say that online training to help preparation for the new family fee schemes is now available on their training website and encourage family providers and advocates affected by the new schemes to use this training to ensure accurate claiming. The Commission has also published new guidance on their website under Guidance on fees and funding.

Three new forms to support the schemes have been introduced:

• CLAIM1A for non-advocacy work
• CLAIM5A for advocacy work
• Advocates’ Attendance Form for advocates.

If you are an advocate you need to complete the Advocates’ Attendance Form:

• for hearings that last for more than an hour or
• when claiming bolt-ons.

The Court needs to verify the information on this form and it is the advocate’s responsibility to:

• get the form signed at court by the judge, magistrate or legal adviser and
• keep a copy of the signed form.

The advocate should submit this form with their claim. Copies of signed forms will not be kept by the court. The full list of new and revised forms can be found at:

http://www.legalservices.gov.uk/civil/forms/preview_may_2011.asp

But if you are wise enough to be a subscriber to the excellent Anya Designs iLaw system you will have these concerns catered for in the latest service pack being despatched this week.

The tendering process for the Legal Aid scheme for new family law cases is unlawful and must be changed, the High Court ruled last week. The decision follows a three day hearing of the Law Society’s application for judicial review at the Divisional Court.
 
A blog posted on 26 August explained how the Law Society found itself on the horns of a dilemma when the recent tender procedure for civil and family legal aid work sparked a row with the Legal Services Commission (LSC). It is an issue that divides practitioners. Of those firms who had succeeded in obtaining a contract many were satisfied with the outcome, and some, but by no means all, would prefer it if nothing was done to disturb the result. The Society accepted that, whether it chose to act or not, a proportion of its members would be unhappy with the decision. The Society decided to challenge the lawfulness of the LSC’s decision.

As reported on BBC News UK, Dinah Rose QC, appearing for the Society, said the 40% reduction in the number of offices carrying out family legal aid work which the tendering procedure had produced would lead to serious gaps in geographical coverage of family legal aid. “We have referred to these as legal deserts, with no law firm available to undertake family legal aid work,” she told the judges. “At the heart of our case is the contention that the tendering process will have serious adverse effects on access to justice for very vulnerable groups, including those who are victims of domestic abuse, those who are victims of forced marriages, or vulnerable children.”

Lord Justice Moses and Mr Justice Beatson allowed the Law Society’s application for judicial review. The two judges ruled that the tendering process could not be allowed to stand because it would prevent “the vulnerable and deprived from obtaining the services of very well qualified and experienced family lawyers”. The judges said the new caseworker criterion introduced by the LSC for awarding contracts was central to the case. It gave most points to law firms with caseworkers who were members of two separate accreditation schemes which showed they were able to undertake work with children and deal with other complex family issues, including domestic violence. But the LSC had failed to make the importance of this clear in time, leading to an absence of awareness among firms that double accreditation was required, until it was too late to apply. Many highly-qualified firms were thus not given sufficient time to apply for the necessary accreditation. The tendering process was “unfair and irrational” as it “inhibited and defeated” the objective of the LSC, which was to achieve a high quality legal aid service for the public.

Welcoming the Court’s decision, Law Society president Linda Lee said that it is a victory for the thousands of families who would have been left without access to legal assistance when faced with state intervention in their family or the consequences of the breakdown of a relationship. She said: “The LSC’s actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2,400 to 1,300. That would have translated into thousands of people facing grave difficulty in obtaining justice – ordinary people who are already facing extraordinary difficulties. Legal aid clients are some of the most vulnerable in society and access to legal representation where required is their only hope of achieving justice.”

The new contracts should have commenced this month. In its statement the LSC said it “is obviously disappointed by the result and remains committed to ensuring that vulnerable people across England and Wales have access to justice. We are currently considering the detail of the judgment and its implications, including whether to appeal. We are conscious of the uncertainty facing providers and will publish further information in due course”.

In February the Legal Services Commission (LSC) announced that, as current civil legal aid contracts come to an end on 13 October 2010, any organisation who wishes to deliver legal aid work in Family (including Family Mediation) or Social Welfare Law from 14 October 2010 would need to apply for and be awarded a new contract. The tender process for this opened on 26 February 2010, and the deadline for submitting tenders was 21 April 2010.

In a press release last week, the LSC pronounced that the tenders were carried out openly and transparently, and focused on commissioning quality legal advice and representation where people most need these services, with the aim of improving current services wherever possible. The Commission claimed that the tenders were popular among both law firms and not-for-profit organisations.  All tenders were oversubscribed which meant that it was not possible to award all bidders contracts nor, in some cases, the level of work bid for. Sir Bill Callaghan, Chair of the LSC, said: “Ensuring quality advice provision, where it is needed, is at the heart of our civil contract tenders. We are confident that we now have quality-assured advice provision across England and Wales.”

This optimistic view was not shared by everyone. Indeed, the Law Society is urging the LSC to undertake an urgent public review after it emerged the number of firms providing family legal services has been halved. The fall-out from the tender process, which, it is claimed, leaves families, children and domestic violence victims without genuine access to legal services, has prompted the Society to call for its immediate suspension while a public review of the process, its outcome and the impact of access to justice is assessed. The LSC chief executive Carolyn Downs, in an interview with the Law Society Gazette, admitted that the dramatic cull in family law suppliers was not the intended outcome of the tendering round.

Clearly the law of unintended consequences was once again in operation. Law Society President Linda Lee said: “This is sadly the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid notwithstanding the clear intent of the previous and present Governments to return policy on legal aid to the Ministry of Justice. The LSC has, we fear, lost control of the processes.” She added: “When even the LSC itself is saying the outcome was not intended, and when clients are deprived of legal advice and services and firms are seeing important contracts vanish, the Government has to take a closer look at this and make a decision. If these systemic changes were being imposed on farmers or fishermen then compensation would be paid. All businesses, not just law firms, trading in Government controlled markets will be watching very closely how the Government handles this situation. In this era of the Big Society, the rule of law and genuine access to justice for all citizens must be an underpinning element of that concept.”

Legal aid minister Jonathan Djanogly has announced plans to scrap a £2.6 million per year training contract grant scheme. Since the scheme began in 2002 more than 750 trainees have benefited from grants of over £20,000 each to help cover their training fees and salary. The Legal Services Commission gave the grants to legal aid firms to allow them to fund 100% of the tuition fees of the Professional Skills Course, and to contribute towards Legal Practice Course fees and the trainee’s salary for the two years of their training contract.

The Ministry of Justice claims that the cut is an important cost-saving measure. Their spokesman said that when the scheme was introduced, financial inducements were needed to attract more young lawyers into the legal aid market, but now there are too many lawyers chasing too little work. “The grant scheme was a laudable idea, but the long-term future of legal aid is still assured, with enough young lawyers continuing to enter the profession,” he said. Those whose training is already being funded will be unaffected.

The decision has provoked anger from critics who say that the abolition of the scheme will undermine small legal firms who recruit from under-privileged backgrounds, as well as reducing the number of lawyers working in areas such as immigration and crime. Many will not be able to afford to undertake the lower paid work, and the decision could result in new lawyers turning toward more lucrative legal career paths. Laura Janes, chair of Young Legal Aid Lawyers, said: “If the government takes away this tiny but important lifeline, the kind of people who want to use the law to help ordinary people will no longer be able to afford it. This government has not even commenced their analysis of the legal aid position yet, and they already seem to be committed to getting rid of diversity in legal aid provision,” She added: “The provision of these grants went some way toward sustaining the flow of talented entrants into the legal aid sector, and making sure that legal aid work is not a closed door to applicants from poorer backgrounds.”

Lord Bach, former legal aid minister, condemned the move, saying: “This is a mean decision which will lead to some skilled and committed young lawyers not choosing the legal aid path, but looking to other parts of the law. Everyone knows that there may have to be some savings in the total legal aid budget, but to cancel this superb scheme which has worked so well for the last 8 years in order to save £2.6 million, looks petty and incredibly short-sighted.” Beth Forrester of the Junior Lawyers Division said: “The JLD is acutely aware that the current financial climate has had a grave impact on the availability of training contracts throughout the profession, but we are very disappointed to see that those junior lawyers in particular, who are looking to progress in an area of law which is of maximum benefit to the community, are going to be hardest hit.”

Last word to Laura Janes: “In this age of financial austerity, there is going to be more need than ever for the safety net of legal aid. What steps are the government going to take to ensure there is a next generation of properly supervised, qualified legal aid lawyers? Firms are dropping like flies and those left are going to be relying on armies of unqualified paralegals, who cannot deliver the level of quality the government claims it is committed to.”

The Government has wasted no time in pursuing its aim to review the legal aid system as promised in the Coalition programme for government published in May.

In a written ministerial statement to Parliament on 23 June, Secretary of State for Justice Kenneth Clarke set out the background of the Government’s immediate priority to reduce the financial deficit and encourage economic recovery. The main burden of the deficit reduction is to be borne by reduced public spending, coupled with the most efficient and effective delivery of public services. He said: “I am seeking to develop an approach to legal aid spending which balances these necessary financial constraints with the interests of justice and the wider public interest. We will seek to develop an approach which is compatible with fair and necessary access to justice for those who need it most, the protection of the most vulnerable in our society, the efficient performance of the justice system, and our international legal obligations.” He concluded by stating that the government will consider the policy and intend to seek views on a proposed new approach in the autumn.

The Law Society had already fired its first shot across the bows in late May when it warned that plans announced by the Chancellor of the Exchequer to cut the Ministry of Justice budget by £325 million must not include front line legal aid services at a time when the public needs them the most. This warning came after a recent YouGov poll revealed public support for legal aid. The research, conducted on behalf of legal research company Jures, showed that over two-thirds of consumers backed publicly funded legal advice through the legal aid system for those unable to afford a lawyer. Law Society President Robert Heslett said: “In a time of austerity, it is no doubt tempting to see legal aid as an area where cuts could safely be made without arousing voter concern, but this is precisely the time when legal aid services are most needed, to protect ordinary people from unfair decisions about issues on their employment, housing and benefit entitlement; more than that, to ensure that children receive the best representation in care and family cases.” He added that he hoped the necessary cuts would come from the Legal Service Commission’s own administrative costs and the fees of a very few extremely well paid barristers rather than funds required for legal aid. “We are urging the Justice Secretary to make savings in areas that will not deny the public basic legal rights.”

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

All crime legal aid providers have to sign a contract with the Legal Services Commission. The current Unified Contract (Crime) has been extended to 13 July 2010, and the new 2010 Standard Crime Contract will come into force on 14 July. The LSC has just announced the new tendering procedure, and the main points are as follows.

The tender process for the new contract for all applicants who wish to undertake criminal defence service work in any Criminal Justice System (CJS) area of England and Wales opened on Monday 15 February 2010, and will close at 4pm on Friday 12 March 2010, so time is short. Providers will need to apply for and be awarded the new contract in order to carry out any new publicly funded criminal defence work from 14 July 2010. If you wish to apply for a contract, the essential document to read is the Information For Applicants (IFA). This paper contains the information, instructions, rules and Terms and Conditions that will govern the tender process. The IFA also contains the questions that will be asked in the online Pre Qualification Questionnaire (PQQ) and the ITT (Invitation to Tender). But the LSC stress that to answer these questions you must use their online system.

There are other documents important to the tendering procedure. The Standard Terms govern the underlying relationship between the LSC and Providers and the 2010 version is based on those already used in the current crime and civil Unified Contracts, updated and revised as appropriate. The Specification sets out the rules for carrying out publicly funded criminal defence work in all the CJS areas of England and Wales.  Much of the contents of the Specification reflect recent policy announcements, and the key changes include The Duty Solicitor Arrangements 2008, Prison Law Funding, and Prescribed proceedings in the Crown Court. The Schedule sets out provisions specific to an individual provider and the Contract for signature is a short contract document which will give effect to the contract as a whole. You will be asked to read, understand and agree to its contents as part of the tender process. 

For all these documents, and additional information, go to

http://www.legalservices.gov.uk/criminal/contracting/10652.asp#about

Very high cost cases (VHCCs) are those estimated to last more than 40 days at trial, or 25 days if involving complicated combinations of factors. Last year there were about 400 defendants funded by legal aid in 100 VHCC criminal cases at a total cost of £100 million. Defence teams are typically paid around £400,000 for such cases but costs in some, such as the Jubilee Line Fraud case, have run into several millions.

In an attempt to ensure best quality and value for the most expensive criminal legal aid cases, the Legal Services Commission established a very high cost cases (crime) panel due to run till July 2009. “We believe this panel offers real benefits to those signed up to it. They have the first opportunity to take on work worth in excess of £100m a year.” But, according to the ‘Guardian’, of the 2300 barristers invited to join only about 100 barristers and three QCs have so far signed up.

The sticking point would seem to be the capped fees offered. Under the new scheme, for preparation work a QC’s fees will range from £91 to £145 an hour, and for time spent in court a QC will get £476 a day. For a leading junior, the range is £79 to £127 an hour, with £390 a day for time spent in court. A junior acting alone will receive between £70 and £100 an hour, with £285 a day for time spent in court.

Peter Lodder, QC, senior criminal barrister and Chairman of the Criminal Bar Association, is reported in ‘The Times’ as condemning “these derisory levels of income…hourly rates do not encourage efficiency…a system geared to an efficient dispatch of justice should have an effective payment system.” At the heart of the dispute, he said, was the “driving down of fees to a level at which properly qualified people who have invested many years of training are simply not being properly remunerated”. As reported in the ‘Guardian’, he said that the full impact of the Bar’s boycott had not yet been felt but that the first serious trials requiring QCs were due to reach court in the new year.

The first setback for the LSC has already occurred,. The 17-year-old accused of shooting dead schoolboy Rhys Jones was left without a QC a month before the trial was due to start and his solicitor was working for free. The problem occurred because the Legal Services Commission initially insisted that the defendant’s lawyers worked for a fixed fee, but they have now made an exception and reverted to the old pay structure. The LSC’s director of high cost case contracting has acknowledged difficulties with forthcoming large trials, and there may have to be other exceptions in future.

On the 2nd April a joint statement was issued by the Law Society, Legal Services Commission and Ministry of Justice regarding the agreement they reached on the unified contract. This follows the recent Court of Appeal judgement about the civil legal aid contract.

The MOJ and the LSC have accepted “and will not challenge the decision of the Court of Appeal in favour of The Law Society’s (TLS) arguments that clause 13.1 of the Unified Contract is incompatible with the Public Contracts Regulations 2006 (the Regulations).”

There was an element of humble-pie eating in their admission that they “regret that the implications of those Regulations were not recognised earlier and acknowledge that TLS was justified in commencing those proceedings. MOJ and LSC further acknowledge and accept that the Court of Appeal judgment means that the only power of amendment which now remains in the civil Unified Contract is the power in clause 13.2.”

The Law Society was more triumphalist, claiming that it had “secured significant benefits for the civil legal aid system”, and that the agreement would “give many legal aid firms a much needed period of stability and certainty in which to plan their futures.” Des Hudson, Law Society chief executive, said “our talks with the LSC and the Ministry of Justice have not only helped ensure legal aid will receive vital financial support, they have also shown that we can work together in an effort to establish a more balanced system that is workable and accessible. However, we still have serious concerns about the future of legal aid and welcome the LSC’s commitment to a more open approach of better engagement with legal aid practitioners and the Society.”

Unified Contract Agreement – the details

The Law Society’s press release highlighted the following points of the agreement:-

• Best value tendering (BVT) in criminal legal aid will be delayed by six months to a date not before July 2009.
• an increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08.
• care level 2 fee increases from £347 to £405.
• a 5% increase in CLR (controlled legal representation) fees and rates for mental health.
• a 5% increase in CLR fees and rates for immigration.
• a delay in implementing private law family litigators’ graduated fees.
• a closed list of all CLACS and CLANS (Community Legal Advice Centres and Networks) planned for the period ending April 2010.
• the LSC will, with effect from today, not seek to recoup historic unrecouped payments on account over six years old and where the amount outstanding is less than £20,000 – restrictions apply (see the full deed of settlement).
• a new process on standard monthly payments, designed to prevent changes happening so often, so unpredictably and with such large variations.
• LSC’s commitment to publish a route map setting out the outline of its proposals for the next five years, including a commitment that there will be no price competitive tendering for civil or family work before 2013.
• Reviews of the contract compliance audit process and the operation of peer review and other quality assurance mechanisms.

For full details and relevant links see:-

http://www.legalservices.gov.uk/civil/unified_contract.asp
http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=394906

The Legal Services Commission (LSC), after lengthy discussions with the Law Society, has agreed a number of changes to its legal aid proposals. The Law Society is holding free events to update civil and criminal legal aid practitioners and:-

• To explain the terms of the settlement secured by the Law Society from the LSC/MoJ.
• To inform legal aid practitioners how these changes affect them and to help them understand the business implications of the new structures.
• To hear from practitioners their view of the future of their legal aid work and to explore how the Society can support them as they prepare for that.
• The way forward on achieving a sustainable future: what the Society is continuing to do to tackle ongoing concerns about the legal aid system.
• Information on help and support available from the Society.

The timing of all the events is 17:30 – 19:30, with registration and refreshments at 17:00. A speaker at every event is Richard Miller, now Legal Aid manager for the Law Society, formerly head of the Legal Aid Practitioners Group (LAPG). He is accompanied by any combination of Andrew Holroyd, president; Paul Marsh, vice president; Bob Heslett, deputy vice president; and Des Hudson, chief executive, depending on the location.

Some events have already been held, but those still outstanding are:-

Bristol – 29 April – Armada House, Conference Centre, Telephone Avenue, Bristol.

London – 30 April – Law Society Common Room, 113 Chancery Lane, London.

Llandudno – 6 May – North Wales Theatre & Conference Centre, The Promenade, Llandudno.

Nottingham – 7 May – Castle Suite, Rutland Square Hotel, St James Street, Nottingham.

Cambridge – 8 May – Homerton College, Hills Road, Cambridge.

Wakefield – 12 May – Cedar Court Hotel, Denby Dale Road, Wakefield.

Manchester – 13 May – Park Suite, Ramada Manchester Piccadilly, Piccadilly Plaza, Manchester.

Newcastle – 15 May – Conference Room Central Square, 4th Street, Newcastle-upon-Tyne.

To book a place you are advised to e-mail: regionalsupport@lawsociety.org.uk quoting ref: ZZZ/CELS and the location. Places are limited and will be allocated on a first come, first served basis.