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 Law Society found itself on the horns of a dilemma when the recent tender for civil and family legal aid work sparked a row with the LSC. Just over half the firms bidding for family contracts were successful, and the Society says this means businesses will close and people may find it difficult to get a lawyer, especially in rural areas. The new contracts are due to start on 14 October.

A statement by Law Society president Linda Lee states that the result of the tender would see the number of family law firms offering legal aid reduced from 2,400 to 1,300, with the loss of many highly expert lawyers from the legal aid system, and the development of significant geographical gaps and shortages of services. But she goes on to say: “This is an issue that has divided practitioners. Of those firms who have succeeded in obtaining a contract many are satisfied with the outcome, and some but by no means all, would prefer it if nothing was done to disturb the result. There are others who although they are uneasy with the impact on unsuccessful bidders take the same view because they conclude this will cause the least disruption. Many firms that have failed to obtain a contract face having to make redundancies or even close their firms. There is no one course of action that is ‘in the profession’s interests’”. The Society accepts that, whether it chooses to act or not, a proportion of its members would be unhappy with the decision, and are acutely aware of the difficulty taking action may cause those successful firms who are planning to expand their businesses either by volume, new work type or a new geographic location.

Linda Lee goes on to say: “As a profession we accept and are proud of an ethical code that is higher than pure commercial considerations. We have a duty to protect the public interest. A reduction in access to justice cannot be in the public interest particularly when it affects the most vulnerable people in society, those who are seeking to establish their basic rights.” Therefore the Society has sent a pre-action protocol letter to the  LSC, challenging the lawfulness of its decision to proceed with the allocation of family law contracts. The Society believe the contracts offered would leave many areas with a grossly inadequate supply, and consider that the family justice system will be seriously impoverished by the loss of a significant cadre of highly skilled and dedicated practitioners who are willing to provide publicly funded services to those whose need is most acute.

The President also asserts that that the LSC’s Equalities Impact Assessment was fundamentally flawed, with no account taken of the fact that the majority of applicants for domestic violence injunctions and ancillary relief are women, who are likely to suffer additional difficulties in securing the services they need because of the reduction in the number of firms available. The Society also fears that there will be significant disruption in the short term as unsuccessful firms close down their departments, either by force of economic circumstances or because their staff have migrated to successful firms. Many clients may find themselves losing their representation in the middle of their cases, and will then have to try to find a new lawyer, with no assurance that successful bidders will be willing or able to take on all of these migrating clients. The LSC has been asked to extend the existing contracts for family law for a short period in order to give it time to conduct a review addressing these issues.

Linda Lee concludes: “It is for the LSC to ensure compliance with its legal obligations, and if it does not do so, and access to justice for vulnerable clients is threatened as a result, we are ready to take all appropriate steps to secure such compliance. I hope that can be done quickly, effectively and amicably.”

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

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 

and follow the links.

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.

Criminal firms have seen the introduction of fixed fee schemes for police work and a standard fee system in magistrates courts following a review of legal services by Lord Carter three years ago. Now the consultations on proposals for competitive tendering by criminal defence work firms have come to an end, with solicitors’ firms across the country voicing strong opposition to the proposed system.

The Law Society, the Bar Council and the Criminal Bar Association are all gravely concerned about BVT as currently proposed by the LSC, involving a limited scheme which would cover lower crime work in police stations and the Magistrates’ Courts. This would probably be extended should it prove successful. BVT involves competitive tendering based on price for criminal defence work, as solicitors’ firms will bid for blocks of work, with the lowest bidder getting the work. Strong concerns are expressed that criminal legal aid firms could be drastically reduced, meaning the number of firms available to clients will diminish, as the already financially vulnerable supplier base is put at risk. “The widespread use of BVT is likely to… deny clients access to many competent and dedicated solicitors who want to serve them. The bidding processes proposed are opaque and not suited to the commissioning of professional services, where the freedom of the individual is put at risk”, said Paul Marsh, Law Society President.

In their response to the proposals, the Law Society said that they will have a hugely detrimental impact on the quality of representation in police stations, and thereby damage the criminal justice system as a whole. Of equal concern is the failure to conduct a full and proper impact assessment, taking account of the potential disproportionate impact on women and BME practitioners. Desmond Browne QC, the Chairman of the Bar, said that “we cannot afford to sacrifice the present robust system for a scheme which lacks all economic justification, and which will have a disproportionate impact on BME practitioners. The LSC’s failure properly to assess the impact on BME practitioners is potentially discriminatory and may be unlawful; it has a statutory duty to avoid discrimination and promote equality of opportunity, and it has comprehensively failed to comply with this requirement”.

Speaking at a conference organised by the Legal Action Group to celebrate 60 years of legal aid, justice department minister Lord Bach said that BVT is “not a simple cost cutting exercise. It’s aimed at securing a sustainable, effective and efficient supplier base”. In an interview with the ‘Guardian’ he acknowledged that his policies are deeply unpopular among many former colleagues, adding that “I have to do what I can to ensure the legal aid is spent in the best possible way, and that’s what I’m trying to do.”

The Law Society’s response to the Legal Services Commission’s consultation on best value tendering for CDS contracts 2010 can be found at:-
http://www.lawsociety.org.uk/secure/file/180185/e:/teamsite-deployed/documents/templatedata/Internet%20Documents/Government%20proposals/Documents/bvt_response180609.pdf

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 has issued a press release to all Crime Contract holders regarding the recording of travel time in Police Station and Magistrates Court cases.

• From 1st July 2008, providers do not need to record travel time in police station cases unless those cases are classed as exceptional.
• From 1st July 2008, providers do not need to record travel time in magistrates court cases in the 16 main urban areas as this is already allowed for in the fee.

However…

1. Given that you don’t always know when a police station case is going exceptional and
2. You need to be watching all the costs of providing legal aid work very closely

we would advise iLaw users not to ditch the recording of this time just yet.

One of the most important things that iLaw can give you is a complete understanding of how much it costs your firm to provide legal aid work under contract. It helps you now with issues like forecasting cash flow / work in progress and forward planning and in the future when it comes to competitive tendering. All of this help needs good data from your team in the form of accurate time recording so hiding any costs will skew the quality of the information iLaw can give you. The most successful firms are those who are recording and monitoring the cost of everything as it enables them to make good business decisions in time. So use iLaw to its maximum and keep recording your time well.

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.