Family Tender – notification of outcomes starts tomorrow

The Legal Services Commission has today announced the timings for the next stages of the Family Tender Process.

Important points to know are:

· The first letters will be sent to unsuccessful applicants, from tomorrow (Friday 11^th November);

· From Wednesday 16^th November to Friday 18^th November, the LSC will be sending letters to applicants whose tenders and/or individual bids have been successful;

· Initial analysis is that 92% of applicants have been successful;

· For unsuccessful applicants, where there is a right of appeal, the appeal procedure and deadline will be set out in the notification letter;

· If applicants have not received notification of the outcome of their tender by Monday 21^st November, they should contact the LSC through the message boards in their eTendering system.

Full details, including links to the eTendering portal, are available on the LSC website.

Should we receive any additional information we will provide this through future updates.

LSC plans for future tenders

Hugh Barratt, the LSC’s Executive Director for Commissioning provided some information about possible future tenders, when speaking at the Legal Aid Practitioner’s Group conference recently.

Mediation

He said that there were limited numbers of mediation providers in some areas and the LSC is likely to carry out tender exercises to fill these gaps. Practitioners should check the LSC’s current tender opportunities page on its website on a regular basis. The Commission usually publicises tender opportunities through its regular email updates service. You can subscribe to them here.

Family law

The LSC has warned that in some categories of law (and Family must be one), the changes brought about when the Legal Aid Sentencing and Punishment of Offenders bill becomes law will require new contracts on new terms. The LSC will need to serve six months notice of termination and carry out a tender exercise. The timing will depend on when the changes will be brought into effect. The LSC is working towards a date of October 2012 for the scope cuts; but some commentators consider that April 2013 may be more realistic.

Hugh Barratt anticipated that the LSC would be able to clarify the tender timetable before the end of this year.

Costs assessment guidance

The Legal Services Commission recently consulted Resolution, as one of the recognised representative bodies, on a revised version of its Costs Assessment Guidance. The guidance retains the standard approach to assessment as set out in the Civil Procedure Rules. It has not been extensively re-written and the amendments aim to incorporate changes to the contract and provide references to costs authorities which were previously included but not cited in detail. However, there were some points which Resolution suggested could be clarified, and the overwhelming majority of those suggestions were incorporated.

The guidance deals with cases paid under hourly rates, i.e. cases which are not covered by the fixed fee schemes or which escape from them, and only to cases opened under the Standard Contract (which will apply in Family cases from 1 February 2012).

The revised costs guidance can be downloaded here.

At the same time, the LSC updated the Costs Assessment Guidance applying to cases started from 1 October 2007 under the Unified Contract (including Family). The revised guidance can be downloaded here.

It should be noted that the rules relating to cases or matters paid as a standard or graduated fees, are set out in the applicable Unified Contract Specification. Members will be aware that a new section 10 of the Specification relating to the Family category came into effect from 9May 2011.

Guidance on the Family Advocacy Scheme and other Family Fee Schemes created by that Specification appear as Annexes 1 and 2 to revised guidance and can be downloaded here.

Guidance on the novation of contracts

The LSC recognises that firms need to reorganise their businesses and this may require novation of legal aid contracts. Firms need to notify the Commission of material constitutional changes and these are set out in clauses 21 and 22 of the Standard Terms. In some limited circumstances novation is automatic; but more often it is entirely at the LSC’s discretion.

The LSC has recently issued guidance on its approach when requested to novate a contract.

The LSC will normally agree to novate a contract:

If a partnership converts to an LLP or limited liability company
Two or more providers merge
A sole practitioner retires and another solicitor wants to continue the business

Due to issues relating to procurement law, the LSC will not agree to ‘split’ a contract, so would not agree to novate if:

Two or more offices in a multi office firm wanted to become separate businesses
A Family department wanted to split off from a firm also holding a civil contract

However, the LSC has indicated that if a Crime department wanted to leave a civil/family firm and set up as a specialist Crime provider, they would be likely to agree, as they do not consider that this would amount to splitting a contract.

Firms must give the LSC at least a month’s notice via their Contract Manager. The Commission aims to make decisions within a month of receipt.

The guidance can be downloaded here.

Claiming under the fixed fee schemes

A range of practical issues are continuing to emerge in relation to claiming under the Family Advocacy Scheme and the Private Family Law Representation Scheme. Resolution’s Legal Aid Committee is keen to share tips to encourage good practice and avoid pitfalls.

Cases including one category

Practitioners are reminded that where work covers more than one category within a single set of proceedings, the advocate can choose which fee to claim; but can only claim one category, not both.

The LSC’s Guidance on the FAS states the following:

“2.3 Mixed categories

1. In family cases, the certificate will often either be issued to cover a number of proceedings or be subsequently amended to add or substitute proceedings during the life of the certificate.

2. When the continuing proceedings fall within more than one category, an advocate must, for the purpose of payment under the FAS, choose under which single category they would wish to be paid for all the Advocacy Services performed when making a claim for payment. Usually, an advocate will claim at the category that pays the highest rate. For example, in a residence/contact application that subsequently involves allegations of abuse to a degree that the local authority issues care proceedings, at the point at which a new certificate is issued, an advocate can claim all future work (including issues as to contact) at the higher care proceedings rate.

3. Where an Advocacy Service includes work from two categories but it falls within a single set of proceedings only one fee will be paid e.g. if a single hearing covers both private law children and financial issues then only one hearing fee will be payable and the advocate can choose which hearing fee to claim.”

When hearings start

Most practitioners are aware that the applicable hearing time is the time at which the hearing is listed to start, unless the court specifically directs the advocate to attend earlier, and until the time the hearing concludes (Family Specification 10.126).

When considering claims for payment, the LSC will check an Order against what is stated on the Advocates Attendance Form (AAF). So, for example, if a Notice of Hearing does not order the parties to attend in advance of the time the hearing is listed, it would be wrong to claim an earlier start time, and the LSC would be correct to reduce the claim or reclaim money paid in error, even if the parties did attend earlier.

However, a Resolution member advises that in this situation, an email to the District Judge and copied to the other parties, can often result in an Order that parties should attend earlier than the time the hearing is listed to start. Practitioners should seek a declaration that the judge deems it appropriate for ' the parties to attend with their representatives 1 hour before the hearing commencement to negotiate and narrow issues'

Bolt-ons

The LSC can only pay when the conditions set out in the contract specification are met, so for example if you are claiming a bolt-on in respect of Allegations of Significant Harm, this can only be claimed in relation to the conditions set out in paragraph 10.140 of the Unified Contract Family specification:

(a) Death,

(b) Significant head and/or fracture injuries,

(d) Fabricated illness,

(e) Extensive bruising involving more than one part of the body,

(f) Multiple injuries of different kinds,

(g) Other significant ill-treatment (such as suffocation or starvation) likely to endanger life,

(h) Sexual abuse.

If a District Judge signs an Advocates Attendance Form (AAF) allowing a bolt-on in respect of Allegations of Significant Harm; but the above conditions are not met, the advocate has not made a valid claim and the LSC would be entitled not to pay or recover money paid in error. Members are advised to monitor their claims carefully to ensure they are technically accurate in terms of the Contract Specification.

Latest news on experts fees

Resolution representatives have continued to meet the Legal Services Commission and explain what members need in order to streamline claims and promote early payments on account. As a result, the LSC is shortly expected to issue a new Prior Authority form which should be more user-friendly and relevant.

The following improvements are also expected soon:

a dedicated team at the LSC to deal with applications for Prior Authority;
submission and return online;
in multi handed cases the LSC will link applications for speed and consistency, so the lead solicitor will in effect obtain authority for all the parties.

Resolution protocol for instructing Solicitor Agents as advocates

Resolution’s Legal Aid Committee is keen to support members who wish to instruct other Resolution members as advocates in publicly funded cases. The Committee has developed a protocol that aims to protect the interests of both parties, and which members are welcome to use. The protocol can be downloaded here.

Help needed – Resolution survey on impact of legal aid scope cuts

Resolution members hardly need to be reminded that this is a critical time for family law. The Government’s proposals to reform the legal aid system will mean that 210,000 fewer private family law cases will qualify for Legal Help and 45,000 fewer cases will qualify for legal representation.

You should have received an email asking you to participate in Resolution’s survey of members and clients. The survey should only take around 30 minutes to complete but the information collected will be invaluable to us in our efforts to make the case to Government that the proposals to reform legal aid will hit family law hard. Where possible we also ask members to encourage their clients to fill in the short client survey.

This is extremely important as the resulting data will help Resolution lobby to influence the Bill. However, in order to achieve maximum impact, we aim to collect at least 1000 responses.

We therefore urge you to fill in this survey and to encourage your colleagues to do the same.

Members survey - https://www.surveymonkey.com/s/ResolutionMembers

Clients survey - https://www.surveymonkey.com/s/ResolutionClients

Legal Aid campaigns update

Legal aid surveys - urgent action needed

On 4 November two surveys were sent to all Resolution’s legal aid members, with a covering letter from Chair David Allison and Legal Aid Committee Chair David Emmerson. The surveys will probably be the most important that Resolution members will be asked to complete this year.

The aim is to gather data to help us demonstrate to the Government how important legal aid is to people who use it at the moment, and what might happen if it is taken away. The first survey looks at how our members will be affected; the second looks at their legally aided clients and their options should their current support be removed.

We need the resulting data for our public affairs work as we seek amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill in the House of Lords.

ACTION: Please complete the surveys and encourage your colleagues to do so. The deadline is Tuesday 15 November 2011.

Parliamentary progress of the Bill

The Legal Aid, Sentencing and Punishment of Offenders Bill has now finished its House of Commons Committee Stage (ended 13 October) and Report Stage (31 October-2 November). We submitted amendments to the Bill during both stages. Our amendments were considered but not accepted, and we continue to see no real engagement by Ministers with the issues at stake.

The Bill’s first reading in the House of Lords took place on 3 November, with the second reading in the Lords scheduled for 21 November. Approximately two weeks after this we expect the Lords Committee Stage to begin, at which stage there will be the opportunity to seek amendments to the Bill. Many organisations expect that amendments to the Bill will be more likely to be achieved here than in the Commons.

We are contacting Coalition, opposition and crossbench peers to explain the Bill’s potential impact and encourage them to speak and potentially table amendments.

Resolution, together with Gingerbread, National Federation of Women’s Institutes and Rights of Women, has organised a briefing for peers at the House of Lords to be held on 30 November. This event is being sponsored by Lady Elizabeth Butler-Sloss, former President of the Family Division.

Resolution is meeting with Jonathan Djanogly, Parliamentary Under-Secretary of State for Justice, on 15 November to discuss our concerns and recommendations.

A new Resolution briefing paper on the Bill has been produced. Please feel free to use this in your campaigning and publicity work.

Manifesto for Justice / Sound off for Justice

On Monday 24 October 2011, in the run up to the House of Commons Report Stage, a coalition of organisations including Resolution published 'A Manifesto for Family Justice'. This joint publication urges the Government to ensure that the rights of children and victims of domestic abuse are taken exceptionally seriously and any proposed legislation threatening those rights be amended or withdrawn. A joint press release was issued to accompany the Manifesto; this was shared with Resolution’s regional press officers and chairs and was posted on our website. Media coverage included BBC Radio 4 Today; Times; Guardian; Daily Mirror; Daily Telegraph; and the Evening Standard.

On 31 October, as the Commons Report Stage commenced, we supported the Sound Off For Justice Coalition, which offered key spokespeople to the media to mark the beginning of the House of Commons Report Stage. Jane Wilson acted as Resolution’s spokesperson. Additionally, we are continuing to promote the Sound Off For Justice Coalition action kit (see the “Take Action’ section) to members.

Family Justice Review

The Family Justice Review final report was published on Thursday 3 November 2011. It is a lengthy, detailed, report containing many ambitious and robust proposals for the reform of family justice.

The Review panel explicitly recognises the important role that lawyers play in ensuring the speedy resolution of cases, in supporting families to negotiate settlements and in narrowing issues where matters are contested. Their report expresses concerns about the impact of proposed legal aid changes on the functioning of the courts.

A Resolution press release was issued, welcoming the report, but arguing that reform could be undermined by the legal aid cuts.

To coincide with the publication of the Family Justice Review, Citizens Advice released its report ‘Breaking up is never easy’. The report says that family breakdown problems will get worse without legal aid and warns of a growing advice gap on these issues. The report includes findings from a survey carried out by Citizens Advice and Resolution (these findings were referenced in our own press release on the Family Justice review). The accompanying press release is here.

Media coverage for Resolution included articles in the Law Gazette, The Lawyer, Family Law Week , The Times and a comment piece by NC member Joanne Edwards in The Observer (printed paper and online).

Joanne Edwards appearedon BBC TV Breakfast, David Emmerson appeared on BBC Radio 5 Nicky Campbell, while Nigel Shephered was interviewed on digital station UCB Radio.

At the time of writing, The Times had agreed to publish online an opinion piece by Chair David Allison, looking at the Family Justice Review, Citizens Advice survey and the Legal Aid Bill.

Legal aid e-news

November 2011

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