Top tips on fixed fees

In December we promised you more top tips on working with the LSC’s fixed fee schemes. These tips have been provided by Resolution members.

Raising awareness of how the schemes are working

You could arrange a family team meeting to specifically discuss progress and any problems with the Fixed Fee Scheme and present a mini-refresher on the key elements of the scheme. Prior to this, you could ask to see all Advocates Attendance Forms (AAF) for, say, the last two months so that you can check that each fee earner is recording the detail on the form correctly to claim the full entitlement within the rules. Then you could check the time recording and the file attendance note. Ideally, you may want to check every AAF for each fee earner on return from court.

If you have not already done so, you could write to the local Court Manager and Senior Presiding Judge, asking for a meeting to discuss Fixed Fees six months on from introduction.

Check IT systems

You will need to ensure that your IT system is capable of recording separate matters for domestic abuse, finance and children as well as recording the value of FAS payments. The fixed fee payments can be markedly different to the actual value of the work in progress.

Directions in advance of hearings

You should ensure that all your fee earners seek a Direction for legal representatives to attend at an appropriate time prior to the hearing time, this could be 30 minutes, an hour or more, depending on the case. If such a Direction is not included in an Order then we recommend sending a request by email or fax to the Judge, ideally with the consent of all the other parties, seeking such a Direction prior to the hearing time.

Pitfalls to avoid

The Family Advocacy Scheme (FAS) is different from the Graduated Fee Scheme (GFS). Just because a District Judge has certified commencement and hearing conclusion times, or ticked a bolt on, it does not automatically mean that you are able to claim on that basis, or that the LSC will pay. The LSC will be looking at Court Orders and hearing notices for the appointed start time. The Contract Specification is quite clear that time runs from the hearing commencement time or earlier if directed by the Court. A Judge cannot retrospectively direct you to attend early.

Do not mislead the Court. In Resolution’s view this could be a serious breach of professional conduct. The Rules relating to ‘bolt-ons’ are very precise and it would be wrong to misdirect a Judge into signing a bolt on which was not appropriate to the facts of the case. Similarly, if the Court has directed the parties attend at 9:30am for a 10:30am hearing, and you arrive at Court at 9:50am, then we do not believe that you can claim from 9:30am. Just because you leave the Court room with responsibility for drafting an Order of obtaining a Hearing which has to be certified by the Judge, the hearing time will however still run until the Order is made and approved. Sometimes the Judge will not invite you back into Court, but it may be some time before the Judge looks at the Order and approves it. Take yellow post it notes to Court and highlight the finish time section for the Judge to enter at the point the Order is approved.

Fee changes – timetable roundup

This article summarises the position in respect of experts’ fees and solicitors’ fees from 3 October 2011 – 1 February 2012.

Civil fee cuts – 3 October 2011

Those working in firms that also do civil legal aid work, may need to remember that a 10% fee cut was applied to work carried out under civil (non Family) certificates granted following an application made on or after 3 Oct 2011. Previous fees and rates continue to apply if an application for certificated work was signed by the client before 3 Oct and received by the LSC on or before 10 Oct 2011.

Family profit costs under hourly rates and fixed fees will not apply until the new contract in February 2012 (see below for more information).

Experts’ fees – 3 October 2011

Experts’ fees in Family cases were codified / reduced under Schedule 6 of the Community Legal Service (Funding) (Amendment No.2) Order 2011. These new rates applied from 3 October 2011.

Note that the LSC’s revised costs assessment guidance makes it clear that these are maximum rates. You cannot assume that the LSC will pay them automatically. You will need to show that you have ‘shopped around’ to find the cheapest expert who could provide the service you need.

Experts fees – pre 3 October 2011

Practitioners continue to report that claims for experts’ fees on pre October 3 cases are routinely being disallowed or reduced on assessment by the Legal Services Commission. This can happen even where the Court has approved the expense as reasonable.

The LSC’s change of policy is causing real problems, particularly if an expert was paid some time ago and the solicitor may not be able to recover any shortfall from the expert. However, practitioners also report a high success rate on appeals against reductions.

Resolution’s Legal Aid Committee has been working with the Association of Lawyers for Children to revise its useful precedent letter for instructing experts to help avoid the problems identified. We expect a revised letter to be available in next month’s enews.

Family fee cuts – 1 February 2012

Fees for family work will be reduced by 10% from February 2012. New rates will be brought into force under the new 2012 Standard Civil Contract and can be found in the Payment Annex.

Fixed fee cases – 1 February 2012

Reduced fees will be paid in respect of fixed fee cases:

Controlled Work (Legal Help)
The Public Law Graduated Fee Scheme
The Private Family Law Representation Scheme
The Family Advocacy Scheme (FAS)

For certificated work the cuts will apply to work done under a certificate granted following an application made on or after 1st February 2012.

The previous fees and rates continue to apply if an application was signed by the client before the 1st February received by the LSC on or before 8th February 2012.

Amendments applied for after 1st February 2012 to certificates existing certificates granted under the old rates will be paid under the old hourly rates and fees.

It will be important for the instructing solicitor to advise barristers which rates are applicable.

Non fixed fee cases post 1 February 2012

Revised hourly rates will be payable for other work (other public law, exceptional cases and cases excluded from the fee schemes).

Payment for all cases outside the Family Advocacy Scheme (FAS), payment will be on reasonable assessment which will take into account what would have been payable to solicitors or under the Family Graduated Fee Scheme (FGFS) less 10%.

For very high cost cases (VHCC) cases, if FAS rates are used for work done on any certificate issued after 1st February 2012, they will be the lower rates set out in the Payment Annex to the 2012 Standard Civil Contract and the Funding Order.

For VHCC cases, if FGFS rates are used work done on any certificate issued after 1st February 2012 then they will at the FGFS rates, less 10%.

Further information on the changes can be found here: http://www.legalservices.gov.uk/civil/cls_news_13367.asp. The LSC has advised that if providers have any further questions about these changes, they are advised to contact their Contract Manager.

Certificate limitations – good news and bad news

First, the good news – for a long time Resolution has asked the LSC to reconsider the limits applied to Public Law Care certificates. The LSC has recently confirmed that cost limits will increase from £5,000 to £10,000 in a number of non-means / non-merits Care and Supervision proceedings.

The LSC accepted that since costs in many cases are now determined by fixed fees, both the Commission and practitioners would save valuable time by reducing the number of cost extensions.

The bad news is that in civil (non-family) cases, in December, the LSC started to reduce the costs limitation by 10% to reflect the fee cuts which were applied in October.

For now, the lower limits are used in civil cases only. Cost limits for family cases will be reduced in February 2012.

Raising members’ issues with the LSC

Resolution’s national Chair, David Allison, has written to the LSC’s Director of Commissioning, Hugh Barratt, to ask the Commission to take a reasonable approach to allowing bidders to correct factual errors in relation to the peer review question in their bids. He made the following key points:

31 firms answered the peer review question incorrectly by stating in error that they did have a confirmed peer review finding of either 4 or 5.
This question would seem to have been unnecessary, as the LSC holds the relevant data on peer review.
Some Resolution members indicated that they found the Bravo system unnecessarily cumbersome, and many have found it difficult either to check answers online, or print and check them.
Others say there was potential when completing the form to click on a yes/no option and inadvertently leave the cursor on the answer box, before using the scroll bar which unintentionally changed the answer. That may have given rise to unintended answers.
Resolution believes it would be entirely appropriate and fair to allow organisations to correct errors of fact in relation to the peer review question, as this would not gain them an unfair advantage over other successful organisations.

We hope that the LSC’s board will give further consideration to this issue. We will also be meeting with the LSC’s commissioning team on for example issues which arose for members in relation to the tender verification exercise and lessons to be learned for the future.

Resolution is one of the representative bodies that meets representatives of the LSC in the Civil Contracts Consultative Group. The next meeting will be towards the end of January. Since the Family tender, the Ministry of Justice has confirmed that the new contract will run from 1 February 2012 – 31 March 2013. Firms will be allocated matter starts on the basis of their bids; but we shall seek clarification of issues such as:

What action will the LSC take if firms fail to use 85% of their NMS?
Will matters be removed from underperforming firms?
Will they be reallocated to firms experiencing high demand?
If, so what mechanism will be used?

If there are any issues relating to the operation of the contract that you would like raised, please email rachel.rogers@resolution.org.uk

Legal Aid Bill update

As some of you may have seen, the survey of legal aid practitioners received a healthy amount of coverage in national and regional media, so thank you to everyone who filled it in. Just to update you on the key findings of the survey:

· 267 of Resolution’s 2,500 members who work in legal aid took part in the survey.

· They work on an average of 51 cases, representing over 15,000 children between them.

· Well over half (58%) of those surveyed earn less than £35,000; a fifth (20%) less than £25,000 (the UK’s median annual salary is £26,564).

· 87% of members say less than 25% of their current cases would qualify for legal aid

· 55% say they would do less private family legal aid work.

· 31% would do less public family legal aid.

· 57% of our members believe a parent risks losing contact with their child in at least half of their cases – that’s 4,348 children.

· 91% believe there is a risk of abduction in at least some of their cases.

· 41% of members’ current legal aid cases (5,416 out of a total 13,315 cases) have been assessed as unsuitable for mediation.

· Nearly half (42%) believe that appropriate legal advice has meant that at least half their cases settled without going to court.

· Almost three quarters (74%) think that their ability to negotiate with the other party outside of court means that, of those cases that have gone to court, at least half will be settled before the final hearing.

· Nearly all (94%) say that that 75% of their clients would not be able to reach a settlement without legal advice.

· 96% are concerned that 75% of their clients would not know if the settlement was fair.

· In the experience of nearly all those asked (99%), cases take longer when one party is representing themselves – nearly half (49%) said it takes more than twice as long.

The survey was covered by, among others, Radio Five Live, the Times, the Independent, the Press Association, the Huffington Post blog, Sky News Radio, and a wide range of regional media outlets.

Published in the same week, independent research, by King’s College London (KCL), casts serious doubt on the Government’s projected savings from cutting legal aid. Release of ‘Unintended Consequences: the cost of the Government’s Legal Aid Reforms’, coincides with the Legal Aid Sentencing and Punishment of Offenders bill’s return for debate in the House of Lords. It shows that the cuts will result in £139 million of costs by public bodies, such as the Health Service and Social services. This suggests less than half the Ministry of Justice’s estimated savings would ever be realised.

This is hardly surprising when you consider some of the study’s other findings. It estimates that 210,000 people will no longer be eligible for legal aid in Family cases. KCL estimates around 11% of them will either give up (33%) or try to go it alone (66%). The study also warns that total costs are likely to be higher as further data would be needed to calculate total eventual costs. The author of the report, Dr Graham Cookson, a leading economist, said, “This research undermines the Government’s economic rationale for changing the scope of legal aid by casting doubt on their claims of realising savings to the public purse.”

This is all helping to inform the debate over the Bill, currently being considered in Committee stage within the House of Lords. Indeed, when amendment 20 was debated on Tuesday 10^th January, Resolution received a great deal of positive comments from peers. The amendment sought to bring collaborative law onto the face of the Bill as another form of dispute resolution, in addition to mediation, that would be eligible for legal aid. Whilst the amendment itself was withdrawn, the Government indicated there may be movement in this area, with Lord McNally suggesting they may return to it in the future. Activity continues to influence the Bill, as well as raise our reputation in order to influence any future developments around legal aid.

New Head of LSC appointed

The LSC has recently announced that its new CEO will be Matthew Coats. Coats, a rugby-playing Bristolian, graduated from the London School of Economics with a degree in Social Policy, he went travelling before getting a job as a communications and events officer with the Department of Health and subsequently worked in the NHS as a hospital manager in east Kent.

He is currently Interim Head of Border Force at the UK Border Agency (UKBA). Matthew has been at the UKBA since 2006. Previously, he worked at the Department of Health. He will take up his new position on 27 February 2012 and will become Chief Executive of the Legal Aid Agency, when the LSC is abolished (subject to parliamentary approval), in April 2013.

In an interview with ‘Civil Service Live Network’ Coats said that being a manager was all about making the jobs of nurses, doctors and other clinical staff easier. Let’s hope he has the same aspiration for legal aid practitioners.

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