Fee changes from 3 October 2011
Fee changes from 3 October 2011
For those working in firms that also do civil legal aid work, note that a 10% fee cut will apply to work carried out under civil (non Family) certificates granted following an application made on or after 3 Oct 2011. The old fees and rates apply if an application was been signed by the client (for certificated work) before 3 Oct and received by the LSC on or before 10 Oct 2011.
Fee cuts for family profit costs under hourly rates and fixed fees will not apply until the new contract in February 2012.
Experts’ fees in Family cases have been codified / reduced under Schedule 6 of the Community Legal Service (Funding) (Amendment No.2) Order 2011. These new rates apply from 3 October 2011and are set out below.
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.
Information on the expert fee changes can be viewed here.
Resolution has recently met with the LSC on the issue of experts’ fees and this is what the LSC says the position is:
Certificates dated before 3 October 2011
· Where the LSC are responsible for assessing bills they will continue to assess expert fees on the basis of whether they are “reasonable”. They are using the guideline rates to do this.
· If experts’ fees are reduced on assessment, you should appeal. First contact the expert, get their views and their submissions and then draft the appeal.
· The LSC’s statistics show the success rate is ultimately quite good, but at the Independent Costs Adjudicator stage, so do not be put off if you are not successful at the first internal review stage.
Certificates dated after 3 October 2011
· Codified rates apply (although the LSC may reconsider the difference between London and non London rates but for now the rates apply as published).
· For now ‘expert in London’ means where the expert is based and the address as stated on their invoice. If an expert uses an out of London address and that is on their invoice then that is a non London expert rate.
· Applications for prior authority can be considered for rates over the codified list and for experts not on the list (but see below regarding exceptionality). Applications for prior authority can also be considered to cover the extent of the work at the codified rates.
· The only criteria for “exceptional” circumstances are:
· The complexity of the material is such that an expert with a high level of seniority is required, or
· The material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
· For experts not on the list prior authority is required and the LSC will consider when deciding on their rate the following factors:
o The rates in the code
o The LSC may require a number of quotes for provision of the relevant service to be submitted to the LSC
o Where estimates are required, the LSC want two others in addition to the one for which you seek prior authority
· Unless PRIOR AUTHORITY has been granted, the LSC will pay only the codified rate on account. A copy of the prior authority needs to be attached to a claim for POA to avoid oversight by the LSC.
· The LSC will not refuse applications for prior authority before a court has considered the application for an expert/made an order; but they query whether it is going to be worth applying before the court hearing in most cases.
· Court orders/preambles/judgments about the need for an expert and why a higher than codified rate is justified will have to be considered by the LSC but will be in no way binding on them. However, such a direction will be considered influential.
· Resolution hopes that practitioners will be able to email applications for prior authority to a dedicated team of case workers whose background is in costs assessment. The LSC is looking into the practicalities of this.
· On a court assessed bill the LSC will now look at the expert’s fee and will not pay if the court has assessed a bill for an expert where the rate is in excess of the codified rate and prior authority was not given.
Tips for post 3rd October cases
· Overview – if you can get an expert to do the work at the codified rate, then make sure the agreement from the expert is in writing.
· You then have to decide whether to seek prior authority for the total amount of the work to be undertaken. The LSC may consider that some experts have attempted to circumvent the new rates by increasing the time required. Practitioners will make their own decision about this based on their experience of the overall sum.
· In any case where you cannot find an expert to do the work for the codified rates practitioners must apply for prior authority. Resolution’s advice is that practitioners should not let the court or other authorities persuade you to instruct an expert who is charging more than the codified rate unless prior authority has been granted by the LSC. If prior authority is not granted the Court will have to decide what to do in the absence of being able to find someone to do the work at the prescribed rate
Further meetings with the LSC
The LSC have asked Resolution for guidance as to potential criteria for ‘exceptional’ applications. We should be grateful if members would provide us with suggestions as soon as possible by emailing email@example.com. Resolution is continuing to meet the Legal Services Commission in order to resolve the issues in relation to experts’ fees. We will keep you informed of developments.