Evidence submitted by Van Baaren &
Wright Solicitors (LAR 215)
1. We are a two partner niche practice in
Kew, Richmond specialising in family work as well as being mediators
and collaborative lawyers. We wish to comment on Family legal
aid and how the Carter and LSC proposals will affect our ability
to continue as a Legal Aid supplier. We have two full time Children
Panel members (Children's Representatives) exclusively undertaking
public law children's cases and two further fee-earners who also
undertake care work. A large part of our total income comes from
Legal Aid and the greatest percentage of that legal aid income
is from public law children's cases. We hold the Lexcel qualification
and are committed to the highest possible standards of service
to all our clients whether privately or publicly funded...
2. We should make it clear from the outset
that if the proposed Family fixed fees are implemented then we
cannot see how we can maintain the quality of service we think
our clients are entitled to. We have already had to make some
very difficult decisions about how much legally aided work we
can afford to take on as a practice. As we are sure you will appreciate
we have obligations to our staff and to our families and we cannot
operate as a charity. When this firm started up nine years ago
it was committed to helping those less fortunate even though it
was at much lower rates of remuneration. Over time we have had
to progressively cut back on the both the categories and the quantity
of legal aid work. Since we started out the difference between
our private rates and Legal Aid rates has increased so that now
it about three times the Legal Aid rate. This means that we have
to work three times as hard to get the same remuneration. In reality,
there are not enough hours in the day for this to happen and so
our relative position in relation to privately funded practices
has slipped further and further back. We fully appreciate that
no Government got elected by promising to give more money to lawyers
and that apparently this country spends more on Legal Aid than
any other developed country. However, this Government needs to
be aware of the consequences of implementing the LSC proposals.
3. If firms like ours cease doing Legal
Aid work then the ones who will suffer will be families and especially
children who desperately need representation at possibly the most
difficult time of their lives. For a child it is difficult to
think of a more important decision than whether they should be
permanently removed from the care of their parents. For a parent
the removal of a child (sometimes at birth when a mother will
just have gone through the trauma of giving birth) is incredibly
stressful and expert and sensitive representation is essential
if they are to be able to play any part in very complex proceedings.
Carter and the LSC are suggesting that such work should be delegated
to the lowest possible level. That simply is not compatible with
the need of a child or parent to form a relationship with one
lawyer and to trust that person. In particular, it is recognised
that a child should have as few new faces to deal with as possible
in care proceedings. Different experts are discouraged for that
very reason. However the LSC are effectively suggesting that continuity
is not important for a child and anyone can do the work.
4. We note that the LSC proposals came out
at virtually the same time as the final Carter Report. This must
call into question the independence of the Carter report. It is
very noticeable that the interim report from Carter hardly touches
on Family work and is very concentrated on crime. It is only in
the final report that he makes proposals for Family. The LSC report
came out at the same time. That report could not have been produced
in the light of Carter's proposals unless Carter and the LSC were
working closely together. We have been told by the LSC that one
of the reasons for proposing fixed fees in Family work is that
Carter was not able to find enough savings in Crime to assist
Family legal aid.
5. It appears to those of us on the front
line of providing services that the LSC had these proposals for
fixed fees in mind all along and just needed a vehicle for justification.
Carter has provided that vehicle and we believe that the Select
committee should look very closely at Carter's recommendations
in the light of that.
6. It is clear that Carter did not spend
the sort of time on Family that he did on Crime. We therefore
would question his methodology in simply suggesting that a similar
model to Crime must bring about the same benefits. We would argue
that cases involving children are very different from other types
of cases. The case has to be driven by the needs of the child
and not by some overweening attempt to cut costs.
7. Carter wants the LSC to encourage specialism
in representation of children but the LSC proposals will decimate
those undertaking this work:
(a) The number of Family franchise has decreased
from about 4,600 to about 2,800 in the last few years.
(b) The number of Children Panel members
has declined from over 2,000 across the country to about 1,500
now. A drop of 25%. There is no analysis as to reasons why. Anecdotally
we would submit that the paucity of remuneration is a significant
reason.
(c) The average age of Children Panel lawyers
is getting higher. There are only about 15 such lawyers under
30 across the country. Therefore it can be seen that whatever
Carter or the LSC may say there is little incentive for lawyers
to become Panel members.
(d) The LSC proposals will take away any
remaining incentive to become Panel members by:
— Removing the automatic 15% uplift
for Panel members.
— Fixing the fees for advocacy
so that solicitors are encouraged to use counsel at every tum,
as counsel's fees do not form part of the fixed fee (apart from
in some parts of private law proceedings).
— Fixing fees so that there is
an effective pay cut and it would mean that we could no longer
be profitable.
(e) The LSC are bringing in Preferred Supplier.
This is going to be limited to firms that can reach and maintain
the highest quality standards. The LSC recognise that this will
reduce the number of firms undertaking Family Legal Aid but welcome
this as there are still a reasonable percentage of firms who undertake
a relatively small amount of legal aid. The LSC want firms to
become larger so that there are fewer suppliers to with whom to
contract. This is part of the drive to move towards competitive
tendering. If these fixed fee proposals reduce the supply of solicitors
firms undertaking legal aid before Preferred Supplier comes in
the LSC risk having little control over quality as there may not
be enough firms left of sufficient quality to undertake the work.
(f) The LSC are also introducing their Peer
review scheme. They are claiming that will give them a better
means of assessing the quality of the work being undertaken. It
seems logical to assume that the LSC believe that the Preferred
Supplier and Peer review Schemes will increase the overall quality
and so reduce the number of firms undertaking Legal Aid work to
those who are good at it. If so, then the time to consider a change
in the funding arrangements is when the fees of high quality firms
only can be analysed. At present the LSC are basing their average
case cost on a wide range of suppliers which would presumably
include those who the LSC believe to be not so good. We would
submit that until this is done any evidence produced by the LSC
is flawed. A natural consequence of Peer Review is that some firms
will be "weeded out" in any event, thus reducing the
number of suppliers. Surely it would be more beneficial to wait
until the new supplier base is known before introducing changes
to the funding arrangements.
(g) The LSC proposals on fixed fees in care
cases are based on a division up of a case, based on the Protocol.
However, many cases do not follow the Protocol slavishly and so
it will not be possible to be certain when one part of the fixed
fee ends and when the next one starts. For example, the LSC propose
that solicitors will be paid a total of £502.00 for all work
after the Pre-Hearing Review (PHR). In many cases there is no
need for a PHR and so it will not be possible under these proposals
to claim that fee which is meant to cover the final hearing. In
other cases there may be several PHRs and so we will not know
which one is the relevant one for claiming this fixed fee. The
Protocol is meant to be a guide to best practice, not something
to be followed in every case whether the case needs it or not.
(h) Any fixed fee arrangement needs to allow
for a proper balance between swings and roundabouts. The current
proposal will mean that solicitors will have the possibility of
losing up to £15,000.00 per case. The most they could gain
on a case is a few thousand pounds. Therefore it would be necessary
to have a lot of small gains to make up for just one big loss.
As it is not possible to run a very high case-load (we manage
about 20-30 cases each at any one time and we believe that is
quite a high figure) and so we cannot easily cope with many big
losses. If we acted for, say, four children in a case then those
losses could be multiplied by a factor of four leading to potential
losses of £60,000 in such a case. We doubt if any small business
could take on work where there is a risk of such losses.
(i) The LSC should recognise that legally
aided firms are at best marginally profitable and any further
attack on profit margins will inevitably lead to a mass exodus.
OUR PROPOSALS
1. Wait for the introduction of Peer Review
and Preferred Supplier and see what effect that has on the number
of firms undertaking Legal Aid. Of itself that might have the
effect of reducing the overall spend on Family Legal Aid.
2. Once the new systems are in place it
will then be possible to see what the true average cost per case
of care cases is.
3. The LSC should amend their systems so
that they can analyse the average cost per case. At present all
they can do is to present the average cost per certificate. That
is not the same thing. In a care case it is quite common for the
same solicitor to act for all the children in the case. If there
are five children then that solicitor's costs will be divided
by five as the costs are spread between the five certificates.
In this way that solicitor may be seen to be five times as efficient
as the solicitor who acted for the mother who only has one certificate.
When we report to the LSC we only submit one Claim for all our
costs on the costs whether for five children or one parent. We
simply put all the relevant certificate numbers on the claim.
Therefore it should only take a small change in the LSC procedures
to cross-refer the relevant certificates and so get an accurate
cost per case.
4. The LSC should recognise that every case
involving a child is unique and can change rapidly. A case which
seemed very straightforward can become very complicated (eg by
the birth of another child) and vice versa. Fixed fees encourage
the least possible work to be undertaken on a case unless the
case might come within the category of being outside fixed fees
when perversely there is then an incentive to find as much to
be done as possible to get the case into that bracket. The current
proposals will leave each solicitor in care case dependent on
the amount of his or her fees on the number of clients represented.
Solicitors have no means in the current system to act for more
children as those cases are allocated by the Court in turn.
5. The LSC should undertake a proper analysis
of the costs drivers in cases. Solicitors costs in care cases
actually went down in 2004-05 and so we dispute that costs are
out of control. Lack of court time, lack of social workers and
lack of Local Authority lawyers leading to a lack of continuity
all add to delays and difficulties. The LSC risk losing the one
consistent figure in a care case which is the lawyer for the child.
This person usually attends all hearings and is usually the person
who drives the case forward. Without this cases are more likely
to drift. A lack of specialist lawyers is likely to lead to more
people representing themselves at court which always takes up
more time and so put pressure on the Judicial budget.
October 2006
| 
