Supplementary written evidence submitted
by the Family Law Bar Association (Copy of a letter sent to the
Ministry of Justice)
FAMILY GRADUATED
FEE SCHEME—LEGAL
AID REGULATION
AMENDMENTS
I am writing in response to your letter dated
26 May regarding the consultation to implement changes to
the Family Graduated Fee Scheme ("FGFS") for barristers.
I have attached the FLBA response to that consultation however,
for the reasons set out below, we are inviting you to re-consider
the decision to bring in these changes.
BACKGROUND
Your account of the background is not accepted.
There was very clear evidence of a reduction in appropriate representation
in many areas after the introduction if the FGFS in 2001, in particular
in ancillary relief cases. This was accepted at the time. The
8% put back into the FGFS scheme in 2005 was done to restore
the miscalculations by the government of the impact of the FGFS
in 2001, and was taken to try and stem the flow of expertise from
this work. A significant number of practitioners, who had ceased
undertaking publicly funded work as a result of the changes in
2001, did not return to this work.
REFORMING THE
LEGAL AID
FAMILY BARRISTER
FEE SCHEME
CONSULTATION
It is perhaps helpful to remind those who read
this letter of the basis of the June and December consultation
exercises. They were driven by the stated need to control expenditure
on family legal aid. In the June 2008 consultation paper
it was stated that spend on the FGFS had risen to £98m. A
number of statements have been made regarding that alleged increase
in FGFS cases, with claims being made ranging from 32% (para 2.9 December
Consultation), 134% (letter Lord Bach to the Times 10.3.09), 30%
(Carolyn Regan to the Justice Select Committee 16 June 2009)
and now in your letter 39% or 28%.
These claims are not only incorrect but they
mislead the profession and the public in the following ways:
1. They fail to acknowledge the fact that, due
to the Governments own miscalculation in 2001, 8% had to be put
back into the scheme in 2005. This is despite a specific request
for this to be acknowledged at a meeting at the MoJ on 12 May
2009 attended by the FLBA and the ALC when they asked for
this to confirmed in writing. This request was repeated in subsequent
emails and has simply been ignored.
2. They fail to acknowledge the increase in the
volume, which you have variously stated to be 36% (Lord Bach to
Lucy Theis QC 11 March 2009), 11% (Lord Bach to Lucy Theis
QC 12 February 2009) and 7.6% (letter dated 26 May 2009)
3. They fail to acknowledge the increasing complexity
of cases.
4. They fail to acknowledge that the proposals
in June 2008 were to reform the FGFS but we now know that
the data relied upon in that consultation paper, and upon which
that policy was based, was corrupted and contained cases to the
value of c£10m that were not FGFS cases, and never had been.
5. That it has only been as a result of the efforts
of the Bar in looking at the FGFS data (often in the teeth of
opposition by the LSC who repeatedly state they are satisfied
with the data) that it is now considered to be nearly "clean".
However, there remain significant difficulties; most recently
(on 16 June 2009) the discovery of about 3% of claims which
may have been "double counted" by the LSC.
6. As a consequence of the suggestions made on
behalf of the Bar the LSC data entry and classification systems
have been greatly improved. For example, there is now national
guidance on data entry to prevent regional variations on how data
was entered and classified.
7. The reference to closed case data is of no
assistance at all and it is disingenuous to use it in "head
line grabbing form" as any new fee system takes time to stabilise
and what you see are the short cases coming through first followed
over time by the longer more complex cases.
The result of these matters is as follows:
1. As your table sets out, the spend on FGFS
has in fact remained constant in the last three years (2005-06 £88.5m;
2006-07 £90.4m and 2007-08 £89.8m).
2. The most recent FGFS spend is not, as previously
asserted, £98m but £89.8m, and due to the double counting
referred to above will be lower.
3. In fact when you look at the last five years,
in the context of the increase in volume of cases, the FGFS has
generally performed well and that a relatively small number of
issues that require attention could be attended to without the
need to impose swingeing cuts.
4. It is therefore difficult to see how you can
maintain that "in the last five years expenditure on the
FGFS has increased unsustainably". To the extent it has
increased we can rationally and sensibly analyse that and fine-tune
accordingly.
The June consultation proposed cuts of £14m
from FGF cases (for example see para 5.3).
The decision announced on 12 February 2009 purported
to make fixed sum cuts of £6.5m each year for the next two
years to FGFS cases. It is now known that the FGFS spend, from
which those cuts were calculated to be made is, at least, 10%
lower.
As a result:
— The necessity for these cuts to the FGFS,
let alone of the size proposed, is seriously called into question
as the underlying evidence of the FGFS spend is not what it was
said to be.
— The calculations of the revised fees that
have been undertaken have taken place on data that has had to
be significantly revised and, as a result, the figures will need
to be re-assessed in the light of the FGFS data revisions that
have taken place, including the difficulties revealed on 16 June
2009.
— The impact of these cuts fixed sum cuts
is going to be proportionately far greater than had previously
been assessed at the time the decision was made.
— The impact of the disproportionate cuts
in ancillary relief cases has not been assessed and, in fact,
is not even mentioned in your letter.
— Any impact assessment undertaken regarding
the effect of these cuts is flawed as it was based on erroneous
information.
There is already clear evidence of an exodus
from this work by those with expertise. In the Kings College report
more than 80% said they planned to reduce or cease undertaking
publicly funded work and this is already being evidenced from
those who undertake this work on the ground. If in fact the impact
of these changes is going to be far greater, due to the cuts being
proportionately higher than had been previously calculated, because
of the flaws in your own data, fairness dictates that this will
need to be looked at again.
The FLBA, like other practitioner organisations,
have always endeavoured to work constructively with the Ministry
of Justice and the Legal Services Commission in making sure that
fee regimes for this important area of work provide cost control
and retain, as far as possible, the expertise that is so important
in this area of work and the public interest clearly demands.
This, of course, is covered by the duty imposed by s 25(3) of
the Access to Justice Act 1999. As you will know over the past
few months there have been frequent meetings and regular email
dialogue, which the FLBA have fully engaged in.
However, what angers and frustrates the profession
is the repeated "misuse" of data and the failure to
acknowledge the valuable work that experienced advocates do and
the real savings their expertise brings to the family justice
system. This attitude, as much as anything, is what is making
it very difficult for those who have to take the lead in these
matters, to try and encourage their members to continue to undertake
this work let alone try to encourage talented new entrants to
enter this area ofwork.
For the reasons outlined above we invite you
to re-consider the decision to bring in these changes. The evidential
rationale for proposing them, namely the increase in the FGFS
spend, is fundamentally flawed.
Such is our concern about this matter we have
copied this letter to Lord Bach, Sir Bill Callaghan and Rt. Hon.
Sir Alan Beith.
Lucy Theis QC
Chairman
23 June 2009
Annex
Response by Family Law Bar Association
to Consultation on Amendments to Community Legal Service (Funding)
(Counsel in Family Proceedings) Order 2001
FUNDING ORDER
1. We have outlined our position in the
accompanying letter regarding the revised figures; in short they
need to be re-considered in principle and in detail in the light
of the re-classification of the FGFS data.
2. In relation to the proposal in paragraph
I (3) that "This Order applies in respect of work carried
out by counsel under instructions received on or after [ ] July
2009, where the certificate was granted on or after 28 February
2005." We consider this will lead to confusion and unfairness.
3. We give an example:
A barrister agrees to take on a private law case
involving children in which the father seeks an order for contact.
Before the court can decide the issue it must determine at a preliminary
hearing whether (as the mother contends) the father has been violent
towards her in the presence of the children or whether (as the
father contends) such unfound allegations are to alienate him
from his children. It would not be unusual to have a "split
hearing" in such a case, with general welfare enquiries taking
place in the interim depending on the finding of facts made. Continuity
of judiciary and counsel of course remain important. There remains
uncertainty as to whether the barrister may accept instructions
to deal with the first part of the hearing, but thereafter decline
to accept the second part, if the hearings straddle the date of
implementation.
4. The position may be more acute in ancillary
relief cases, as a result of the removal of SIPs. In a case which
under the existing regime (if the circumstances of the 3rd case
permitted it i.e. attract SIPs for assets under the control of
a party, analysis of accounts and conduct) the payment for the
[mal hearing would be £731.25 but if, for whatever reason,
the hearing was adjourned until after the implementation date
the same hearing would only attract a fee of £325 due
to the removal of the SIPs. Counsel may then decline to undertake
the case as the fee would not be a proper professional fee for
the work being undertaken, the fee having reduced by around 55%.
5. To our knowledge no fee scheme has ever
been introduced in this way, for precisely the reasons we have
outlined and illustrated above. To do so enters into previously
unchartered professional waters in terms of professional obligations.
6. The only way to avoid this uncertainty,
both for the profession and their professional and lay client,
is for the scheme to come in, as to our knowledge every other
fee scheme has done in the past, in relation to certificates issued
after the commencement date.
SIPS FORM
7. In the revised SIPs Form the box in the
right hand com entitled "listing type" should be changed
to "hearing type" and F2 should be added to part
in brackets so it reads (F2/F3/F5).
SPECIAL PREPARATION
FORM
8. We have no observations on the "Written
Evidence of Basis for Special Preparation Fee" and consider
that this measure should be introduced irrespective of any re-consideration
of the proposed interim FGFS changes as it relates to process
rather than substance.
23 June 2009
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