Family Legal Aid Reform - Justice Committee Contents

Supplementary written evidence submitted by the Family Law Bar Association (Copy of a letter sent to the Ministry of Justice)


  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.


  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.


  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


23 June 2009


Response by Family Law Bar Association to Consultation on Amendments to Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001


  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.


  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).


  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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