Appendix: Further Government response
I am writing further to my letter to you of 14 September
and following my recent Written Ministerial Statement (Official
report, Column WS 65) of 21 October, announcing the way ahead
following our joint consultation with the Legal Services Commission
(LSC) on "Family Legal Aid Funding from 2010".
You will recall that I stated in my previous letter,
that I would submit a fuller response to the Committee's report
on our family legal aid reforms, (Eight Report of Session 2008/09)
once I had decided on and announced the way ahead. The Consultation
response and Impact Assessment were published on the Legal Service
Commission's (LSC) website on the same day as my announcement.
I understand that the LSC has already ensured that hard copies
of the response were made available to the Committee, but for
ease of reference, I also attach the relevant link to their website,
below, where the Impact Assessment and other relevant documentation
can be found.[5]
I am sure that the Committee will by now have examined
both documents in detail and will therefore appreciate that many
of the issues raised in its report have effectively fallen away.
Where possible, I believe our final proposals have taken account
of a number of the key points of concern raised and I am very
grateful to the Committee for their input into the consultation
and final development process.
On 20 July, I announced that I was deferring my decision
on the way ahead (Official Report, Column WS 156) and asked my
officials to undertake further analysis of the assumptions that
underpin the modelling of the fee schemes, to ensure the accuracy
of that modelling. I believe this additional work was necessary—not
only due to concerns that had been expressed about the accuracy
of the data used to model the scheme—but also because we
had made some significant changes to our original proposals following
detailed discussion with stakeholders about the structure of both
the advocacy and representation schemes.
In particular and as I think is evident, we have
introduced more graduation into the fee scheme structure to ensure
that those advocates who take on the more difficult and complicated
cases are fairly rewarded. In addition, I decided not to proceed
with our proposal to remove independent social work from scope
in private law (Rule 9.5) cases. I know that the Committee was
particularly concerned about this proposal following representations
made by the National Youth Advocacy Service and their supporters.
We had corresponded on this issue well before the final proposals
were published and because of the strength of the responses received
on this, it was decided not to proceed, but I will return to this
in more detail later in this letter.
I am now satisfied that the new fee schemes are based
on robust data and accurate modelling, and that the final scheme
will allow us to achieve a reasonable balance between complexity
and value for money. The new fee schemes direct more money into
complex public law cases to ensure that children at risk of abuse
take the highest priority for legal services. They do not represent
cuts to the family legal aid budget or to the services received
by children and families, but some funding has moved from barristers
to solicitor advocates, as barristers and solicitor advocates
will now receive the same fees for the same advocacy work. The
schemes have been designed to be cost neutral against 2007-08
average case costs.
Although the consultation response and impact assessment
represent our formal and detailed response to the consultation
process, it may be useful if I summarise the Committee's main
issues and our response to them again, here.
Consultation process
Throughout the consultation period—which we
extended at stakeholder's request—and beyond, there has
been a significant amount of engagement with a range of stakeholders
on the shape of the final schemes. The LSC continued a close dialogue
with contracted providers, through regular meetings with stakeholder
groups such as the Family Representative Body Group and its' Family
Stakeholder Group. Membership of both these groups include representatives
from the Law Society, Resolution, the Family Law Bar Association,
the Legal Aid Practitioners Group, the Department for Children
Schools and Families (DCSF), Cafcass and Cafcass Cymru.
The LSC also ran a series of workshops around the
country to help facilitate understanding of the impact of the
proposals and to gather further views from stakeholders. I understand
that these events were considered to have been useful by the majority
of attendees. As well as the legal profession, the LSC met with
local judiciary, attended local Family Justice Councils and spoke
to other individual providers including the National Youth Advocacy
Service (NYAS) and independent social workers.
After the consultation closed, they set up a Working
Group with representatives from the Family Law Bar Association
(FLBA), the Law Society (TLS), the Association of Lawyers for
Children (ALC), Resolution and the Legal Aid Practitioner's Group,
(LAPG) to discuss proposed amendments to the scheme we consulted
on, and also the alternative schemes suggested by individual representative
bodies. The Working Group met five times between 21 May and 7
October 2009.
The LSC also took account of new evidence that became
available following publication of the consultation paper, and
in particular, the findings from the research undertaken by Dr
Debora Price on behalf of the FLBA The Work of the Family Bar—the
Week at a Glance survey (Week-At-A-Glance Survey); and the evaluation
of the Public Law Outline (PLO).
I am aware that some stakeholders had wanted the
consultation process to continue beyond October, but I am satisfied
that further consultation was no longer necessary. The level and
results of the engagement that both my Department and the LSC
had with stakeholders was acknowledged by the ALC in their press
release following publication. They acknowledge that "the
original scheme has been radically restructured and revised following
in particular extensive input from the leading practitioner groups".
They broadly welcome the announcement and go on to state that
"the scheme now proposed is immeasurably better, fairer and
more practice-reflective than that originally devised. That shows
the benefits of collaborative working within the family justice
system."
Data quality
The LSC has been sharing the available data and the
methodology behind the modelling of the fee schemes with members
of the representative bodies working group since April 2009. Full
details of how the LSC collected and used the data to model the
schemes, is set out in Annex B of the response document.
However, in summary—and as highlighted in the
Committee's report—although it was thought that agreement
had been reached about the best approach to take in the use of
the available data, some issues of concern remained about the
risks associated with the use of one data set in particular. As
work continued between the LSC and FLBA analysts to try and resolve
the remaining issues, it was clear that, following an analysis
of the consultation responses that significant changes would need
to be made to the original proposals. The emerging changes were
significant enough to also require additional modelling and so
I then asked my officials to undertake the analysis work of these
changes over the summer recess.
During this time, the LSC model itself was tested
and found to be sound and the data sources and the estimates and
assumptions built on them were improved. In particular, a sensitivity
analysis was undertaken of the fee levels which had caused the
most concern, so the risks associated with each could be seen.
Following this work, MoJ and LSC analysts discussed options to
further improve the veracity and robustness of fee modelling process.
A different approach to calculating the fee values was agreed
and the fee levels re-calculated. It is important to note that
these changes made had minimal effect on the structure of the
fees but simply eradicated several—although unfortunately
not all—of the issues raised and discussed by the Bar.
The revised fee levels and the assumptions underpinning
them were shared with the working group before publication and
are set out in the response document from pages 45 to 47. As I
mentioned earlier, members of the stakeholder working group requested
more time to analyse the new fee levels, but I was satisfied that
there had been a continuous dialogue and protracted consultation
with the working group and their analysts while the analysis was
taking place. I was also now satisfied that the data and fee model
was robust, and so decided to go ahead and publish on 21 October
as I did not believe that further consultation was necessary.
Furthermore, I believe that additional consultation and further
delay to the implementation of the new contract in 2010 would
have led to greater uncertainty for those stakeholders who were
already anxious to proceed.
Fee levels—reward for complexity
Many respondents from the Bar had expressed disappointment
with the fee levels published in the consultation paper, describing
the schemes as too 'flat' and not including sufficient complexity
to reward experience. The LSC gained a considerable amount of
valuable advice on this from the stakeholder working group following
the analysis of responses. There were a number of suggestions
put forward which were not adopted, such as an alternative scheme
modelled by the ALC, or paying solicitors under a suitably modified
version of the Family Graduated Fee scheme. These two alternative
schemes—as well as all comments on the proposed scheme—were
considered, modelled and costed, but both were eventually rejected
on cost or other issues of concern. However, a number of substantive
changes were made to the structure of the scheme, to ensure that
those advocates who take on the more difficult or complicated
cases are fairly rewarded.
In particular, we have introduced more graduation
into the fee scheme structure to ensure that those advocates who
take on the more difficult and complicated cases are fairly rewarded.
For example, hearings will be paid on a time unit basis and not
per hearing. There are 2 hearing units, one of 60 minutes and
the other two and a half hours. There are bolt-on payments to
reward the more complex cases, in public and private law children
cases. There is a settlement fee payable in finance cases, 3
levels of court bundle payments, depending on the number of papers
and an uplift for work in the county and High Court. Some of
the most complex cases are excluded from the scheme, for example,
Rule 9.5, forced marriages, Inheritance Act and Trusts of Land
Act applications. A table of the fees payable under the Family
Advocacy Scheme is set out on pages 45 to 47 in the consultation
response document.
Many respondents expressed the view that consideration
of the Public Law Outline (PLO) hearings were important, as adjournments
are frequent and in the majority of cases at least one more hearing
than is specified in the PLO is necessary. The time unit payment
basis and introduction of bolt-ons in the revised scheme will
mean that cases requiring more time at court will be appropriately
remunerated.
Supply & discrimination
The Committee highlighted concerns brought by the
Family Bar that any cuts to family legal aid advocacy rates would
have a disproportionate effect on female practitioners and those
of black and minority ethnic origin (BAME) and lead to an exodus
from publicly funded family work.
I believe that the substantial changes made in relation
to payment for complexity in the fee levels published, have mitigated
the overall effect on the Family Bar. The LSC made considerable
efforts to engage with BAME advocates throughout the consultation
process in workshops and with the Bar Council Equality and Diversity
committee. The Committee agreed that the best way of mitigating
impacts on the Bar was to develop a scheme which better reflects
complexity.
However, and as the LSC acknowledge in the impact
assessment, (at section 7, page 36) female and BAME advocates
are still more adversely affected by the new scheme than their
white male counterparts, but this is due to their reliance on
legal aid as a proportion of overall income, not on anything inherent
in the published scheme.
Female barristers, and in particular female BAME
barristers, are over-represented in legally aided family work.
This means that any proposal involving a reduction in the legal
aid fees of self-employed barristers for family work is likely
to have a negative disparate impact on female barristers and on
female BAME barristers. Neither the Government, nor the LSC has
any control over the composition of the family law Bar, the allocation
of the work to individual barristers or any disparities in their
earning profiles. The LSC report that there was consensus among
those attending diversity focus groups they ran during the Quality
Assurance for Advocates project, that barriers to progression
for women included the influence of clerks and instructing solicitors
over the type of work allocated. I understand that the Bar are
doing work to ensure equality in the allocation of work in future
and believe this is likely to be the best way to tackle the issue.
Although it is acknowledged, therefore, that these
proposals may have an adverse impact on female and/or BAME barristers,
those impacts are seen to be necessary to achieve our overall
aim of preserving and protecting the legal aid fund for those
who need it most.
On the impact of these proposals on entry, retention
and progression of the profession in publicly funded work and
ultimately the future of the judiciary, there does not appear
to be a shortage of pupillages relative to the availability of
new tenancies in Chambers, or relative to the needs of prospective
employers. There is evidence that significant numbers of female
barristers and BAME already leave the self-employed Bar in the
early years of practice. Many barristers who are leaving the independent
Bar have transferred to the employed Bar, however, and they will
therefore still be available as part of the pool from which the
judiciary may be chosen—as will the many solicitor advocates
that will benefit from the introduction of the harmonised scheme.
Additional changes following consultation
A high level summary of amendments made to the original
consultation proposals is set out in the consultation response
document on pages 19 to 26. However, one of the main issues that
concerned the Committee, was the proposal that the LSC would stop
funding for independent guardians and social work in cases where
a guardian is required (but not otherwise provided) under Rule
9.5 cases (Rule 9.5 of the Family Proceedings Rules allows a judge
to order a child to be made a party to family law proceedings
with separate representation). It was also proposed that fees
paid by the LSC for independent social work, would be capped at
the same level as those paid by the Children and Family Court
Advisory Support Service (Cafcass) and CAFCASS Cymru.
On the capping of rates it was established that,
although independent social workers undertake a variety of work
for different organisations, the qualifications and experience
of those undertaking that work, plus similarities in the work
undertaken mean that it would not be an effective use of public
money for the LSC to pay a higher rate. There is no cap on the
number of hours spent on a case, however, and in complex cases
it will be reasonable to spend more time on a case. This proposal
will therefore be implemented.
Respondents did express the view that experts' costs
in general, are very high. Both the Government and LSC acknowledge
this point and the Committee will be aware of the recent Ministry
of Justice consultation entitled, "Legal Aid: Funding Reforms"
which closed on 12 November and proposed standardising and setting
maximum payments to experts in criminal and civil legal aid work.
We received a good response to this consultation and the results
are currently being analysed.
On the funding of independent social work in rule
9.5 cases, a number of respondents agreed that although it was
probably not for the LSC to fund this work, (and that this should
properly fall to Cafcass) children involved in these proceedings
would suffer if LSC funding was simply stopped. The LSC is aware
of the issues surrounding the appointment of guardians around
the country and the concerns about Cafcass resourcing. Both my
Department and the LSC have worked closely with Cafcass and the
DCSF on this both during and since the consultation. As a result,
it was decided that funding for independent social work will not
be removed at the present time. However, this position remains
a concern and we will continue to work with Cafcass to determine
the best way to use our mutual resources for the benefit of vulnerable
children. Full details on both issues can be found at section
5, pages 65 to 67.
On Family Justice issues more generally, the Ministry
of Justice is committed to working with all the agencies and departments
involved in delivering family justice, in particular the DCSF,
the LSC, Cafcass and CAFCASS Cymru. To support this, the National
Family Justice Board (NFJB) has been established which includes
all of these bodies in its membership. It is co-chaired by three
ministers representing DCSF, MoJ and the Welsh Assembly Government.
The NFJB takes a strategic view of whole system reform across
the family justice system.
I am grateful to the Committee and to all stakeholders
who made a substantial contribution to the outcome of this consultation
and who continue to assist with the policy making process. As
the ALC stated in their press statement following publication
of the way ahead on family fees, this does show the benefit of
collaborative working across Government. I am confident that the
fees we are offering are fair and will ensure that people will
be able to receive the legal advice and assistance they need.
The published scheme also allows us to achieve a reasonable balance
between payment for complexity and value for money, which will
help achieve our overall aim of sustaining access to the most
vulnerable in society.
Lord Bach
Parliamentary Under-Secretary of State
Ministry of Justice
29 November 2009
5 Family Legal Aid Funding from 2010: A Consultation
Response, Legal Services Commission, October 2009 (https://consult.legalservices.gov.uk/inovem/consult.ti/FamilyFees2008/listdocuments) Back
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