3. Memorandum from Legal Aid Practitioners
Group (LAPG) on Community Legal Service Fund and Criminal Defence
Service Accounts for the year ended 31 March 2009
LAPG is a membership organisation with over
450 private firms and not-for profit organisations as members.
We hope that the attached comments are of assistance to the MPs
on the Committee.
Legal Help and Crime Lower (paragraphs 13-19)
Accuracy of payments for legal help and crime lower
(paragraphs 31-37)
We note the finding of incorrect claiming. The
Payment Annex of the Civil and Family Mediation Specifications
of the Unified Contract contains 261 fees of which 130 different
fees are used in family cases alone. There are other civil fees
for certificated work. There are more fees in crime. For a firm
doing a wide range of cases the number of possible fees is immense.
In private practice there will be fee earners
of various levels doing this work and probably reporting cases
to a book keeper who will input the information. A partner will
oversee the work. It is extremely easy to enter the wrong information
and we welcome the proposal that LSC online will be redesigned
to make it much more difficult to enter the incorrect information.
In Appendix 1 we have set out one family law
partner's comments about the complexity of the scheme.
We note paragraph 37 which states that the LSC
should review its use of sanctions against suppliers "to
ensure that these act as a necessary deterrent to solicitors from
claiming inappropriate fees". Our experience is the opposite
of that suggested. Our experience is that practitioners are terrified
of getting it wrong, of facing recoupments that could put them
out of business, of losing contracts with the LSC and of course
being disciplined for incorrect claims and facing the possibility
of being struck off. Criminal sanctions would be a possibility
for fraudulent claims.
We would suggest that there is a core of highly
trained people at the LSC who would be available to answer questions
from practitioners from 8am-6pm every working day to give guidance
and for that advice to be provided on a completely confidential
basis so that people can ring up with genuine problems and not
be afraid that they will be "picked on" for an audit.
We would also suggest an email service along the same lines. Such
a helpline could bring about drastic improvements and the team
providing it could then run a question and answer page with the
most commonly raised issues on.
Crown Court Payments (paragraphs 20-21)
Accuracy of Crown Court payments (paragraph 38)
We note that the LSC has a Service Level Agreement
with HMCS and HMCS is responsible for validating the claims.
Eligibility (paragraphs 22-28)
Legal Help
Crime Lower
Civil Representation (paragraphs 29-30)
Eligibility (paragraph 39-42)
The estimate of legal aid provided to ineligible
clients is £6.4 million.
Eligibility issues are a problem—partly,
one suspects, because practitioners want to get on with cases.
The only solution that would be practical is for practices to
ensure that no practitioner sees a client until another member
of staff has obtained all the necessary information. If practitioners
are not allowed to carry out any legal work until the eligibility
check is complete that puts them in difficulty. We believe that
practitioners who see clients, particularly if their case is urgent,
will look at documents and if some more information needs collecting,
they will carry on with the legal work and ask for the further
information. The case develops, the information is overlooked
and then when the file is audited the information is not there.
This can be rectified by training and more stringent systems in
offices. But there will be a risk that in thousands of cases people
who need advice will not receive it in time.
Paragraph 25 makes it clear that the estimated
error of £2.3 million indicates that the Commission MAY have
paid this amount to solicitors for advice provided to individuals
who were not eligible for legal aid. In fact paragraph 17 states
that the auditor found insufficient evidence to support fees or
disbursements claimed by solicitors as well as demonstrable errors.
In reality some of those clients may have been eligible for free
advice.
Many of the people entitled to free advice live
chaotic lives and for them to produce information that may seem
easy to others who are better educated and have better resources
may be extremely difficult. A very useful outcome of this audit
report would be to look again at obtaining a balance on this.
There needs to be a realistic discussion on what proof of eligibility
is sought.
As regards civil eligibility, very little information
is provided in the report. We note that the overpayment error
is £1.6 million. Some people were found to be ineligible
or a wrong calculation was made. Again, we stress the complexity
of the system, particularly for vulnerable clients at a stressful
time in their lives. The means form for someone who is not on
benefits is 20 pages long. The accompanying guide is 10 pages
and there is also a 4 page checklist.
Carol Storer
Director LAPG
8 December 2009
APPENDIX 1
EXAMPLE OF THE COMPLEXITY OF CLAIMING FEES
This is a report form one experienced family
practitioner.
The problems are as we have said before that
the rules and guidance are just so unclear. The codes are complex
and it is inevitable that incorrect codes will be used especially
as no validations are built into the spreadsheet.
From our own audit I had one contact case where
I saw the client, wrote to the Mother, referred to mediation,
then applied for legal aid. I claimed the Level 1 and Level 2
fees of £315 in total as I had seen the client twice but
my note for the second interview was not very detailed and only
referred to completing legal aid forms. That is not sufficient
to count for a second interview so I was only able to claim Level
1.
I had another contact case where I only claimed
a Level 1 fee on my own accounts system but the code I used, FPL04
generated a level 1 and 2 fee.
This was because Level 1 guidance did not refer
to cases where you applied for legal aid but only saw the client
once.
The guidance says you should use code FPL01
where:
"This code should be used when only the
Level 1 fee is being claimed and no further work at controlled
work level is undertaken for the client. This will include change
of name applications, cases where the client does not require
any further work after initial advice and acting for a respondent
in an undefended divorce."
It does not mention cases where you progress
to certificated work and it is very unclear whether that is the
correct code. In those cases the client does require work after
initial advice and therefore the code does not seem to fit the
scenario.
I had put code FPL04 which says: This code should
be used where the case involves children issues (with or without
issues around divorce and/or domestic abuse) and work is undertaken
at Level 1 and Level 2 and the children issues are not settled
at Level 2 eg a certificate is applied for to issue proceedings
in respect of the children issues or the clients ceases to give
instructions" which I appreciate now is not correct
but in my case I had only claimed the Level 1 fee but was just
not sure how to report it.
I think the guidance should make it clearer
FPL01 is for everything where a level 1 fee is payable, regardless
of whether one progresses to a certificate or not.
Also the end points are ambiguous and the combinations
of codes.
I would put code FB where we had seen the client
once so there was a Level 1 fee but had carried out further work,
and was told I should use endpoint FA where I was claiming Level
1. There is no indication on the codes guidance, which is already
53 pages long, that you cannot have endpoint FB with Level 1 cases.
The guidance says:
"Please enter the code from the category
list provided showing what stage has been reached in the case.
This should correspond to the "highest" level of assistance
provided to the client.
I would therefore think that the highest level
of assistance was further work as I had written letters and referred
to mediation and always took FA to mean first meeting but no further
action. I therefore was told I had correctly put endpoint FB where
it should be FA but the guidance had not made it clear what I
should use.
The spreadsheet should tell you that you cannot
put in code FB where you are claiming FPL01.
In the past we could claim for the initial two
or three hours without proof of means provided the work was reasonable.
Now there seems no leeway at all and not only do you require proof
it must be no more than one month old in contrast to the previous
rules which allowed three or six months.
Many cases that are audited were still
opened way before the new guidance came in so probably would have
sufficient proof of means to be compliant under the old rules
but not these. Files will therefore fail on means whereas in the
past they would have been compliant.
Cases can be paid where it was urgent to provide
advice but there was no proof of means and the client subsequently
fails to provide the proof. However, firms may not be putting
enough information on their forms or files to explain so the file
will be marked as a fail but may be reinstated when the firm looks
at it again and provides an explanation.
When we were asked for our files to audit I
went through and explained the circumstances such as those on
each file and although we did not have proof for two files it
was accepted these were urgent cases and they were not failed.
It was only when we had our audit that I realised
how we were not passing their requirements on the various issues
such as codes and am correcting this on file reviews and when
completing the spreadsheets.
However, many firms still do not know about
the second interview rule or proof of means or which code
to use and no wonder are failing their audits.
These are just some examples from our cost compliance
audit and if a firm like ours, where I am pretty up with
the legal aid requirements, is not compliant then it is no
wonder so many firms are failing.
I was still category A1 after a couple of appeals
but the prospect of paying for audits when we failed basically
because of the lack of clarity or guidance is very worrying.
The partner then wrote this update yesterday:
I did my LSC online last week after the new
validations were installed and found codes I had used before no
longer worked.
For example if I acted for a petitioner in divorce
and there were finances issues and we did not issue for finances
but there was a consent order I would use FPET FAMK FPL03 FB FE.
But we have been told that is not valid for a level 1 and 2 fee
so have to use FAPP which is for an applicant where proceedings
are issued or FADV advice given. I did not issue ancillary relief
proceedings but if I used code FPET it was not a valid outcome.
I also used a wrong code FPL01 instead of FPL10
for a divorce and realised before I uploaded that the fee was
wrong and managed to change it before submitting.
As I have said before to have to enter over
40 codes is a nightmare and errors are bound to happen but not
for any malicious intent.
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