Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by David Glasgow, Dr Kari Carstairs, Dr Bernard Horsford, Prof Helen Dent, Joanna Beazley Richards, Kirsty Lowe and Peter Ludlow (LA 102)

We are writing to you as a group of psychologists in private practice who do Court reports. The British Psychological Society (BPS) provided a response in February 2011 to the Ministry of Justice consultation on legal aid funding reform. In that response, the BPS pointed out that the proposed Legal Services Commission (LSC) benchmark rates for experts’ fees were markedly lower than the going rates, particularly in London where they represented a cut of 30% or more. Concerns about the impact on the supply of experienced experts were raised.

Since then, the Lord Chancellor has planned to bring into effect on 3rd October the Community Legal Service (Funding) (Amendment No. 2) Order 2011 which confirms the lower rates.

At the same time, experts are now being asked to accept a clause in the contract to the effect that any sum of money can be requested for repayment upon assessment. This "claw back" clause is unworkable for a small business. We have to pay VAT, corporation tax, PAYE and other expenses. Such a clause makes a mockery of any financial business planning. Furthermore, this term is grossly unfair and is unheard of in any other sector of the economy. No service provider can possibly agree that the customer has the right to ask for money back long after that service has been delivered satisfactorily and paid for.

On top of the lower rates and the "claw back" clause, our members are finding that payments from the LSC are being delayed by increasingly longer periods. One member found that the amounts that were delayed beyond 90 days had doubled from June to September 2011. Another member found that in 2009/2010, fees were unpaid after 90 days in 22% of legally aided cases, amounting to 16% of income from legal work for the year and in 2010/2011, the figure stands at 24% of invoices unpaid after 90 days, amounting to 22% of legal work for the year. In all of these cases, prior authority had been granted for the fees and in none of these cases did the total exceed the original estimate. For both members, instructing solicitors report increasing delays in the processing of claims by the LSC.

We are in receipt of the most recent newsletter from the UK Register of Expert Witnesses informing us that the LSC is to consider abolishing prior authority altogether. This raises grave concerns for all of us. Without prior authority, we have no contractual basis for the funding of our work and we will find it impossible to have any sense of what fees we might eventually receive.

The third factor is that even when we are finally paid, we are never able to claim back interest and late compensation because we are told that the LSC will not pay this. Why not? Is the LSC exempt from adhering to acceptable business practices and legislation, and if so, why? One member calculated what the interest would come to for all the bills currently overdue in her practice and it was nearly £2,000. She is a sole trader and is owed nearly £20,000 at the moment, making it very difficult for her to meet her financial obligations such as paying her tax. We fail to see why we should be providing an interest free loan to the government when we are of course at the same time required to pay our tax bills to the government on time.

The combination of the lower hourly rates, delayed payments, the inability to get interest when payment is delayed and the uncertainty generated by the "claw back" clause threatens to put us out of business. As psychologists, we all can seek to gain a living providing other services, such as consultation and psychotherapy, services that do not carry the high level of scrutiny and professional accountability involved in writing reports for the Courts. Furthermore, providing psychotherapy through private insurance companies offers a higher hourly rate, there is no "claw back" clause, and payment is provided within 30 days. One member has reported that 100% of his legally aided fees remain outstanding over 190 days. He never has this problem with private clients or insurance companies who settle their invoices within 30 days.

The situation is so grave now that we question whether there is a hidden agenda here of abolishing legal aid for expert witnesses by the back door.

We want to provide a service to the legal system, our skills are in high demand and we are willing to work with the lower hourly rate. What we cannot do is to wait indefinitely for large sums of money that the government owes us, with no compensation for the delay in payment when we are finally paid and on top of that, the prospect that we may be asked to pay money back!

What we are asking for is (1) removal of the "claw back" clause (2) agreement that payment of invoices within 90 days is reasonable and (3) for invoices that are not paid within 90 days, interest and compensation as outlined in existing legislation will apply.

September 2011

Prepared 11th October 2011