In these days of budgetary pecuniary and threats of more cuts, the LSC appears to being resorting to reductions to expert’s fees, even if they were paid years ago and even if they they have been approved by the court by employing seemingly unpublished (except in a link buried on their website) guidelines.

Chair of Resolution’s Legal Aid Committee, Dave Emmerson, has written the following letter to Legal Aid Lawyers on the Resolution website:

Dear Legal Aid Lawyers,

A number of you have reported that claims for experts’ fees are routinely being disallowed or reduced on assessment by the Legal Services Commission. This has happened even where the Court has approved the expense as reasonable.

The LSC’s change of policy is causing real problems, particularly if an expert was paid a couple of years ago and the solicitor may not be able to recover any shortfall from the expert.

It appears that the LSC is applying the rates from an internal guideline document, although these have not been published by the LSC. You can download the guidance here.

The Association of Lawyers for Children has drafted a letter of instruction for experts to ensure that solicitors do not bear the liability for any shortfall. The LSC has seen the letter and has stated: ‘The LSC is content with the letter in so far as it reflects the policies, procedures and contract terms of the LSC.’ The ALC is happy for Resolution members to use the precedent letter, for which we are very grateful. You can download it here.

The current position is very unsatisfactory as members are not receiving payment in full and are having to appeal. I have raised the issue with the LSC’s Head of Contracting and correspondence is ongoing. I will keep you informed of developments.

Dave Emmerson,
Chair, Legal Aid Committee

In an article published in Resolution’s “e-News”, Murray Heining, Chair of the Association of Costs Lawyers Legal Aid Committee, has reported that the LSC appear to be using out of date standard letters in relation to the time limits and procedure for Costs Appeals.

The correct procedure is to appeal to an Independent Costs Assessor within 28 days, which can be extended for good reason. It can be found at paragraphs 8.48 – 8.66 in the Unified Contract Specification.

The Legal Services Commission has announced that it will not lodge an appeal against the Law Society’s successful Judicial Review challenging their family tender process. The Commission stated that an appeal would only prolong uncertainty over the future of the family contracts, causing difficulties for clients and providers.

The commission has said that it is consulting with representative bodies and the MoJ on the future of the tendering process and is considering the future extension of the unified contract, which currently runs until midnight on 14 December 2010 as well as the harmonisation of family fees and the allocation of new matter starts.

Bill Callaghan, the LSC chair  said:

‘Our priority must always be to ensure that family legal aid clients get the help and legal advice they need. We still have some work to do but we hope that this constructive engagement with the profession will help to provide certainty for clients and providers.’

In response, Linda Lee, Law Society president  said:

‘We are pleased that the LSC has expressed an eagerness to engage with the Law Society and the solicitors’ profession on this matter, and we hope it will now recognise that the Society and its members’ insight and experience can make a valuable contribution to the reshaping of legal aid and legal service provision.’

The Government’s Spending Review has confirmed that there will be a “6% reduction” each year for four years to the Ministry of Justice.  In real terms this is a reduction of 23% - down from £8.9 billion to £7.3 billion.  Some of the savings will be as a result of reforms to stem the “unsustainable rise in the UK prison population”;  the closure of up to 157 “under-utilised courts”; reducing MoJ back-office and administration costs by 33%;  the MoJ’s capital spending to be cut by 50%; and the MoJ’s central London estate to be reduced from 18 buildings to four.  However, major concerns amongst Legal Aid Practitioners in relation to the plans to reform and restrict Legal Aid with an announced £350m reduction.  

This is how Law Society President Linda Lee responded to the Review:

‘While the figure of £350m is less than some had feared, losing this amount of money from the system will inevitably prove to be a significant blow to legal service provision and access to justice. A creaking system is going to be less able to deliver the needs of the vulnerable in society.

‘It is a basic feature of a democratic society which supports the rule of law that vulnerable people, whether they are children, or have mental health or housing problems, are accused of crimes or have suffered loss, are able to have access to legal advice and representation to secure justice.

‘The legal aid budget does not have to be cut by restricting its availability. The best approach is to tackle the need for legal aid such as simplifying the law, addressing poor decision making by public bodies, and by reforming inefficient Court processes - the real causes of the rising expenditure.

‘The legal aid budget has remained static for the past six years. It is in no state to deliver yet more cash savings and it is the vulnerable who desperately need this front line service who will suffer. We will study the details of the consultation when they are available and will respond constructively. However, there can be no doubt that these cuts could cause significant damage to justice in our society.’

Quite how this affects the Government’s commitment to preserving ‘assess to justice’ remains to be seen against the backdrop of the LSC moving away from being a Non-Departmental Public Body.  In response to a written parliamentary question by Lord Bach, Minister of State Lord McNally replied:

“The Government agrees with the previous administration’s commitment to replace the Legal Services Commission with an executive agency of the Ministry of Justice believing that this will strengthen accountability for and control of the legal aid fund.“

The LSC has been dealt a body blow arising out of the Judicial Review brought by the Law Society in relation to their tender process for the new family contract, which had been due to come into force on 14 October, but has since been dropped back to 15 November.  This is what the Law Society says:

The Law Society has secured a victory for families across England and Wales after the High Court decided to quash the outcome of the tender round for new family legal aid contracts.

The High Court today declared that the Legal Services Commission’s (LSC) family legal aid tender round was unlawful and severely hindered access to justice for vulnerable children and their parents.

The decision follows a three day hearing of the Society’s application for judicial review at the Divisional Court.

Law Society president Linda Lee said today’s win is a victory for the thousands of families who would have been left without access to legal assistance when faced with state intervention in their family or the consequences of the breakdown of a relationship.

‘The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid. We are extremely disappointed to have been left with no choice but to take legal action against the LSC, which refused to acknowledge the detrimental effect that this outcome would have on families.

‘The LSC’s actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2,400 to 1,300. That would have translated into thousands of people facing grave difficulty in obtaining justice – ordinary people who are already facing extraordinary difficulties. Legal aid clients are some of the most vulnerable in society and access to legal representation where required is their only hope of achieving justice.

‘The Law Society has always maintained that this wholly unplanned major restructuring of the legal aid market would cause immense uncertainly and instability for many of the poorest and most vulnerable. It is regrettable that the LSC didn’t stop to consider the consequences of its actions, before pushing ahead and cutting vital services that clients need and that a civilised society expects to be provided.

‘We hope that whatever steps the LSC now takes will see legal aid contracts properly distributed across England and Wales to ensure all families in need have access to justice. I thank the Divisional Court for deliberating speedily on this important judicial review application.’