Legal Aid Agency should not be given power to quantify the civil legal aid bills it then pays, Costs Lawyers warn

The Legal Aid Agency (LAA) lacks the independence and capacity to take over the assessment of civil legal aid bills, the
Association of CostsLawyers (ACL) has argued.

The ACL also questions how genuine the current Ministry of Justice (MoJ) consultation on the change is.

The consultation on transferring the assessment of all court-assessed civil legal aid claims to the LAA was published in February after the MoJ settled a judicial review brought by the Law Society over last summer’s unilateral decision to make the change.

It affects all bills without an inter partes element worth £2,500 to £25,000 – those below that figure are currently handed by the LAA, while those above are covered by high-cost case plans (HCCPs).

In its response, the ACL says the consultation falls foul of the government’s own consultation guidelines in several respects.

Noting that it presents no alternatives, the ACL says: “The LAA has clearly demonstrated in their previous actions that they have already reached a decision in respect of the proposal and have only prepared this consultation as a result of the judicial review brought by the Law Society to go through the motions of what was agreed.

“The guidelines clearly state that consultations should take place when plans are at a formative stage and not ask questions about issues on which a final view has already been reached.”

The consultation also lacks substance in significant areas, such as having no formal costs/benefit analysis or outlining how much the switch would cost the LAA.

The ACL’s experience is that the LAA is focused on providers’ compliance with legal aid contracts rather than the “consistent and fair assessment” of bills, and the association questions how the agency can both pay the bills and take on the task of assessing what a reasonable figure for them is, not least when it has internal targets on both processing and expenditure.

The lack of neutrality is a “grave concern”, especially with the LAA directly accountable to ministers, and this extends to the appeals process; the independent costs assessor who adjudicates on appeals is chosen and paid by the LAA, which also provides all the material and communications.

Appeal bundles are not agreed and although the provider is supposed to be notified and given copies of further representations made by the LAA to the adjudicator, and be given a right to reply, this does not always happen.

Adjudicators’ decisions are not even always sent to the provider but paraphrased by the LAA. The whole process “severely lacks oversight and transparency”, the ACL says.

Other problems include the shortcomings of the LAA’s Client and Costs Management System, which the ACL says is not fit for these purposes – the bill reports it produces, for example, “are inadequate to enable an LAA case worker to effectively assess quantum”.

The ACL also criticises the lack of detail on how the LAA will resource handling what in the last financial year were 21,000 court-assessed claims.

It says the LAA appears to be drawing a “false equivalence” between the time caseworkers currently spend checking and processing court-assessed bills with how long it would take to actually assess a bill of up to £25,000.

It is also “inappropriate” to compare a detailed line-by-line assessment of a bill with the more broad-brush approach taken with HCCPs.

“When assessing complex cases with bills of up to £25,000, the caseworker will need to determine what is reasonable and proportionate without reference to any pre-agreed/determined detailed budget,” the response says.

“It is understood that the LAA assessors themselves have no legal experience to draw on when undertaking their assessments of complex legal processes, where often an understanding of what happens in actual practice is a major benefit to an assessor.”

Costs Lawyers’ experience is that “there has always been a noticeable difference between assessments carried out by the LAA and the courts, where LAA caseworkers frequently disallow items that are reasonable and proportionate”.

This is all likely to lead to an increased number of appeals, the cost of which providers have to absorb and which would also hit the LAA’s resources.

Bob Baker, co-chair of the ACL’s Legal Aid Group, said: “While the stated aim of making the assessment of bills quicker and cheaper is admirable, we fear that what the MoJ is proposing will replace court assessment with a far inferior system that ultimately – because of the problems it will cause – will not save anything.

“This is not just a question of better administration. If solicitors fail to cover their costs of providing legal aid services at properly remunerated rates, they will cease undertaking such work.

“This is already happening, with LAA statistics showing the number of providers falling across the board. The legal aid system has enough problems without the MoJ adding to it with this poorly conceived proposal.”