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.”
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