The ACL’s Legal Aid Group (LAG) has outlined a range of concerns about the Legal Aid Agency’s (LAA) sudden move to transfer civil assessed claims from the courts to its in-house civil finance team.
It questioned the LAA’s ability to cope with the work and said it has provided “insufficient information” about how the system would operate.
Last month, the LAA said bringing the work in-house would mean faster payments in both the long and short term, given that the lockdown had left many providers without payment for cases because of court closures.
The new regime began on 2 June and the agency is agreeing a transfer date with HMCTS, after which it will be mandatory. The LAA issued a short, two-week consultation on amendments to the Cost Assessment Guidance to reflect the change and it was to this that the LAG has responded.
The LAA indicated that up to 25,000 bills of costs a year that are assessed by the court will move in-house, and the LAG said there was no mention of the government providing funds to expand and train the LAA team. “There is a concern that the LAA does not have the capacity to efficaciously assess the number of bills, bearing in mind the volume and complexity of the bills, and that expediting all payments due to providers and counsel will not be maintained in the long term.”
In respect of the capacity, skills and experience of LAA staff, the response was worried that the agency was taking comfort from inappropriate comparisons in two respects: judging its capacity to handle full assessments by the time it currently takes on court-assessed bills, where it simply checks to ensure the claims are within scope of the funding certificate; and considering that the skills staff have in assessing high-cost case plans worth more than £25,000 allow them to assess similar court bills.
Other concerns included the objectivity of assessments, what supporting evidence would be required, how a likely surge in appeals would be handled and whether the costs of those appeals would be recoverable like they are in the courts.
The LAG said the whole process depended on the claim being presented in a way “which effectively allows a reasonable assessment of the quantum therein”. Though current interim guidance allows providers to submit a formal court assessment bill of costs via a summary line CCMS claim, a full line-by-line CCMS claim or a Claim 1, it was not clear what the long-term plan was.
“The current format of a CCMS bill does not lend itself to the assessment of complex claims up to £25,000 in any way.”
There was also no guidance on the assessment of claims which have been drawn on Precedent S for inter partes and legal aid assessment but which settle before assessment and LAA-only costs are claimed.
“Will the LAA accept a spreadsheet format for those bills? The ACL LAG suggest that the only appropriate format to present claims of this size without reference to a pre-agreed budget to enable an assessment in line with the contractual requirements, is that required in detailed assessment proceedings under part 47 of the CPR in the format set out in the accompanying practice direction i.e. a formal court bill or possibly a variation thereon.”
The LAG also said that, depending on the format of bill required, the reference in the guidance to bills needing no more than an hour to draft should be removed “and further guidance provided for higher-value claims in conjunction with evidence-based data that we will be able to collate. Further, any time spent identifying and selecting documents to be submitted with the claim be remunerated in addition”.
Other groups have criticised the LAA’s move. The Legal Aid Practitioners Group said the decision to take this work in-house was “thoroughly misconceived and there has been a complete failure to carry out adequate consultation and an impact assessment on how this will affect the provider base”.
The Bar Council was highly critical of the LAA’s lack of consultation. “In particular, the Bar Council are concerned with the potential reduction in independence as the LAA are the agency that stands to pay the bill that stems from their own assessment. The LAA staff are also more remote from the hearings themselves and are less able to make a judgment about the features in the case and whether particular enhancements are due.”
Family lawyers group Resolution echoed many of the LAG’s concerns, and asked whether there was scope for the transfer to the LAA to be both temporary and reviewed after six months. “If that is not possible, our view is that both the options of sending claims to the LAA and the courts should continue to be available for a period of six months and certainly for longer than the intended 28 days post consultation.”
In opposing the change, national law firm Irwin Mitchell said: “We are particularly concerned that the experience and expertise of cost judges will not be replicated by the LAA taking over the responsibility for assessing civil bills.”