The Ministry of Justice (MoJ) has decided to maintain the hybrid system for court-assessed civil legal aid claims – giving lawyers the choice of whether to go to the Senior Courts Costs Office or the Legal Aid Agency (LAA) – until November 2022.
In its response to consultation, the MoJ said this interim arrangement would give the LAA time to collect data on metrics such as payment times, appeal volumes, claims volumes, processing performance and reject volumes.
“The LAA will also explore whether it is reasonably practicable to collect data by reference to additional metrics, in particular once certain digital changes have been made to its systems in the first quarter of 2022.
“This additional period of time will also enable providers and interested parties to monitor and reflect upon their own comparative experiences of assessments under the LAA route versus the [court] route. It should also assist in determining whether the present positive performance of the LAA in the context of the pandemic can be sustained over a longer period of time.”
Come November 2022, the MoJ said, it would “consider the further information, experience and data which it has been possible to collect, and then launch a further consultation over what the medium to long-term position should be in relation to such assessments”.
The MoJ emphasised “in the light of certain responses” that no final decision has yet been made – the ACL’s Legal Aid Group response for one questioned how genuine the consultation was.
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 handled by the LAA, while those above it are covered by high-cost case plans.
From 17 August 2020, it was mandatory to submit these bills to the LAA but, since January 2021, providers have been able to choose.
The consultation attracted nine responses, all of which opposed the transfer; eight of them supported continuing with the hybrid option.
The MoJ noted that “a number of respondents noted that the availability of an LAA assessment route had, since July 2020, resulted in an increase in the speed with which bills were being assessed and paid”.
The response addressed various concerns expressed by respondents, particularly around the impartiality of the LAA as an assessor of bills.
“So far as the impartiality of LAA caseworkers is concerned, the government’s view is that the LAA process is impartial and free from bias. The LAA does not incentivise its assessors to reduce bills on assessment, through the setting of targets as to assessment rates, or otherwise.
“Assessments carried out by the LAA are subject to the same guidance as assessments carried out by HMCTS. In the government’s view, the impartiality of the process as a whole is further safeguarded by the availability of the appeals process.”
The MoJ also defended the impartiality of the appeals process. “The ICAs [independent costs assessors] are members of the legal profession or members of the Association of Costs Lawyers who have in-depth expertise in the detail of court-assessed claims.
“There is fair and transparent recruitment to appoint an ICA, and all appointments are advertised to the public.”
It did, however, note concerns about the transparency of the appeals process, saying it would revise the guidance to include a mechanism that ensured that all submissions from the LAA to the ICA were copied to the appellant, “as they already should be”.
The MoJ stressed the “comprehensive” training caseworkers undertook, as well as the supervision and mentoring they received. Additionally, all work streams were overseen by the civil certificated billing improvement group, which is made up of senior managers, subject matter experts in civil claims and caseworkers.
The LAA’s experience to date was that the extra work could be carried out using existing resources, the response went on, but “the LAA will continue to monitor resourcing and hire or deploy additional staff to that workstream if and when necessary (within the limits of the available budget at the material time)”.
Bob Baker, co-chair of the ACL’s Legal Aid Group, said: “We welcome the comprehensive response provided by the MoJ and that it has decided to continue with the hybrid system for the next year. It is a sensible approach that should allow for a more informed decision in future.”