LAG Updates

Updates

Introduction:

This update page is fed from the email updates sporadically sent to Legal Aid Group Members a few weeks after they are sent. Given the limited resources of the Group and to avoid duplication of information, updates sent to LAG Members as by the LAPG and those distributed by the Legal Aid Agency Bulletin via its email update service,  are not emailed by the Group and will not appear on this feed.

14 November 2016 - Rejections and reductions on basis of gaps between emergency and substantive certificates

There is currently an issue with the LAA’s checking procedures on this, that means claims may be being rejected and/or reduced incorrectly where the substantive certificate was issues on or after 13 October 2015 (see https://www.gov.uk/government/news/civil-news-payment-for-work-under-emergency-certificates). We have highlighted this to LAA Operations and the problem is currently being rectified. But in the meantime, it is worth bearing this in mind and where claims under a certificate where the substantive certificate was issued on or after 13 October 2015 are:

Rejected on the basis there is a funding gap between emergency and substantive certificate - use laacivilclaimfix@legalaid.gsi.gov.uk

Reduced on the same basis – apply for review of assessment

The LAA introduced further internal checks as to whether there were gaps between emergency and substantive certificates, because apparently, this was highlighted as a big problem. Their own internal checklists were updated to include a section at the top reminding the case worker to check the dates of issue of emergency and substantive certificates and referred them to their rates calculator (these checklists have not updated on the LAA website). The rates calculator has a box that works out if there’s a funding gap where the emergency certificate has expired before the substantive certificate was issued and returns the dates of this funding gap. The only problem is that this calculator has not been updated since before the changes for substantive certificates issued from 13 October 2015. The rates calculator is currently being updated and tested, and further material for case workers being reviewed.

26 October 2016 - LAA Contact Details

Please click here for a summary sheet of best contact points for providers to use.

This will be in a future LAA Bulletin but the LAA has forwarded to us to share with members now.

08 September 2016 - Increase to legal aid non-family court assessment fee from today

Further to the update of 26 August 2016 on pending amendments to the EX50, we have now contacted by HMCTS with new version EX50 and following summary:

Further to our email exchange a short time ago, I'm pleased to inform you that the EX50 has now been revised and the new version was published on form finder today.  I've attached a copy and this is the link http://hmctsformfinder.justice.gov.uk/HMCTS/GetLeaflet.do?court_leaflets_id=264  to its location on form finder.

The publication of the amended version of the form was also highlighted to civil and family staff via our weekly HMCTS communication which is issued to all HMCTS staff with the following message:

The EX50 has been refreshed further to clarify the differences in the civil and family fees following the increases on 25 July.
There are no further fee changes in this new EX50 but the leaflet now breaks down civil and family fees separately. The following fees in particular should be noted and applied as they did not increase in line with the civil fees:

*       determination of costs fees in family
*       enforcement proceedings fees in family, and
*       female genital mutilation fees.

26 August 2016 - Increase to legal aid non-family court assessment fee from today

Since the update of 25 July 2016, we am aware that the courts (including the SCCO) have been rejecting family bills with £200 assessment fees, stating that there is a new fee of £220. Further, a new version of the EX50 form (Court fees) was published at the beginning of this month which still shows court assessment fees (including inter partes fees) to be the same for both civil and family proceedings, when civil (non-family) costs assessment fees are now 10% higher but family costs assessment fees are not.

Earlier this month Claire Green, ACL Policy Officer, contacted the senior costs judge at the SCCO, Andrew Gordon-Saker, regarding this and an email was sent around to SCCO staff regarding the legal aid fee. We contacted HMCTS Jurisdictional Operational Support (Family Improvement Team) yesterday about the EX50 and rejections from family courts. I received confirmation today that the EX50 is being amended and a new version will be published shortly, also communications will be sent out to HMCTS staff to highlight the issues that the ACL LAG and others have raised.

25 July 2016 - Increase to legal aid non-family court assessment fee from today

Some court fees have been increased from today under The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016 which was quietly laid last Friday. This includes the fee for court assessments of legal aid costs in civil proceedings being raised from £200 to £220 at 5.1 of the table in Schedule 1 of the Civil Proceedings Fees Order 2008.

However, there is no amendment to The Family Proceedings Fees Order 2008 and therefore legal aid costs assessments of Family Court proceedings remain at £200 (I assume this is an oversight and we may see this being increased as well shortly).

A full list of fees applicable in the Civil and Family Courts (from 25th July 2016) can be downloaded here: http://hmctsformfinder.justice.gov.uk/HMCTS/GetLeaflet.do?court_leaflets_id=2823

19 July 2016 - Consultation on remuneration of Civil Contempt Committal Hearings

Please see below communication from the MoJ:

MoJ intend to carry out a policy consultation exercise to help inform remuneration arrangements for committal applications stemming from civil contempt cases. As part of its pre-consultation engagement with the profession, MoJ are keen to hear from solicitors who work in civil and/or criminal law about their experiences and concerns when acting for clients at such proceedings and would encourage them to respond to the online questionnaire at: http://survey.euro.confirmit.com/wix/p1850582339.aspx   

27 April 2016 - Corrections to guidance on court bills

A guide to avoiding errors on court bills “how to avoid taxed billing errors” was released on 2nd September 2015 by the LAA Operational Assurance Team (who carry out audits of court bills). The ACL LAG had raised various issues about this guidance but it was still re-released without amendment on 13th April 2016. The ACL LAG immediately contacted the LAA on that day, and subsequent to work and further consultation provided to them by the members of the LAG committee, the guidance was amended and has been re-released today (see below).

Because the guidance is released via a News Update on the LAA website, there is a very tight word count limit, consequently keeping this guidance and information therein very brief.

The previous guidance gave misleading information on the position of cover under show cause embargoes on certificates, this being that it only gave guidance on pre-LASPO certificates and failed to make any mention that the situation is different on certificates applied for and issued under LASPO.

The previous guidance also said that “reviewing costs” was deemed to be administrative work and therefore not claimable (without making any distinction as to the whether this was maintaining case management records, or in order to amend a costs limitation/work concerning inter partes costs), and that evidence for disbursements of £20 including VAT was required but failed to outline that this is to be kept on file rather than being filed at court with the bill.

07 April 2016 - LAA operational survey by Law Society

The Law Society have prepared a Survey for operational issues with the LAA. They are keen for as many legal aid professionals as possible to undertake this, in order that they can identify key issues to lobby the LAA and Ministry of Justice.

The Survey asks you to outline the problems that you have experienced. I urge all members to complete the Survey and forward to colleagues, in order that the issues on legal aid costs are adequately represented and recognised.

The Law Society says:

Our members frequently experience operational problems with the Legal Aid Agency (LAA). Although many problems are resolved through the contract manager others are not, and we have devised this survey to collect examples of problems that practitioners are experiencing.

The intention is to use this information in discussions with the LAA in order to address problems with their services. We are not able to respond to everyone who answers this survey individually, but it will help us identify where there are common problems and assist us in our lobbying work with the LAA and the Ministry of Justice.

We also intend to publish a report of the survey findings on our website. We recommend that you always contact your contract manager to help you resolve any problems in the first instance - this survey is for issues where contract managers have not been able to assist.

31 March 2016 - CCMS compulsory from tomorrow

Yesterday I attended the two-monthly Civil Contract Consultative Group meeting with all other representative groups. We were informed by Cat Little (LAA Director, Finance and Performance) that it had been decided to push ahead with the compulsory usage date tomorrow. Shortly after this the announcement (click for further details) was posted online.

The transitional arrangements have been extended for paper applications to made until 8th April and must be received by LAA by 14th April.

The paper process will remain for contingency, and providers will not be required to obtain authorisation before using it (this concerns applications/amendments but I’m still awaiting confirmation on claims). However, the paper application will be entered onto CCMS for the provider by the LAA and future management and claims cannot be bypassed off of CCMS permanently.  Every transaction (interaction e.g. clicks) is recorded on CCMS (date time etc.) and the LAA expect providers make at least two attempts before reverting to contingency. The LAA say that they will be closely monitoring behaviours and trends. For clarification, transactions on the LAA Portal do not have such close monitoring tools and the LAA can only see what is happening with the portal by reference to usage (i.e. when it drops).

Cat was clear that there had been system issues in the past few weeks and these had related to the LAA Portal (the main gateway through which all LAA online systems are accessed, of which CCMS is one) which has now been resolved. The main server had been infected with a particularly bad bug and this caused the central processing unit (CPU) to crash on a regular basis, the problem took a few days to diagnose before work could begin to rectify it.                                                                                                                                                                             

The LAA deem 5 seconds per transaction to be acceptable. In my view this raises issues on bills where an unnecessary amount of transactions (screens) have been put into the process, particularly on non-fixed fee claims. It was acknowledged in the meeting that the billing process is very complicated: each line item is re-run by CCMS at the back-end when it is input.

5+-10 seconds is deemed ‘tolerated’

10+ seconds is deemed ‘frustrated’

Cat explained that the release of CCMS is dependent on success criteria of technical stability and user experience. Prior to the crash the usage was at nearly 90% (although exact figure of the compulsory Special Children Act within this was not given), and last week it was back up to 80-87% with a record high on Tuesday.

87% of usage last week was deemed to be at normal speed and with 13% unsatisfactory (transactions exceeding 5 seconds).

Specific unresolved to problems on the system not being resolved (e.g. being passed from CCMS Support to Finance and back without obtaining an answer) are to be escalated via representative bodies to Joe Risk (the Programme Manager). These can be passed to me to escalate, but I would stress these are for specific unresolved problems. Problems with CCMS should be pursued through the usual channels first and contact details can be found here: http://ccmstraining.justice.gov.uk/contact-use/who-to-contact  This is as well as approaching Stephen Barker, who is willing to deal with Finance issues, where applicable.

The LAA have requested £2.7 million for further improvements (waiting approval in April) for further improvements to the system. Some of these are planned to be billing which the LAA is looking to ‘enhance’ this year.

I re-voiced to the LAA (and the other representative bodies) that the ACL is awaiting a tidal wave of billing problems on CCMS in its current state, as detailed in our report, particularly regarding claims not subject to fixed fees. I also added that I genuinely hoped this did not happen – no one needs the headache. I raised the issue that the only saving grace so far is the Claim Upload (previously called Bulk Upload), and that this is still only provided by one software provider (re-raising the issue of market competition) and that I had seen emails between a software provider and the LAA that showed this was not down to the software provider failing to co-operate, indeed they were doing everything feasibly possible to progress the testing of their product and it was the LAA who could not facilitate. I was told that there is testing happening with software providers (though the problem is which ones are designated solicitor’s costs software) and I am to receive a list of these.

26 February 2016 - Legal Aid Group Committee Election Result

Out of the seven nominees for the Executive Committee of the Legal Aid Group, the following six have been voted in:

Bob Baker

Sam Bagnall       

Charlotte Flanders

Linda Kann

Rachel Perkins

Paul Seddon                                                                                                                                                                      

The committee officers (chair and secretary) will be selected by the committee at its first meeting next month.

I would like to thank the 43 members (38% of the membership) who participated in the election.

18 January 2016 - Form: CIV CLAIM1C: civil claim form (costs assessed by court)

Subsequent to issues raised by the ACL Legal Aid Group, the LAA have agreed at today’s Civil Contract Consultative Group meeting that the current version of the new optional Form CIV Claim1C (released on 21st December 2015) will be removed from the website, pending investigations regarding the VAT question and certification on the form. We are awaiting the LAA’s further information on both of these issues.

It is unknown when this form will be available again, but the ACL Legal Aid Group Committee strongly recommends that you do not use the current version.

The principle issue regards the current VAT question which is: VAT Status: Did your client have leave to remain at the start of the case? Yes  No

The question implies that VAT on all costs is determined by the client’s immigration status at the start of the case. We believe that this is incorrect, because following previous ‘Further Guidance on VAT’ released by the LSC in Focus 49 December 2005 issue, the Costs Assessment Guidance paragraphs 4.32 to 4.34, and HMRC guidance VATPOSS04600 - Belonging: Usual place of residence:

  • VAT for the entire case is not determined by the status of the client at the start of the case: if they obtain a right to remain part-way through the case then VAT must be charged on all work from that point on. 
  • The client does not have to have a right to remain in order for VAT to be chargeable: if they had a right to remain previously then VAT is chargeable until the issue of their immigration status is concluded. 
  • If the client has no recognised country of residence (e.g. origin) they are treated for VAT purposes as belonging to the UK and VAT must be charged.* 
  • A client with Indefinite Leave to Enter (ILE) has Indefinite Leave to Remain without the need to convert the ILE to ILR – see UKVI ECBO9: entry clearance vignettes: types, safeguarding and validity 

*N.B. para. 4.33 of the Costs Assessment Guidance r.e. clients not considered to ‘belong’ anywhere appears to contradict HMRC VATPOSS04600 by stating that VAT is not chargeable on such clients, when the HMRC in fact states the opposite (although the example then given is where a person is granted ILR because their country of origin is unknown and their claim to be a British citizen cannot readily be verified). 

There also appear to be problems with the current certificate on the form. It excludes the possibility that the client disputed the bill and wished the court to hear their objections, and specifically confirms that the client did the opposite. In addition, the alterations to the current certificate appear to imply that the bill must be served on every client whether they have a financial interest or not. 

Other issues about this form that we continue to raise with the LAA are: 

  • Requirement that all disbursement vouchers must contain a breakdown time and hourly rate (without referring to the fact that the LAA will consider exceptions to this – see Electronic Handbook)
  • Summary of claim – matrix requiring breakdown of time at applicable rates
  • Table of counsels’ fees (non-family) – a Code as used on CF1As is required but we are yet to obtain confirmation that this is not required for pre-02 December 2013 certificate fees, where a CF1A is not required and the work may not be broken down by counsel in the same way 

The ACL LAG was first consulted about this form in September and a full response to the consultation was submitted at the end of that month, with an amended response in mid-October. We were not satisfied with the LAA’s responses to some of our feedback and questions. We raised this at the next CCCG meeting in November, in particular highlighting that we believed there was a problem regarding VAT. It was agreed that we would submit a follow-up document of outstanding issues and we were told that the form was not expected to be released until around May 2016. The LAA then released the form on 21 December 2015 without approaching us for details of our outstanding issues. The follow-up document detailing the outstanding issues was sent earlier this month and further communications ensued prior to todays’ meeting. 

In our original consultation response, we expressed concerns about the requirement on the form to complete details of who had prepared the bill of costs and asked the LAA to confirm to what it intends to do with this information. The LAA responded: 

“For all other expert services we are informed of the details of the expert used and this information would be useful when considering the claim trends.” 

I will let you know when I receive confirmation that the amended form is to be released.

(Further Update 22 November 2016: Ten months on and there is no news on this. It appears this form has been shelved permanently) 

16 January 2016 - Pre-payment audits of court assessed bills

I email further to the below email I sent last November on this measure taken by the LAA.

Subsequent to my request for further information on these audits I attach a briefing note from the LAA here

12 January 2016 - Legal Aid Group features in Law Society Gazette r.e. CCMS

It may be of interest to you know that the Legal Aid Group has featured in the Law Society Gazette today, regarding our response to the improvements to CCMS and impending deadlines for mandatory use. 

The link is here: http://www.lawgazette.co.uk/law/legal-aid-billing-issues-unresolved/5052937.article