Transferring the assessment of all court-assessed legal aid claims to the Legal Aid Agency (LAA) on a permanent basis will be good for providers, the court service and the agency itself, the government has argued.
Yesterday, it published the consultation it promised last month when compromising the judicial review brought by the Law Society over last summer’s decision to move the assessment of all bills without an inter partes element worth £2,500 to £25,000 in-house.
There were 21,000 closed court-assessed claims in 2019/20, which cost the LAA £3.7m in court costs.
The Ministry of Justice (MoJ) argued that the move would reduce the burden on HM Courts and Tribunals Service (HMCTS) “at a time when freeing up resource for court recovery is of paramount importance, ensures the LAA have the appropriate level of assurance over the legal aid fund, and ensures that legal aid providers get paid as quickly as possible following assessment with resulting benefits to their cashflow”.
The fact that the LAA worked entirely digitally ensured providers would continue to be paid swiftly even if a situation as similarly unprecedented as the pandemic occurred again in the future, it said.
“Therefore, the government believes that making this change permanent is proportionate in the longer term, and that there are appropriate safeguards in place (such as an automatic right of appeal) to ensure legal aid providers can be confident in the LAA’s ability to successfully deal with this work.”
The MoJ said the evidence from the transfer last year was that it made “no discernible impact on appeals where providers have disagreed with the proposed payments, and the LAA has remained well within its published target for processing claims – which is for 90% of complete and accurate bills to be paid within twenty working days”.
The HMCTS process takes on average around 15 weeks for court-assessed claims to be paid, it noted.
The consultation said the LAA process contained fewer administrative steps than that of HMCTS: “Assessed bills received by the LAA direct are subject to a robust assessment process and are subject to a quality control process that they must pass through before being submitted for payment.”
Insofar as the court were concerned, it said: “Most of the resource previously used by HMCTS to assess these claims was redeployed following the original transfer in July and, if they were to be moved back, this will have a negative impact on court recovery.
“Likewise, if the assessment of these bills is transferred permanently to the LAA, any savings in judicial time could also be deployed on other work.”
The MoJ addressed the main concern expressed by practitioners – about the capacity and capability of LAA staff to assess these claims.
It said: “The LAA already checks claims over £25,000 and spends a significant amount of time checking court-assessed claims. Work has been ongoing to continue to upskill the casework team.
“The LAA has a vigorous process to ensure caseworkers are given a comprehensive training package. Once caseworkers have completed their training, they have to go through a sign-off process before they can start assessing any claims. There is ongoing mentoring and support which supplements the quality assurance process mentioned above.
“Additionally, there is LAA audit activity, which is independently verified by the National Audit Office.”
It added that providers will be able to see its training materials: “The LAA has committed to working with legal aid providers and representative bodies on any issues that arise because of the proposed transfer.”
The consultation closes on 10 April and the MoJ pledged to issue its response within three months.