The Legal Aid Agency (LAA) lacks the independence and capacity to take over the assessment of civil legal aid bills, the Association of Costs Lawyers (ACL) has argued.
The ACL also questioned 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 handled by the LAA, while those above it are covered by high-cost case plans (HCCPs).
In its response, the ACL said the consultation fell foul of the government’s own consultation guidelines in several respects.
Noting that it presents no alternatives, the ACL said: “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 lacked substance in significant areas, such as having no formal costs/benefit analysis or outlining how much the switch would cost the LAA.
The ACL argued that the LAA was focused on compliance with legal aid contracts rather than the “consistent and fair assessment” of bills, and questioned how the agency could both pay the bills and take on the task of assessing what a reasonable figure for them was, not least when it has internal targets on both processing and expenditure.
The lack of neutrality was a “grave concern”, especially with the LAA being directly accountable to ministers, and it extended 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 of further representations made by the LAA to the adjudicator and copies made available, 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 process “severely lacks oversight and transparency”, the ACL said.
Other problems included the shortcomings of the LAA’s Client and Costs Management System, which the ACL said was 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 criticised the lack of detail on how the LAA will resource handling what in the last financial year were 21,000 court-assessed claims.
It said the LAA appeared 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 was 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.
“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 was 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.”