With the start of the 2018 Standard Civil Contract now in sight, Paul Seddon examines the changes to claiming costs in civil and family work that it introduces.
The 2018 Standard Civil Contract starts on 1 September 2018 and will align all of the previous contracts into one contract for the first time since the Standard Civil Contract was introduced in 2010.
There are numerous changes from the previous contracts, some of which concern civil and family costs. I would love to say that these are for the better, but most provide further restrictions on what can be claimed, in particular interpreters’ fees and disbursements not subject to prescribed rates/fees under the Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 (Remuneration Regulations) (uncodified disbursements). However, as ever in costs (particularly legal aid costs), forewarned is forearmed.
Aside from the Remuneration Regulations (and the Civil Procedure Rules 1998 (CPR)), sections 1–6 (and section 7 for family work) of the 2018 Standard Civil Contract Specification are of most relevance to claiming civil legal aid costs, and it is here that the bulk of changes affecting costs are found. The transitional provisions of the specifications (section 1) provide that, subject to category specific rules and the transitional provisions of secondary legislation, they (including procedures for assessment remuneration) apply to all work done under their particular contract. This means, for example, that once a provider starts a new contract, any disbursements they incur from that date will be subject to the new list of excluded disbursements under the corresponding specification to that contract. Also of particular note, the new provisions for interpreters and translators and non-codified disbursements apply to any incurred after the start of the 2018 contract, including those on cases started under the previous contract(s).
Manual
The Legal Aid Agency’s (LAA’s) digital Legal aid manual, published by Thomson Reuters, was closed in August 2015, and it appears that no further publication with consolidated amended statutory instruments (particularly the raft of amendments to the Remuneration Regulations) etc, that so many of us were hoping for, is going to materialise. The ‘manual’ is now defined in the Standard Terms as ‘a dedicated section on our website comprising links to relevant legal aid legislation, the Standard Terms, the Specification and other materials relevant to the performance of contract work and compliance with this contract published by us from time to time’, and refers to the Civil legal aid: civil regulations, civil contracts, and guidance webpage.
Points of Principle
Points of Principle of General Importance (PoPs) do not feature in the new contract. They have not been included in any civil contract since the 2013 civil contracts, but still currently apply to family, immigration and asylum, and housing and debt (2013 Standard Civil Contract Specification: General Rules (May 2016 amendment), sections 1–6), and welfare benefits in London, the South East, and the Midlands and East (2013 Standard Civil Contract (Welfare Benefits) Specification: General Rules, sections 1–6). Decisions by the LAA on assessment of costs can be appealed and referred to an independent costs assessor (ICA), who is an experienced solicitor in private practice (paras 6.67–6.77 of the 2013 Contract Specification and 2013 (Welfare Benefits) Specification). Under the 2013 and previous civil contracts, there is a further right of appeal from an ICA’s decision in the form of applying for a PoP to be certified.
The LAA (on the PoPs webpage) defines a PoP as ‘a statement which seeks to clarify an existing provision of the contract or other guidance published by the [LAA] relating to the assessment of costs’ and an application to certify a PoP can be made by a provider, director of legal aid casework or assessor within 21 days of receipt of the ICA’s decision. Applications are determined by a costs appeal committee and, if certified, a PoP becomes binding on costs assessors. All current PoPs and the procedure for applying for one are contained within the PoP manual, which can currently be found on the LAA website. The provision for PoPs and costs appeal committees is omitted from the 2018 contract. The provision still applies to cases opened under contracts where there was the right to apply for a PoP. It is unclear how the LAA will operate in practice without PoPs, the extent to which previously certified PoPs will bind its future assessment decisions, and/or how much it will choose to acknowledge them as being persuasive and, if departing from them, explain why they are no longer reasonable to follow. Without this further right of appeal to the LAA, the only route to challenge a costs decision would be by way of judicial review.
Audits
Costs audits for controlled work have been amended (paras 4.48–4.51 of the Contract Specification). Findings of ‘mis-claiming’ and ‘over-claiming’ have been introduced. ‘Mis-claiming’ is defined as ‘claiming in a manner that [the LAA considers to be] clearly contrary to the contract and where no discretion arises as to payment. For instance, claiming using the wrong rates, or incorrectly claiming VAT’. ‘Over-claiming’ means ‘claiming more than [the LAA determines] to be reasonable on assessment, but where discretion arises as to the amount allowable. For instance, claiming one hour for an attendance where on assessment [the LAA considers] that only 30 minutes would have been reasonable or claiming a disbursement where [the LAA considers] that it was not reasonably incurred’.
A sample of at least 20 files can be requested (or fewer if you have less than this since the last audit was undertaken). For mis-claiming, the period to sample from has been increased from one year to two (after the claims have been submitted), or up to six years prior where an official investigation is underway or the LAA considers it reasonable to do so upon receiving a report. For over-claiming, the period is since the last contract compliance audit, or the 12 months before the date the sample is requested.
Interpreters and uncodified disbursements
Under paras 2.47–2.51 of the Contract Specification, you must use interpreters with qualifications listed in para 2.48 and a note must be placed on each client’s case file confirming that the interpreter or the agency through which they are supplied holds such a qualification, and which qualification it is. A ‘non-qualified interpreter’ can be used in exceptional circumstances, a non-exhaustive list of which is provided at para 2.50:
(a)where it would cause undue delay and/or increased costs (above the prescribed rates);
(b)where the client requests an interpreter of a specific gender and such request cannot reasonably be accommodated otherwise than by the use of a non-qualified interpreter (eg where the client has been a victim of domestic violence);
(c)where there is a rare language or dialect which cannot reasonably be accommodated otherwise than by the use of a non-qualified interpreter;
(d)where there is an emergency requirement which cannot reasonably be accommodated otherwise than by the use of a non-qualified interpreter;
(e)where you have contacted three interpreters who meet the qualification requirements … and none are willing or available as required.
Where a non-qualified interpreter is used, you must record on file what the exceptional circumstances are and why there was no alternative. The LAA can also require you to only use interpreters under its nominated translation framework upon giving you three months’ notice.
Non-codified disbursements have caused issues for many providers in the past few years, with the LAA attempting to assert that three quotes have to be shown as evidence that the supplier’s fee is reasonable, even though there is no such requirement under the current contracts, and costs law decisions by the courts say that reasonableness and proportionality should primarily be based on the assessor’s experience and knowledge. However, this is now a requirement under the new Contract Specification (paras 4.27–4.28), and when you incur a non-codified disbursement you must obtain at least three quotes (unless the LAA agrees this is inappropriate) and select the one that you believe to be the best value for money in the circumstances, including, but not limited, to the need for speed and competence/expertise of the provider. If you cannot do this, you must advise the LAA and provide it with further information it reasonably requires.
The LAA acknowledges that exceptional circumstances, which dictate best value for money with reference to the need for speed and competence/expertise, will only be identified once disbursements incurred under such scenarios are claimed, and the same will apply to as yet unidentified circumstances where a non-qualified interpreter must be used. This indicates a degree of uncertainty for providers as to whether the LAA will accept their judgement calls as correct. Prior authority should be sought in these situations, but of course this is unlikely to be an option where expedition is required.
Witness intermediaries have been added to excluded disbursements listed in section 4 of the Contract Specification (para 4.29). The LAA has confirmed to the consultative bodies that it will not fund assessment reports for the need for witness intermediaries.
Enhancements
The provision that the LAA ‘will’ apply an enhancement (percentage mark-up) on hourly rates where the threshold test is met has been changed to ‘may’, ie, it is no longer binding but rather it is permissive (para 6.13 of the Contract Specification). The change from mandatory to optional application of the level of enhancement to be made (paras 6.15–6.16), in accordance with the long-established provisions, does raise concerns that it gives the LAA scope to simply ignore applications for enhancements, rather than having to provide an assessment decision that can be appealed, or to apply alternative factors on a case-by-case basis.
‘Class of work’ has been removed from the provisions for enhancement, although this is unlikely to have any effect. Class of work is a category of costs to which enhancements can be applied to elements of work under a single item in a court bill, eg, hearings where advocacy, attendance on client and travel and waiting are claimed with an enhancement for, say, exceptional speed or exceptional complexity on non-funding preparation work under the documents section of the court bill. Its removal indicates that there was an expectation that enhancements would no longer be assessed by the courts, but that is not the case and as long as court bills in the form prescribed under the CPR are required, it is unlikely that the LAA will, in practice, be able to refuse the use of this mechanism.
Family-specific provisions
Minimum 15 per cent enhancement
On a more positive note, those accredited under the Law Society’s Children Law Accreditation Scheme (also known as Children Act Panel members) can now claim the 15 per cent minimum enhancement for any case remunerated under family rates, not just cases under certificates that include cover for children proceedings (paras 7.23–7.24 of the Contract Specification). Under the previous contracts, a certificate had to include proceedings relating to children in order for a Children Act Panel member to qualify for the 15 per cent minimum, but this requirement has been removed from the 2018 contract.
Related proceedings
Although more relevant to the issue of obtaining public family law certificates, the argument that an order sought in private family law proceedings, which could avoid public law proceedings, means those proceedings are ‘related proceedings’, and thus public family law legal aid applies, has been known to cause issues when a provider has sought to claim their costs. This has now been put firmly to an end and the 2018 contract expressly provides that such private law proceedings are not related proceedings (paras 7.46–7.47 of the Contract Specification).
This article was first published in the Legal Action Magazine
