Civil Legal Aid: Consultation on the proposed transfer of the assessment of all civil legal aid bills of costs to the Legal Aid Agency

Question 1
Do you agree with our proposal to transfer the assessment of all Court Assessed Bills to the LAA? Please give reasons for your view.

No

We consider that law firms and providers of legal aid should continue to have a choice on where civil claims are assessed i.e. at court or by the Legal Aid Agency (LAA).

The proposals are not accompanied by a full impact assessment. We have considered the information and analysis published in the further statement, and we note paragraph 9 of that. In our view, there is insufficient impact analysis to enable us to properly compare the merits or otherwise of the different systems, or to fully assess the impact on our members and their legal aid practices of a permanent transfer of all Court Assessed Bills to the LAA.

Members of our Legal Aid Committee report that payments have been faster in the short term, but there are concerns about faster payments in the long term. Unfortunately, many of our members are concerned that the LAA’s approach to assessments has changed since the interim transfer of assessments, but they believe that over time the LAA is unlikely to maintain a reasonable approach to assessment and faster payment.

Choosing to continue to send this work to the LAA will remove the need for all claims to go before the courts, but also preserve the option to use the court where bills are moving. The pandemic isn’t over and recovery will take some time, so it will assist cashflow for both the LAA and court avenues to be open.

In any event, whether the route of assessment by the LAA is chosen or required, reassurances about and safeguards in the LAA process are needed, to encourage confidence and trust between legal aid providers and the LAA:

• • There should be a properly independent, fair and robust appeal mechanism. Whilst we welcome the use of independent costs assessors (ICAs), there is no further right of appeal. There should be a further right of appeal from an ICA decision to a panel, including a Judge, which could be on the basis of strict criteria. It should be possible to attend a costs appeal, at least remotely. We suggest that the possibility of having a remote appointment with a caseworker as part of the process, i.e. to replicate the court process, also be considered to avoid appeals where possible.
  • We do not want to see the same concerns arising as currently apply in relation to appeals of LAA assessed bills, for example, about the lack of submission of all case papers to ICAs.
  • There is no penalty to the LAA if the appeal to an assessor is successful. It should be possible to claim for time and costs spent dealing with an appeal against an assessment by the LAA, at least where the assessment would previously have been undertaken by the court and the appeal is successful. It is possible to claim reasonable costs for costs hearings before a DJ. Otherwise, there will be a disincentive to deal with complex appeals on costs.
  • There remain concerns about LAA staff training, expertise and capacity to assess all bills. Data on legal aid resources is not available in the consultation. Larger bills for the more complex cases are very different from claims for costs under £2,500, and complex bills are a significant piece of work in themselves. We suggest involving a panel of Judges or the Supreme Court Taxing Office in training and monitoring of LAA decision making.
  • We would like to work with the LAA on guidance about complexity of cases and uplifts and would urge the LAA to engage with us and other members of the CCCG on what their approach should be to applying uplifts and enhancements and time allowed for perusal, preparation and work done.
  • Understanding the likely required format for the presentation of bills in the long term will be important. It could be an entirely new one. We would like to see the current flexibility and range of formats continuing to apply including the bill of costs option in a traditional court format. Having to present very large bills in the CCMS format line by line will take considerable time and will raise some software issues. If insisted upon, our members should be properly remunerated as to costs.

On monitoring LAA performance and appeals, the LAA may wish to set up a CCCG working group, including rep body representatives and representative Judges (civil and family) to review the statistics on bills processed and outcomes, including appeals, so that any issues can be dealt with and the LAA have the benefit of a judicial perspective.

We welcome the confirmation in the further statement that review and appeal arrangements within the LAA’s assessment process, and remuneration for work done on reviews and appeals, will be considered.

Question 2
From your experience are there any groups or individuals with protected characteristics who may be particularly affected, either positively or negatively, by the proposals in this paper? We would welcome examples, case studies, research or other types of evidence that support your views.

We don’t know.

The consultation does not appear to be accompanied by an equalities impact assessment.

Question 3
What do you consider to be the equalities impacts on individuals with protected characteristics of each of the proposals? Are there any mitigations the government should consider? Please give data and reasons.

Question 4
What do you consider to be the impacts on families of these proposals? Are there any mitigations the government should consider? Please give data and reasons.

There seem to us to be no impacts on families.

For further information please contact:
Rachel Rogers, Head of Policy, rachel.rogers@resolution.org.uk

Resolution, May 2021