Transforming Legal Aid Questionnaire

7/28/2019 Transforming Legal Aid Questionnaire

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Transforming legal aid questionnaire (04.13) 1

Transforming legal aidConsultation paper

Questionnaire

Please complete this section to tell us more about you.

About you

Full name The John M Hayes Partnership Limited

Job title or capacity in which you areresponding (e.g. member of the public etc.)

Other

If Other, please specify Company of costs lawyers and costs draftsmen

Date 03/06/13

Company name/organisation (if applicable) The John M Hayes Partnership Limited

Address 28B The GroveIlkley

Postcode LS29 9EE

If you would like us to acknowledge receipt of your response please tick this box.

Address to which this acknowledgementshould be sent, if different from above

If you are a representative of a group,please tell us the name of the group and givea summary of the people or organisationsthat you represent


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List of questions for response

We would welcome responses to the following questions set out in this consultation paper. Please email yourcompleted form to [email protected] or it fax to 020 3334 4295.

Question 1: Do you agree with the proposal that criminal legal aid for prison law matters should be restrictedto the proposed criteria?

Yes No

Please give reasons.

The current merit tests already ensure that the only cases which receive funding are those where the internalcomplaints process is deemed inappropriate. By definition, the cases which will lose funding as a result ofthe proposed criteria are those where the proposed alternative means of dispute resolution are unsuitable,such as where the prisoner has learning difficulties or mental health issues. The proposal does not disclosehow such cases are to be resolved. In many such cases, the prisoner concerned will have their grievanceinadequately dealt with due to their inability to properly represent their own interests. Consequently, justicewill be denied. These are cases which frequently relate to prisoners Convention rights, under Articles 3, 8 -11and 14, and cannot therefore be said to be low priority. Alternatively, prisoners would have to seek redressvia public law judicial review challenges, thereby shifting the burden to the public purse to a different part ofthe legal aid budget. As such proceedings are generally more costly than prison law proceedings, theexpected savings of 4m per year are likely to have been considerably overestimated.

Question 2: Do you agree with the proposal to introduce a f inancial eligibility threshold on applications forlegal aid in the Crown Court?

Yes No


The proposals fail to take adequate account of the burden to the 'high net worth' Defendant who issubsequently acquitted. The statistics used within the consultation indicate that the average defence costs atlegal aid rates is 5000. The costs at private rates from paragraph 3.30 are substantially in excess of this.The acquitted Defendant will have to bear the burden of the difference. Given the involuntary nature of theacquitted Defendant's role in proceedings, it is unfair for the state to involve a person in criminal process, failto prove a case, and then leave them facing a bill for potentially thousands of pounds, even if they are of

'high net worth'. This element of the proposals could only be remedied by allowing recoupment from centralfunds at private rates - however, the saving to the fund would then in all likelihood be negligible.

Question 3: Do you agree that the proposed threshold is set an appropriate level?

Yes No


N/A - see answer to question 2. However, by setting a threshold which is only twice the national averagedisposable income, this is a proposal which cannot be said to be aimed at only the genuinely wealthy.
mailto:[email protected]:[email protected]


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Question 4: Do you agree with the proposed approach for limiting legal aid to those with a strong connectionwith the UK?

Yes No


It ought to be self-evident that a person who has a legal dispute which is to be decided in the UK has astrong connection with the UK, and therefore ought to receive legal aid if the merits and their means warrantit. Notwithstanding this, the proposals are flawed for a number of reasons:a) The proposal fails to account for the reasons behind the applicant's presence in the UK. It would exclude

legal aid to those involuntarily here - including highly vulnerable people such as victims of trafficking or thechildren of migrants - leaving them without redressb) the impact assessment has failed to indicate what the proposed savings would be. The proposal isdisproportionate if the savings are marginal.c) 'exceptional' funding determinations would still be available to those who failed the residence test. Theapplication for such funding will represent a drain on resources, and the decision to grant or not grantexceptional funding would be judicially reviewable, which would also generate costsd) There is no sound reason why a person who is lawfully resident in the UK and has been so for 11 monthsshould be denied access to legal aid. The reason inferred by the consultation is that such persons have notcontributed to the public purse through tax for a sufficient period of time. However, legal aid has never beengranted on the basis of past contributions, and denying legal aid to people who are legally resident istherefore discriminatory.

e) Children under the age of 1 would automatically fail to meet the proposed provisions as formulated, evenif legally resident in the UK and having spent 100% of their lives in the UK. Babies do occasionally requirelegal representation, and to automatically exclude them from legal aid is ludicrous.f) The proposals undermine the rule of law. An applicant may seek to challenge the decisions of a UK publicbody, have an exceptionally strong case, but be unable to bring the case due to an insufficiently 'strong'connection to the UK. The consequent lowering of scrutiny of UK public bodies is to the detriment of all.

Question 5: Do you agree with the proposal that providers should only be paid for work carried out on anapplication for judicial review, including a request for reconsideration of the application at a hearing, therenewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court(but that reasonable disbursements should be payable in any event)?

Yes NoPlease give reasons.

1. Making legal aid dependent upon the grant of permission will force lawyers to take an aggressive stanceand seek permission as a default option. This will reduce the chances of negotiated settlement, therebyincreasing costs.2. The consultation suggests that in cases where permission is refused but a substantive benefit has beenachieved, costs could be sought from the respondent. Because of the nature of judicial review claims, therespondent will always be a public body. Furthermore, such costs will be paid at higher inter partes rates.The saving to the legal aid fund in such cases will therefore represent a burden to the public purseelsewhere.3. The consultation draws comparisons with the Upper Tribunal appeal system. Those comparisons are

inappropriate. That system presently incorporates an uplift in successful cases to compensate the providerfor the risk of taking on unsuccessful cases. No similar provision is proposed.4. Placing all of the costs risk on the provider will encourage risk avoidance behaviour. As a consequence,deserving litigants who would have had permission granted in borderline cases will lose their redress.5. The decline in income to providers will inevitably cause many to go out of business. Judicial review is aniche area, as demonstrated by the number of legally aided applications made annually, and the smallspecialist providers will be unable to swallow the risk of non-payment where permission is not granted. Thisloss will not be adequately covered by other, generalised practices. The lack of available expertise is likely toreduce public confidence in the legal system, especially amongst users.6. No evidence has been provided that the current system of merits assessment is unfit for purpose.


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Question 6: Do you agree with the proposal that legal aid should be removed for all cases assessed ashaving borderline prospects of success?

Yes No


1. The conflation of 'borderline' and 'poor' merits assessments is false. The definition of a borderline case isone where it is felt that the prospects of success cannot be placed into numerical terms. This does not meanthat the applicant is 'unlikely to succeed', but may be that issues are jurisprudentially unique such that theapplication amounts to a test case. Limiting legal aid in such circumstances is damaging to the rule of law as

it limits opportunities for the law to be clarified. There is therefore significant wider detriment contained withinthe proposals.2. The consultation paper contains no assessment of the success rate of cases which were initially declared'borderline'. Presumably, this is information which the LAA can provide. The proposal is therefore predicatedon inadequate data3. In practice, many providers will change to describing the merits as 'unclear'. This will entail an increase tothe fund by way of the costs of investigating such applications.

Question 7: Do you agree with the proposed scope of criminal legal aid services to be competed?

Yes No


We note that the proposal has been presented as a fait accompli; no questions within the consultation allowthe respondent to express their approval or disapproval of the idea of competitive tendering. We set out ourdisapproval here. As a consequence, questions 8-25 become largely redundant, as we disagree with theproposals in their entirety. However, we will continue to point out what we consider to be any specific flaws inthe plans where appropriate.

The proposals are, in their entirety, anti-competitive. The government recognises that there are currently1600 providers nationally; it proposes to reduce the number of contracts to 400. Subject to existing groupsdemonstrating the ability to form joint ventures, this means that at least 1200 providers would find theiraccess to the market restricted. In practice, the ability of providers to make multiple bids in differentprocurement areas is likely to bring the total number of contractors to significantly below 400.

The consultation indicates that the average provider will need to grow by some 250% under the proposedscheme. Most firms simply do not have the capacity to sustain this kind of growth. It is therefore highly likelythat all legally aided criminal work will therefore be concentrated in the hands of a small number of largefirms, many of which may be new entrants to the market place with limited experience of service provision.

Choice for the consumer - who is of course facing serious criminal charges - is non-existent.Consequentially, trust between client and lawyer is eroded. This makes the unpalatable advice - such as thebenefit of an early guilty plea - less palatable, thereby lengtheneing cases and making the whole processmore unwieldy and ultimately costly. The inevitable result will be the erosion of public confidence in thecriminal system. England and Wales will no longer have a legal system which is the envy of much of theworld.

If providers bid too low - which is not unlikely - then they will be forced to 'cut corners' in service provision,utilising insufficently experienced members of staff or spending insufficient time on cases. The quality oflegal representation will suffer. This is unacceptable when a person's liberty is at stake, and will lead tounsafe verdicts and the incarceration of the innocent.

It is recognised that the Ministry of Justice budget needs to be cut. However, there must be areas other thanthe criminal legal aid budget which are suffiently bloated to be targeted ahead of introducing provisionswhich endanger the liability of innocent people; even if no other source of cuts is available, a straight cut tofees within the existing structure, whilst unpalatable, would allow the market to readjust naturally rather thansuffering an enforced restructuring which is so inimical to the interests of justice.


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Question 8: Do you agree that, given the need to deliver further savings, a 17.5% reduction in the ratespayable for those classes of work not determined by the price competition is reasonable?

Yes No


The reduction, to rates which are already exceptionally low and compare very unfavourably to privateinstructions or instructions in other areas of the law, will make criminal advocacy an extremely unattractiveproposition to the independent Bar. The result is likely to be a drain of the brightest talent away from the Bar,or away from publicly funded criminal advocacy, which will devestate standards at the Bar. Weakening of the

independent Bar will also have the long-term effects of reducing the standard of prosecution and reducingstandards in the judiciary, as the pool of talent from which each can be drawn narrows. This is against thepublic interest.

Question 9: Do you agree with the proposal under the competition model that three years, with the possibilityof extending the contract term by up to two further years and a provision for compensation in certaincircumstances for early termination, is an appropriate length of contract?

Yes No


Question 10: Do you agree with the proposal under the competition model that with the exception of London,Warwickshire/West Mercia and Avon and Somerset/Gloucestershire, procurement areas should be set by thecurrent criminal justice system areas?

Yes NoPlease give reasons.

Question 11: Do you agree with the proposal under the competition model to join the following criminal justicesystem areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two newprocurement areas?

Yes No



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Question 12: Do you agree with the proposal under the competition model that London should be divided intothree procurement areas, aligned with the area boundaries used by the Crown Prosecution Service?

Yes No


Question 13: Do you agree with the proposal under the competition model that work tendered should beexclusively available to those who have won competitively tendered contracts within the applicableprocurement areas?

Yes No


Question 14: Do you agree with the proposal under the competition model to vary the number of contracts ineach procurement area?

Yes No


Question 15: Do you agree with the factors that we propose to take into consideration?

Yes NoAre there any other factors that should to be taken into consideration in determining the appropriate number ofcontracts in each procurement area under the competition model?


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Question 16: Do you agree with the proposal under the competition model that work would be shared equallybetween providers in each procurement area?

Yes No


Question 17: Do you agree with the proposal under the competition model that clients would generally haveno choice in the representative allocated to them at the outset?

Yes No


The reasons for allowing a change from allocated provider focus to narrowly on restrictive factors - such asthat the relationship between client and provider has broken down - rather than facilitative factors - such as

that the client has developed a relationship with the provider. Given that most clients are not requestingrepresentation for the first time, it would make sense for those with existing relationships with providers to beable to continue using those services.

Question 18: Which of the following police station case allocation methods should feature in the competitionmodel?

Option 1(a) cases allocated on a case by case basis Yes No

Option 1(b)cases allocated based on the clients day of month of birth Yes No

Option 1(c) cases allocated based on the clients surname initial Yes No

Option 2 cases allocated to the provider on duty Yes No

Other Yes No


Options 1 (a) and 2 could lead to one client being allocated to different providers for different offences in thesame area. This is inefficient and unsettling. Options 1 (b) and 1(c) do not suffer this difficulty - but theuneven distribution of birthdays and names would mean that the allocation would have to be very complex toesnure a genuinely even spread of allocated work.


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Question 19: Do you agree with the proposal under the competition model that for clients who cannot berepresented by one of the contracted providers in the procurement area (for a reason agreed by the Legal AidAgency or the Court), the client should be allocated to the next available nearest provider in a differentprocurement area?

Yes No


Question 20: Do you agree with the proposal under the competition model that clients would be required tostay with their allocated provider for the duration of the case, subject to exceptional circumstances?

Yes No


Question 21: Do you agree with the following proposed remuneration mechanism under the competitionmodel?

Block payment for all police station attendance work per provider perprocurement area based on the historical volume in area and the bid price

Yes No

Fixed fee per provider per procurement area based on their bid price formagistrates court representation

Yes No

Fixed fee per provider per procurement area based on their bid price forCrown Court litigation (for cases where the pages of prosecution evidencedoes not exceed 500)

Yes No

Current graduated fee scheme for Crown Court litigation (for cases wherethe pages of prosecution evidence exceed 500 only) but at discounted ratesas proposed by each provider in the procurement area.

Yes No



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Question 22: Do you agree with the proposal under the competition model that applicants be required toinclude the cost of any travel and subsistence disbursements under each fixed fee and the graduated feewhen submitting their bids?

Yes No


Question 23: Are there any other factors to be taken into consideration in designing the technical criteria forthe Pre Qualification Questionnaire stage of the tendering process under the competition model?

Yes No


Question 24: Are there any other factors to be taken into consideration in designing the criteria against whichto test the Delivery Plan submitted by applicants in response to the Invitation to Tender under the competitionmodel?

Yes No


Question 25: Do you agree with the proposal under the competition model to impose a price cap for eachfixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a discount on the

graduated fee below the relevant price cap?

Yes No



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Question 26: Do you agree with the proposals to amend the Advocates Graduated Fee Scheme to:

introduce a single harmonised basic fee, payable in all cases (other thanthose that attract a fixed fee), based on the current basic fee for a crackedtrial;

Yes No

reduce the initial daily attendance fee for trials by between approximately 20and 30%; and

Yes No

taper rates so that a decreased fee would be payable for every additionalday of trial?

Yes No


The proposal indicates that it is hoped that a fees structure in which lawyers are overcompensated for guiltypleas and undercompensated for trials will encourage efficiency by promoting 'early consideration of thequestion of plea'. The question of plea must always remain for the Defendant alone, and not his lawyers. Thefees structure puts lawyers directly in conflict with the interests of their client. If the proposed fee structuredoes achieve such efficiencies, it would indicate that lawyers are placing their own pecuniary interests aheadof their duty to impartially advise; if lawyers continue to give impartial advice then the hoped for efficiencieswill not come to fruition, and the proposals will unduly penalise those lawyers who undertake more workwhich has to run to trial.

Question 27: Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%?

Yes No


See answer to question 8.

Question 28: Do you agree that the reduction should be applied to future work under current contracts as wellas future contracts?

Yes No


One of the key features of VHCCs, mentioned in the consultation, is that they bring 'certainty of income forproviders'. To reduce the rates paid on current contracts undermines this principle. What would the situationbe, for example, if providers no longer felt able to provide service at the new reduced fees? Would they havethe option of ceasing the contract?


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Question 29: Do you agree with the proposals:

to tighten the current criteria which inform the decision on allowing the use ofmultiple advocates;

Yes No

to develop a clearer requirement in the new litigation contracts that thelitigation team must provide appropriate support to advocates in the CrownCourt; and

Yes No

to take steps to ensure that they are applied more consistently and robustlyin all cases by the Presiding Judges?

Yes No


Question 30: Do you agree with the proposal that the public family law representation fee should be reduced

by 10%?

Yes No


Fees in public family law have been recently been subject to a 10% reduction in February 2012. There is noindication that this has been taken into account. Further, there is no evidence that the hoped for streamliningin family law as set out in Paragraph 6.6 of the consultation has translated into a reduction in time requiredby solicitors. The LAA continue to collect data in relation to the actual time spent on each case within theCLAIM1A form. The empirical evidence is therefore available to demonstrate whether these reforms arehaving the desired effect. This proposal should be suspended until such time as the empirical evidence hasbeen collated.

The rationale behind reducing the fixed fees is solely that the amount of work required to bring cases tocompletion is expected to have fallen. Even if this is true, there is no evidence that the work is becoming lesscomplex or that overheads are falling. There is therefore no rational basis for reducing the applicable hourlyrate by 10%.

Question 31: Do you agree with the proposal that fees for self-employed barristers appearing in civil(non-family) proceedings in the County Court and High Court should be harmonised with those for otheradvocates appearing in those courts?

Yes No



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Question 32: Do you agree with the proposal that the higher legal aid civil fee rate, incorporating a 35% upliftpayable in immigration and asylum Upper Tribunal appeals, should be abolished?

Yes No


Placing all of the financial risk upon the provider is inimical to the administration of justice: see the answer toquestion 5.

Question 33: Do you agree with the proposal that fees paid to experts should be reduced by 20%?

Yes No


Lawyers' fees have been hit hard over the last few years, and the proposals contained in this paper are setto reduce them further. It is correct that some of the burden passes to publicly funded experts, whose feeswill still be much nearer to private rates than those in the legal profession.

Question 34: Do you agree that we have correctly identified the range of impacts under the proposals set out

in this consultation paper?

Yes No


In all cases, the impact assessments fail to take into account the potential undermining of public confidence

in the justice system if the quality of representation drops as a result of financial pressure.

Question 35: Do you agree that we have correctly identified the extent of impacts under these proposals?

Yes No


In all cases, the financial savings to the department are optimistic and fail to take properly into account theextra costs caused by service users changes in behaviour.


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Transforming legal aid questionnaire (04 13) 13

Question 36: Are there forms of mitigation in relation to impacts that we have not considered?

Yes No

Please give details.

Transforming Legal Aid Questionnaire

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