Reforming Family Legal Aid

– An overview of funding for care proceedings

The legal aid system is being reformed with the aim of creating a sustainable legal aid system, with quality, access and value for money at its centre. To date the reform of civil legal aid has included the introduction of a Graduated Fee Scheme for care proceedings work and some important changes to the Funding Code. Future proposals for reform include the next stage of fixed fees to cover advocacy work and best value tendering.

This overview includes information on:

Background to the changes

Legal Aid Expenditure
Client Access

The Care Proceedings Graduated Fee Scheme

Level 1 (initial advice)
Level 2 (pre-proceedings advice)
Level 3 (representation, excluding advocacy)

Advocacy

Advocacy and the Care Proceedings Advocacy Fee Scheme
Family Graduated fees and the Public law Outline
Future Reforms

Other Public Law Proceedings

Funding Code Changes

Residential Assessments
Appropriate use of Funding Test

Queries and how to get further information

Useful documents on the LSC website
Contacts

1. Background to the changes

Legal Aid Expenditure

In 2006/07 the Legal Services Commission (LSC) spent £570million - approximately a quarter of the legal aid budget - on family legal aid. No cuts have been made to the family legal aid budget - the legal aid budget is being rebalanced so that a greater proportion is spent on priorities within civil and family.

Expenditure on areas like childcare needs to be sustainable for the future - between 2001/02 and 2005/06 the cost of a childcare case rose by 18% in real terms. If the limited budget is not controlled through the introduction of fixed fees then other ways of controlling expenditure will need to be explored, which could mean cuts in eligibility and/or the scope of funding. The LSC believes that moving away from paying hourly rates and introducing standard fees is the best way to help control costs and ensure that the most vulnerable members of society continue to receive the help they need.

Client access

The LSC does not believe that the implementation of the fees will lead to a reduction in access for clients and are not expecting there to be a negative impact on the numbers of cases.

An analysis of the current family provider base shows there is a good level of access to family legal advice, with 93% of the population living within 5 miles of a family solicitor. Access to justice is about the number of clients helped and not the number of legal aid firms. There are a large number of providers who undertake a very small amount of legally aided work with approximately 50% of suppliers undertaking nearly 80% of all family work. It is anticipated that there will be a reduction of some small suppliers but that this will not impact on access for clients. Where a contract is terminated the money will be re-allocated and tenders will be held.

The LSC is committed to ensuring that there will be legal aid lawyers in the future. It has provided grants to support the training of new legal aid solicitors to solicitor and not for profit organisations who are committed to legal aid work.

2. Care Proceedings Graduated Fee Scheme

The fees have been calculated based upon average case costs in care and supervision cases and refined following consultation.

The Care Proceedings Graduated Fee Scheme is made up of three levels. It excludes advocacy, whether undertaken by solicitors or the Bar.

Level 1

This covers initial advice to the client and applies to all public law cases.

There is a single national fee payable this level.

Exceptional cases

This is paid on a standard fee basis but cases can become exceptional (and therefore paid on the basis of time spent) when the costs incurred on the basis of hourly rates are 3 times the fixed fee.

Level 2 (Pre-Proceedings Advice)

Scope and Purpose

This is a new level of service introduced as a result of the Child Care Proceedings Review and to support the new Public Law Outline (PLO). This covers advice in anticipation of care/supervision proceedings and applies to care and supervision cases and related proceedings only.

Level 2 is non-means tested publicly funded legal advice and is available to parents and those with parental responsibility. It allows for negotiation with local authorities and is triggered by written notice of the intention to commence care/supervision proceedings being given by the local authority. This negotiation would include attendance at a meeting with the local authority, where appropriate.

The revised DCFS Statutory Guidance sets out the steps to be taken before a care application is made to court and anticipates that local authorities will give written notice of care/supervision proceedings. Before the guidance is in place pre-proceedings advice can be triggered by an appropriate written notice being given by a local authority in anticipation of the revised guidance.

The purpose is to ensure that parents and those with parental responsibility have access to legal advice before care/supervision proceedings are commenced. It is hoped that in this way they will engage or re-engage with the local authority and that the local authority will work with them to avoid proceedings or, where this is not possible, to narrow the issues in proceedings so that they can be dealt with more quickly.

The trigger point

It is essential to have a sufficiently objective trigger point for this level of funding in order to monitor the effectiveness and the costs of the new level. Discussions with DCSF have shown that notice in writing is the most effective trigger point; and that there is still a very real opportunity at this stage for lawyers for the parents to be able to influence the Local Authority’s final decision to issue proceedings.

Exceptional Cases

Level 2 (Family Help Lower) will be paid on a standard fee basis but cases can become exceptional (and therefore paid on the basis of time spent) when the costs incurred on the basis of hourly rates are 3 times the fixed fee.

Parents and others also have access to advice pre-proceedings through the fee scheme under level 1. The exceptional threshold of 3 times the fixed fee is cumulative for work done at Levels 1 and 2, so where advice is provided at both Levels 1 and 2 the threshold will be 3 times the total of the two fixed fees.

Disbursements

Disbursements are excluded from the fee and are subject to costs assessment. Disbursements other than out of pocket expenses should not be claimed at this level. Any outstanding assessments would be undertaken by the local authority pre-proceedings or considered by the court in the context of proceedings.

There is a single national fee payable this level.

Level 3

Scope

This covers representation in proceedings - from the issue of proceedings to the final hearing and any work that follows on from the final hearing - and applies to care and supervision cases and related proceedings only.

The fixed fee does not cover advocacy (please see below). Where advocacy is undertaken by a solicitor it will continue to be paid on hourly rates and where undertaken by a barrister it will be paid as before, usually under the Family Graduated Fee Scheme.

There is a single fee payable at Level 3 irrespective of the stage reached, providing a simple and flexible scheme. The Level 3 fee depends on the party represented with higher fees paid for proceedings in the High Court and representing more than one client.

Exceptional cases

This is paid on a standard fee basis but cases can become exceptional (and therefore paid on the basis of time spent) when the costs incurred on the basis of hourly rates are 2 times the fixed fee (rather than three times the fixed fee at Levels 1 and 2).

The 15% Children Panel uplift is retained for exceptional cases and for family cases that are not covered by the new fee schemes. Exceptional cases may also attract ‘complexity’ uplifts of up to 100%.

Regional Fees

Level 3 fees are regional and are based on 4 supra regions which align to the LSC Regional Offices (Midlands, North, South and Wales). This differs from the national approach at levels 1 and 2 as the impact could have an unacceptable effect on access in the short term because of the current profile of supply of solicitors.

Representation of both parents or more than one child

Where both parents are represented by the same solicitor in care/supervision proceedings, a 25% higher fee is paid. If parents have significantly different issues, it is likely that separate representation will be appropriate. A 50% higher fee is payable where more than one child is represented.

3. Advocacy

Advocacy and the Care Proceedings Graduated Fee Scheme

The fixed fee at level 3 does not cover advocacy in proceedings. Where advocacy is undertaken by a solicitor it will continue to be paid on hourly rates and where undertaken by a barrister it will be paid as before, usually under the Family Graduated Fee (FGF) Scheme.

The definition of advocacy covers:

Appearances as advocate before the Court

Attendance at advocates’ meetings

Associated travel to Court

Waiting time and attendance at any conferences by the advocate at court

It does not cover:

Attendance at court with counsel or with another advocate or

Preparation for advocacy

Including advocacy in the fixed fee for solicitors whilst counsel continued to be paid under the FGF Scheme would have created too great an incentive to instruct counsel.

The historical cost of solicitor preparation time for advocacy has been taken into account in the fees and as such should be sufficient to cover preparation work across a range of cases. This will be a transitional position – when moving to a single fee for advocacy the LSC will also bring in common fees for preparation between solicitors and counsel.

Family Graduated Fees and the Public Law Outline

Amendments have been made to the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001 to ensure that it takes into account the Public Law Outline. This Order sets out the systems for the payment of graduated fees for counsel for work in family proceedings, prescribes how and when claims for payment are to be made and deals with appeals and review of payments.

The amendments, which came into force on 30 November 2007, provide for work undertaken under the PLO to be remunerated in the same way as that undertaken under the Public Law Protocol. So as to encourage continuity of advocate in these proceedings counsel are able to claim the same payment for the Issues Resolution Hearing as they would have been received for the Pre-Hearing Review, where the same counsel attends both that hearing and the main hearing. The definition of advocates meeting has also been extended to cover both advocates meetings held in accordance with stage 2 or 3 of the Draft Public Law Outline.

Future Reforms

The LSC intends to introduce a single advocacy fee scheme to cover both solicitors and barristers. The aim is to bring payments to solicitors and counsel within the same system and to make the same payment regardless of who does the work. Reform in this area is important because the cost of these cases is continuing to rise disproportionately to the volume of cases.

Continuing to pay advocacy undertaken by a solicitor on hourly rates and advocacy undertaken by a barrister will be paid as before, usually under the Family Graduated Fee (FGF) Scheme, is therefore an interim measure prior to this.

4. Other Public Law Proceedings

All other Public Law proceedings will continue to be paid on hourly rates.

There is no change to the funding of Emergency Protection Orders (EPO). Where an EPO has been made and the Local Authority issues emergency care proceedings, the work will be done under Legal Representation and is excluded from the scope of the scheme at Level 2. If the Local Authority issues a notice of intention to issue proceedings subsequent to the child being made safe, pre-proceedings advice at Level 2 will be available and appropriate. However, once care proceedings have been issued, it will be more appropriate to represent the client at Level 3.

In the longer term the intention is to expand the scope of the scheme to bring other public law proceedings within it.

5. Funding Code changes

Residential Assessments

The cost of residential assessments was removed from the scope of legal aid funding in respect of disbursements incurred from 1 October 2007 onwards. The date of commissioning the work and incurring the disbursement is the key rather than the date of any grant of funding in the case or the relevant court direction.

Treatment, therapy, training or other interventions of an educative or rehabilitative nature fall within the remit of the local authority, NHS or Child & Adolescent Mental Health Services. Moreover, local authorities have general obligations towards vulnerable children as well as responsibility for the child’s welfare post interim care order. Legal aid is intended to finance and secure relevant parts of the judicial process of determining the appropriate care outcome for the child.

Whilst the costs of residential assessment, including viability i.e. initial assessments have been removed from the scope of legal aid funding, any appropriate proportion of necessary community or home based assessments may, if appropriate in the particular circumstances, still be claimable from legal aid. (This is because these are assessments without therapeutic or residential costs.)

In implementing the recommendations of Child Care Proceedings Review the DCSF draft revised statutory guidance places increased emphasis on pre-proceedings preparation of cases by local authorities to ensure that all the necessary steps have been completed before court proceedings are issued to avoid unnecessary delay during the court process. The revised guidance makes explicit the expectation that a core assessment is an essential precursor to the making of any section 31 applications for a care or supervision order.

This will return the funding position to that prior to 2005 and the London Borough of Lambeth and S, C, V, J and the Legal Services Commission[1] when costs in relation to residential assessments fell to local authorities, in relation to their duties to children in need. Since then, these costs have increasingly been transferred away from local authorities to the limited Fund. Treatment, therapy, training and other rehabilitative work was excluded from scope in 2005, however, this exclusion has not been effective in relation to residential assessments.

This change should not of itself have a major impact on residential family assessment centres, which have been operating since well before then. Centres should not be reliant on courts directing local authorities and others to purchase their services; their facilities are open to purchasers to make use of them whenever such use has rehabilitative value within the terms of the purchasers’ duties in regard to children.

Legal aid must retain a core focus on legal advice and representation; spending on other activity reduces the money available to support high quality lawyers in advising and representing clients.

Appropriate use of Funding Test

From 1 October a test was introduced as to whether a child is in need of separate representation from other children who are the subject of proceedings.

There will also be a merits test for parents and those with parental responsibility who, in the absence of conflict of interest, can be protected by being jointly represented with another party.

6. Queries and Further Information

Public Law Care Proceedings Graduated Fee Scheme - Questions and answers for providers is included in this pack. The most up to date version of this is available on the LSC’s website (see below).

Useful documents on the LSC website

For more information on the Care Proceedings Graduated fee scheme, including the pay rates and the most up to date Question and Answer document please visit:

To download the family and family mediation fee scheme paper which sets out and explains both the care proceedings and private law schemes in further detail. Please visit:

For further guidance on the removal of residential assessments from the scope of legal aid please see the updated Family Decision Making Guidance (LSC Manual Vol. 1, Section D, Part 5) which is available to download from our website:

To download the Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment No 2) Order 2007 (SI 3169), which provides for the Funding Order to take into account the Public Law Outline. Please visit:

Contacts

If you have any queries or would like further information please contact your regional family lead: