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Family lawyers' dismay at latest legal aid fee schemes

27 October 2009

Legal aid solicitors have expressed dismay and frustration at the latest government fee schemes for family work.

In a ministerial statement, Lord Bach set out the proposed new structure for legal aid fees in family cases, including a set advocacy rate for barristers and solicitors.

The implementation plan detailed by the Legal Services Commission confirmed the harmonisation of advocacy rates but also, as mooted in the MoJ’s consultation in July, that the hourly rates would be replaced by fixed fees.

According to LSC chief executive Carolyn Regan, family legal aid expenditure had grown by 24 per cent in the past six years. And, whereas the number of bills by family barristers only went up by 13 per cent between 2004 and 2008, the total amount paid over the period under the graduated fee scheme went up by 29 per cent. She said this level of expenditure was unsustainable.

The move, legal aid lawyers have warned, will threaten the survival of firms and lead to reduced access to justice.

According to David Emmerson, chair of Resolution’s legal aid committee, some of the fees represent a cut of more than 40 per cent to the hourly rates that have already remained static for the last ten years.

“Faced with this uneconomic scenario there is a very real danger that firms will walk away from legal aid work, further undermining access to justice,” Emmerson said.

Emmerson said equalising the pay for advocacy was a positive development but he was concerned that this had been achieved in part by reducing the fees for representation work. Representation fees were so low, he said, that it was difficult to see how cases could be properly prepared.

In addition Wendy Hewstone, managing partner at family specialist Access Law, in Southampton, said many family solicitors often use barristers for final hearing, and that the new scheme would hardly change, with little money going to solicitors.

She also suggested that certain cases would be run at a loss. For example, domestic violence cases, she said, involved lengthy investigations and briefing, not to mention preparing bundles for barristers for court hearings, but that the fee would only be £392.

Also, in finance cases, Hewstone continued, it was common that the other spouse had the means to fund the divorce proceedings privately, putting financial pressure on the legally aided party.

Legal Aid Practitioner Group director Carol Storer said legal aid solicitors had unsuccessfully tried to work with the MoJ to explain that any more cuts will make it hard to sustain the service but that it was now a matter of making things work on the basis of erroneous assumptions.

“Senior practitioners have tried to work out the cheapest way in which you could run a case with an English speaking client and no mental health problems, and they came up with a template showing this run at hundred pounds more than the latest MoJ figures,” she said.

“Solicitors will have to make serious professional choices about the service they deliver,” Storer continued. “There comes a point where you are paid lower and lower amounts and you can’t deliver the service.”

In a related development, the LSC announced the tendering timetable for 2010 civil and criminal legal aid contracts.

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