One might have thought that in the week that LASPO kicked in, with huge chunks of areas of legal representation being taken out of the legal aid system, the Government might let those lawyers who survived and are still reeling have a little bit of respite.
You fools! Of course not. Following some sort of Sun Tzu Art of War philosophy, the Government have decided that the best time to kick people is when they are down.
“Transforming Legal Aid” – a new consultation (and we all know how ‘consultation’ works)
Here’s the waffle
6.6 Progress is currently being made to reduce the average duration of care cases through the implementation of the Family Justice Review reforms90 which should have the effect of reducing the unit cost of cases by tackling delay and streamlining cases, for example through reducing the use of experts.91 The national average duration of care cases has already reduced from around 54 weeks to around 45 weeks.92 The aim is to achieve an average of 26 weeks in all but exceptional cases, and this time limit will be enshrined in statute subject to parliamentary approval of the Children and Families Bill.93 Associated efficiencies in court proceedings are planned in support of this time limit. For example, the recent introduction of a new Part 25 of the Family Procedure Rules in January 2013 which requires the court to restrict expert evidence to those circumstances where it is necessary to assist court proceedings. This requirement will also be enshrined in statue through the Children and Families Bill94 which, subject to Parliamentary approval, is expected to receive Royal Assent next year. In reducing the commissioning of unnecessary expert reports, this requirement should also reduce the related work for solicitors. It is also expected that further efficiencies currently under development might also reduce the average number of hearings required in a case.
6.7 As the fee paid to solicitors for their work on a case is fixed, the cost of dealing with fewer experts or fewer hearings would not automatically adjust to reflect the likely reduction in the work required of solicitors (whereas any reduction in the number of hearings would lead automatically to a reduction in advocacy costs, as these are calculated on the basis of hearing fees). We consider that the legal aid fee paid for these proceedings should represent value for money and therefore reflect more closely the decreasing duration of cases in this area, the amount of work involved and the further efficiencies to be gained.
That’s all very long – what do they mean?
Well, now that care proceedings will be only lasting twenty six weeks (which, I hasten to remind everyone is a PROPOSAL which has not even been discussed by Parliament), that will mean less work has to be done by the lawyers, so we should pay them less.
How much less?
Ten per cent.
[Never mind that we don’t actually know yet the structure that would allow care cases to be concluded within 26 weeks, or that as I pointed out yesterday, NINE YEARS of striving to get care proceedings concluded within 40 weeks has resulted in more local authorities having an average length of proceedings ABOVE 60 weeks than BELOW 40, so there is no way of knowing whether a lawyer would be doing more or less work, or whether the aspirations for 26 weeks are going to be any more effective than the last nine years of targets]
6.10 We propose to reduce the representation fee paid to solicitors in public family law cases by 10%. We consider that this is a reasonable reflection of the decreasing duration of cases in this area, the amount of work involved and the further efficiencies to be gained.
6.11 This proposed reduction would apply to the current fixed fees under the Scheme. In addition, to promote efficient resolution of cases and avoid creating any incentive to delay, it would apply to the hourly rates that are payable where a case reaches the escape threshold.
7.9 The current codified rates were introduced in October 2011. Prior to that time, there were no set rates for expert services, generally, and therefore little effective control over their cost. Instead, contracted legal aid solicitors, who remain responsible for engaging relevant experts as and when necessary, would bill the then LSC after the service had been provided and paid for, based on the fee requested by the individual expert in the particular case. The initial codification of expert rates therefore represented a necessary first step in providing clarity and control over spend on experts, while continuing to ensure access to necessary expert services as and when required.
Upshot? Fees to experts to be cut by 20 per cent
I know that this blog is read by people who aren’t lawyers, and aren’t experts, and they may well be thinking – good, cut the costs of these fat cats. That’s certainly the Daily Mail take on it (a good rule of thumb in life, I find, is where you find yourself agreeing with the Daily Mail take on anything, you probably need to take a hard look at either yourself or the facts)
The reality is that if you cut the income of a group of professionals by 10% one year and 10% the next (lawyers) or 20% in one fell swoop (experts), then some of them will go under. That means less choice, less availability, more delay, less chance that the parents who need them will be able to get them.
The ones that do keep going will be forced to do more work for less money, which means spending less time on each case. If we want the best chance of proper justice for families, the lawyers instructed by parents need to have the ability to give the proper time that it takes to prepare a case, to form a proper meaningful relationship with the parent so that there is understanding on both sides and to give advice that is based on that solid understanding of both the facts and the people.
And if you think this is the end of the cuts, you’d be mistaken. If the Government manage to push through removing huge swathes of free legal advice, and cut the income of those who are left by 20% in two years, they will be back again for another cut in 2014, 2015 until there is nothing left to cut. [Ideally perhaps to the point where solicitors doing family law will pay the Government for each case they take on]
Consultation responses to this new document are due by June 2013 – the response details are on the link I started with. I found myself seriously pondering Edmund Burke’s words when thinking about this.
Our new Minister for Justice, the Rt Honourable Mr Megatron, reporting for Efficiency Saving duty. Tremble before him