We have recently had a discussion with officials at the Ministry
of Justice (MoJ) about the issues arising from the new experts' fee
rates.
The Law Society is strongly of the view that control of experts'
fees is not just legitimate but necessary. If the government is
unable to make savings here, it will have to make them elsewhere,
and this is likely to be either through scope or fee cuts. But of
course there is a balance to be struck between restricting
excessive fees, and cutting so far that experts will not undertake
necessary work.
On the issue of surveyors' fees, the Ministry has acknowledged
that the rates set in the regulations were based on the fees for
'drive-by' valuations. Therefore if any additional, or different
work is required, such as a full survey for the purposes of a
disrepair claim, this will be likely to meet the requirements for
prior authority to exceed the set rates - subject to the required
justification being provided. The actual rate paid may of course
still be the subject of debate. We all owe a debt of thanks to the
Housing Law Practitioners Association (HLPA) for the work they have
done gathering data and helping to clarify this position.
The other area giving rise to concerns is family. The issue here
is tied up with the work being done in connection with the Family
Justice Review on the use of experts. There is concern that experts
are too often being used unnecessarily and are not being asked to
focus on the key issues that need addressing. The picture as to
whether and in what disciplines or geographical areas the new rates
are causing problems is very unclear. The Ministry has agreed to
review data that becomes available in the coming months, including
that gathered through prior authority applications, to try to
identify problem areas. We would caution, however, that the
solution that is in the best interest of the profession may lie in
clear guidance on what rates should be allowed, and where, on a
prior authority application rather than a general increase in rates
that, in many parts of the country, may be working well to control
the amount of money paid to experts.
We would also advise you to watch out for experts who pad out
the number of hours they intend to bill to try to make up for the
cut in hourly rates. If an expert starts charging for five hours'
work to deliver what was previously delivered in three, you can
expect the Legal Services Commission (LSC) to disallow part of the
bill. You may want to keep to hand evidence of bills from before
the imposition of the new rates in order to be able to demonstrate
to the LSC that your regular experts are not doing this in the
event of any dispute on this issue.
In order to build a good package of relevant data to secure the
guidance and any changes to the regulations that we may need, it is
important that when you are unable to secure an expert you need at
the rates set out in regulations, an application for prior
authority is submitted. However, it is not in our interest to swamp
the LSC with applications for prior authority. If the fee your
expert is charging is within the prescribed rates and the time has
not changed from what you would have expected before the new rates
came in, you are probably wasting your time and theirs by
submitting an application and delaying the processing of necessary
applications.
Please also bear in mind that this is a learning curve for the
LSC as well as for practitioners, and therefore inconsistent
decisions on prior authority applications will sometimes be made.
This should be happening with less frequency, however, since the
LSC is now processing all prior authority applications through one
team in their Cardiff office - so please ensure you send all
applications directly there. On appeals, although the right of
appeal was removed under the 2010 contracts for non-family cases
and the 2012 contracts for family cases, a new application is
permitted in cases where there is further justification or
additional information to consider.
The new forms for applying for prior authority have recently
become mandatory. The LSC has produced guidance on completing the
forms in the light of the experience of the first few months of
operation. If you include too little information and the
application is rejected it duplicates work for you, and for the
Commission which has to process both the original application and
the renewal or appeal. If you include too much, it wastes your time
in completing the form and the LSC's in processing it. We therefore
have a common interest with the LSC in getting the right
balance.
Reporting problems
Finally, please continue to report to us where
you are having problems securing experts at the new rates. It would
be helpful to have details on the particular types of experts where
it is a problem. This will help us to get a clear picture as to
where the main pressure points are that we need to address with the
Ministry and may flag up where we want to run specific
data-gathering exercises to help build the case for changes.
Richard Miller, head of Legal Aid, Law Society