Civil legal aid bills consultation – Law Society response

The proposals

We responded to a government consultation on the proposed transfer of the assessment of all civil legal aid bills of costs to the Legal Aid Agency (LAA).

In August 2020, the LAA carried out an agreement it had made with HM Courts and Tribunals Service (HMCTS) to transfer the assessment of civil legal aid bills exceeding £2,500 to the LAA.

Although the LAA had consulted on the necessary changes to the legal aid contract, there was no consultation on the policy decision giving rise to the transfer.

We were aware of concerns expressed by legal aid providers about this extension of the LAA’s assessment remit and potential implications including the impartiality, transparency and expertise of LAA assessments.

We therefore issued judicial review proceedings against the LAA and the lord chancellor – mainly on the grounds that there had been a significant policy change affecting providers without any proper consultation.

After we issued our statement of claim, the lord chancellor agreed to hold an “open-minded and meaningful” consultation.

Read the consultation

For now, providers can choose between court or LAA assessments. This is an interim arrangement, following a consent order to settle our judicial review proceedings, pending the consultation outcome.

Our view

We do not agree with the plans to permanently transfer the assessment of all court-assessed claims to the LAA.

After the Ministry of Justice (MoJ) launched the consultation in February 2021, we held an online survey of legal aid providers to inform our policy position.

The survey sent a clear message that members overwhelmingly prefer court assessments for larger legal aid bills:

  • 73% prefer the courts over LAA assessments
  • if it was an option, 85% would like a choice of venue (continuing the current interim arrangements)

Survey results: given the choice, who would you prefer your legal aid bills to be assessed by?

 

Our response reflects these views and considers in more detail the reasons behind the profession’s concerns, which include:

  • lack of impartiality where the assessor is also the paying party
  • lack of transparency
  • whether the LAA has the capacity and expertise needed for complex cost assessments
  • inability to claim costs for appealing LAA decisions
  • issues with the LAA’s electronic bill submission system (CCMS)

Survey results: Please specify why you would prefer for your claims to be assessed by the courts.

 

We recommend a longer period of dual running, to allow more time to gather data on this proposal.

If assessments are transferred in full, we recommend providers should :

  • be entitled to costs of appeal, or
  • have the option to appeal LAA assessments to the court

What this means for solicitors

 The current proposals would make the transfer of costs assessments to the LAA permanent.

Next steps

The consultation closed on 10 May 2021.

The government is analysing feedback.

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