Changes to criminal legal aid 14-hour rule after consultation

News the Legal Aid Agency (LAA) will make a series of concessions over key criteria for a criminal legal aid contract was today welcomed by the Law Society of England and Wales as a step in the right direction.

The 14-hour rule was introduced in 2017 in order to ensure a minimum commitment by firms winning legal aid contracts but the formula has been too rigidly interpreted resulting in a number of duty solicitors losing their slots and even their employment as a result.

“The 14-hour rule in criminal legal aid contracts was far too prescriptive and we are glad the LAA has listened to our arguments,” said Law Society president Joe Egan.

The 14-hour rule will now include:

  • Crown Court advocacy
  • VHCC work
  • work performed for a client in cross examining a witness under section 38 of the Youth Justice and Criminal Evidence Act 1999
  • privately-paid criminal defence work that would count towards the 14-hour requirement if it were funded under legal aid
  • Armed Forces legal aid work.

The LAA has also agreed to adopt a more flexible approach in rural areas where there is insufficient duty solicitor work.

Joe Egan added: “At the outset of the contract we had anticipated that that this rule was going to be used to remove ‘ghosts’ from the duty rotas, but not to penalise genuine duty solicitors working two days a week who are unable to work additional hours due to caring responsibilities.

“We are pleased that the LAA has committed to adopting a more intuitive, flexible approach to auditing firms. We will continue to monitor the impact of these changes and to offer support to any members who still feel they have been unfairly disadvantaged by the 14 hour rule.”

Notes for editors

In responding to the LAA consultation on the new guidance, the Law Society called above all for the LAA to take a more ‘purposive’, pragmatic and flexible approach to the rule. The performance of 14 hours contract work should not be the only consideration when auditing a firm, but a ‘gateway’ to assessing the factual position in any individual case, with each case to be judged on its own merits. Our specific requests included:

  • A more flexible assessment being undertaken over a longer period – e.g. three to six months, rather than solicitors being required to meet the requirement every single month.
  • Part-time duty solicitors working two days a week and meeting all of the other requirements to be treated in a more holistic way, with all of their work being looked at to assess whether they are genuine duty solicitors or not, and not only their compliance with the 14-hour rule.
  • Firms to be allowed to include a certain amount of private work within the 14 hours; given that this is the same work as that undertaken for legal aid clients, and that these cases may be used to meet the attendance requirements in clause 6.22 of the contract specification. Many firms are now faced with the prospect of having to turn down more lucrative private cases – often essential for the sustainability of the firm – for fear of not being able to meet the 14 hour requirement.
  • A more flexible approach being taken to the inclusion of a certain amount of supervision and file review within the 14 hours.
  • A more flexible approach to be taken to rural areas where there may be insufficient work to comply with the 14-hour rule.

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