Resolution Legal Aid Committee s guide to Very High Cost cases and Prior Authority

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1 Resolution Legal Aid Committee s guide to Very High Cost cases and Prior Authority Recently members of Resolution s Legal Aid Committee have visited the Legal Services Commission s offices in Birmingham and South Tyneside. We have had direct contact with LSC staff that actually make the decisions on case files and have been able to go through applications with them face to face and via their computer systems. We have been able to give feedback on the concerns that practitioners have about the way decisions are currently made and the Commission have been very pleased to receive this. Similarly, we now have a much better understanding as to how decisions are made and the processes that are followed. There are undoubtedly a significant number of cases which are rejected and returned across the board about 40%. Whilst it is clear that a very small percentage of these cases are returned in error by the Commission, the majority of returns and rejections are because of practitioner error or misunderstanding. This is a waste of resources for both members and the LSC. Such delays cause problems for clients in terms of service delivery, delays in the Court process, and just as importantly cash flow delays for member s organisations. With these guides, we aim to assist practitioners in reducing delay and rejections. The guides have been written in conjunction with the Legal Services Commission and we are grateful for their assistance. We have agreed with the LSC that there needs to be more training, not only for caseworkers to understand the practitioner point of view, but also within member organisations to ensure that our knowledge of the LSC rules, regulations and processes are as good as our knowledge of family law and procedure. These guides will be posted on Resolution s website and will be updated from time to time, and we would welcome feedback from members as to how they could be improved. We will be embarking on a series of training events with the LSC and will provide more information about these as it becomes available. We are also working with the LSC to produce sample case plan guides. However, these are not to be precedents, but should instead be considered to be best practice by Resolution practitioners. Please look at our guide to payments on account and billing following our visit to Birmingham Legal Services Commission offices in the June edition of Legal Aid enews. David Emmerson Co Chair of Resolution s Legal Aid Committee

2 Very High Cost Cases Key documentation Funding Code Section 6 Decision Making Guidance Section 14 (Vol 3 Manual) VHCC Family Pack includes the information pack and details on each model (see below) Enhancement as set out in the Civil Bill Assessment Manual Resolution s Top VHCC Tips These tips are in addition to the Top Tips referred to above in the key documentation which are offered by the Legal Services Commission. 1. Appoint someone within your organisation to be in charge of Very High Cost Cases. This is a specialist area, invariably based around care work, but is complex and vital. A single person is likely to be able to master the systems, case plan requirements, and get the very best out of the system for your organisation. This person may also wish to review all cases nearing the 20,000 limit in order to ensure that case plans are prepared early and notifications are made at the appropriate time. It is all too easy for each fee earner to have their own individual approach to dealing with VHCC cases. Whereas it is of course essential that each fee earner has significant input, we do recommend that it is controlled by a single individual to ensure consistency. It may well be that that key individual will be able to make contact with a single person at the Legal Services Commission to be the general focal point of your organisation s enquiries, but LSC have said this is not always possible. However, in that way the consistency of decision making is most likely. 2. Present in house training which identifies the key elements and requirements of conducting Very High Cost Cases and review procedures in the light of this information and guidance. 3. The Rules require you to notify the Commission as soon as you believe the case is likely to exceed 25,000. Whilst not in any way ignoring this requirement in terms of cash flow and ensuring you are able to obtain disbursements and prior authority for disbursements we recommend that you seek cost extensions as close to the 25,000 limit as is possible before notification. There have been some instances in the past where the LSC have allowed a limit of 30,000 per case, e.g. where a child has been born during proceedings and another certificate with 5000 has been granted. NOTE that the absolute upper limit is now 25,000, no matter how many certificates you have. You need to work very closely with Counsel s clerks in these cases. If a case becomes high cost because the hearing overruns and counsel is being paid on the FGF model from which they then escape, then the fees will increase with retrospective effect. However the key point is the date of notification and even if counsel s fees are then renegotiated as long as the pre escape fees have not taken you over the 25,000 you are protected. Therefore you will need Counsel to produce the fee notes on the rates that would have

3 applied under FGF so that the LSC can check this, even if ultimately Counsel s fees are going to be much higher. 4. There is no substitute for reading the Very High Cost Family Cases Information Pack referred to above and the Top Tips. The guidance itself is clear and relatively easy to read. It will be necessary to refer back to key principals set out in the funding code. The Guidance explains how to complete the case plans, what information the LSC wants you to set out, example case plans and deals with many of the detailed queries you will have. Please also note the guidance is clear as to where to send your plans depending on what type of case it is and whether for example a QC is involved this is set out in paragraphs 17 and Once you have notified the Special Cases Unit that a case has become high cost, you must submit your case plan within four weeks, unless your final hearing is within four weeks of notification in which case the LSC will not usually require a case plan and will accept a claim for costs in lieu. When you make contact with the LSC and your hearing is within four weeks, make reference to the fact that you are not submitting a case plan and will submit a claim in lieu and make sure that is acknowledged. The LSC say they will reply to notifications within three days. The LSC intend to be much stricter on these time limits for sending in case plans and as long as you comply with the four weeks you are protected on costs between then and the submission. In the past many practitioners may not have submitted the case plans within the four weeks but there have not been any later difficulties in our experience. However, it is now very much more risky to do this. If you need longer than four weeks, then seek approval which can be given and make sure you get the approval in writing. If you don t seek approval and you take longer than four weeks the LSC will not allow your costs between notification and the date you submit your case plan, and you are warned that you may be subject to contractual sanctions. This requires you to keep a much closer eye on the costs and as soon as you are nearing the sum of 20,000, get your case plan drafted so you can submit it with your notification. 6. It will sound obvious but make sure that all correspondence with the LSC about your case plans and notifications is kept on a separate correspondence clip so that you can see immediately when you notified the LSC, when the LSC acknowledged etc 7. Please note that the LSC aim to respond to your substantively within eight weeks. This means therefore that you are to carry on working even though the LSC has not specifically approved your costs. As long as you have submitted your case plan within the four weeks, or within any agreed extension, you are protected on costs although the specific amount, enhancements etc will be negotiated with the LSC when they respond to you with your case plan. They aim to have an agreed plan within 8 12 weeks although you may find it takes longer. Once the case plan has been agreed, you can seek the payment of your pre contract costs in full on the appropriate claim. 8. You must be sure you amend the scope if you need to. For example, if you submit a case plan and a subsequent application is made which requires an amendment to scope, you need to get that amendment made by the VHCC as an emergency application and not

4 wait for the process on agreeing costs set out above to work its way through. The same applies to any application for prior authority. All the correspondence on App 8s will go to the Special Cases Unit once the case has been notified. 9. In the past you will have submitted traditional case plans based on a calculation of the work you are going to do on hourly rates. You now have the choice to enter an events model with the LSC when you have junior counsel cases. In the past those of you have had cases with QCs may have entered events models, which sees the solicitor being paid a fee for the number of events that have taken place in the case. With QC cases there is usually no option but to be paid on the events basis. With junior counsel you now also have the choice to submit an events plan or a traditional model The advantage of the events plan is that the case plan is much simpler, as it sets out the events (defined as hearings and advocates meetings, irrespective of whether the solicitor attends or not this is all set out in the guidance) and payment is usually much quicker. You will need to work out if this plan is suitable for your case, and discuss with your billing manager the merits of this model over the traditional model. It will all depend on how many hearings there have been and will be, and how much work you have done in the case. The fees for the events model are set out in the guidance. There are different rates for under and over runs on listed final hearings. The rates are also different depending on whether the final hearing (which includes any fact finding or threshold hearing) exceed ten days. 10. With these events plans with junior counsel, counsel may decide to be paid by FGF or FAS (and not the event payment) which is acceptable to the LSC i.e. solicitor and counsel don t both have to opt for the events model. 11. If using the events model and if there are further events fixed, the LSC need to be notified and the plan amended in the same way as the plan is amended in the traditional model when further work is needed. 12. The events model does not work for solicitor advocates where the solicitor does most of the advocacy. The LSC is currently working on an events model for solicitor advocates, and further details will be published in due course. 13. The Commission welcome and indeed encourage correspondence by at the Very High Cost Case Team. Unless you know you are dealing with a particular individual, enquiries should be sent to vhcctyneside@legalservices.gsi.gov.uk for cases which are for the traditional case plan model or vhccevents@legalservices.gsi.gov.uk for events plans 14. The Commission s Very High Cost case workers are very experienced and knowledgeable with regard to the Regulations. One of the factors that they must consider is whether the cost modelling in a traditional case plan is reasonable as set out in the case plan. Do not try and predict the future conduct of your case when it is fundamentally uncertain. It is perfectly acceptable to set out a detailed programme of what is required in the early stages of the case and then seek to update the case plan and seek further extensions as key milestones fall into place. For example, it may well be that the course of the case is simply not predictable until key expert reports have been completed and considered.

5 Therefore, focus on those initial stages in detail with appropriate costings and then make it clear that you are going to seek to amend the existing case plan once the initial milestones have been met. 15. Also, in order to assess whether your costings are appropriate the Commission do use the benchmark modelling of 2000 per event inclusive of disbursements and counsel s fees. However where there are large exceptional disbursements these would be considered in addition to the benchmarks but this needs to be explained in the case plan. 16. The Commission do not have this as an absolute guide but it is a working benchmark. Therefore, if in your case plan model you anticipate there being some ten hearings then the Commission would expect your profit costs to be in the region of 20,000. If you are seeking significantly more, say 25,000 to 30,000 then you will need to set out the circumstances and reasons why this is likely to be a more costly case in terms of time spent. The LSC VHCC team use the following guide when referring to benchmarks: A large number of bills were analysed and average case costs were extrapolated. This has enabled us to develop guides or benchmarks, these are: 1,500 per hearing for straightforward and private law cases 2,000 per hearing for generality of Care cases 2,500 per hearing for the exceptionally complex care cases often including counsel fees escaping the FGF scheme These benchmarks are reasonably accurate cost profiles, they enable us to consider case plans and agree case plans effectively. Where costs are within benchmark they can be agreed without unnecessary delay. However they are not fixed, cases will exceed these guides however unless adequately explained this will engender queries. 17. The Commission readily understands that there are many cases which will exceed the benchmarking profile, and are willing to grant case plans with cost estimates in excess of the benchmarking profile. However, you are likely to have to be clear about your reasons in your case plan. We would therefore recommend applying a simple test before splitting your case plan, namely that if your cost estimate exceeds the multiple of 2000 per event, you should check to see that you have outlined reasons. Enhancements Enhancement for Panel Membership is guaranteed at 15% on all items. Any exceptional enhancement over and above has to be justified in accordance with the enhancement regulations set out in the Civil Bill assessment manual referred to above. Resolution recommends being realistic in expectation but also confident in claiming enhancement when you are able to set out reasons which justify enhancements under the cost guidance. It is virtually impossible to secure enhancement on routine items such as

6 letters and telephone calls so we don t recommend trying. Enhancements of 100%, which is now the maximum must be by definition rare and only apply to the most exceptional cases. However, be confident about applying for enhancements when solicitors undertake advocacy (where you are not bound to the FAS payments) and/or the case as a whole or parts of it are dealt with under time pressures. 18. If a case transfers from one firm to another, ideally the Commission would ideally wish to enter into a separate new VHCC although this is not always the case. 19. With your case plan set out at the back a schedule of disbursements with accompanying documentation which justifies the disbursement estimates, clearly pointing out hourly rates and likely time spent. 20. Subscribe to LSC updates.

7 Prior Authority Key Documents Forms Resolution and the Commission encourage the use of the CLSApp8A form for prior authority, particularly where there are multiple parties seeking the same prior authority. This is a voluntary form but one that was devised between Resolution and the LSC to reduce administration and ensure that all the key information is provided to enable the LSC to make an informed decision. Top Tips Always send details of the Court Order with the application. In many cases you won t have the typed and sealed version but the Commission will accept handwritten drafts. The authority of the Court is essential in the LSC decision making process. Make sure that what you are applying for is justified and in accordance with the precise terms of the Court Order so don t seek prior authority to incur an expenditure which is not justified by the terms of the Order. The Commission case workers are fully aware of the case of Re: DS and others (children) [2012] EWHC 1442 (fam). The Commission recommend solicitors have prescribed wording which they use on each occasion which complies with the guidance of the President. Where there are multiple parties seeking authority, the division of the total cost of disbursements should be by the number of solicitors / parties not for example by the number of children. It is therefore effectively the Guardian s share of the disbursements. The Commission recommend choosing the oldest child as the lead certificate. Resolution recommends that solicitors have a number of printed CLSApp8A forms which they take to Court along with FAS forms, payment annex and copy of Re: S and payment rates. This is so that the lead solicitor, normally the child s solicitor, can complete the form with all parties present so that Legal Aid Certificate numbers, and importantly the full names and dates of birth the parties / children can be entered promptly onto the form and submitted to the Commission as soon after the hearing as practicable. The Commission check: a) Is it codified rates b) Is it London / outside London rates c) If the apportionment is correct d) The experts quote. The quote needs to be from the expert directly and not simply details of a telephone call. The Commission will accept an from

8 the expert but it must be clearly from the expert stating the hourly rate, how many hours they anticipate undertaking and what precisely they will do. The Commission also check whether the form is dated and signed. The Commission look to see whether the number of hours is reasonable. The Commission deal with many applications each day and therefore have a reasonably good understanding of what an average number of hours are required in relation to a number of tasks. Both Resolution and the Commission agree that there should be common benchmarking which is publicised. We hope that the Commission will verify their research with representative bodies to give guidance for practitioners. However, if you are seeking an unusual amount of hours then you will need to justify this in the application otherwise it will simply be returned or subject to only a partial grant. The LSC is now actively dissuading applications for prior authority where you are instructing an expert who is using the coded rate. It is a matter for you to decide whether to apply in the event that you consider that your expert fee is unusually large and you seek authority for it. Practitioners must continue to apply for prior authority for experts who are not coded and those experts who seek to charge a high hourly rate. Drug Testing Again the Commission will only allow authority for what the Order has provided for. Therefore, do not seek month by month testing or multiple drug testing if that is not endorsed by the Order. Those who visited the Commission were extremely surprised at the very high cost of drug testing. Applications for drug testing disbursements account for something like 50% of the disbursement applications. Many requests cost the fund This is a vast amount of money that is expended from the fund and Resolution would encourage its members to only agree to testing when it is really going to assist the Court in making key decisions. Do not agree to drug testing simply because the local authority thinks there might be drug taking going on. Model Wording The parents shall by 4pm on the day of 20 file and serve a report from Drug Testing Company on hair strand testing for the parents use of alcohol and drug use for the standard 9 drug panel for the six months prior to the sample being taken (where possible) with a month by month breakdown of drug use (where possible) father s sample shall be taken from body hair due to lack of head hair. The costs of the report shall be limited to 2650 plus VAT () and shall be borne by the Applicant Local Authority and the public funding certificates of the Respondent s in equal shares, such costs being deemed reasonable and justifiable expense thereon.