Update on payment of Advocates’ Criminal Graduated Fee Claims

3 August 2011

The Bar Council has continued to receive complaints from barristers regarding delays and other problems since the Legal Services Commission took over the processing and payment of Crown Court legal aid fees. On 8 June 2011, the Bar Council posted a news item on its website detailing the reasons for the delays.Since then, the Bar Council has made further representations to ensure that these matters are resolved.

1. The MAAT number issue

The provision of Means Assessment and Appeals Tool (MAAT) numbers caused some difficulty. There were approximately 1,000 Advocates' Graduated Fee Scheme (AGFS) cases where payment was delayed because the MAAT number had not been amended in the MAAT system to show that a case had moved from the Magistrates' Court to the Crown Court. The LSC had to pass details of those cases to HMCTS for it to amend the MAAT for each case and then inform the LSC that the case could be paid. A proposed solution to the problem was set out by the LSC to update its computer system so that it no longer required verification from HMCTS that a case had been passed from the Magistrates' Court to the Crown Court. This change was implemented on 30 June. The LSC is now clearing the backlog of cases that had built up as a result of this issue. Most claims in that backlog have now been processed and the LSC says that payment for all those backlogged cases will be with advocates by Thursday 11 August.

2. Appointment of two LSC contract managers for chambers

2.1 The LSC has appointed two contract managers to manage its relationship with the Bar concerning the submission of claims for payment and related issues. Paul Benjamin and Tracey Courtenay-Williams will be fulfilling the roles (see annex A and B). Their first three months will involve a pilot scheme whereby they will provide an LSC point of contact for the top 60 chambers (calculated by reference to the volume of receipts of LSC work in criminal, family and civil law). Mr Benjamin will be responsible for managing the chambers under annex A and Ms Courtenay-Williams will be responsible for those in annex B.

2.2 The LSC proposes to produce a monthly e-alert or newsletter to be sent to all chambers setting out problems raised, solutions and progress made.

2.3 There will be monthly meetings between the LSC, the IBC and representatives of the Bar Council Remuneration Committee to identify and attempt to resolve problems.

3. Reduced telephone service

The increase in the criminal graduated fee backlog led to a significant increase in the number of phone calls which were received by the LSC. Deploying more staff to deal with telephone calls reduced the time available for LSC staff to process claims.

In order to reduce the backlog, the Executive Team at the LSC has decided temporarily to reduce the amount of time each day that is being spent on dealing with telephone calls, and to provide extra resource to deal with the claims backlog. Access to the telephone service will be cut from eight to four hours per day.

Criminal practitioners have opted for a timeslot of 09:00-13:001 with civil practitioners opting for a timeslot of 10:00-12:00 and 15:00 - 17:00.

4. Claims sent to courts prior to the transfer but returned

The Bar Council is aware of a significant number of claims which were sent to courts prior to the date of transfer, but which were not date stamped by the court and then returned to chambers after the transfer as 'out of time'. There are now no facilities in the courts to process these claims and the LSC claim form and computer system requires fuller information that is not easy for chambers to obtain once the papers for the case have been returned to the solicitors. The Bar Council is working with the LSC to identify the number of claims that fall into this category and to see whether a way can be found in those exceptional circumstances for the LSC to process them without the additional information.

5. Current backlogs and hardship

The Bar Council is aware of the financial hardship that many are suffering and will discuss with the two new LSC contract managers how best to help in individual cases.

However, the main need is to reduce the processing times so that hardship does not occur.

Barristers can check current processing times on the LSC website.2 The current LSC processing time for claims is seven weeks. This is within the eight week target that the LSC has set itself, but too long in the view of the Bar Council.

If your claim was submitted to the LSC more than seven weeks ago and has not been returned to you for resubmission, you should contact the LSC.

6. Local Bar Rule

The Bar Council has received a number of complaints from advocates regarding the non-payment of travel expenses. Apparently, the LSC has rejected claims on the basis that advocates' chambers were not considered the 'local Bar', and therefore prior approval should have been sought from the LSC in accordance with Paragraph 24 of the Criminal Defence Service Funding Order 2007:

"Non-local appearances:
24: Where an advocate is instructed to appear in a court which is not within 40 kilometres of his office or chambers, the appropriate officer may allow an amount for travelling and other expenses incidental to that appearance, provided that the amount must not be greater than the amount, if any, which would be payable to a trial advocate from the nearest local Bar or the nearest advocates office (whichever is the nearer) unless the advocate instructed has obtained prior approval under CDS Regulations for the incurring of such expenses or can justify his attendance having regard to all the relevant circumstances of the case."

Currently, there is no accepted definition of the term 'local Bar' and accordingly no certainty to advocates as to whether they will be paid for travel or not. Tony Shaw QC, Chairman of the Remuneration Committee has written to Carolyn Downs, Chief Executive of the LSC, seeking to agree a definition of the 'local Bar' and an indication of the courts/centres that the LSC does not believe is serviced by a local Bar. The Bar Council will keep barristers informed of developments.

7. Service of electronic evidence

The Bar Council has been made aware that, recently, the CPS has been serving most, if not all, prosecution evidence in electronic form.

Under the Criminal Defence Service Funding Order, where prosecution evidence is served in electronic form, the defence can only be paid special preparation rates for viewing the material.

As a matter of principle there is agreement with the LSC that neither counsel nor solicitors should be financially disadvantaged simply because papers which should have been served in hard copy, have been served electronically.

On 27 July the Ministry of Justice wrote to the Bar Council to consult on an amendment to the Funding Order which would revise the definition of 'Pages of Prosecution Evidence' so that it includes evidence that has existed in paper format but which has been digitised for service by the prosecution.

This should have the effect that if 'Pages of Prosecution Evidence' that would normally have been served in paper format, but are currently scanned in and served on disk, the barrister would not be financially disadvantaged and the special preparation fee will be adjusted so that the advocate receives the same fee as if the evidence had been served on paper.

The LSC is looking to publish guidance in the coming weeks that will provide further clarity to practitioners as to how they aim to deal with electronic evidence.

¹  http://www.legalservices.gov.uk/civil/cls_news_12876.asppage=1&dm_i=4P,GYKX,58TRG,1DTQ0,1
²  http://www.legalservices.gov.uk/criminal/payment_dates.asp