Saimo Chahal looks at the LSC's fixed-fee civil legal aid scheme and explains why her firm is not signing up for reasons of principle


The Legal Services Commission's (LSC) tailored fixed-fees voluntary scheme was introduced on 1 October, covering civil legal help cases (excluding immigration) with an opt-out for mental health work. A mandatory scheme should come into effect on 1 April 2005.


The LSC and its supporters say the scheme is a sensible interim stage towards the changes in payment arrangements likely to result from the fundamental legal aid review, and that the management processes involved will help suppliers to prepare for those changes. This strategic argument is backed by a bunch of carrots. Those opting into the scheme now will benefit from:


  • A lighter approach to contract management and no costs compliance audits;


  • An increase in average fees of 2.5%, backdated to 1 April 2004;



  • Increased new case starts;



  • Certainty of payment without risk of reduction; and



  • Increased profitability by making efficiency savings.



    • The ulterior purpose of the scheme is plain. The LSC faces a demand from the Department for Constitutional Affairs which is in simple terms: the LSC must deliver more 'acts' of publicly funded legal advice and assistance for the same money. It seems that neither the LSC nor the DCA much cares how this objective is achieved.


    The scheme produced by the LSC in response to this demand is very clever, and may be expected to deliver. On the one hand, the element of 'tailoring' shields the LSC from the criticism that the initiative undermines the quality and extent of advice and assistance provided, since suppliers will be paid according to the pattern of work undertaken hitherto.


    However, on the other hand, at the heart of the scheme is that in any particular case, the supplier will not be paid more than the average fee no matter how much work is involved in the case. For all the caveats and guidance on what suppliers can and cannot do, this is bound to produce the desired result - suppliers will do more and lower-cost cases to maximise fee income.


    My firm has declined to sign up to the voluntary scheme on principle. We do not consider it right for civil legal work to be paid on a flat rate. Payment should depend on the work undertaken, and be underpinned by assessment of the quality and reasonableness of the work done. Severing this link exposes clients to arbitrary factors which will influence whether they get advice and assistance, and the nature and extent of the help they receive. This must be contrary to the interests of justice. It places publicly funded clients in a wholly different and less advantageous position in comparison with privately paying clients.


    We also see serious adverse practical consequences for our clients. Suppliers will take on cases which are 'easy', short term and predictable, at the expense of other clients. Clients who need interpreters, or home visits, or are in hospital or prison, will be discriminated against in favour of those who can get to the office and speak English. Particular kinds of cases where legal expertise is most required - such as those before the social security commissioner - will become wholly impracticable to take on, while the temptation to take on cases that require little legal input and can be cheaply concluded will be irresistible. Mental health work involving demanding yet vulnerable clients is wholly unsuited to a fixed-fee regime.


    It is disingenuous for the LSC to say it has built safeguards into the scheme to avoid these consequences. No one can be in any doubt that those safeguards will fail to prevent the temptation to suppliers to take on smaller, shorter cases to maximise the number of fixed fees. It is, indeed, hard for the LSC to say this will not happen with a shred of credibility, since this is exactly what it wants to happen.


    Saimo Chahal is a partner at London-based Bindman & Partners