Criminal contract reconciliation - round two

In a continuing series, Richard Miller answers the question being asked by many legal aid practitioners: what is happening with the reconciliation of criminal contracts?The second round of criminal contract reconciliation has now started.

Adjustments are being made for all firms that have billed at a rate less than 90% of payments made in the first six months of the contract.

The intention is that come March, firms should be recording billed work of between 90% and 95% of money paid to them under the contract.If a firm has billed less than 90% of payments made, the Legal Services Commission (LSC) will be seeking to recoup money based on a forecast of what the firm is expected to bill before March.

This forecast will be calculated with reference to previous billing under the contract.

In making this forecast, the commission is attaching no weight to the level of billing for April, which it accepts is not representative of a normal claiming pattern.

However, the commission will be considering all months from May onwards.In making any recoupment, the commission will calculate what money needs to be recovered, according to its forecast, to bring the firm within the 90% to 95% target band by the end of the financial year, and will reduce the remaining contract payments by equal amounts to recover the money.

There will be no recoupment by means of a lump sum deduction from a single monthly payment.If the commission makes an amendment to your monthly payment with which you disagree, you can within 14 days seek a review by the regional director under paragraph 12.B.14 of the contract.

If it took your firm more than one month to reach a billing level that truly reflects the ongoing position, or if your billing is on an upward trend for any other reason, the commission's forecast may differ from yours.

In particular, if your current billing is now in excess of 95% of the payment each month, but there is a shortfall from the first six months, you will have grounds to argue that the commission should not be recouping anything from you.

You will need to make representations to the regional director as to why you believe that your forecast is more accurate than the commission's.

When considering whether to seek a review, it should be remembered that according to the contract documentation overview, the monthly payment is supposed to pay both for work billed and an element of work in progress.

Therefore, if the total contract payments are likely to fall below the level of bills submitted as a result of a downward review, the case for not making such a cut in the monthly payment will be strong.You should also keep a close note of your billing between now and March, because if your billing total creeps above the 95% mark over these months, you should apply to the commission under clause 12.B.4 of the contract for an increase in the payment.

The commission is required under the contract to consider your request within 21 days.The commission has also indicated that the position will be reviewed again in January in the light of the bills submitted during the rest of this calendar year.

The particular purpose of this review is to monitor the effect on the overall claiming pattern of the claims for file reviews, which firms must have submitted by 10 December.Don't forget that if your current billing remains at the level anticipated in your monthly payments but you have a historical shortfall to be recouped, your payments must be increased again come April.Contract compliance audits and guidanceI return to the issue of contract compliance audits and guidance, which I covered in my column last month, because the new guidance I mentioned has now emerged from the commission.

There are a number of matters worth highlighting.

This guidance is in force now, but it is also subject to consultation over the next three months.

Additional amendments may be made in the light of the consultation exercise.Evidence of meansThere is a section in the guidance setting out the evidence of means that is considered acceptable, and the circumstances in which it would be reasonable not to have obtained evidence.

This also contains a reminder that when the new means test comes in on3 December, the calculation period will be the month instead of the week before the application for legal help.Completion of formsSteve Orchard, the commission's chief executive, said at the Legal Aid Practitioners Group annual conference in October that auditors had been given instructions not to take such a rigid line where there were minor mistakes in the completion of the legal help forms.

The new guidance reflects this slightly more flexible line.

There must be adequate evidence available on the file that the client was eligible for legal help; but the guidance now sets out circumstances in which errors on the form itself will not lead to disallowance of all costs.

For example, where the form is undated, if there is a dated attendance note on the file confirming completion and signature of the form, this can be accepted.

Likewise, the failure to tick the box confirming that the client received no legal help in the previous six months should no longer lead automatically to a nil assessment.Non-fee-earners' letters and attendance notesThe commission has tightened the rules, so that there is now a general rule that any work done by a non fee-earner will not be chargeable.But it has now been expressly confirmed that time spent dictating lengthy and detailed attendance notes is chargeable.

Usually up to two units of time will be allowed.

The emphasis of the advice concerning the sending of two letters on the same day has been changed, to highlight the many circumstances in which this will be reasonable.

The underlying rule, that where matters could 'reasonably, conveniently and appropriately' have been dealt with in a single letter the subsequent letter(s) should be disallowed, remains unchanged.ImmigrationThere is a discrete section of guidance on immigration issues that all immigration practitioners will want to study.The new guidance, which is available on the LSC Web site, consolidates the rules for what is or is not chargeable and represents a welcome clarification of matters.

There are still some issues on which there is likely to be disagreement between the profession and the commission, but this should make the next round of audits more bearable.l Questions for this column should be sent to Richard Miller at: 93 Turnmill Street, London EC1M 5TQ, DX 53339 Clerkenwell or e-mail: richard@lapg.co.ukRichard Miller is the director of the Legal Aid Practitioners Group and a Law Society Council member.

He was previously the franchise liaison officer for a small firm of solicitors that had franchises in crime, family, welfare benefits and personal injury.

Mr Miller cannot answer questions other than through this column, unless they are from members of the Legal Aid Practitioners Group