DOING YOUR HOMEWORK ON LEGAL CONTRACTS

In a continuing series, Richard Miller offers advice on burning issues facing legal aid lawyersQ How will my matter-starts and standard monthly payments for April 2002 be calculated?A There are a number of significant changes to the way matter-starts are being dealt with next year.First, in all categories, the number of tolerance matter-starts will be expressed as an additional number of matter-starts over and above the number of starts allocated in the contract category, as happens only in family work.Second, in the immigration field, asylum starts will be set out in the schedule separately from non-asylum cases.

Asylum cases are defined as cases 'involving a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention or under article 3 of the Human Rights Convention for the claimant to be removed from, or required to leave, the United Kingdom'.In calculating the number of matter-starts to be awarded, the Legal Service Commission's (LSC) starting point will be the number of matters actually started by the firm under the current year's schedule.

Because the full year's figures are not available, the relevant figure will be calculated by extrapolating from the figures for matter-starts from April to November 2001 inclusive.The LSC will then add 10% to the number of matter-starts to take account of the anticipated increase in demand arising from the enhanced eligibility limits for legal help, which came into force on 3 December 2001, except in mental health and asylum, where demand is not expected to be affected by the rise in eligibility.Clause B20 of the contract contains a guarantee that each schedule will authorise not less than 80% of the matter-starts in the previous schedule.

Subject to this guarantee, the commission may allocate a lower number of matter-starts than the formula suggests where there are concerns about the quality of work or about overclaiming arising out of the contract compliance audits, or where the commission considers it necessary to do so to meet other priorities.

Where there is a Community Legal Service Partnership (CLSP) strategic plan for your area, it will be well worth your while finding out what priorities are identified in the plan, as this will give an indication as to where resources are most likely to be directed.Regarding standard monthly payments, the commission's aim is that by the end of this schedule period, contractors should have received over the course of the contract a sum equivalent to all bills submitted plus the one month pull-forward.

For those organisations that have had contracts from the outset, this means that they should have received 102.56% of what they have billed over the entire contract period by the end of March 2003.Therefore, the commission will calculate what it anticipates it will have paid by the end of the contract period, based on the supplier's billing pattern.

To take account of the increased number of matter-starts the schedule payment limit will be increased by 5% (on the basis that not all of the increased number of matters will be billed within the period of this schedule).

The LSC will then adjust the monthly payment as necessary to achieve the figures set out above.

Q Can I get a new contract for legal help work?A Part 4 of the contract documentation overview sets out the bid rules that will apply to the award of new contracts.

Broadly, contracts will be awarded where the regional director has identified a gap in supply that the prospective contractor can meet.

It is generally likely that new contracts will be awarded if the bid is for a contract in immigration asylum, mental health, community care, education, actions against the police, etcetera, or public law.

It is generally unlikely that a contract will be awarded for family, although there may be a small number of bid zones where the commission has identified a shortage of suppliers where a family contract might be awarded.In the other fields, contracts will be awarded if they are needed to meet the demand for legal services.

The assessment of the CLSP is likely to be influential in determining whether such demand exists.

Q What is the guidance on which the Legal Services Commission is carrying out its criminal contract compliance audits?A The LSC issued new guidance in the summer, which its auditors were instructed to follow immediately, even though it was also out for consultation before being incorporated into the contract.

The Law Society, Legal Aid Practitioners Group, Criminal Law Solicitors Association, and various other groups and individuals have commented on the draft manual, which is available on the LSC Web site.

The consultation period has closed.Much of the manual is unobjectionable, although there are several areas that give some cause for concern.

The following matters have been commented on in the consultation, but it remains to be seen whether they are changed in the final version of the guidance.Where multiple letters in the same format are sent - for example, to notify witnesses of a trial date - the guidance says that only one routine letter can be claimed, however many recipients there are.

It also indicates that e-mails generally do not count as letters and cannot be claimed, contrary to the position under the civil guidance.The guidance also indicates a threshold for a volume of photocopying that would be chargeable of 500 sheets.

Many firms have previously considered anything of more than 100 sheets to be chargeable.Perhaps the issue giving most concern is the suggestion in the guidance that waiting time of more than 30 minutes is prima facie unreasonable.

Clearly it is not unusual to spend more time than this waiting at court, and this is something entirely outside the solicitor's control.

There is an indication that the solicitor should seek to be released by the court rather than waiting.

Where your court does not operate on such a basis, and/or for other reasons you are unable to avoid waiting in excess of 30 minutes, it is important that this is made clear in order to avoid risking losing costs on audit.Experience from the civil costs assessments shows that while there were numerous problems in the audits, there were also lessons for firms to learn.

Generally speaking, a two-line attendance note will not be sufficient to justify a two-hour attendance, although reference to a resulting statement may suffice.

Where there are unusual factors that mean more time than usual has to be spent on the matter, a short note mentioning those factors should ensure that the costs are allowed.

Over the next few months, the LSC will need to agree with the profession the balance between what it can reasonably expect to see on a file, and what the auditors can reasonably be expected to understand without needing to see it written down in every case.

It is not an easy balance to strike, and inevitably in this first year of audits, mistakes will be made.

These should be challenged firmly, and taken up with LAPG, the Law Society and CLSA, so that your professional representatives can address the common problems that arise.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