Legal aid claims assessed by the courts could be handled by the Legal Aid Agency in a move that has sparked conflict of interest concerns about the decision-making process.
Courts would usually conduct an assessment where, in civil proceedings concluded in front of a district judge or higher, the costs incurred were over £2,500. However, the LAA now wants these claims to be handled by its civil finance team.
The agency says that in recent weeks, many providers have not been paid for cases because of court closures during the Covid-19 lockdown. Bringing the work in-house would result in faster payments and help to ease cash flow for providers. The change would be permanent.
The agency conducted a two-week ‘operational’ consultation, seeking feedback from the Law Society, Legal Aid Practitioners’ Group, Citizens Advice Bureau and Shelter.
The proposal has been met with scepticism.
The Law Society said it was aware of members’ deep concerns. Richard Miller, head of justice, said: ‘The LAA has not consulted us on the change itself, only on the mechanics of doing so. There is a significant conflict of interest where the assessor is also the paying party. In our response, we have emphasised the need for the assessment process to have a genuinely independent element to it.’
The Legal Aid Practitioners Group, in its consultation response, said the LAA should have conducted a lengthy consultation process. ‘Further, the judicial process is independent of the LAA and the identity of the decision maker is known, i.e. the costs judge. Whereas, the identity of the LAA caseworker is not disclosed and as such their experience and training is not accounted for to the provider,’ the group added.
Law firm Irwin Mitchell, which submitted a response, said it was concerned that there will be pressure on LAA assessors to limit costs claims for the purposes of key performance indicators or general internal policy.
LAPG chief executive Chris Minnoch said: ‘We want it to work. We don’t want the LAA to fail. We want them to get it right. They need to be working with us and practitioners to ensure these processes are open, transparent and robust.’
A spokesperson for the agency said: ‘The LAA already processes 100% of these assessed cost claims, and the majority of these bills have been paid within five days. We continue to work with operational partners to streamline the process, leading to faster resolution and payment for all parties.’
The agency stressed that assessors will not be giving incentives to minimise costs claims. Around 200 claims have voluntarily been submitted to the LAA and the agency said it has received positive feedback on payment speed.