Block fees: the story behind the changes

Those practitioners involved in providing civil legal aid will recently have received the letter from Lindsay Montgomery, the chief executive of the Scottish Legal Aid Board, indicating that there will be important changes to the operation of block fees. We felt that, in light of that letter, practitioners involved in that area of work would be interested to know how these changes have been arrived at and what cognisance has been given to the views expressed by the Society’s representatives.

In January 2005, the Law Society of Scotland provided an initial response to the Board’s report on the strategic review of the delivery of legal aid. The Civil Legal Aid Subcommittee was delegated the task of entering into discussions with the Board with a view to changes being implemented to the block fees.

Problem areas

Following an initial exchange of views with the Board from May 2005, and a series of meetings between then and September 2005, problem areas within the block fees table were highlighted, and in addition to those matters the fees for summary cause actions and the criteria for uplifts in children’s legal aid cases were also discussed. In that respect, as far back as 20 April 2005, proposals were put forward by the Society for various factors to be considered by the Board in respect of applications for uplifts in children’s cases. These criteria broadly followed the guidelines for the sanction of employment of counsel in children’s applications, but these proposals were roundly rejected by the Board.

By September 2005, agreement in principle had been reached between the Society and the Board as to those parts of the fees table which required to be amended. Those were as follows:

1. The table was considered to be too restrictive particularly in difficult or contentious family actions.

2. There was no provision for payment where a legal aid certificate had been granted and no action had been raised.

3. The narrative for the instruction fee required to be amended.

4. The progress fee narrative also required to be amended.

5. There was under provision within the table for the preparation for child welfare hearings and no fee for a continued welfare hearing. In addition there needed to be provision for an evidential child welfare hearing.

6. The narrative of the block court fees required to be altered so as to make provision for rule 18.3 hearings, procedural hearings, peremptory diets and pre-proof hearings.

7. The provisions for an uplift by way of an additional fee, the narrative of that and the criteria to be utilised all required to be amended.

8. The categories of court work to be carried out exclusive of the block fee table and under the time and line basis required to be amended.

9. The whole issue of travel time and the existing mileage radius required to be amended.

10. The fees for undefended actions and undefended divorces were far too low.

Unilateral moves

These general headings then formed the basis of further discussions between the Society and the Board and by January of 2006, those discussions had reached the stage whereby the Board produced their version of the new fees table outlining the new fees to be incorporated within the revised table. The Society also produced their own version of that table and the Society’s version contained proposed increases far higher than those proposed by the Board. It was agreed at that stage that further discussions would take place to see if agreement could be reached, in principle, regarding the proposed new fees increases prior to any formal submissions being made to the Scottish Executive.

Regrettably, no steps were taken by the Board to further those discussions and they simply submitted their own proposal direct to the Scottish Executive in April 2006. The Society felt that this approach was disappointing given the progress that had been made with the negotiations and it therefore left the Society with no alternative but to submit their own formal proposal to the Executive in line with the amendments which had been made to the fee table following the meeting in January.

In the latter part of 2006, discussions took place between the Executive, the Board and the Society to consider the proposals from the Board and the Society. The Executive, having considered the two formal proposals from the Board and the Society, then produced a draft of the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2006.

Whilst the draft contained, and addressed, all of the issues which had been discussed and highlighted in the early part of 2006, apart from the uplift in children's cases, the Executive preferred the majority of the proposals put forward by the Board in relation to the new fees themselves. Despite further efforts by the Society to persuade the Executive to alter the proposed level of fees in the new fees table, the Executive chose to continue to prefer the views expressed by the Board, and the new fees table was published for implementation on 10 February.

Better table, same balance

Practitioners will find that whilst certain of the fees have been increased and certain of the lacunae in the old table have been addressed, the new fees table will still not provide them with what they view as a reasonable rate of remuneration for certain types of civil legal aid work. In particular, whilst an additional fee will be payable where an action involves a complex financial dispute or a complex pension sharing arrangement or a contentious contact dispute, the additional fee which is available for that will only be four units. In reality, the new fees table will probably not alter the views of practitioners in relation to whether or not they will continue to carry out work under this table for certain clients, or whether they will continue to decline to act in cases with civil legal aid depending on the circumstances of each case. In our view the new fees table will not lead to practitioners in general reconsidering their position as to whether or not they will engage a client under a legal aid certificate.

Despite these expressed reservations, there are a number of matters which are satisfactory. For example, it will no longer be necessary to have the court assign a diet of debate or proof to ensure that a progress fee is paid. There are now increased fees for the preparation and attendance at an initial child welfare hearing, and a new fee for the preparation and attendance at a subsequent or continued child welfare hearing. Provision is now made for payment where a certificate is granted but no action is raised, and perhaps more significantly, the existing travel restrictions have been removed and travel will now be paid for in its entirety so long as the radius restriction is exceeded.

Disappointment and frustration

The members of the Civil Legal Aid Subcommittee are disappointed that after some significant early progress up until January of last year, the Board then took the decision simply to make their own formal proposals to the Executive without any further reference to the Society. What has further disappointed those members is that after a considerable amount of time and effort was expended putting forward the Society’s view, the Executive has, in the main, effectively chosen to accept in its entirety the proposal put forward by the Board and largely ignored the Society’s views as to the levels of fees now to be implemented. It was stressed to both the Board and the Executive at the outset of these discussions that the principal concern of practitioners was that the level of remuneration was far too low in relation to the amount of work being carried out and that was all the more prevalent in family cases. These concerns, whilst they have been noted, have not been fully taken into account by either the Board or the Executive, and as a result, the proposed new fees will only make a slight difference to the level of remuneration to practitioners involved in this type of work.

Finally, it will be noted in the new fees table that the fees for summary cause proceedings have been increased. There still, however, remains the issue of the implementation of uplifts in children’s legal aid cases. The Society has attempted on many occasions to persuade the Board that these uplifts are both justified and essential in certain types of cases involving children’s legal aid, and the Society has provided the Board with numerous instances and suggested criteria for those uplifts. The Executive indicated as far back as July 2003 that these uplifts would be put in place and backdated. To date, the Board have simply agreed certain extremely restrictive criteria where uplifts would be granted. These criteria as presently proposed by the Board are not acceptable to the Society and there unfortunately remains an impasse in this respect.

In conclusion, and by way of general comment, it cannot be ignored that over the last 18 months, the Society’s representatives have felt an increasing frustration that even although they are experienced practitioners in this field, when they express views, whilst they are listened to, if they are at divergence with the views of the Board, the Executive almost exclusively follows those of the Board. In addition, there is an increasing sense of disillusionment that neither the Board nor the Executive, even in the face of compelling evidence, are prepared to accept that the initial reform process has not achieved its financial objective.