The Legal Aid Agency (LAA) has denied ‘second guessing’ legal aid lawyers and refusing funding applications for issues that should be determined in court. In an article by LegalVoice comment editor Fiona Bawdon published on Monday about concerns over the new and controversial CCMS digital billing system, a leading family law specialist complained about agency staff overstepping the mark. Cris McCurley cited the example of an application for public funding being refused on the basis that she shouldn’t have applied for a wardship. ‘I have raised this issue with the LAA so many times. The people who make these decisions have no legal training,’ she said.
‘We strongly disagree that practitioners are being “second guessed”,’ the LAA told LegalVoice in a statement. ‘LAA staff carry out their statutory responsibility, as handed down by LASPO, and receive extensive and ongoing training in legal aid regulations. They make informed decisions based on the information provided by firms.’ In relation to the wardship case, the LAA said that all cases were ‘fact specific and without more details we are unable to provide a full reply’.
Ahead of publication, Bawdon put a series of questions to the agency – see below – but no response was received until after the article appeared.
The LAA spokesman pointed out that since the CCMS became mandatory in April 2016 more than 88,000 civil legal aid applications had been processed and nearly half a million bills had been paid. ‘Whenever users experience any technical difficulties, we have a contingency process is in place for the most urgent applications,’ she said.
Lawyers who believe clients are being left in dangerous situations because of LAA delays are advised to phone its customer service team.
The LAA was asked if they could provide assurances that legal aid lawyers would not suffer retaliation if they made public criticism of the CCM, following concerns raised by a number of practitioners about the consequences of speaking out. It gave the following response: ‘We understand the importance of a fully functioning and reliable CCMS to our customers. We are in constant dialogue with rep bodies and practitioners on CCMS, and encourage these groups to discuss how the system can be improved.’
The MoJ last year attempted to introduce an ‘embarrassment clause’ threatening sanctions for bringing the LAA into disrepute in its crime contracts.
If you have concerns about the CCMS, email email@example.com
Below are the questions put to the LAA by LegalVoice and its responses:
LAA chief exec Shaun McNally has said he wants a more adult relationship with the profession. Does he feel progress is being made in that direction? … Practitioners say it is all but impossible to have anything approaching an adult relationship when there is such an imbalance of power. How do you respond to that concern?
The Chief Executive was referring to the strong long term relationships needed to develop and successfully implement legal aid access across England and Wales. In order to achieve this, it is vital that the legal profession and LAA is unified to ensure that access to justice is available to those who need it most.
The Chief Executive and his team have prioritised regular meetings with the relevant legal aid representative bodies and partners, and are making good progress in keeping these channels open.
I have been told that delays and refusals are leaving children in dangerous situations. I appreciate you cannot comment on individual cases (or on the basis of such scant information) but what would you advise a practitioner in this situation to do?
We do not agree and without specific details we are unable to comment on anecdotal information. If a practitioner believes that such a situation is taking place then their first port of call should be the LAA Customer Service Team phone line on 0300 200 2020.
Experience practitioners complain about being second guessed by LAA staff. An example I was given was of a child care lawyer whose application for legal aid was refused on the basis she shouldn’t have applied for a wardship. The high court judge in the case granted the wardship, so her question to me (and the LAA) would be: ‘What makes a non-lawyer at the LAA a better judge than the judge in the case?’ Can you understand how frustrating and demoralising this must be?
We strongly disagree that practitioners are being ‘second guessed’. LAA staff carry out their statutory responsibility, as handed down by LASPO, and receive extensive and ongoing training in legal aid regulations. They make informed decisions based on the information provided by firms. In regard to the wardship case referred to, all cases are of course fact specific and without more details we are unable to provide a full reply.
Lawyers say they are nervous about speaking publicly about their experiences with CCMS for fear of some kind of backlash from the LAA. Could you give categorical assurance this would never be the case?
We understand the importance of a fully functioning and reliable CCMS to our customers. We are in constant dialogue with rep bodies and practitioners on CCMS, and encourage these groups to discuss how the system can be improved.
Lawyers complain that the well rehearsed problems with CCMS are compounded by greater refusals by LAA. Could you confirm whether the criteria staff are required to use in their decision making have changed at all? Also, some lawyers are convinced that LAA staff are being given incentives to refuse applications wherever possible. Could you confirm whether or not there is any such scheme in place?
LAA staff carry out their statutory responsibility, as handed down by LASPO, by undertaking their role and making decisions based on the information provided by firms. CCMS has not altered our approach to decision making. It is wholly incorrect to imply that there is any incentive for staff to refuse applications.
I am told there are problems with CCMS ‘Claim Upload’ facility and that there is currently only one external costs software provider offering this as other companies have withdrawn from trying to develop compatible packages, defeated by the problems they have encountered with CCMS. … Are you aware of these issues? Is it a matter of concern to the LAA if it remains the case that there is only one external provider of this facility?
We have received positive feedback on the current bulk upload facility from both providers and chambers and no issues have been reported by our end users. However, the LAA accept that the test system for Software Vendors needs to be updated and plans are in place to develop and replace the platform by the end of February 2017. This platform will mirror the live environment allowing the LAA to provide regular updates in order for vendors to develop and test their products.
We record and track user support communications and investigate any negative feedback received from a vendor. The LAA also attend the quarterly Legal Software Supplier Association (LSSA) meetings and encourages an open dialogue with all vendors. We aim to respond to any concerns raised directly with us.
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