Widespread reports of firms being refused duty solicitor allocations, due to minor omissions or technical issues, have fuelled a belief among practitioners that the Legal Aid Agency (LAA) is operating a policy of ‘consolidation by stealth’. Catherine Baksi reports
The deadline for applying for police station duty rota slots for cover running from 1 April, initially for three months, was 23.59 on January 13th. The new rotas will be issued on March 1st, but practitioner groups have received reports from firms whose future criminal practices could be in jeopardy, because they have been refused slots.
The LAA has told some firms that they will not be on the rota for the next three months, because they have apparently failed to complete the CRM12 forms, required on behalf of all solicitors whom they want to have on the rota.
LegalVoice has been told that several firms have issued appeals against the refusal of duty slots, but the LAA maintains that the refusal has been caused by error on the part of firms when completing the appropriate forms. Failure to secure a slot on the rotas for police station work could cost firms thousands of pounds and may drive some smaller ones out of business, so it is anticipated that there will be litigation to challenge refusals.
One East Midlands firms remains uncertain whether it has got on the rota or not. It completed the CRM12s in advance of the deadline, but was told that its forms were defective because they had not supplied the correct telephone numbers.
One of the criminal partners, who wanted to remain anonymous, explains that the CRM12, which is submitted via email to the central criminal contracting team, is a pre-populated form that restricts some of the details that can be added to it. He says that the form does not allow you to insert the figure zero at the beginning of a telephone number. The firm has received conflicting evidence from the LAA about the outcome.
If it turns out that the firm is not on the rota, the partner estimates that it will cost them £10,000 a month in lost fees. He suggests that the LAA is being unnecessarily pedantic. ‘They say we have not given our correct contact details, but have still been able to email us to tell us that.’
Complicated and burdensome
Wigan practice Stock Moran Swalwell was also told by the LAA that it had not been allocated any duty slots. Its CRM12 forms, said the agency, did not contain complete email addresses and telephone numbers.
The Law Gazette reported that the LAA later told the firm that its applications had been completed successfully and it apologised to them. The firm was then asked to send a new CRM12 form and, according to the report, it is still unsure if its solicitors will be on the new rota.
Not being on the rota would be devastating for the firm, costing it £40,000 in lost revenue, partner Melissa Fagan told the Gazette. ‘Duty slot status brings in the new work from police stations and magistrates’ courts. It represents the substantial part of our work. It provides us with our future client base. It can also provide us with some of our more serious and complex cases,’ she added.
She added: ‘I feel once more the bureaucracy may have taken over – the computer says “no”. They do not know how to make the computer say “yes”. We’re still hopeful common sense will prevail.’
James Parry, chairman of the Law Society’s criminal law committee says that he is not surprised that there is ‘chaos’ surrounding the new duty contracts. What should be simple application system, he says, have been made so unnecessarily ‘complicated and burdensome’.
Parry feels confident that the difficulties will be sorted out, but he says ‘it doing nothing for the stress levels of firms’.
‘This sort of thing saps goodwill and causes worry and concern for those whose livelihoods are affected,’ he says; adding that it makes him question how long firms will continue to put up with all the hassle involved in dealing with the LAA.
Many firms, he explains, rely on the duty contracts to get other more lucrative cases. Moreover, those clients who are arrested and who do not have a regular solicitor, rely on the duty solicitor scheme to provide them with a high quality solicitor at the police station.
The average fixed fee for a duty case, says Parry, is £150. ‘For that you can spend five or six hours at the police, while you could earn the same amount for around three quarters of an hours’ work on a privately paying case. ‘You have to wonder why the profession puts up with this level of bureaucracy for a system that generates so little,’ he adds.
One London solicitor, who also wanted to remain anonymous, suggests that the LAA’s behaviour, in relation to the duty rota, but also in the way it deals with audits and recoupment of fees, amounts to a policy of ‘consolidation by stealth’ after the government abandoned its plans to introduce two-tier contracting. ‘There are too many suppliers and they want to get rid of some of us so they deal with fewer firms,’ he says.
Plans, introduced by the then lord chancellor and justice secretary, Chris Grayling, in the paper Transforming Legal Aid: Next Steps proposed the controversial contracting regime that reduced the number of firms from around 1,600 to 527.
It would have brought in a dual contracting model, with an unlimited number of contracts for own client work, available to all firms that met the quality criteria and a limited number of contracts for police station duty work.
Following an unsuccessful legal challenge by the Law Society and other practitioner groups, the threat of further legal challenge and nationwide boycott of new criminal cases in protest over the scheme, Michael Gove, finally scrapped the plans in January 2016.
But Parry says that while some in the profession have gained the impression that the LAA was deliberately trying to make life hard for them and drive them out, he has seen no evidence of that. ‘I prefer to think of it as incompetence rather than deliberate acts,’ he says.
An LAA spokeswoman said: ‘The quality of the CRM12 information provided by some organisations has resulted in a delay to the process. We are working to resolve the majority of outstanding issues this week and will be publishing the members’ lists shortly, with the rotas following in March.’ She added that the suggestion that the LAA was ‘attempting to reduce the number of firms it works with, is completely untrue’.
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