Imperfect harmony
Proposals for advocacy fees are based on flawed data that puts access to family justice at risk; so will the government reconsider its plans, asks Lucy Theis QC
The consultation period for the Legal Services Commission (LSC) proposals in its Family Legal Aid Funding from 2010 consultation closed on 6 April. It is of note that the LSC received over 1,500 responses to this consultation; a record response that demonstrates the deep level of concern on both sides of the profession regarding these flawed proposals.
True harmonisation?
The proposals seek to 'harmonise' advocacy payments. The Family Law Bar Association (FLBA) proposed a fee scheme that paid the same fee for the same work, whether the advocacy was conducted by a solicitor or barrister, in the late 1990s. This was rejected by the LSC. The FLBA repeated this suggestion in 2006 '“ again it was rejected by the LSC.
These latest proposals do not seek to pay the same fee for the same work; in fact they propose the same fee for very different work. For interim hearings the proposed fixed fee is the same whether a case lasts five minutes or five days; for final hearings the proposed fixed fee is the same for the first two days of the hearing, whether it lasts five minutes or two days.
Such proposals display a complete failure to understand what is actually involved in conducting advocacy. It grossly over-rewards the less complex cases at the expense of the more complex ones. It is extraordinary that at a time of heightened public concern over child protection the government should propose a scheme that actually provides a financial disincentive to conduct the more complex cases.
Bad news for the most vulnerable
The consequences of these proposals are that the most vulnerable in society will be at increased risk. The proposed fees will not only drain what existing expertise there is to conduct the more complex cases but will provide no incentive for any talented practitioners to enter this important area of work.
Dr Debora Price (King's College, London) conducted extensive research into the working of the Family Bar; over 1,600 family barristers participated and over 5,000 units of work were collected during the survey week in October 2008. Her comprehensive report is available on the FLBA website (www.flba.co.uk).
The survey found that family barristers work long hours and the work is demanding and often complex. In the event of cuts, then thought to be 13 per cent, 80 per cent of barristers indicated an intention to change their practices away from publicly funded work. Many are senior practitioners and all areas of work are affected. For example, 40 per cent of barristers over 16 years call intend to stop totally, or reduce greatly, the amount of legally aided public law final hearings that they undertake.
This exodus is likely to be significantly higher as the latest proposals see cuts in fees in the region of 50 per cent. Many of the survey findings would equally apply to solicitors who undertake this work; working long hours with demanding and complex cases. There is growing evidence of an exodus from this work by solicitors and of 'advice deserts' appearing '“ the Law Society, in its response to the consultation, highlights this. In the Medway region in Kent, where 13 solicitors are listed as undertaking legal aid work, only three are taking on new clients. The remaining ten have either terminated their legal aid contracts or are winding down and taking on no new cases. These proposals will only hasten this exodus by experienced solicitors.
Failure to evidence base the proposals
The fixed fee proposals are reliant on the assertion made in the LSC consultation paper that there is 'anecdotal evidence' (Annex G, para.5.37) of an increase in self-employed advocates being employed by solicitors. When questioned about the foundation of this evidence, it appears to be no more than unrecorded casual conversations.
Days before the consultation closed the LSC instructed Ernst & Young to conduct research into the family advocacy market, looking at such fundamentals as price elasticity and the impact of price on the availability of self-employed barristers to undertake the work. It is, in effect, an acknowledgement by the LSC that its proposals had no evidential foundation, particularly regarding their impact. The FLBA has responded to the consultation paper on the basis that fairness dictates it will be given an opportunity to respond to the new evidence. Other representative bodies have said the same.
Flawed data
The data that underpins these proposals and the structure that they are built on was flawed. The data for the payment scheme for the Family Bar, the Family Graduated Fee Scheme ('FGFS'), had substantial misclassification, not helped by each LSC region having different methods of data entry.
The most recent FGFS data is now largely correctly classified; but the LSC has yet to correct the historical FGFS data which must be done. The LSC has, for the first time since 2001, given national guidance regarding FGFS data entry so future data should be more reliable. The data relied upon for the calculation of historical solicitor advocacy payments had no practitioner input and remains flawed and inaccurate. Belatedly, the LSC sent out tailor-made assessments to each firm of the impact of these proposals on that firm. Those firms that have been able to unravel these assessments have demostrated that they are inaccurate in almost every respect. Each member of the Family Bar still awaits receipt of his or her own tailor-made assessment. The consequence is no professional body has any confidence in the reliability of the LSC data that underpins these proposals.
What next?
The FLBA proposes a graduated fee scheme for family advocacy that pays the same fee for the same work, whoever it is done by, solicitor or barrister, and properly rewards the complexity of the case. The FGFS data is now in a condition whereby any revised scheme can be properly monitored, it can be extended (as was originally proposed) to cover all advocates and it provides cost control. This is fair, proportionate and will retain the advocacy expertise that is currently available, be they solicitors or barristers. The acknowledgement by the LSC that its proposed scheme is 'too simple' (Family Law Week 3 April 2009) is welcome and the FLBA intends to work with the LSC and other representative bodies to devise a revised graduated advocacy fee scheme.