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1 June 04

A three way process

A tight timetable has been agreed to finalise reforms to civil advice and assistance that will accompany an increase in rates in the autumn

The Society is currently working with the Scottish Legal Aid Board and the Scottish Executive on proposals for civil advice and assistance reform.

Until October 2003 there had been no real increase in civil legal aid fees since 1992. Practitioners had expressed great concern that remuneration rates for civil practitioners had remained static for so many years and that fewer solicitors were prepared to carry out civil legal aid work.

Over the last three years the “Tripartite Group” – the Law Society of Scotland (“the Society”), the Scottish Executive and the Scottish Legal Aid Board (“the Board”) – have been working on proposals for civil legal aid reform.

The civil legal aid reforms have now been agreed and implemented by the Minister and include a significant increase in fees. As part of those reforms it was agreed that civil advice and assistance reform would thereafter be considered as a matter of priority.

It was recently announced by Cathy Jamieson MSP, the Justice Minister, that there will be an interim increase in the hourly rates for civil advice and assistance. Although the Society remains disappointed with this interim award, it has agreed to continue its discussions with the Executive on the basis that there is likely to be a further award as soon as agreement is reached. These discussions will be based on the Society’s Proposal for Civil Advice and Assistance, circulated for comments and approved by the Society’s Council in the course of 2003, and the Board’s subsequent Draft Outline Proposal for Advice and Assistance Reform. The aim of the work is to prepare a final package for consideration by the Minister this autumn.

The Society’s Proposal suggested that the right of a solicitor to admit a client to advice and assistance on “any matter of Scots law” be focused on advice and assistance provided for work clearly requiring the skills of a solicitor. It stated that “approved work” should be paid appropriately. In addition the Society proposed that work undertaken on such a grant of advice and assistance would include not only the exact subject matter listed on the advice and assistance notification, but also “all work reasonably ancillary thereto”.  

For matters not automatically approved, the Society suggested that the solicitor would only be entitled to admit the client to advice and assistance with the permission of the Board.

The Board’s draft outline proposals for civil advice and assistance included the following:

• The introduction of a new diagnostic stage to allow assessment of the client’s issues to determine whether a solicitor is required for further advice and assistance. The current minimum fee arrangements would be removed.
• For certain case types, extend the recently introduced template system to reduce the work required to obtain increases in authorised expenditure. Solicitors will be able to grant “full” advice and assistance and to continue to work within the template. In non-templated areas the solicitor will have to apply to the Board to be certificated for further work.
• Certified and templated work would be paid at higher rates than the diagnostic stage. Further enhanced fee rates would be payable for more complex areas of work requiring higher levels of skill under a new accreditation scheme.
• Recognition that not all problems are most appropriately handled only by a solicitor.
• In cases which are likely to be long running and involve exceptional expenditure a new merits test will be introduced.
• The means test would be revised. The “one week” income test should not be a passport to indefinite cover. Arrangements would be introduced to allow reassessment of means during the life of a case having regard to ability to pay and the cost of the case.
• Considering should be given to extending the current safety net arrangements, under which payment from the legal aid fund is a last resort so that a client who recovers a substantial sum would be expected to fund privately the action that resulted in recovery. Such a system would require adequate controls.

The Board’s aim was to try to achieve an appropriate balance between the interrelated goals of high quality provision, early intervention and value for money. They believe the proposals would pay practitioners fairly for quality assured work and recognise that higher levels of remuneration should be paid for work requiring higher levels of skill and experience.

There is considerable overlap between the Society’s and the Board’s proposals. Accordingly, a Civil Advice and Assistance Working Party consisting of members of the Society, the Board and the Scottish Executive is being established to work on the proposals. The Board’s draft Proposal will be the basis of its initial discussions.

It is anticipated that meetings will take place over the summer with a view to agreeing a final Proposal for Civil Advice and Assistance Reform to be considered by the Society’s Council at its meeting in September before being submitted to the Executive for its own consideration.

Details of the working party’s progress will be circulated to the profession and feedback will be welcomed especially on the conclusions and the associated increase in fees. Timescales are tight but the Legal Aid Committee will ensure that there is as much time as possible for consultation and feedback. The detailed proposals for reform will be circulated prior to final approval by Council.

The Society has ben assured that all parties involved in the proposals are committed to ensuring that all solicitors are paid properly for the work they undertake. The Society would welcome any observations.