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Legal aid – the hidden catches

18 August 14

This month's alert from the Scottish Legal Complaints Commission suggests four steps legal aid practitioners can take to avoid issues which have resulted in recent complaints

by David Buchanan-Cook

Legal aid, or advice and assistance?

A recent SLCC determination committee found itself, not for the first time, faced with a situation where the complainer had clearly been totally confused about the difference between the grant of full civil legal aid and legal advice and assistance. This confusion originated at the first meeting with the solicitor and was compounded by subsequent exchanges and, it has to be said, less than helpful explanations.

To practitioners providing legal assistance day in and day out, the distinction between civil legal aid and advice and assistance is probably obvious. However, some clients have only a vague general perception that they are on “legal aid”.

While most firms will explain the distinctions in their terms of business, it’s a good idea to be clear in your engagement letter, and in your initial discussions with the client, which type of assistance applies.

Changes in financial circumstances

We have seen a number of complaints recently where clients, initially advised that they do not qualify for legal aid, have later discovered that a change in their circumstances could have meant that they would since have qualified.

In addition to reminding clients on legal aid that they have a duty to report changes in their financial circumstances to SLAB, it is important to point out to clients who don’t initially qualify that this position can change, for example if they start to receive a “passporting” benefit.

And a reminder in the file to reassess eligibility at a later date could also be a helpful alert for anyone else who may subsequently be dealing with the file.

Explain clawback

One of the most common confusions – often leading to unpleasant surprises for clients – relates to the clawback provisions which SLAB has to apply.

Admittedly, this is not the simplest concept to grasp, let alone explain to a client who, emotionally, may not be in the best place to take in the information. However, if clawback might apply, and you don’t make this clear from the outset and at the relevant stage(s) in the transaction, a subsequent complaint over inadequate advice may very well be upheld. If you don’t think your client has understood the implications, direct them to the information SLAB provides.

Expert and other fees

A final recurring theme stems from delays and failures in firms seeking, or passing on, reimbursements from SLAB for fees from experts, counsel and other fees.

In one recent case, the complainer specifically asked the instructing firm to submit a reimbursement claim, followed by no fewer than nine reminders in as many months, all to no avail.

In addition to the lengthy delay in receiving payment, the complainer highlighted the adverse impact on his practice – not just in terms of cash flow but, more significantly, the amount of time and resource in chasing the firm for payment.

All of this – including the additional time in making the complaint – could have been easily avoided had the firm in question made an interim request for reimbursement from SLAB rather than wait until the case had concluded.

David Buchanan-Cook is Head of Oversight at the Scottish Legal Complaints Commission. Oversight is the area of the SLCC responsible for overseeing how the professional bodies deal with conduct complaints; monitoring and reporting trends in complaints; and producing guidance and best practice notes on complaint handling.

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