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The family justice system will fast unravel if funding cuts force publicly funded barristers to take flight, writes Lucy Theis QC
At a time of heightened public concern over child protection, the Legal Services Commission (LSC) proposals in its Family Legal Aid Funding from 2010 consultation will put the most vulnerable in our society at increased risk—not only of not having suitably experienced representation, but of having representation at all. This article outlines the three main areas of concern.
The consultation paper proposes a structure for the harmonisation of family advocacy fees as between solicitors and barristers, namely a family advocacy scheme (FAS) which purports to pay the same fee for the same work whoever conducts the case. In reality it pays the same fee for very different work.
In the majority of cases, the FAS fees bear little relation to the work required for the hearing. For example, a fixed fee of £198 for barristers is proposed for interim hearings, whatever their duration, be they five minutes or five days so for four short directions hearing in the county court, the advocate will be paid nearly £800. The advocate, however, will only be paid £198 for a fact finding hearing, conducted in accordance with Re L, which often last a number of days and require considerable preparation (Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334; Practice Direction: Residence and Contact Orders: Domestic Violence and Harm, revised 14.1.09).
This is not “harmonisation of fees”. It results in a gross mismanagement of scarce public funds by over-rewarding the shorter cases at the expense of the more complex ones. The same applies for final hearings; the FAS fixed fee covers the first two days of the final hearing, even though it can range from five minutes for a consent order to two days for a contested hearing with disputed expert evidence. The FAS, in short, removes any structure or financial incentive to undertake the more complex cases. The result will be cuts of about 50% for the Family Bar, which in turn means that those with experience and expertise in conducting these matters will no longer be able to take them on. In addition, there will be no structure in place to attract talented new entrants.
The consequences will be that vulnerable families, who require representation in the more complex cases involving the most serious allegations of abuse, will either be unable to find suitably experienced representation or will be without representation at all.
Bar Council statistician, Professor Martin Chalkley, discovered enormous problems in the reliability of the data that underpin the LSC proposals. These difficulties resulted in the date for responses being extended (to 3 April) to enable a data cleansing exercise to take place. The current regime for payment of the family Bar for publicly funded family cases is the family graduated fee scheme (FGFS), which has been in place since 2001 and pays a base fee with uplifts/bolt-ons to reflect the complexity of a case. The FGFS data was subject to substantial misclassification. Each LSC region had differing methods of data entry. The data in respect of solicitor advocacy had no practitioner input and is flawed and inaccurate in its content, which directly impacts on any structure built upon it.
Belatedly, the LSC sent out to each firm of solicitors a tailor-made assessment of the impact of these proposals on that firm. However, the data was in such a format that it has been virtually impossible for any firms to be able properly to verify the statistics: there were wrong assumptions such as mis-stating the number of interim hearings undertaken, and there have been some straightforward misunderstandings of the stages in the case to which the data relates. Each member of the Family Bar still awaits receipt of his or her own tailor-made assessment.
Because of the high dependence at the Family Bar of women, particularly black and minority ethnic women, on publicly funded family work there will be a disproportionate impact on them. That will have an impact on the diversity of the Family Bar. In reply, the LSC asserts that this is “countered by a significant increase in income for solicitor providers, a large proportion of which are female owned” (consultation paper, annex G, para 6.54).
However, that is not comparing people from the same pool. Ownership of a firm does not necessarily mean you will be conducting advocacy full time. In any event, on its own data, firms are far less likely to be under female managerial control and female controlled solicitor firms are more likely to lose income. These flaws are confirmed by an independent report by Managing Diversity Associates (see the Family Law Bar Association (FLBA) consultation response, appendix 8, www.flba.co.uk). If implemented, these proposals will reverse all the significant efforts and progress made to encourage diversity at the Bar and in the judiciary with the public interest objectives that that serves.
In March 2009 the FLBA published the results of a survey of its members undertaken by Dr Debora Price and Anne Laybourne of the King’s Institute for the Study of Public Policy (see www.flba.co.uk) during a week in October 2008. This analysed the working of the Family Bar and the FGFS. Over 1,600 barristers participated, 113 sets of chambers provided information and over 5,000 units of work were collected. It is the most comprehensive survey of its kind.
This survey demonstrated that the Family Bar is a highly specialised profession which is not full of fat cats. Family barristers work long hours, and the work is demanding and often complex. In the event of cuts, then thought to be about 13%, 80% of barristers indicated an intention to change their practices away from publicly funded work. These are predominantly senior practitioners, and the affected areas will not just be ancillary relief and private law children cases but public law work as well. For example, 40% 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. These survey findings are relevant to the government’s duty when considering changes in remuneration under
s 25(3) of the Access to Justice Act 1999.
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 it is 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. Considering the importance of such findings, it is astonishing that this was commissioned so late. There is uncertainty as to when the final Ernst & Young report will be ready. The FLBA has responded to the consultation paper on the basis that fairness dictates they will be given an opportunity to respond to the new evidence.
The consultation paper says that the FGFS has increased by 32% over the last five years (para 2.9). However, as set out above, there are unresolved concerns regarding the reliability of the historical data. There is no mention in this context by the LSC of the fact that 8% was put back into the scheme by the government in 2005 (as a result of miscalculations the government made when the scheme was introduced in 2001), or the increase in the number and complexity of cases (neither of which are in the control of the practitioner).
The FLBA proposes a graduated fee scheme that properly rewards the work that is actually done. This is fair, proportionate and will retain the expertise that is currently available. The FGFS data is now in a condition that any revised FGFS can be properly monitored, it can be extended (as originally proposed) to cover all advocates and it provides cost control, which is going to be far more reliable and realistic than any new scheme from the LSC, whose own administration costs have risen by 20% in three years from £92m to £113m, despite Lord Carter expecting them to fall. The FLBA welcome the acknowledgement by the LSC that its proposed scheme is “too simple” (Family Law Week (3.4.09)). We will continue to work with the LSC to devise a fair scheme that will give cost control, properly manage valuable public funds and ensure access to family justice for those who most need it. Effective and experienced advocacy does make a difference.
Lucy Theis QC is Chair of the Family Law Bar Association
At a time of heightened public concern over child protection, the Legal Services Commission (LSC) proposals in its Family Legal Aid Funding from 2010 consultation will put the most vulnerable in our society at increased risk—not only of not having suitably experienced representation, but of having representation at all. This article outlines the three main areas of concern.
The consultation paper proposes a structure for the harmonisation of family advocacy fees as between solicitors and barristers, namely a family advocacy scheme (FAS) which purports to pay the same fee for the same work whoever conducts the case. In reality it pays the same fee for very different work.
In the majority of cases, the FAS fees bear little relation to the work required for the hearing. For example, a fixed fee of £198 for barristers is proposed for interim hearings, whatever their duration, be they five minutes or five days so for four short directions hearing in the county court, the advocate will be paid nearly £800. The advocate, however, will only be paid £198 for a fact finding hearing, conducted in accordance with Re L, which often last a number of days and require considerable preparation (Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334; Practice Direction: Residence and Contact Orders: Domestic Violence and Harm, revised 14.1.09).
This is not “harmonisation of fees”. It results in a gross mismanagement of scarce public funds by over-rewarding the shorter cases at the expense of the more complex ones. The same applies for final hearings; the FAS fixed fee covers the first two days of the final hearing, even though it can range from five minutes for a consent order to two days for a contested hearing with disputed expert evidence. The FAS, in short, removes any structure or financial incentive to undertake the more complex cases. The result will be cuts of about 50% for the Family Bar, which in turn means that those with experience and expertise in conducting these matters will no longer be able to take them on. In addition, there will be no structure in place to attract talented new entrants.
The consequences will be that vulnerable families, who require representation in the more complex cases involving the most serious allegations of abuse, will either be unable to find suitably experienced representation or will be without representation at all.
Bar Council statistician, Professor Martin Chalkley, discovered enormous problems in the reliability of the data that underpin the LSC proposals. These difficulties resulted in the date for responses being extended (to 3 April) to enable a data cleansing exercise to take place. The current regime for payment of the family Bar for publicly funded family cases is the family graduated fee scheme (FGFS), which has been in place since 2001 and pays a base fee with uplifts/bolt-ons to reflect the complexity of a case. The FGFS data was subject to substantial misclassification. Each LSC region had differing methods of data entry. The data in respect of solicitor advocacy had no practitioner input and is flawed and inaccurate in its content, which directly impacts on any structure built upon it.
Belatedly, the LSC sent out to each firm of solicitors a tailor-made assessment of the impact of these proposals on that firm. However, the data was in such a format that it has been virtually impossible for any firms to be able properly to verify the statistics: there were wrong assumptions such as mis-stating the number of interim hearings undertaken, and there have been some straightforward misunderstandings of the stages in the case to which the data relates. Each member of the Family Bar still awaits receipt of his or her own tailor-made assessment.
Because of the high dependence at the Family Bar of women, particularly black and minority ethnic women, on publicly funded family work there will be a disproportionate impact on them. That will have an impact on the diversity of the Family Bar. In reply, the LSC asserts that this is “countered by a significant increase in income for solicitor providers, a large proportion of which are female owned” (consultation paper, annex G, para 6.54).
However, that is not comparing people from the same pool. Ownership of a firm does not necessarily mean you will be conducting advocacy full time. In any event, on its own data, firms are far less likely to be under female managerial control and female controlled solicitor firms are more likely to lose income. These flaws are confirmed by an independent report by Managing Diversity Associates (see the Family Law Bar Association (FLBA) consultation response, appendix 8, www.flba.co.uk). If implemented, these proposals will reverse all the significant efforts and progress made to encourage diversity at the Bar and in the judiciary with the public interest objectives that that serves.
In March 2009 the FLBA published the results of a survey of its members undertaken by Dr Debora Price and Anne Laybourne of the King’s Institute for the Study of Public Policy (see www.flba.co.uk) during a week in October 2008. This analysed the working of the Family Bar and the FGFS. Over 1,600 barristers participated, 113 sets of chambers provided information and over 5,000 units of work were collected. It is the most comprehensive survey of its kind.
This survey demonstrated that the Family Bar is a highly specialised profession which is not full of fat cats. Family barristers work long hours, and the work is demanding and often complex. In the event of cuts, then thought to be about 13%, 80% of barristers indicated an intention to change their practices away from publicly funded work. These are predominantly senior practitioners, and the affected areas will not just be ancillary relief and private law children cases but public law work as well. For example, 40% 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. These survey findings are relevant to the government’s duty when considering changes in remuneration under
s 25(3) of the Access to Justice Act 1999.
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 it is 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. Considering the importance of such findings, it is astonishing that this was commissioned so late. There is uncertainty as to when the final Ernst & Young report will be ready. The FLBA has responded to the consultation paper on the basis that fairness dictates they will be given an opportunity to respond to the new evidence.
The consultation paper says that the FGFS has increased by 32% over the last five years (para 2.9). However, as set out above, there are unresolved concerns regarding the reliability of the historical data. There is no mention in this context by the LSC of the fact that 8% was put back into the scheme by the government in 2005 (as a result of miscalculations the government made when the scheme was introduced in 2001), or the increase in the number and complexity of cases (neither of which are in the control of the practitioner).
The FLBA proposes a graduated fee scheme that properly rewards the work that is actually done. This is fair, proportionate and will retain the expertise that is currently available. The FGFS data is now in a condition that any revised FGFS can be properly monitored, it can be extended (as originally proposed) to cover all advocates and it provides cost control, which is going to be far more reliable and realistic than any new scheme from the LSC, whose own administration costs have risen by 20% in three years from £92m to £113m, despite Lord Carter expecting them to fall. The FLBA welcome the acknowledgement by the LSC that its proposed scheme is “too simple” (Family Law Week (3.4.09)). We will continue to work with the LSC to devise a fair scheme that will give cost control, properly manage valuable public funds and ensure access to family justice for those who most need it. Effective and experienced advocacy does make a difference.
Lucy Theis QC is Chair of the Family Law Bar Association
The family justice system will fast unravel if funding cuts force publicly funded barristers to take flight, writes Lucy Theis QC
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