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18.7The contracts are divided into the following sections:
a)Contract for Signature, Key Information, Tables and Annexes;
b)Office Schedule;
c)Standard Terms;
d)Specification, split into:
•in the Civil Contract – general rules and category-specific rules;
•in the Crime Contract – sections 1 to 8 apply to all Classes of Work. Sections 9 to 13 set out the specific rules which apply to each Unit of Work.
All of the above documents form part of the contract, and you are bound by each and every part of them.
Contract for signature
18.8As the name suggests, this is the part of the contract that is signed by the organisation and counter-signed by the LAA.
18.9The contract covers the whole organisation (although it specifies the work that can be done at each office through an Office Schedule). This means that a breach at any office would jeopardise the whole contract, whereas in the past it was possible to withdraw a single office or category of law if it failed to meet the LAA’s requirements. It is now only possible for the provider to serve notice on the LAA for the whole contract. If a provider wishes to withdraw from an office or category of law, that can only be done with the LAA’s agreement. The contract for signature also includes any conditions that the LAA has imposed, the office schedules which have been issued, the applicable Quality Standard you must hold (the SQM (Specialist Quality Mark) or Lexcel), and contact details which the LAA will use to deal with you.
18.10The Crime Contract sets out the types of criminal defence work the organisation is allowed to do, for example, Criminal Investigations and Criminal Proceedings, Appeals and Reviews, Prison Law. Holders of all types of contract are also authorised to undertake Associated Civil Work.
Office Schedule
18.11In civil and family, the Office Schedule sets out the details of the work you are allowed to do, including the number of matter starts in each category of work and the monthly controlled work payment.
18.12The schedule will set out the number of new matter starts allowed, by category.
18.13Civil Schedules contain the following tables:
•Table 1 gives the start and end dates.
•Table 2 gives the numbers of matter starts you are allowed by category and categories in which you may do licensed work.
•Table 3 sets out the maximum amount of money the LAA will pay you while the schedule is in force and the amount of your monthly payment.
•Table 4 sets out exactly what type of service and where you must provide services, by procurement area and access point, the number of any IRC rota weeks and slots. It also shows whether you are able to self-authorise up to an additional 50 per cent of your matter starts.
•Table 5 shows if you have been authorised to carry out work at outreaches.
18.14The Crime Schedule lists your authorised Duty Schemes. Numbers of cases are not specified and depend on the interests of justice test being met, as defined in the contract (see chapter 12 for more information about conducting criminal cases).
18.15If you do work outside that authorised under your schedule, you will not be paid for it.
Supplementary matter starts
18.16If you run out of matter starts during the lifetime of the schedule, you can ask the LAA for supplementary matter starts. The LAA may issue more; but only if your allocation would be less than 50 per cent of the total in that procurement area for the category at the start of the schedule. The LAA changed its guidance in 2015 so that whether another organisation in the procurement area had NMS left is no longer a relevant issue.
1See www.gov.uk/government/uploads/system/uploads/attachment_data/file/397501/supplementary-matter-starts-guidance.pdf. You do still need to make a business case to show that
2See Standard Contract 2013 Specification para 1.22.:
•you are unable to meet an urgent demand from Clients for your services from your current Matter Start allocation; or
•an urgent need for services arises as a result of another provider in your procurement area ceasing to provide or reducing the provision of such services for any reason; or
•there is a general increase in demand for services of that type within your procurement area.
We understand that this has made it much easier for organisations to obtain additional NMS when needed.
18.17If you bid in one of the smaller lot sizes, and your schedule allows it, you will be able to self-grant up to 50 per cent additional matter starts. You will need to monitor how many NMS you have self-authorised in this way.
Standard Terms 2013
18.18The Standard Terms apply to family, immigration and asylum and housing and debt. Key clauses are summarised below:
•Clause 1: Interpretation. This clause is important because it contains the definitions of expressions which have particular meanings under the contract. These are denoted by the use of capital letters. For example ‘Business Hours’ means 9am to 5.30pm each Business Day and ‘Business Day’ means any day except Saturday, Sunday and any bank or public holiday in England and Wales. Some expressions are defined in the Contract Specification, so you need to check that as well.
•Clause 2: You must appoint a Contract Liaison Manager and notify the LAA within five business days if the person is changed. You must monitor the email address which you have given to the LAA ‘frequently each business day’ and communicate with the LAA electronically where stipulated.
•Clause 3: You cannot subcontract, novate or otherwise delegate any of your obligations under the contract without the LAA’s prior written consent. However, you can appoint agents to work for you as long as their work is properly supervised.
•If an approved third party, agent, counsel or a subcontractor ceases providing services to you, you are responsible for ensuring that you continue to fulfil the obligations under the contract.
•Note that under clause 3.7, if the fees payable by you exceed £250 per matter or case, you must require agents, counsel or subcontractors in connection with contract work, to keep accurate records of the time they spend on the work you have appointed them to do and of the work done. They must also permit the LAA to audit the records.
•This clause contains consortium provisions, although the 2013 contract tender did not in general allow for consortium bids. This is a provision which the LAA may find helpful if it needs to arrange for contracts to be delivered this way.
•Clause 4: Accounts must be audited or examined as required by law or professional regulation. You must notify the LAA within 14 days if your accounts are qualified.
•Clause 5: You must comply with the equality and diversity requirements, and you must have an Equality and Diversity Training Plan.
•Clause 6: Restrictions on marketing your services. It is clear that you can neither pay nor receive referral fees nor any other bene-fit, to or from any third party for the referral or introduction (directly or indirectly) of any client or potential client.
•Clause 7: You must monitor your performance and compliance with the contract and take corrective action if there are problems.
•You must have indemnity insurance. This clause also lists much of the other regulation and legislation you must comply with. It also requires you to have a Business Continuity Plan and specifies what your IT system must be able to do. This is set at a level which would be regarded by most practices as necessary in any event. You must have an account for the LAA’s online system for submitting claims (see chapters 1 and 13 for more information).
•Clause 8: Requires you to record all the information required by the contract. You are required to keep closed client files (or copies of them) for six years. This is a prudent policy in case the LAA wants to carry out costs audits on closed files.
•If you keep electronic files they must contain all the information that they would have if paper files. Documents must be in PDF format.
•Clause 9: Concerns access to your premises and information you must provide. Note that you must inform the LAA of the outcome of third party audits and provide them with a copy of the report within seven days of receipt. This clause would apply, for example to the SQM Delivery Partnership carrying out an SQM audit.
•You must provide the LAA with access and facilities during any audit by them. Breach would be considered to be a fundamental breach justifying contract termination.
•The LAA can carry out mystery shopping exercises and client satisfaction surveys of your clients. They can also obtain reports in connection with any professional misconduct.
•Clause 10: Sets out standards of work you must meet, including Peer Review. All work must be performed with reasonable care and skill. You must achieve at least Threshold Competence (3) at Peer Review in order to hold a contract. If you fail a peer review, the LAA may re-charge the cost to you.
•You must authorise the LAA to carry out status enquiries in relation to your personnel, if required.
•Clause 11: Requires you to meet key performance indicators (KPIs). If you fail to do so, the LAA will first meet with you to agree an action plan to improve performance (see chapter 17 for more information about KPIs). The LAA says they may use KPI performance as entry or selection criteria for future contracts. However, the LSC never did so, (and neither has the LAA to date) due to the difficulty in treating previous contractors and new applicants fairly in the tender process.
•Clause 12: Relates to contract documents and precedence.
•Clause 13: The LAA may amend the contract to take account of legislation or changes to the justice system. Minor or technical amendments may be made to individual organisations’ contracts. If the LAA wants to make material changes, it has to terminate the contract and issue a new one.
•The clause lists the changes you can request, eg closure or relocation of an office/outreach, temporary or permanent reduction or cessation of contract work; a change to your Quality Standard; the temporary or permanent reduction or cessation of the provision of Duty Solicitor services; or a change in membership of any Consortium. It gives examples of circumstances where the LAA would be justified in refusing your request.
•Clause 14: This clause creates a single account for all work done by the organisation which is treated globally. Claims made by you are treated as credits to your account, and any payments made by the LAA as debits. You may be required to reimburse the LAA’s reasonable audit costs if you have mis-claimed costs under the Contract.
•Clause 15: Sets out confidentiality arrangements.
•Clause 16: Data protection requirements.
•Clause 17: Freedom of Information Act obligations. The LAA may release information about your organisation either following consultation with you, or not, in certain circumstances.
•Clause 18: Warranties that the information provided by you and the LAA is true and accurate.
•Clause 19: Indemnity and giving notices.
•Clause 20: Giving notices under the contract.
•Clause 21: You must notify the LAA as soon as reasonably practicable of any anticipated material constitutional change (within 14 days as a minimum) and any other change that might impact on your ability to do contract work.
•Clause 22: Novations. The LAA may, and usually will, novate the contract if a practice merges with another, as long as it would not have to split a contract (note that the civil and crime contracts are considered to be separate so the LAA will allow these to be separated if the civil and crime departments of a firm split up). There is a policy paper on the Legal Aid website which provides more information:
www.gov.uk/government/publications/novation-policy/.
•Clause 23 Deals with bribery, collusion, false tenders, fraud and unethical behaviour.
•Clause 24: Contract sanctions may include; refusal to pay for specified contract work, suspension of payments, or taking on any new matters or cases, exclusion of individuals from being supervisors or performing contract work, suspending or removing your rota allocation (if any) of from holding yourself out as a provider, and termination. If you breach the contract, the LAA may serve a contract notice under clause 24.2, requiring you not to repeat the breach. If you do so, you risk contract termination.
•Clause 25: You may terminate the contract at any time on three months’ notice (subject to clause 13, which gives you rights to propose amendments). The LAA can terminate the contract at any time on six months’ notice.
•Clause 26: Unless the LAA terminates the contract due to your breach, they will authorise you to continue work on existing cases (usually for up to two years).
•Clause 27: Reconsidering decisions and reviews of decisions. There is an informal procedure and a formal procedure. Formal reviews may be carried out by the LAA’s Chief Executive or the Contract Review Body.
•Clause 28: Dispute resolution provisions
•Clause 29: Governing law and jurisdiction
•Clause 30: General provisions
18.19The 2010, 2014 and 2015 Civil Standard Terms contain very similar provisions.
Crime Standard Terms 2017
18.20The numbering and subject matter of clauses are the same in the Crime Contract as in the Civil 2013 contract. We highlight key differences below:
•Clause 2: contains the controversial ‘no embarrassment’ clause. ‘
You shall ensure that neither you nor any of your Affiliates embarrasses us or otherwise brings us into disrepute by engaging in any act or omission which is reasonably likely to diminish the trust that the public places in us, regardless of whether or not such act or omission is related to your obligations under this Contract.’ Since legal aid practitioners sometimes have to challenge the Ministry of Justice or other government departments and agencies, there were fears that such challenges could be considered to breach this clause. Some practitioners were also concerned it would be used to restrain, deter or punish campaigning against any future changes to the legal aid scheme. The Public Law Project was instructed by the London Criminal Courts Solicitors’ Association, and law firms Tuckers and Ben Hoare Bell, to send a pre-judicial review action letter. Although the LAA did not agree to remove the clause, it did issue clarification. The agency said the clause is intended to deal with situations where a provider or their affiliates bring/s the legal aid system into disrepute ‘because of their behaviour otherwise than when performing the services they are obliged to carry out under their legal aid contract’. The clause is also intended to be relied on ‘in exceptional circumstances only
4www.publiclawproject.org.uk/data/files/News/161013_ex_LAA.pdf/.’.
•Clause 7: requires you to consult the client before instructing an advocate in Crown Court cases (whether in-house or external Counsel) and advising the client of their name; status; experience; and suitability. Where an advocate becomes unavailable, there is a duty to repeat the above and take all reasonable steps to secure an equivalent advocate. A record of the above must be kept on file. This was regarded as controversial as it could disadvantage in-house solicitor advocates compared to independent Counsel.
•There is also an obligation to notify a client that they should take independent advice if you become aware of a potentially justified claim against you by a client. A record must be kept on file. You must use CJS online.
•Clause 9 If the LAA identifies ‘excess claiming’ (which could be due to your error – it would not need to be deliberate), and has to carry out a further audit to determine the extent of repayment required from you, they can recover their reasonable costs.
•Clause 14 You have to notify the LAA within five days if tax non-compliance takes place.
Civil and Crime Specifications
18.21These contain the detailed rules that apply to the way in which cases are carried out on a day-to-day basis. We cover them in the relevant chapter, see: Taking on civil and family cases (chapter 3), Conducting a civil/family case (chapter 5), Conducting a family private law case (chapter 6), Conducting a family public law case (chapter 7), Conducting an immigration case (chapter 9), Conducting a mental health case (chapter 10), Conducting a housing case (chapter 11), Conducting a criminal case (chapter 12) and Quality standards and performance monitoring (chapter 19).
18.22Note that prior to 2013, civil payment rates were set out in an annex to the Contract Specification. This was removed, and payment rates are now only to be found in the Civil (or Criminal) Legal Aid (Remuneration) Regulations 2013 as amended. Regrettably the LAA does not make consolidated regulations available and so there is now no single authoritative source of payment rates in either civil or criminal work.