Authors:Vicky Ling
Last updated:2023-11-10
Getting through a peer review
Don’t let the prospect of a peer review fill you with dread. A good one could be a real boost, and even if the results are bad, you’ll have time to put things right.
Peer review is the one legal aid audit that can result in lifted spirits and raised morale, as long as you score one of the top results: excellence (1) or competence plus (2). If all goes well, the peer reviewer’s report will contain praise for the way your team has handled the assessed cases, which makes everyone feel good.
Your organisation must be assessed at ‘threshold competence’ (3) or above in order to continue to hold a contract with the Legal Aid Agency (LAA). This is the result achieved by most practices, although some need a second try.
If you score ‘below competence’ (4) or ‘failure in performance’ (5), you will be seen as failing to meet the requirements that work must be performed with reasonable skill, care and diligence, and your contract will be at risk. If you fail peer review, the standard costs of the review can be recovered from you under Standard Civil Contract 2013 and Standard Crime Contract 2017 Standard Terms clause 9.8 (likely to be around £1,400). However, you will be given at least six months to put things right before a second review, which can overturn and replace the initial result.
The LAA’s peer review system is based on research by the Institute of Advanced Legal Studies. Solicitors in private practice or not-forprofit agencies work for the LAA on a freelance basis to assess the quality of work on a small number of files (usually 12–15 per category).
Peer reviewers are expected to have 3,000 hours’ PQE in their area of law and significant experience of supervision and legal aid contract work. Their own files must score 1 or 2 at peer review. The LAA has recently recruited a new batch of peer reviewers, so an increased number of peer reviews must be on the way.
What do peer reviewers look for?
Peer reviewers use a structured framework to facilitate their reviews. It is not a tick-box exercise, but a professional’s opinion of another’s work. They essentially consider whether they could pick up the file and run the case, based on the information recorded, and whether they would refer a friend or family member to the organisation. They look for the following:
Does the caseworker have sufficient training and experience to deal with the case?
Are instructions taken in sufficient detail?
Are clients receiving the correct advice?
Is the advice sufficient?
Is it being delivered in a timely and appropriate manner?
Evidence of advice on file:
communication of advice to the client;
case-specific advice;
sufficiency of advice; and
correctness of advice.
Is all the work done that needs to be done?
Are ethical and professional standards of conduct being maintained?
Do caseworkers have the tools to do the job?
Are caseworkers making sufficient use of prompts, templates, pro formas and other generic material?
Are caseworkers sufficiently proactive, particularly in seeking disclosure and pursuing the alternative disposal of cases?
Could communication skills be improved?
Representations process
The representations process can only be used for assessments rated at ‘below competence’ (4) and ‘failure in performance’ (5), on the grounds that:
you dispute the overall peer review rating;
the sample does not appear to be sufficiently representative; or
any other reasonable grounds.
Representations must be made on the appropriate form (which can be downloaded from the LAA’s website) and reach the LAA within 28 days following receipt of the report and the file sample. The representations will be considered by the original peer reviewer and a senior panel member. They may:
uphold the original rating;
revise the original rating;
request a new review; or
not reach agreement; and
where it appears the rating is not appropriate based on the evidence or where no agreement is reached, an external expert who is not a peer reviewer will be asked to help the peer reviewers reach a consensus.
However, given that both reviewers have a considerable stake in the peer review process, it is very rare for an appeal to be successful, unless you can produce convincing expert evidence that the peer reviewer made significant mistakes. It is usually better to take the report on the chin and act on the peer reviewer’s recommendations, which will enable you to achieve a better result at the second audit. It is not unusual to go from ‘below competence’ to ‘competence plus’, if you act quickly and effectively.