Demonstrating compliance on your contract manager’s annual visit will help you to avoid a formal audit.
They may feel very similar from the practitioner’s point of view, but the Legal Aid Agency (LAA) distinguishes between contract manager ‘visits’ and formal audits. You should have a contract manager visit every year to check compliance against contractual requirements and that evidence is retained on file. Contract manager visits are conducted on your premises and usually take around four to five hours for a smaller organisation. If compliance is established, there is no further action.
However, if even one file is found to be non-compliant, the contract manager will issue a contract notice1For more on what to do if you do receive a contract notice, see October 2016 Legal Action 16.
and is likely to ask you to self-audit a further sample where he or she believes the same problem is likely to have occurred. The aim seems to be to try to identify every single misclaimed file and recover any money due. Under clause 8.6 in the Standard Contract Terms (all versions), and Limitation Act 1980 s5, the LAA can go back for six years. A request to self-audit what may be a large number of files puts you in a difficult position, since it will drain your resources. There is nothing in the contract that obliges you to do so, but most organisations do, as they want to be seen as co-operating with the LAA.
If you disagree with your contract manager on a costs point, you can use the costs appeal process (see 2013 Standard Civil Contract Specification para 6.67 et seq or 2010 Standard Crime Contract Specification, Part A, para 8.19 et seq). However, before the formal process kicks in, the contract manager will refer the matter to the operational assurance department at the LAA and it will carry out an internal review. If you still disagree, you can make representations, which will go to an independent costs assessor.
What will the contract manager look for?
Contract managers tend to focus on controlled work (civil) or crime lower (police station and magistrates’ court work) as these are files where practitioners make all the decisions during the lifetime of the case and the LAA never actually sees them unless they are specifically audited.
There is nothing in the contract that obliges you to self-audit on a contract manager’s request, but most organisations do, as they want to be seen as co-operating with the LAA.
The typical problem areas include:
•forms that are not fully completed or are incorrectly filled in;
•evidence of means (where required) is absent or insufficient;
•lack of evidence of disbursements;
•no justification for failing to use public transport;
•experts paid more than allowed under Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 Sch 5 without justification;
•no justification for using distant experts;
•no evidence that market rates have been checked to ensure the cheapest expert is used;
•lack of detailed invoices by interpreters;
•VAT calculated incorrectly;
•fees claimed incorrectly – check the relevant coding guidance;
•family – lack of evidence of domestic abuse or child at risk; CW1 PL used in error for advice that should be means-tested as there is no evidence of the local authority’s intention to issue proceedings;
•immigration – lack of means assessment for clients in receipt of National Asylum Support Service support other than s95 or s4 payments under the Immigration and Asylum Act 1999, as these are the only ones that are passporting; lack of evidence of who has done the work, under Immigration and Asylum Accreditation Scheme rules; lack of evidence that costs extensions have been authorised; and
•crime – no evidence of when a call was received from the Defence Solicitor Call Centre or time the client was contacted (should be within 45 minutes); more than one fee claimed when it was a ‘series of offences’.
Best practice makes perfect
As you have to do supervisory file reviews, it makes sense to make the best possible use of the information that they reveal, rather than simply filing the forms away for an annual review. If you have a practice manager, he or she may be able to gather information from all departments. This will allow information to be co-ordinated and best practice to be shared. Issues arising from file reviews can be reported back to teams and members/directors/partners on a regular basis.
You can use your supervisory file reviews to identify any potential audit issues and ensure corrective action is taken quickly so your contract manager visit passes off smoothly and without the need for lengthy self-audits.