Authors:Vicky Ling
Last updated:2023-09-18
Form lost; fee retained
Marc Bloomfield
Having a properly completed legal help or controlled legal representation form on a file is essential to ensure you pass any Legal Aid Agency (LAA) audit without difficulty. But can you still get paid if the form gets lost?
A solicitor from the Anti Trafficking and Labour Exploitation Unit (ATLEU) asked me the question above after a training session last autumn. I could recall pre-Legal Aid, Sentencing and Punishment of Offenders Act 2012 guidance from the then Legal Services Commission, which made it clear that, as long as you could produce evidence that the client’s means had been assessed, and they had signed a form, you could still claim. However, some years on, I could not find it anywhere.
ATLEU had submitted a significant controlled legal representation (CLR) claim because it could not afford to forgo the fees, and because it had a detailed attendance note that gave a full breakdown of the client’s income and capital, as well as noting that the client had signed the form and was eligible. When ATLEU realised the original form was missing, it asked the client to come in and sign another CLR form, completed on the basis of the information in the original attendance note, thinking that must be sufficient.
However, the LAA disallowed the claim on the basis that a completed controlled work form must be kept on file (Standard Civil Contract Specification 2013 (as amended), May 2016, para 3.11). My advice was that although ATLEU had breached the contract, the appropriate response by the LAA would be to issue a contract notice, not to administer a financial penalty. I advised ATLEU to submit a costs appeal (Standard Civil Contract Specification 2013 (as amended), para 6.67 et seq).
Costs appeals must be made in writing (setting out full reasons) within 28 days of notification of the decision (and must be accompanied by the file).
It had to act quickly as costs appeals must be made in writing (setting out full reasons) within 28 days of notification of the decision (and must be accompanied by the file). The LAA will only extend the 28-day time limit where you request an extension for good reason within 21 days (any extension will be for a maximum of 14 days). Costs appeals are considered by independent costs assessors (ICAs), who are solicitors or barristers in private practice working freelance for the LAA. Many of them are experienced legal aid practitioners.
In this case, the ICA’s initial view was that the LAA was correct; but they found two of ATLEU’s arguments compelling:
1. That the document signed on the later date was simply recreated from the original attendance note. The LAA did not dispute that the initial assessment was correct, it disallowed the second form on the basis that it was out of date. ATLEU had complied with the contract specification as far as para 3.10 of the Standard Civil Contract Specification 2013 (as amended) was concerned:
The assessment of means section and the client’s details must be fully completed and the form signed by the client in your presence before the controlled work is commenced, subject to the exceptions set out in the [Civil Legal Aid (Procedure) Regulations 2012 SI No 3098] and paragraphs 3.14 to 3.20 of this specification.
2. The ICA found that there was a breach of para 3.11 (keeping a copy of the completed form on file), but there is no provision in the contract for applying a financial penalty where this is not complied with, while, in fact, there are other provisions that deal with any breaches, including those of para 3.11.
They went on to observe that while it would not be permissible to ask a client to sign a second form and backdate it, it was reasonable for ATLEU to recreate the form, based on the information it had recorded, that being dated on the day the client signed the recreated form.
I am grateful to ATLEU for allowing me to share the outcome in order to assist other practitioners, but, unfortunately, ICA decisions are not binding on the LAA. Under the Standard Contract 2013, Points of Principle of General Importance (certified on an appeal against an ICA’s decision) are binding (see Points of Principle of General Importance manual, February 2017), but contracts from 2015 do not have a further appeal stage.
Clearly, practitioners must always aim to meet the contractual requirements in full, but accidents do happen. When they do, and you think you have a good argument, my advice is always to appeal.