UK Law Society initiates judicial review proceedings against Legal Aid Agency

The Law Society of England and Wales has initiated judicial review proceedings against the Legal Aid Agency (LAA) following the latter’s decision to permanently shift legal aid claims-assessment duties from the courts to its in-house civil finance team, the Law Society Gazette reported.

The LAA had announced in June that it made the call in order to speed up payments and help address the cash-flow issues experienced by legal aid firms as a result of COVID-19-driven court closures. However, the Law Society accused the agency of not consulting properly on the move.

During a two-week consultation process, the LAA reached out to the Law Society, the Legal Aid Practitioners’ Group (LAPG) and the Citizens’ Advice Bureau and Shelter. The LAPG’s response indicated that the LAA should have initiated a long consultation, while UK firm Irwin Mitchell chimed in with its concern that LAA assessors would be pressured into limiting costs claims in service of KPIs or internal policy.

Law Society head of justice Richard Miller said that the agency had not asked for feedback on the change itself, “only on the mechanics of doing so.”

“Cost assessments are vital in ensuring that when legal aid practitioners send a bill it is carefully scrutinised and they are properly paid for their work,” said Law Society President Simon Davis. “Calculating cost assessments can be a complicated process which requires a level of skill and experience, and sufficient time. The LAA’s predecessor—the Legal Services Commission—transferred larger cost assessments to the courts for this reason.”

Prior to announcing the process change, the LAA was in charge of assessing claims valued at less than £2,500—a system that Davis said “has worked well for practitioners and clients alike.” The Law Society said that taking on the job of assessing larger claims generates a conflict of interest for the LAA given that it as the assessor is also the party issuing payments.

In addition, the control of the agency over the costs appeals process—in the form of appointing and remunerating independent costs assessors—comprises the independence of the process, the Law Society said. This view was also expressed by the LAPG in June.

“The judicial process is independent of the LAA and the identity of the decision maker is known, i.e., the costs judge. Whereas, the identity of the LAA caseworker is not disclosed and as such their experience and training is not accounted for to the provider,” the group said.

Davis said that the Law Society had initiated the proceedings “on a protective basis,” asking the agency to engage with the organisation in “a full and proper discussion.”

“It is only right that the profession is fully and fairly consulted in how their bills will be assessed—which will have a significant impact on their business at a time when many firms are already financially stretched,” he said.                                

The legal aid system as a whole is set to undergo an inquiry by the Commons justice select committee, headed by MP Sir Bob Neill. Information on the role of the LAA is among the evidence being sought by the committee.