About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Thursday, 19 December 2013

Legal Aid Update: Experts Part 1

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


EXPERTS

See relevant guidance

Guidance on remuneration of expert witnesses


Guidance on risk assessments


1. Rules for the rates for experts to be applied to all cases

1.1. There are now two funding orders affecting experts’ fees.

1.1.1. Funding Order (The Community Legal Service (Funding)(Amendment No 2) Order 2011 affecting certificates dated after from 3.10.11 until 1.4.13. The rates set out in the funding order cannot be exceeded without prior authority.

1.1.2. Civil Legal Aid (Remuneration) Regulations 2013 No 422 for certificates dated after 1.4.13. Again, the rates set out in the funding order cannot be exceeded without prior authority. Some of the rates in the 2013 order have changed the rates set out in the 2011 order so you need to consult the correct list depending on the date of your certificate.

1.2. There are still different rates for some experts in London and out of London although for many of the most commonly used experts, differences were dispensed with for all certificates issued after 1.4.13.

1.2.1. Where there remains a difference, generally experts inside London get paid 50% less than outside London.

1.2.2. This is defined by the registered office address of the expert. It is nothing to do with where the court hearing is taking place or where the solicitor’s office is.

1.2.3. There may still be considerable dispute over whether any particular address is a registered office or not. It is important that all correspondence from the expert has the same address or else it can cause difficulties. If the expert has more than one office LAA will deem the one closest to the client or solicitor as being the one to determine the rate.

1.2.4. If an expert has a PO Box address outside London or uses their home address as their registered office but it is apparent that they are based in London, LAA will conclude that they have more than one office and apply the test above.

1.2.5 So far we have not heard that LAA is seeking to challenge the use of an expert who is out of London rather than in London. However you would be wise to keep a note explaining why you chose your particular expert.

1.3. Make sure the expert is aware of the rate relevant to them and seek their confirmation in writing to the rate.

1.4. ISWs will only be paid at the rate from time to time routinely paid for such services by CAFCASS (currently £33 per hour in London; £30 per hour outside London).

1.4.1. ISWs cannot charge travel at £40 per hour. LAA state in their internal guidance that a figure of 2/3 of their normal hourly rate should allowed for travel. However, Cafcass pays Guardians the same rate for travel as for other work so we would suggest that this is certainly open to challenge if fee reduced because of this.

1.5. Experts can only charge up to £40 per hour for travel and 45 pence per mile for travel. LAA have stated that if claiming at that level means that they are claiming at more than 2/3 of their normal hourly rate then will only allow that lower figure. Again this is from their internal guidance so is still open to challenge.

1.6. Experts cannot charge for the following:

1.6.1. Cancellation fee except where notice of cancellation given less than 72 hours before appointment or hearing
1.6.2. Fee for office space or providing a consultation room. However, the hire of a room for a videolink to give evidence at court will be allowable.
1.6.3. Fee for administrative services eg typing
1.6.4. Fee for courier services
1.6.5. Subsistence

Other costs that cannot be covered in expert’s instructions:-

1.6.6 LAA will not pay any costs or expenses of or relating to the residential assessment of a child, this includes a viability assessment to see if a residential assessment is possible or advised.

1.6.7 LAA will not pay any costs or expenses of or relating to treatment, therapy, training or other interventions of an educative or rehabilitative nature.

1.6.8 LAA will not pay any costs and expenses of independent social work provided outside England and Wales;

1.6.9 LAA will not pay any costs and expenses in relation to contact activities including fees, charges and costs of contact centres and any reports or other assessments of contact between children and adults. However, please note that this exclusion does not apply to observation of contact which forms part of a psychological or parenting assessment.

1.7 These fees will be firmly applied.

1.8 Prior authority will be needed unless fees accord with this list or else your firm will be at risk.

1.9 The LAA has made it clear it no longer wants prior authority applications for experts who are within the rates unless the total number of hours is unusually high. Guidance as to what that means for some experts has now been provided (see reference to the guidance document above). It is unclear as to what happens if there are more than 2 parties. In the absence of clear guidance from LAA, seek prior authority unless the number of hours comes within the guidelines for fewer parties below.


Expert Type One party assessed Two parties assessed

Adult/Child Psychologist 20 30
Adult/Child Psychiatrist 15 25
ISW 30 40
Paediatrician 15 25
Radiologist 10

1.10 Note that if you seek an addendum report which leads to the LAA recommended number of hours being exceeded then you should seek prior authority as it is treated as one report fro LAA assessment purposes.

1.11 If an expert or expense is not listed you need to apply for prior authority. Most common ones not on the list are:

• Translators
• Family therapists/play therapists who are carrying out assessments

Although hair strand tests are not listed on the list of codified rates, the LAA has issued guidance to indicate when it does not need an application for prior authority. This applies where the order specifies the tests to be carried out in accordance with the LAA guidance (again, see the reference above for this guidance)

1.12 In considering whether to approve rates in excess of the codified list, the LAA will do so if reasonable to do so due to exceptional circumstances. As yet the only criteria for “exceptional” are
• The complexity of the material is such that an expert with a high level of seniority is required, or

• The material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence

The LAA will not increase the ISW rate but it may be possible for an ISW to be classed as Risk Assessor and so claim at the Risk assessment rate. (see below for more detail)

1.13 For experts not on the list, application for PA is required and the LAA will consider when deciding on their rate the following factors

• the rates in the code

• The LAA may require a number of quotes for provision of the relevant service to be submitted to the LAA. If not, you will need to provide reasons why not.

• Where estimates are required, the LAA want two others in addition to the one you seek PA for

1.14 The LAA say they will not refuse applications for PA before a court has considered the application for an expert or has made an order but it is questionable whether there will be enough time to apply, let alone whether it is going to be worth applying before the court hearing in most cases.

1.15 Applications for PA are dealt with by a dedicated team at the Cardiff office.

1.16 Use APP8A if several parties needing prior authority for the same expert. Agree which solicitor will claim the prior authority for all. For this to work the solicitor making the one application will need all the certificate details for each party. . It is helpful to take the APP 8A to court and complete as far as you can the LAA details on the form. Using this method will not enable all parties’ certificates to have their costs limit increased. If that is necessary then each party will need to apply for that individually.

1.17 A court direction will be needed to enable you to instruct the expert but will not be binding on the LAA. In our experience the recent guidelines as to the wording for the order in the case of Re DS [2012] EWHC 1442 has been completely ignored by LAA and it will down to you to justify the reason for the higher than normal expense.

1.18 There is no right of appeal against a refusal of prior authority and you will have to take the matter back to court urgently if it means that a “necessary” way forward can no longer take place.

1.19 Payments on Account will only be paid at the hourly rate on the list unless prior authority obtained. You will need to send a copy of the prior authority with the application for payment on account.

1.20 LAA will look behind court assessed bills so we can no longer rely on the court assessment to guarantee payment. If the case is one before 3.10.11 then there is no formal hourly rate limit currently in force but LAA will look at the rates as a guideline. In practice we find they can be very difficult about this as they seem to apply the new rates even though not compulsory

1.21 There are ongoing problems in getting LAA not to reduce at final assessment and then having to appeal in our own time. If the expert’s fee is reduced, contact the expert to ask for the money back or any submissions should they wish you to appeal. Do appeal as the LAA’s data suggests that appeals are often successful.

1.22 The Law Society has produced pro forma letters of instruction which are very helpful and should be used (including terms and conditions – see below).



See also my draft letter of instruction here

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