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, 12 December 2013

Legal Aid Update: FAS Bolt Ons

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.

10. Bolt-Ons

Care cases
There are 3 types each attracting 25% in care cases:-

• allegation of significant harm against your client,
• expert cross examination and
• client lack of understanding.

• For each one you add another 25% so that if all can be claimed, you can increase your fixed fee by 75%.

Private law cases
In private law cases there are only 2 bolt-ons claimable – client’s lack of understanding does not apply. Also the expert one only attracts 20%.

No bolt-ons are available in domestic abuse.

In ancillary relief the only bolt-on is for an early resolution.

In every case you can claim the bolt-on for the court bundle.

Any bolt-on claimed (apart from travel) must be initialled or sealed by court for it to be claimable. If the LAA return your claim asking for something different send it back with a complaint.

10.1 Significant harm to a child

10.1.1 Not significant harm as defined in CA 1989.

10.1.2 Has to be death, extensive physical injury, ill treatment (likely to endanger life eg suffocation or starvation), fabricated illness or sexual abuse. However, the harm has to be suffered by a child so DV between parents not going to count unless child suffered direct harm as a result – eg man hits child held by mother.

10.1.3 It has to be made by LA or adopted by LA. Therefore, allegations made by one parent against the other but not sought as part of LA case will not count.

10.1.4 Neglect does not fit this category.

10.1.5 Only available if your client is alleged to be perpetrator.

10.1.6 Rarely available if acting for child.

10.1.7 Has to be a live issue in the case therefore cannot use it on interim hearings after fact finding hearing if the facts were not found or the LA no longer pursue the allegations. At present, our view is that if your client had findings made against them in a fact finding hearing then significant harm would still be a live issue for the rest of the case.

10.1.8 Does not have to be a child within the proceedings but does have to be a live issue to be determined. Therefore, if LA rely on findings made in a previous case that your client assaulted another child that may well count. We will aim to clarify at the Conference.

10.2 Expert cross examination

10.2.1 Only available at hearing when expert actually cross examined and substantially challenged.

10.2.2 Or prepared for cross examination but either expert stood down at last minute (less than 72 hrs) or attended and not actually give evidence.

10.2.3 You do not have to be the person needing to challenge – available to all advocates at that hearing.

10.2.4 Guardian and any employed SW or other employee of LA does not count as an “expert”.

10.2.5 An ISW used by LA because it does not have resources to do work in house would not be included. But an ISW used by LA because of need for “independence” would be included even if LA only one paying.

10.2.6 The fact that the President wishes all SWs and Guardians to be treated as experts makes no difference to LAA.

10.2.7 Only applies per hearing and not per expert so will make no difference if challenging one or four experts.

10.3 Client lack of understanding

10.3.1 Not available in private law.

10.3.2 Client has to have difficulty giving instructions due to mental disorder or significant impairment of intelligence or social functioning.

10.3.3 Must be an expert report confirming diagnosis. Such report does not have to have been prepared in the proceedings but has to be available to the court for the hearing for which bolt-on being claimed.

10.3.4 Unclear how far in the past a report can be used, e.g. a client with learning difficulties will not improve so will a report from 20 years ago suffice? Not clear. Our view is that if a report is still relied on in the proceedings it will suffice.

10.3.5 Cannot use a report obtained later in proceedings to claim an uplift for an earlier hearing.

10.3.6 Official Solicitor acting should mean bolt-on automatically applies.

10.3.7 Need for an interpreter not sufficient (includes deaf signing).

10.3.8 Deafness and blindness alone not considered as being enough to constitute a significant impairment for these purposes.

10.4 Court bundle

10.4.1 Fixed amount to be added to your claim.

10.4.2 2 amounts available for interim hearings – Bundle between 350 and 700 pages (£59.40 and Bundle over 700 pages (£89.10). in public law, you can only claim on interim hearing which is a CMH or an IRH or otherwise a hearing that is listed for the hearing of contested evidence

10.4.3 3 amounts available for final hearings with a further amount for a bundle over 1400 pages. But only per hearing and not per day of final hearing. These amounts are higher than for interim hearings so do not miss out by claiming the lower interim hearing figures. The final hearing bundle payment can be claimed if the IRH becomes the final hearing.

10.4.4 At this stage it is not necessary to produce any evidence for the bundle but we suspect that this will be introduced in due course so you may wish to scan in the index with your FAS form so that you have easy access later on.

10.4.5 Remember to include Position statements or other documents filed at court in your calculation if you are close to a particular limit

10.4.6 Only 2 claims for interim hearings in care cases and only one in private law.

10.4.7 Must get bundle box initialled or sealed at every hearing appropriate so as to decide later which one(s) to claim.

10.4.8 May cause friction with external advocates and counsel. Who claims the bundle bolt-on? If you do not want counsel to claim, need to negotiate with clerk.

10.4.9 Also on a change of solicitor, the bundle fee is claimable by whoever requests it first so ensure this is clear on handover.

10.4.10 The bundle is what is substantially considered by the court. It does not include:
• Pages in counsel brief
• Information supplied to counsel but not in bundle
• Further bundles filed in case further info may be needed
• If core bundle prepared then presumably only those pages in that core bundle will count
• If do not send counsel all the papers then presumably only the papers that counsel actually has will count towards bundle payment

10.5 Exceptional Travel

10.5.1. Can only claim as a Bolt-on if more than 25 miles each way from your office by the “most direct route” (not in a straight line).

10.5.2. Bolt-on is a fixed amount added to claim. But only £32.04 so do not get too excited (it is not that exceptional).

10.5.3. It is paid for each day of hearing and not per hearing

10.5.4. Have to consider whether a more local advocate should be instructed.

10.5.5. Sort out which courts are within that area for your office.

10.5.6. Agree the mileage from your office to each court.

10.5.7. Suggest using AA or Google maps to get a definitive mileage and most direct route. May be worth keeping a printout in a central record case of challenge from LAA.

10.5.8. You cannot choose to go by a longer route just because it happens to be quicker for you and then use that to justify exceptional travel. The only exception is if there is something unusual (e.g. an accident or roadworks) which means that the most direct route is not available that particular day.

10.5.9. Anticipate that LAA will look closely at all such claims and do their own research as to whether a particular court is within 25 miles of your office. They will not worry if the most direct route is the slowest. Be prepared to argue but do your research first and do not rely on old habits.

10.5.10. You have to give a reason for attending with exceptional travel on the CLAIM1A. So far we have been successful with simply saying “representation of child” when acting for a child or “continuity of representation” when acting for a parent.

10.5.11. If claiming mileage, then you will have to justify why you went by car and not public transport: eg quicker in time, distance of court from train station or simply volume of papers to carry

10.6 Early resolution

10.6.1 Only available in finance cases.

10.6.2 Only if cases settles at 1st appointment or FDR and is recorded in a consent order or Heads of Agreement.

10.6.3 Finances must be fully concluded to be claimable.

10.6.4 Advocate must have materially assisted (i.e. not claimable if simply attending to rubber stamp an order already agreed).

10.6.5 No further level of service (i.e. not break down) within 6 months.

10.6.6 Reconciliation does not count.

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