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It is vital that all experts are fully aware of the rules that govern their payments and that you are covered when instructing them. There are recommended terms and conditions of business prepared by the Law Society which are very good and, if used should cover your back in most situations.
3 Apportionment between parties
3.1 S30 LASPO sets out that the court should not apportion liabilities of the parties for experts or disbursements based on the fact that one of the parties is on legal aid.
3.2 The recent case of JG v LSC decided that it would only be in exceptional circumstances that all parties would not be directed to share or at least contribute to the cost of a report. This seems to imply that all expert assessments should be shared but we still take the view that they should only be shared between those parties that have a direct interest in the outcome of the assessment. However in the light of this case you may well find that most assessments are now jointly funded.
3.3 If any party is unable to pay for whatever reason, it seems that it will be difficult for any expert to be instructed.
3.4 There has been no guidance as yet as to what would be exceptional circumstances. In particular, it is unclear whether the complete inability of a party to pay (as determined by the court in a hearing) would be sufficient if the court decided that the expert assessment was “necessary”. This will have increasing relevance to private law proceedings with virtually no legal aid now available and also to care proceedings if there is a party who is not legally aided.
3.5 We would suggest a careful reading of the judgment of Ryder J. We might suggest that there may be circumstances when there is an assessment of the child’s needs (without reference to the parents) or where the Guardian sets out that the assessment is crucial to his/her assessment. It might be possible to persuade the LAA that the child’s legal aid should cover this, but you should always apply for prior authority and you will have to draft a very detailed statement of case in support.
4. Risk assessments
4.1 There is guidance on approving higher rates for ISW when they are carrying out a risk assessment (the rate for risk assessment is £63 per hour)(see reference above). The guidance refers to the need for:-
• The court determining that a risk assessment is needed and
• The work needed is over and above that requiring independent social work expertise
The LAA set out an example of when the expertise may require the expert service to be treated as a risk assessment - there is a substantiated criminal allegation relevant to the proceedings in the immediate background of the case and a finding has been made by a court
4.2 It is not intended that this guidance relates only to sexual abuse cases as far as we know although that is the example given. It seems that it could equally apply to domestic abuse cases and NAI cases
4.3 It should follow that civil findings are sufficient to trigger this higher rate provided that the Court has determined that a risk assessment is needed and the work is over and above that requiring an ISW expertise. However you will need to approach these very carefully with detailed orders setting out the nature of the assessment and why specialist services are required.
5. Advocacy Support Services
This is where the client is supported during the proceedings or in court and to aid their understanding of the proceedings. LAA do not consider that these form part of legal representation and so are not recoverable from the fund.
6. Procedure to instruct
6.1 Family Procedure Rules now make clear that an expert has to be “necessary” rather than reasonably required
6.2 LA should identify any necessary assessment with its initial application
6.3 Advocates meeting before CMH should cover:
• Identifying all experts and establish availability and likely cost.
• Agree proposed questions and who is to instruct
• Who is to make application to court if not already made?
• Agree proposed apportionment and whether prior authority needed
• Why the evidence cannot be given by existing witnesses
• Who is to obtain any medical records?
6.4 Need to attend court with draft order setting all matters agreed above (ideally with letter of instruction) or, if no chance to have advocates meeting what is being proposed by the party wishing to instruct expert.
6.5 Judge still has to approve whether instruction necessary
6.6 All parties will be expected to have a view on the need for the expert
6.7 Expect a tough line to be taken on failure to comply with costs orders possibly following. It will be interesting (albeit worrying) whether a failure by solicitor which adversely affects client’s case could lead to negligence actions
6.8 The court will record reasons for failure in Case Monitoring system.
6.9 Keep LOI brief. Unless absolutely necessary we suggest you do not set out the background in detail. However, you will need to point any particular issues which may not be apparent from the papers. Ensure relevant deadlines are clearly set out for when report is to be filed and when the expert has to give evidence
6.10 Consider whether you need an experts’ meeting..
• Court is likely to want you to deal by simply asking further questions in writing. The problem for your client is that it is simply not the good as cross examination to challenge an expert.
• Consider whether the same thing can be achieved by “hot tubbing” at court
• If meeting needed then ensure there is a direction with clarity as to who is to chair, when questions are to be sent and whether you need a transcript.
• Assuming any experts’ meeting is by telephone ensure that you get a direction for costs of such meeting to be shared in the same way.
• Consider whether you want a transcript of meeting. It can help in that there is then an accurate record of what was said but some believe it inhibits experts and may prevent them from speculating over wider issues.
7. What to do if expert is late
7.1 Check that expert is on track well before deadline.
7.2 If anyone misses an appointment check if it will affect timetable
7.3 Notify court as soon as it is known that an expert report cannot be filed on time for whatever reason.
7.4 Court can consider whether to stop assessment entirely or require expert to give live evidence early.
7.5 If delay caused by instructing solicitor it will be recorded in case monitoring system and costs orders may start to flow if firm is a regular offender.
7.6 Obligation on all parties to notify court of any delay but particularly on solicitor for child.
8. Expert attending court
8.1 If expert to give live evidence get a separate direction with further provision for payment
8.2 If evidence being given by video link etc ensure a separate provision for payment of those extra costs
8.3 If court seeks to avoid attendance by further questions being put ensure costs of this are covered by a further direction.
8.4 Be careful not to prejudice client’s chances by agreeing to expert being sent questions rather than being cross examined.
8.5 Get dates to avoid for expert for IRH and ensure expert told of contested hearing date ASAP
8.6 Do not agree to expert charging a daily rate for attending court. It still has to be at hourly rates.
8.7 Send all updating papers to expert in good time.
8.8. Note the rules on cancellation fees (above) and do not pay these unless within the rules
9. Paying the expert
9.1 Ensure that invoice has:
• Your client’s name
• A complete breakdown of time taken
• Your client’s share
• The hourly rates set out
• Nothing on it that cannot be claimed (eg typing or postage)
• Expert’s address
9.2 If invoice not good enough send it back for correction.
9.3 If invoice OK then submit claim on account and pay monies when received within 14 days.
9.4 If expert claim reduced on appeal then claim money back but do not expect to receive speedily.
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
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
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:
• 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  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).
12.10 Advocates meeting
12.10.1 Only possible in public law – not private law.
12.10.2 Ensure they are directed each time to avoid any problems with LAA who indicate they only expect 2 per case. However, they have indicated that they will not seek to go behind court directions for more than two advocates meetings.
12.10.3 Can be claimed if taking place on same day as hearing but can not double claim time – in other words you either claim the time as being on the advocates meeting or as being on the hearing.
12.10.4 Preparation for the advocates meeting will be included in your advocacy fee and should be recorded.
12.10.5 Does not matter whether it takes place face to face or by telephone. There is even less sense in attending such meetings in person.
12.10.6 If an advocates meeting is directed but all advocates manage to “resolve all relevant matters without the need for such a meeting” (presumably by email or series of telephone calls) then can still claim half the relevant fee for the advocates meeting. This will need a carefully recorded note to prove it to LAA as it will be unusual.
12.10.7 LAA will only need the court orders directing the advocates meetings with the Claim if more than two such meetings. If they seek to reject your claim because no orders supplied when two or less then use the claim fix-it email to challenge.
12.11 Taking instructions from client at court
Our own view is as follows:-
• We can see no reason why you can not arrange to meet your client either early at court or stay behind at court afterwards and claim that time as part of the main fixed fee rather than the advocacy fee. There seems to be no requirement to see the client in your office to take instructions. However, make sure that any attendance note of the taking of these instructions is entirely separate to your attendance note for the hearing.
• If you are taking instructions from client at court in the normal run of the hearing then this would form part of the advocacy fee.
• Comforting client at end of hearing does not count towards your time for the advocacy fee!
12.12 Maximum Fee principle
• This has now gone under FAS.
• This has the significant advantage that we can now claim for briefing counsel at the FPC and for correspondence etc with counsel. Such work will form part of your main fixed fee.
• As the LAA is insisting on counsel having briefs before they can get paid this is helpful to us.
12.5 Time Recording Is Still Important
12.5.1 It is vital to keep recording the full amount of time you spend under the FAS as otherwise you will give LAA ammunition to reduce the fees even further if they can provide evidence that we are making a “profit” on the scheme on a consistent basis.
12.5.2 Our own experience is that when preparation is properly recorded our time recorded figure and the amount of FAS is very similar and possibly even lower than what we would have got if the further uplift we could have claimed would have been allowed.
12.5.3 It seems to be more difficult to make the FAS work in your favour when acting for child. It is very difficult to get bolt-ons for a child.
12.6 FAS attendance forms do not need to be sealed but do need to be signed by the Judge/Clerk and any bolt-ons stamped or initialled.
12.7 Two hearings in one day?
12.7.1 We do not have to apportion times so very good use of FAS.
12.7.2 Try to get your cases listed on same day and only have one advocate at court if possible.
12.7.3 Can claim the travel bolt-on for each hearing but will have to apportion any disbursement claims
12.8 Final/Interim Hearing
12.8.1 A final hearing is any hearing which is listed by the court for the purposes of making a final order.
12.8.2 This can be for the whole of the issues in the case or all the issues in a particular aspect. This means that Fact Finding hearings are treated as final hearings as the Court is finally resolving all the factual issues.
12.8.3 IMPORTANT: a case listed for directions only cannot be claimed as final hearing even if the case concludes.
12.8.4 IMPORTANT: a case concluding at an IRH is a final hearing.
12.8.5 IMPORTANT: a case listed for disposal as a consent order or which is otherwise not expected to be contested or effective is not a final hearing
12.8.6 In care proceedings, the final hearing will be the one at which the court determines whether or not a Section 31 Order is made. BUT it still has to conform to the rules above
12.8.7 An EPO and most secure accommodation applications will only have one hearing and this will be a final hearing.
12.8.8 Cases where LA simply withdraws its application will not be a final hearing but if the court determines at a contested hearing that there was a procedural irregularity meaning the proceedings are dismissed then it is arguable whether it is a final hearing or not. If the case was listed as a contested hearing and this issue was known about when listed then we would argue it is a final hearing.
12.8.9 In private law proceedings you have the added complication of the restriction of your legal aid certificate which prevents you from claiming for a contested final hearing unless you extend the scope to cover “legal representation”. Therefore, our current view is that if your certificate is only “Family Help Higher” or is in any other way limited so as not to cover you for a contested final hearing you will not be able to claim a final hearing fee.
12.8.10 You cannot claim an interim hearing fee for a hearing listed as a final hearing in private law. If you do attend it will be entirely for free.
12.8.11 A fact finding hearing in a private law case is treated as a final hearing but you do not need to get your certificate extended to Legal Representation unless and until the case is finally listed for a contested final hearing other than a fact finding..
12.8.12 In DV cases, if the return date is a contested hearing then we would argue this is a final hearing and the certificate for DV covers final hearings.
12.8.13 If the court orders a review after a final order (realistically only in private law) then that further hearing is not a final hearing even if the court varies the final order already made.
12.8.14 Normally only one FAS form is needed for a final hearing with the total number of days inserted. However we would suggest getting the FAS form signed off by the judge at the end of a Fact Finding hearing as too much risk of forgetting at end especially if different advocate. There is also the risk that your client ceases to give instructions or the case is transferred and you do not get to attend the remaining part of final hearing.
12.8.15 Attending for Handing down of Judgment: attendance for this is not treated as advocacy and a FAS fee is not claimable. If a solicitor attends it can be claimed as part of the main fixed fee.
12.8.16 However, if anything has to be decided after the handing down of judgement then it will be a hearing and will be claimable as part of the main hearing. For example; deciding on disclosure of documents following judgement.
12.8.17 It is presumed that the same advocate will attend the fact finding and the disposal hearing (or indeed for judgment as above). However if they are different then it is still one final hearing and all the usual bolt-ons will apply across the board but only one bundle bolt-on can be claimed. The advocates may have to fight for this between themselves. Indeed the bundle bolt-on could increase by the disposal hearing and the higher one can be claimed.
12.8.18 We advise that the second advocate should make it clear on the FAS form that this is part of a larger hearing, eg by writing “Days 5-9 of final hearing” on the FAS form and getting that initialled.
12.8.19 It is also good practice for the final order to indicate the days that have been taken overall in reaching the decision including any days directed for written submissions as this will help in any claim. For example the order may state “Upon the Court sitting on 3, 4, 5, 6, 7, February and on 9, 10, 11, and 12 October……”. It will then be clear that this was a 9 day final hearing.
12.8.20 If the Court directs a review hearing after the final hearing this is not part of the final hearing and should be claimed as an interim hearing whatever happens at that hearing. But check that your certificate still covers it.
12.8.21 NB enforcement proceedings can result in 2 final hearings. Therefore if you obtain a contact order in the main proceedings but then have your certificate amended to enforce that order the final determination of those enforcement proceedings will also be a final hearing.
12.9 When FAS form not needed
12.9.1 Advocates meetings (although a detailed attendance note will be needed to justify the work).
12.9.2 Telephone call/videoconference hearings. Again detailed attendance note needed and reasons for claiming bolt-ons very clearly specified albeit that these may be more difficult to claim in such a situation.
12.9.3 Any hearing when minimum unit being claimed with no bolt-ons. However, counsel will still need a brief.
12.9.4 Cancelled hearings where a one hour unit hearing can be claimed by external advocate if undertaken at least 30 minutes preparation.
12. Miscellaneous Points Which Have Been Established
12.1. Only one FAS form needed per hearing
12.1.1. One form only needed no matter how many clients you act for. Choose one Legal Aid Certificate to be included. Remember to include all Legal Aid certificate numbers on final claim for costs on case.
12.1.2. Claim your payment on account based on actual fees claimed not on a time recorded basis (albeit there may not be much difference between the two).
12.1.3. This means that you must keep a record of the actual fee incurred, either manually or on computer if possible.
12.1.4. Court does not keep a copy of FAS form.
12.1.5. A good precaution to scan in your FAS forms in case you lose the original. The LAA will not accept a scanned form but it should be easier to get the form signed off again by the court.
12.2 Hearing lasting ten days or more?
12.2.1 Hearings of ten days or more do not justify a change to a claim on hourly rates whether counsel or solicitor.
12.2.2 It is probable that a case involving such a hearing would be a VHCC and so become exempt but, of itself, there is no exemption as result of the old rule.
12.3 Post Hearing Discussions
12.3.1 These are not claimable under the FAS or as part of your preparation for the main fixed fee unless the court agrees to allow you that further time to finalise the order and signs off your form accordingly.
12.3.2 It may not make much difference depending where you are on your time at court in that it may be still some time before you could reach the next fee stage and, if final hearing, there is no end time as you simply get a daily rate.
12.3.3 However, it is still your time which you could be spending on other matters and so you are losing out in that way.
12.4 Preparation for Hearing
12.4.1 This is part of the fixed fee of advocacy and so MUST NOT be claimed as part of your main fixed fee except for cancelled hearings (see below).
12.4.2 Still important to record your preparation on your attendance note and time record it.
12.4.3 This makes it more difficult to escape main fixed fee when acting for children.
12.4.4 Remember to be vigilant to capture all the time you spend on your perusal of documents during the case – the LAA will allow a minimum of 2 minutes for the most straightforward A4 sheet.
12.4.5 Preparing skeleton arguments and written submissions will be part of FAS fee. It may be possible for the judge to allow extra time on FAS for an interim hearing if he is seeking to reduce his time at court at your expense by directing written submissions. In a final hearing you can only claim a daily rate so extra time may be of no help to you. Some courts may choose to list a hearing day with the expectation that you prepare your submissions. If that is listed, you should be able claim it as a hearing day.
12.4.6 Position statements are part of preparation for advocacy if prepared by the advocate (whether solicitor or counsel). If prepared by solicitor, and counsel attends then clearly not part of advocacy fee and the solicitor should claim it as part of the main fixed fee.
12.4.7 If Position Statement is prepared by the solicitor with conduct but the hearing is conducted by another solicitor we believe it is not part of Advocacy fee. Again, we hope to clarification of this for the conference
12.4.8 If counsel prepares a position statement then there is no means of claiming for this other than as part of FAS so no benefit in counsel doing it. Will solicitors be put under more pressure to produce them or will counsel’s desire not to be shouted at by Judge mean they will still do it?
12.4.9 Cancelled hearings:
18.104.22.168 If external advocate, that person can claim for a one hour hearing without bolt-ons (no FAS form) if they have done more than 30 mins preparation and hearing cancelled at any time after receiving papers.
22.214.171.124 If internal advocate, that person can claim for preparation as part of the main fixed fee for any preparation actually undertaken for that cancelled hearing.
11. Claims for Payment
11.1. For interim hearings, based on units of 2.5 hours once you have exceeded one hour. They just keep being added up in units of 2.5 hours no matter over how many days the hearing runs.
11.2. If you do run over one day then you will need to produce your notes of hearing to show when you attended court each day
11.3. If you exceed one hour you do not claim that separately it just gets absorbed into the first 2.5 hour unit
11.4. For final hearings it is a daily rate. Reading days do NOT count as a day of final hearing so you may wish to attend for housekeeping issues. NB in the extremely unlikely event that a final hearing runs until after midnight on day 1 then a second day can be claimed.
11.5. Remember that any time at court on a final hearing counts as a day for claiming purposes.
11.6. On the CLAIM1A the “total time” refers to the time between your start time and your end time on the FAS form and not total time engaged in hearing, preparation and travel.
11.7. Payments on Account claimed in same way as before for solicitors ie 75% paid twice a year. This is the one area where there is still difference with counsel who can claim for each hearing as it arises. FAS form not needed for payment on account.
11.8. FAS forms essential for final claim. No form, no payment (except when a one hour claim is being made with no bolt on).
11.9. Need to include the court orders directing attendance at court and advocates meetings.
11.10. Remember the £20 limit (inclusive of VAT) for disbursements – you will need a receipt for anything over that figure. If it is for mileage or smaller disbursements we have found LAA will need to see your attendance note setting out the claim or a copy of your accounts ledger showing it has been paid.
• 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.
7. Start Times
7.1. Start time on FAS form is from when you arrive at court or when you are directed to arrive at court (or the actual hearing time if no earlier time specified) whichever is the later.
7.2. LAA will ask for the court order listing the case to be supplied with the claim so make sure you have not started your time too early.
7.3. Important to encourage courts to direct that legal representatives arrive at least 30 minutes, if not one hour, before hearing to allow for discussions.
7.4. If no such direction made then only arrive at time of hearing to encourage courts to make directions in future to show how much their court lists depend on us being able to negotiate.
7.5. If you arrive early and engage in negotiations you will not get paid for it and indeed could reduce the amount you are able to claim one hour, being the lowest fee.
7.6. For final hearing the start and finish time is irrelevant and does not need to be recorded on the form. However, if you think there may be some doubt about whether it is a final hearing or you can claim for a final hearing at all in a private law case, it may still be worth recording the time on the form in case of dispute with LAA over whether it really was a final hearing or not and you have to revert to claiming as an interim hearing.
7.7. If attending for an ex-parte application, the start time will be when the papers are issued so the waiting around to get papers issued does not form part of FAS. If no papers actually issued before going before Judge then it is presumed that start time will be when the hearing actually starts before the Judge. If papers issued but then not possible to get hearing heard that day the end time will be when advocates informed of this and the case will start again at the time the advocate told to attend the next day.
7.8. If hearing by video or tele-conference without attendance at court, the hearing time will start from the time that the call/videoconference is first attempted and not when hearing actually listed.
7.9. The start time does not need to be stamped or initialled.
8. Finish Time
8.1. When the case actually concludes in court before the Judge or at such a future time as the court is prepared to allow if it has asked you to finalise the order before leaving court. It is not the time when you leave the court building.
8.2. For interim hearings you simply put down the end time no matter which day but remember to complete the number of days section as well if goes over one day. This can have the weird effect that you can appear to finish before you started if the hearing commenced at 2pm one day and finished at noon the next day – doing legal aid really is like going back in time!
8.3. For the avoidance of doubt this means that you should still have only one FAS form per hearing and not per day of hearing.
8.4. You should also be aware that unless the court directs you to be there early on the subsequent days of interim hearings you will only get paid for the time the hearing is listed. Therefore try and get the court to direct you to be there early on subsequent days. This can be recorded on the order that is drafted from the interim hearing setting out the times for the attendance on days 2 and subsequent days. This is particularly important if the hearing is listed as a final hearing but becomes an interim one.
8.5. Not necessary to put down a start and end time if final hearing as get paid by the day (but see 7.6 above).
8.6. If court not prepared to allow more time yet is seeking to ask you to finalise the order then you will need to insist on coming back before the court to have the order approved or else none of that time will be paid for.
8.7. All advocates should have the same end time on their forms, save in exceptional circumstances.
8.8. The end time does not need to be stamped or initialled
8.9. Finalising the order by correspondence after the hearing is all part of FAS and so you are best to try and resolve it at court within time allowed by the court.
9. Travel to Court
9.1. Included in your FAS fee (unless bolt-on applies – see following post).
9.2. Travel costs can still be claimed as a disbursement (remember £20 inc VAT limit on needing a receipt).
9.3. Mileage can be claimed as a disbursement and need to attach attendance note to any claim whether final or on account.
9.4. Client’s travel can be claimed but must have receipt and record the reason why it was paid
What cases are covered and what are exempt
1. Public Law
1.1. All applications for care or supervision orders.
1.2. This will not include whether court makes a care order or supervision order within private law proceedings of its own motion but where there is no actual application by a local authority for this. This is likely to become more common with the withdrawal of legal aid for most people.
1.3. Covers all levels of court to High Court.
1.4. Includes interlocutory appeals but not final appeals.
1.5. Includes all related proceedings, i.e. all proceedings heard together with public law proceedings or in which an order is being sought as an alternative to an order in such proceedings (e.g. SGO and/or Placement Orders). It will also include all private law proceedings which have become care proceedings or if heard together with them.
1.6. It is less clear about what happens if private law proceedings are not heard together but heard on the same day but immediately following on from care hearing. Our view is that these are separate proceedings and should be claimed as two cases but you may have an argument with LAA as to precisely how the hearings have been conducted.
2. Other Public Law Cases
2.1. Emergency Protection Orders.
2.2. Secure Accommodation Orders.
2.3. Discharge Care/Supervision Order.
2.4. Contact to Child in Care.
2.5. Extend/Vary Supervision Order.
2.6. Child Assessment Order.
2.7. Recovery of Abducted Child Order.
2.8. Adoption Proceedings.
2.9. Free standing Placement Order and Revocation of Placement Order.
3. Domestic Abuse
3.1. All usual family injunctions including injunctive relief in care proceedings under The Protection from Harassment Act 1997. Applications for a Forced Marriage Protection Order are excluded from the scheme although included in this definition for the purposes of the funding code.
3.2. An Avoidance of Disposition Order is not included neither are orders for maintenance or financial issues following an Occupation Order. Both should come within ancillary relief.
3.3. If, as is quite common, there is an overlap between domestic abuse and private law children you are entitled to choose which fee is going to be most profitable for you.
4. Private Law Children
This includes all applications for:-
4.1. Residence, Contact, Prohibited Steps.
4.2. Parental Responsibility.
4.3. Special Guardianship (freestanding).
4.4. Does not include any applications for maintenance or other Financial Orders.
5. Ancillary Relief and All Other Family Work
5.1. All ancillary relief proceedings.
5.2. All applications for a financial relief whether within divorce or Schedule 1 Children Act.
5.3. Other miscellaneous applications not falling in any other category above.
6. Main Exemptions
6.1. The following list below sets out the most usual exemptions which means that you do not claim under the FAS but continue to claim on hourly rates plus enhancements when justified. This is not an exhaustive list but simply sets out the ones that we usually deal with.
6.1.1. Acting for child in private law proceedings, adoption, and special guardianship (freestanding).
6.1.2. All VHCC cases although LAA will probably wish to agree the FAS scheme within your contract.(see below for more detail on VHCC)
6.1.3. Any party in international child abduction proceedings.
6.1.4. Proceedings under the inherent jurisdiction of the High Court in relation to children.
6.1.5. An appeal against a final order.
6.1.6. Any proceedings at the Court of Appeal or Supreme Court.
6.2. It is interesting to note that where solicitors undertake work we have to claim at the hourly rates plus enhancements when justified as set out in the payment annex but counsel can claim such fees “as are deemed reasonable on assessment” albeit that the assessment of what is reasonable may take in to account the solicitor’s rates. This raises the real possibility of counsel being paid more for the same work than a solicitor in these circumstances.
6.3. If a single hearing includes “significant work in a matter falls within the scheme and is also excluded from the scheme then the whole hearing will be treated as excluded from the FAS”. If you are in any doubt, get a FAS from signed off just in case
What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.
134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained.
The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word "requires" in section 52(1)(b) "was plainly chosen as best conveying...the essence of the Strasbourg jurisprudence" (Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, para 125).
104. We were not addressed on [Article and cases referred to]. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are “paramount” (in the UK legislation and under article 21 of UNCRC), a court should never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.
Whether or not article 8 has any part to play in the threshold decision, it certainly comes into full flower at the disposal stage. Lady Hale and Lord Wilson have both referred to emphatic statements by ECtHR in such cases as Johansen v Norway (1996) 23 EHRR 33, K and T v Finland (2001) 36 EHRR 18, R and H v United Kingdom (2012) 54 EHRR 2,  2 FLR 1236 and YC v United Kingdom (2012) 55 EHRR 33 concerning the stringent requirements of the proportionality doctrine where family ties must be broken in order to allow adoption to take place. I agree with Lady Hale's statement (in para 198 of her judgment) that the test for severing the relationship between parent and child is very strict and that the test will be found to be satisfied only in exceptional circumstances and "where nothing else will do". I also agree with what Lord Wilson has said in para 34 of his judgment, that "a high degree of justification" is required before an order can properly be made.
A care order cannot be made unless it is necessary in the best interests of the child. Nothing less than necessity will do, either under our domestic law or under the European Convention on Human Rights. Only in a case of necessity will an adoption order removing a child from his or her parents be proportionate.
Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B  1 FLR 611, at para 34,
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.