News / General

Collection of Legal Aid Contributions

By SLAS Spokesperson

There is now a proposal that the Scottish Legal Aid Board (SLAB) will now proceed to levy contributions from assisted persons for summary, criminal legally aided work.  Moreover, it will be down to the solicitors themselves to collect these contributions.  This is effectively a reduction of the fees which SLAB will pay to these practitioners.  The collection by solicitors of contributions has previously been in place in connection with civil work and that leads to its own difficulties.  It is anticipated that there will be much greater problems in the collection of contributions for criminal representation.  Members are invited to add their comments with a view to taking forward the debate as to whether these proposals should be taken forward.

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Many criminal practitioners are one person firms. They often work from home. They have no office or back up staff - unlike the PDSO. Many run without a solicitor's clients' account because they never hold any clients' money. Therefore, if they collect fees they will require to operate a client account and submit to Law Society inspection etc until they raise a fee note. The inequality of arms is even greater compared with the PDSO. The added work, staffing and accounting might make many cease criminal work. This all plays into the hands of the PDSO which is claimed not to be expansionist. Who is kidding whom?

D

This may be to do with the regulatory position. There is a saving for legal aid practitioners who have no employees and who do not hold clients’ funds because they pay less than other practitioners for some part of the expense of being a practitioner. They would in any case have lower administrative overheads because of not holding clients’ funds. This might enable them to work for a lower hourly rate than otherwise. It seems likely therefore that depriving them of these economies without reinstating a proper hourly rate gives the advantage to sciurus carolinensis as presaged at a recent Law Society AGM.

C

There appears to be an issue here of professional independence which is clouded by the fact that the work is publicly funded and public finance is in short supply. Nevertheless, accused persons who are unable to provid their own legal representation are entitled to rely for this upon the state. At the same time solicitors are, necessarily, independent professionals who require to make their livings from making representations for accused persons. Much ill informed comment has been seen and heard about on this topic. See the following letter issued by the Law Society Legal Aid Negotiating Team to the Justice Committee of the Scottish Parliament for correct insight.

Dear Justice Committee Member,

Scottish Civil Justice Council and Criminal Legal Assistance Bill – Part 2 (Contributions). We have read a number of statements about the Bill which do not provide a fully rounded picture of the changes in criminal legal assistance that will be brought about by the contributions system. This letter attempts to clarify the position in respect of these matters. We would also like to provide details of our negotiating position in relation to the cost of transferring the responsibility of collecting contributions to the Scottish Legal Aid Board (SLAB).

Collection of Contributions

Volume

o In 2011-2012, solicitors were expected to collect £154,000 under criminal ABWOR.[1]

o Under the proposed system solicitors will be expected to collect around £2,722,000 in summary criminal legal aid and criminal ABWOR cases in the first year. [2]

o In financial terms, solicitors will be expected to collect around 18 times the amount of contributions that they are required to collect at present.

o Without a central collection system it will not be possible to monitor the proportion of the £2,722,000 which has been paid by clients. Therefore, it will not be possible to review the contributions system.

England and Wales

o There is a central collection system in England and Wales which means that the contributions system can be monitored.[3] This also means that non-payment of contributions in England and Wales does not cause delays in the court system or increase the number of unrepresented accused in court.

Cost of Collection

o SLAB will spend £103,008 out of its Grant in Aid funding on staff costs to collect around £645,000 of solemn contributions.[4]

o The profession will receive no funding to collect over £2.7 million of summary legal aid and ABWOR contributions.

o It would cost SLAB £600,000 to set up an administration system to collect the £2.7 million of summary legal aid and ABWOR contributions.[5]

Cost of Collection - Our Negotiating Position

o If SLAB collected the summary and ABWOR contributions centrally, the Government would make savings to the legal aid fund unless SLAB recovered only £600,000 or less out of the £2.7 million (approximately 20%).

o On 31 October, at a meeting with the Government and SLAB, the Society offered to explore with the profession the possibility of the profession funding the administration of the SLAB collection service. The proposal was made to ensure that savings were made to the fund, albeit potentially less than the target amount depending on collection rates. The proposal to consider this as an option was rejected by the Government and by SLAB.

Number of Clients Affected by Contributions

The Policy Memorandum states that 82% of clients will not have to pay a contribution. This is based on an analysis of all the cases which SLAB dealt with in the year up to November 2011.[6]

Those cases could not have fully reflected the levels of outgoings of clients.[7] The figure of 82% could only have been based on assumptions made in relation to the levels of outgoings data and those assumptions could be inaccurate.

Contribution Levels - Summary Criminal Legal Aid

Average Amounts

o The average contribution amount which will be payable out of income in contributions cases has been estimated by the Government to be £179, almost £40 more than the existing maximum contribution payable under ABWOR.[8]

o The average contribution amount which will be payable out of capital in contributions cases has been estimated by the Government to be £216.[9]

o The fixed fee is currently £485. Where the contribution payable out of income is assessed at £179 (the average amount), SLAB will only pay £306 of the fixed fee to the solicitor. The solicitor would be expected to collect the remainder (£179) from the client.

o Where a contribution out of income is the average amount (£179) the client would have a disposable income of around £118.50 per week.[10] He or she would not be able to afford the full amount in a single payment and so an instalment system would have to be set up. Unlike SLAB, many criminal legal aid solicitors do not have such systems in place.[11]

o The average level of contribution payable out of income is £179 but the amount can go up to £1118 depending on the disposable income of the client.[12]

Impact on Solicitor Firms

The impact on solicitor firms will vary from firm to firm. Given the figures in the Policy Memorandum, it is clear that the modelling provided by SLAB in supplementary evidence to the Justice Committee does not include firms that will be impacted severely by the contributions system.[13]

We would be very happy to assist further if Members have any further queries. Please do contact Matthew Thomson at the Society (0131 467 8348, matthewthomson@lawscot.org.uk) if you require any further information.

Yours sincerely

Oliver Adair
Legal Aid Convener
Law Society of Scotland

References

[1] Evidence from Scottish Legal Aid Board, Official Report of the Justice Committee, 11 September 2012
[2] Financial Memorandum, paragraph 153 – (Summary + ABWOR savings from contributions)
[3] Legal Services Commission Legal Aid Manual
[4] Policy Memorandum, paragraph 167 and Financial Memorandum, paragraph 153
[5] Evidence from Scottish Legal Aid Board to Justice Committee, Official Report of 25th Meeting 2012 (Session 4) Tuesday 11 September, Official Report - page 1677
[6] Policy Memorandum, paragraph 66
[7] Financial Memorandum, paragraph 161
[8] Financial Memorandum, paragraph 157 and SLAB Keycard 2012
[9] Financial Memorandum, paragraph 157
[10] Policy Memorandum, paragraph 60
[11] Law Society of Scotland Survey on ABWOR collection reported that over 70% of respondent firms either never or rarely collect in ABWOR with many firms citing lack of collection systems as one of the reasons.
[12] Policy Memorandum, paragraph 60
[13] The modelling showed that less than 18% of the client base of each of the modelled firms would have an assessed contribution. If the 82% figure in the Policy Memorandum is correct there must be firms that have not been modelled with higher percentages of affected clients.

Solicitors who are taking so-called strike action are merely declining to accept instructions in particular cases, which they are fully entitled to do. Failure to support these solicitors seems difficult to reconcile with a proper appreciation of professional independence. However this page is open to whatever opinion may be reflected in the profession.

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