Legal Aid Payment Review Panel: report to the Minister for Community Safety

Section 2: Key Findings and Summary of Recommendations

Key Findings

What the panel heard during the presentations demonstrated that there is no “silver bullet” for developing structures and setting levels of payments for public services, and nor are the challenges articulated in relation to legal aid unique, either in terms of geography or types of service. Similar challenges are encountered elsewhere and there is no ready-made framework from other countries or other public services which would neatly transfer into our adversarial justice system or provider business models. There would always be disadvantages to each model. It did however demonstrate that there are a number of beneficial aspects present in Scotland that the panel would wish to keep.

A mixed model of judicare and increased diversity of payment methods for legal aid work, including grant funding and contracts, was supported by the panel. How this could be better utilised should be considered.

The solicitor profession is frustrated that the cost of providing services is not directly factored into the current model, but the panel recognised that it was not easy to create such a link when costs will vary widely depending on the size, location, structure and workload of the firm. The solicitor profession also favour simplification and certainty in how fees are calculated.

The crux of the matter is that, whatever its historic origins, the current system of fee structures and levels is a result of an irregular process of ad hoc reform, revision and percentage uprating over three decades, such that it can now appear arbitrary and is not working effectively for the profession, the Scottish Government or the wider justice system. The main driver is to ensure that the system remains sustainable, meaning that it is capable of providing appropriate remuneration to providers such that they are able to deliver sufficient services of an appropriate quality to those who need them in a way that supports the operation of a transparent, efficient and effective user-focused justice system. The current model/approach can be a source of much tension.

From a Government perspective, there is currently no evidence that the fees to which successive percentage increases have been applied were or are now set at the correct levels meaning it is hard to establish value for money. From a profession perspective, often the fee rises have not kept pace with inflation, diminishing the real terms value of those fees. How effective a fee structure or reasonable a fee level is can also be highly subjective - what is an effective fee structure or reasonable fee level for an efficient and busy legal aid practice, carrying a high volume of legal aid cases, might not be for those who are not. By raising fees on an ad hoc basis, this means that when decisions are taken, they will be more beneficial to some than to others. In the short term a fee increase may be advantageous to all providers however in the longer term sustainability of firms committed to legal aid is affected by marginal operators remaining in the market. Capacity in the system needs to be considered.

The Way Forward

The current process of payment for legally aided services should be redesigned as part of the work to reform the legal aid system in Scotland. That redesign should lead to greater transparency around the way in which payment is structured and payment levels set, and offer a range of methods for paying for services. It should be adaptable to changes in work practices, such as court procedural changes, and in priorities. This work should sit alongside the reforms to the legal aid system.

The first set of recommendations that we have issued largely relate to how evidence should be used to inform a wholescale review of payment rates and methods that sit alongside the ambitions for a reformed and improved, user-centred, legal aid public service. That review should:

• Consider both the aggregate and disaggregated position on payment of fees;
• Consider specific issues that apply to different areas of legal aid;
• Provide for alignment between payment and priorities;
• Provide for a regular review process of these aspects of legal aid; and,
• Understand and promote the sustainability of future supply.

The Panel recognises that this is a medium term aspiration and that there are shorter term improvements that can be made. Scotland is, in general, well served by the quality and availability of legal practitioners. Independent analysis suggests that, by international standards, Scotland has a relatively generous system of legal aid, both in terms of the scope of civil and criminal business covered and the lack of a cash limit. However, the time is right to review the process of payments to ensure that they can continue to support effective access to justice across the wide range of legal aid funded activity and diverse delivery models.

Therefore, alongside the medium term redesign of the system and the development of an evidence guided process to inform the setting of payments, the Panel has a series of recommendations for the shorter term that can be quickly actioned and implemented.

For example, Criminal fee reforms have been proposed and the Scottish Government should consult with the profession with a view to progressing with agreed reforms as a priority. Such reforms would result in some simplification of the existing fee regime, reducing the administrative burden on solicitors.

The Panel also identified a need for better evidence about the challenges faced by individual firms and the legal aid market as a whole in responding to changes in levels and patterns of demand, including the need for 24/7 availability, and the demographics of the legal profession. Work to gather this evidence should explore issues associated with recruitment, retention and the use of trainees, as well as issues around diversity, and the challenges the age/gender profile presents the future shape of the sector.

Summary of Panel Recommendations

An evidence guided process that considers the cost of delivery, the health of the market and the priorities of users should be developed alongside the wider legal aid reforms to underpin fee reforms over the medium term:

This process will need to be built on a foundation of understanding of a number of issues. Independent research should be commissioned to gather evidence, with a focus on four key research questions that the panel has set out, regarding:

• The actual and expected remuneration of legal aid providers under the existing system
• The conditions needed to secure sufficient supply to enable the effective delivery of legal aid services at a scale and quality consistent with prevailing needs and in line with legal aid policy and stated strategic justice and social outcomes
• The development of metrics to assess the ‘health’ of the legal aid sector
• Measures that can be used to assess legal aid fees from year to year

As part of the process for agreeing fee reforms, it should be agreed that fees will be assessed from one year to the next reflecting an indicator identified in the independent research. Consideration would have to be given on the impact on those providers in receipt of grant funding.

Regular reviews of payment levels and the models in operation should inform ongoing fee reform. These reviews should also have the scope to consider elements such as the effective operation of the system and a process for concerns to be raised as needed. This should happen around once every five years, but with the potential to update specific aspects of the system, as necessary, between wider reviews

More information regarding these recommendations can be found in Section 3 of this report – which looks at developing an evidence base to guide the fee reform process

In the shorter term, the panel recommends that:

1. Specific proposals should be developed for greater use of diverse and mixed models of payment for the delivery of legal aid services and how this should be embedded in the reformed legal aid system.

2. Further evidence needs to be developed to identify challenges in the operation of the provider base, running of businesses and delivery of legal aid services in the context of wider changes in the justice system, employment market and technological landscape. This will include an assessment of the extent of challenges in recruitment and retention and whether they are particular to the provision of legal aid services or other factors. In the short term, evidence should be drawn from the operation of the recently launched legal aid traineeship fund, supplemented by further work to explore the experience of recently qualified solicitors. The evidence gathered at this stage should be used to inform the medium term review of payment structures, if, for example, it suggests that changes in structure could encourage a younger and more diverse workforce supplying legal aid to ensure the supply of the service remains sustainable.

3. Quality assurance is an important part of evidencing the quality of service provided and the experience of the user. Greater clarity around the respective roles of those who deliver services and those who fund the delivery would improve understanding of expectations for the user.

4. Improvements should be made to the legal aid system that would reduce the administrative burden on solicitors and would have a benefit in reducing business costs. The panel recommends that the reforms proposed by the Scottish Government in December 2020 be consulted on at the earliest opportunity to address a number of issues raised during the lifetime of the panel.

More information regarding these recommendations can be found in Section 4 of this report, which looks at payment models, staff retention and quality assurance