By a trainee at Bidwell Henderson
My name’s Rebecca and I’m currently just over two months into my training at Bidwell Henderson. During this time I’ve learned about quite a few topics that relate to the billing of files relating to care proceedings. Training has started with solicitors’ files that have been granted public funding (legal aid). The majority of files me and my fellow trainee, Emily, have been working on have fallen under something known as the ‘Care Proceedings Graduated Fee Scheme’ (‘CPGFS’) (also known as a ‘fixed fee’ regime). This Scheme covers cases that fall under section 31 of the Children Act, which involve applications made by a Local Authority for either a Care or Supervision Order.
There was consultation on fee schemes in family law in general as part of the legal aid reform programme set out in November 2006 in Legal Aid Reform: The Way Ahead. The Legal Services Commission had made substantial changes to proposed fixed fee schemes based on comments received during a July 2006consultation (Legal Aid: A Sustainable Future) that was published alongside Lord Carter’s Report on legal aid fee schemes. Further proposals in the November 2006 consultation included retaining the uplift for panel membership in exceptional cases, lowering the threshold for those cases that would be deemed exceptional and introducing a higher fee for cases where two or more children were represented and where both parents were represented.
The Care Proceedings Graduated Scheme was finalised following the consultations and was implemented from 1st October 2007. The fixed fees have been reduced a number of times since that date. The fee was first reduced in May 2011 alongside the introduction of the Family Advocacy Scheme and was further reduced in February 2012, and again in April 2014.
The reason the scheme is known as a ‘graduated’ one is due to its cumulative nature – the fixed fee that applies will depend on the location of proceedings (whether in the North, London andSouth, Midlands or Wales); the type of party that is represented (whether a child,a parent or a joined party); the number of clients the solicitor acts for; the level of judge or court the proceedings were heard before at the final hearing;and the date of application for legal aid. So, for example, the highest fee would apply to a case where the solicitor’s firm is situated in the South, the client is multiple children, the case is heard in the High Court at the final hearing and the application for legal aid was before 9th May 2011. It is unlikely that many solicitors still require the billing of files that were heard so long ago, but in rare instances, solicitors can still produce such files for costing. Alternatively, a much lower fixed fee would apply to a case where the solicitor is based in the North, the party represented is a joined party ‘such as a grandparent or other relative not parent to a child who is the subject of proceedings’, the proceedings are heard before a lay bench of justices at the final hearing, and the date of the application for legal aid is after 22nd April 2014.
The only thing covered by the fixed fee is the solicitor’s base profit costs. These include letters written or received, phone calls with a party, preparation of the case, travel or waiting time (that doesn’t relate to a hearing or advocates’ meeting), attending conferences or hearings with Counsel and attending upon any party (except at hearings or at advocates’ meetings).
In contrast to the way in which costs are claimed under the Family Advocacy Scheme, it is possible to escape the fixed fee under the CPGFS. The base profit costs of the case must add up to more than twice the amount of the fixed fee that applies in order to escape the scheme. These profit costs are calculated using the applicable hourly rates for preparation, conference with Counsel, and travel and waiting, along with use of the applicable cost of routine items of preparation such as telephone calls. Both hourly rates and the cost that applies for routine items are determined by the date of the application for legal aid and by the level of Judge the case is heard before. Nothing else, such as costs falling under the Family Advocacy Scheme, disbursements or Counsel’s fees, can count towards these base profit costs. There is no minimum amount of work that has to be done before the solicitor may claim the standard fee. Enhancements, whether discretionary or automatically applicable if a solicitor is a member of the Children’s Panel, can only be claimed once the base profit costs have escaped the fixed fee.
The LAA (rather than the Court) will assess any fixed fee claim, or any claim which has escaped the fixed fee (an ‘exceptional’ claim) and has concluded in front of a lay bench. Additionally the LAA will also assess any cases concluding before a Circuit, District or High Court Judge, where the whole of the base profit costs (including any enhancements) and disbursements is under £2500.