The major change is in relation to experts claiming at a higher hourly rate than the codified rates that are set out in the remuneration regulations. Previously the Legal Aid Agency would only pay a higher rate if prior authority was obtained. The updated guidance provides for two other circumstances when a higher rate will now be payable:
- If on assessment you can justify why prior authority was not applied for and why the fees needed to exceed the maximum rates e.g. an urgent instruction was required. The Legal Aid Agency will assess this on a case by case basis.
- The hourly rate exceeds the codified rate in the remuneration regulations but falls within the new guideline rates at Annex 5 of the Guidance. This is essentially a list of experts where there has been an identified shortage, which has resulted in the LAA routinely allowing a higher rate on prior authority applications. The new rates below will now be paid on assessment without the need for prior authority:
- Geneticist £171
- Lip reader / signer / deaf intermediary £57.60
- Paediatric neuro-radiologist £180
- Paediatrician (London) £108
Additionally Annex 5 also provides a list of guideline rates for experts who are not included in the Remuneration Regulations. The following rates would therefore be allowed on assessment:
- Endocrinologist £108
- Genetic testing £2,250
- Nephrologist £108
- Ophthalmologist (incl)
- Paediatric ophthalmologist £108
- Paediatric Haematologist £122.40
There are also a number of other amendments to the guidance which provide additional clarification on certain areas:
- The Legal Aid Agency has clarified at s3.12 that for the purposes of their recommended number of hours for psychologists and psychiatrists they would consider an additional 10 hours for each additional party being assessed to be appropriate.
- Confirmation is provided at s3.18 that in CCMS users can only request prior authority for themselves; however on a joint instruction the provider making the application can provide the certificate references of the other parties as part of the application. If successful all other parties are covered by the prior authority and will be send a notification in CCMS. We recommend that a copy of the notification is saved on file so it is available at billing.
- The guidance on risk assessments at s5.6 to 5.11 has been broadened to include reference to cases involving domestic abuse or physical harm potentially qualifying for the higher risk assessment rate.
- New guidance is provided at s5.26 regarding translation of documents. This states that if the court has listed the specific documents or parts of documents that need to be translated then this is sufficient evidence for it to be funded at legal aid rates and prior authority will not be required.
- Clarification is provided regarding the use of intermediaries. The position remains that the legal aid agency will not pay for ‘fees charged for witness intermediary services provided in court, reports in advance of provision of such and other work in preparation for or ancillary to court proceedings.’ However clarification has been added to say that funding ‘can be provided for an intermediary / lay advocate to be used for communication between a provider and their client away from the court room in the course of the legal representation provided, subject to the LAA being satisfied that it is a justifiable and reasonable disbursement’
- Clarification has been added that where a process server has attempted service on more than three occasions this should be justified by the provider/process server.