ILPA’s statement on the new immigration and asylum legal aid fixed fee (18 May 2020)

ILPA documents | Legal Aid

The Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 have been laid today and are due to come into force on 8 June 2020. ILPA is concerned that, in real terms, the new immigration and asylum legal aid fixed fee amounts to a reduction at a time when legal aid practitioners are least able to afford it. This should be seen in the context of a system that has faced very severe cuts over the last decade, the provision of legal aid is now severely limited and Law Centres face financial crises.

The FtT(IAC)’s directions

It is important to be clear, these changes that are being rolled out on an urgent basis, purportedly due to Covid-19, are not actually related to the pandemic at all. We understand that the urgency is being driven by HMCTS’ desire to have everyone working within the new digital process, however we do not think that this should have been the top priority here, and the overriding desire to rush out that process is having a serious and negative impact on the sector. HMCTS did not appear to have considered the implications of the digital reform process (now known as the core case data (“CCD”) platform) for legal aid at all until raised by ILPA and others last year.

No part of the system exists in a vacuum. Any reform needs to take into account the system which it is part of. Otherwise they simply shunt costs around the system. The combination of CCD and the new fixed fee will lead to an increase in unrepresented appellants, due to providers being unable to afford to continue to do the work, or due to the additional work required leaving providers with less capacity to assist others. The Tribunal needs to recognise its dependence on other parts of the system, including the Home Office, the legal profession and legal aid sector, and interpreters, and make sure every reform or procedural change actually considers those properly. As recently as 17 April 2020, President Clements of the FtT(IAC) said “I am aware that there is continuing concern that current public funding or legal aid arrangements are not well suited to CCD or other examples of “front loading” work but I hope you will understand that that is not an issue with which the Tribunal can or should be directly concerned.” The acknowledgement that the current legal aid fee structure is not suited to the CCD process is welcomed.

While it is correct that the Tribunal has no control over legal aid fees, the Tribunal does have control over the directions that it issues to the parties. Despite having accepted that the process is not compatible with current legal aid fees, the Tribunal is continuing to issue directions which require the front loading of work, and is requiring witness statements, evidence to be relied on, and the appellant’s skeleton argument to be provided at an early stage of the proceedings under CCD, usually within 15 days of the directions being issued. There is no pandemic-related reason for this change, and the current legal aid system was simply not designed for this. We therefore consider that legal aid is an issue that the Tribunal should be directly concerned with, as rolling out the CCD changes without the appropriate legal aid changes being made will affect the efficacy of appeals under CCD, as well as having a negative financial impact on legal aid providers, many of whom are already struggling due to the pandemic. We do not see why CCD is being held out as the solution to the pandemic when other courts and tribunals have been able to merely adapt their existing processes.

Lack of consultation

ILPA’s view is that we should have been able to complete the discussions that we had been having (that were only at a very early stage) with the Ministry of Justice previously in relation to what the new fee structure should look like, and representative bodies should have had the opportunity to provide proper input into the new fee structure. The failure to do this and the attempt to rush things through without proper consultation has resulted in a new fee structure which is not fit for purpose. The MoJ does not have the data they need in order to determine what a new fee should look like, as they are unable to isolate what legal aid payments were made under the digital pilot specifically, which was the precursor to CCD.

ILPA’s position has been that hourly rates are the best option, and our position remains that this is the best way forward, however in the absence of that we had said that there should be a new bolt on fee for the appellant’s skeleton argument, as there currently is for the appeal hearing. The reason this was our position was specifically to avoid the problems that have now arisen.

Cases that are resolved at an early stage under CCD

Our understanding of the CCD process is that it is specifically designed for cases to be reviewed at an early stage by the Home Office, with a view to their withdrawing unsustainable decisions. We are concerned about the impact of the new fee on these cases which do conclude without a hearing (currently ‘stage 2a’).There will not be a hearing fee, but there is likely to be a Case Management Review Hearing (CMRH), however ignoring any additional payments, and assuming that the legal help file has reached the escape claim fee threshold, the difference in the escape claim fee threshold between the current and new fees is both stark and concerning.

Currently, the fixed fee for stage 2a is £227 and the new asylum fixed fee is £627 (referred to as ‘stage 2c’). This means that the amount of work that needs to be billed in order to reach the escape claim fee threshold and be paid at hourly rates has been increased from £681 (three times the fixed fee of £227) to £1,881 (three times the fixed fee of £627). Under the current scheme (excluding any additional payments for the purpose of simplicity) a stage 2a file which had accrued work valued at £682 to £1,880 would be paid at hourly rates. Such a file will now receive £627.

Comparison of payments made under the existing and new fixed fee:

Although the new payment appears more generous when you look at the lower value cases, the reality is that under CCD the majority of files will exceed the new fixed fee and will therefore lose out financially as a result of this change.

This will inevitably deter people from taking on the more complex cases, which require the most work, as that is a very high threshold to meet, and otherwise they risk falling into the gap between the fixed fee and the escape claim fee threshold in which all of that work will go unpaid.

Appellant’s Skeleton Argument

Further, under the new CCD system, the appellant’s skeleton argument must be prepared and submitted at an early stage. At the stage where the appellant’s skeleton argument is required, it is unlikely that the lawyers will know whether or not the case will reach the escape fee threshold (and therefore be paid at hourly rates). If the decision is withdrawn as a result, there is no fee specifically available for the appellant’s skeleton argument, either under stage 2a or under the proposed new stage 2c. Therefore, at the point that the appellant’s skeleton argument is required, there is no indication of what fee may be available to counsel. When ILPA raised this with the MoJ, we were told that the LAA does not dictate what element of payment is made by solicitors to barristers, and that payment to counsel is always a matter to be determined between them. This does not reflect the reality of how the current system works, where there are specific fixed fee additional payments which are to be allocated to counsel, including for CMRHs and for substantive hearings. In practice it has always been the case that the £302 hearing fee is paid to barristers on a fixed fee case, and the standard fixed fee is to cover the solicitor’s work. 

The new scheme simply provides an additional £400 to the standard fixed fee for an appeal without a hearing. Representatives should not be expected to devise a new fee splitting procedure internally and the new fee does not allow for any fair way to do so. Due to the way that the CCD process has been designed, the vast majority of the work is now done at the start of the appeal. Previously, the appeal would be likely to go to a full hearing, and the firm would have received £567 for this work (for asylum), and the barrister £302 for the hearing. Now, where the solicitor has prepared the case in full and the barrister has drafted the skeleton argument at an early stage as required under CCD, the total fee available is £627.

If that £627 was split to reflect the fact that the firm has done basically the same amount of work that would have been done for a full appeal hearing, that would leave an additional amount of just £60 for counsel to draft the appellant’s skeleton argument. This is an extremely low fee particularly when it is considered that in this scenario the skeleton argument would have been successful in persuading the SSHD to concede the appeal. It is not financially viable for barristers to accept doing work which would in practice amount to an hourly rate that is under the minimum wage in most cases. Equally if that £627 was split so as to reflect the fact that counsel has done at an earlier stage all the preparatory work that would have been done for a full appeal hearing, this would mean that firms would receive less for appeal preparation than they currently do. Neither are financially viable options, and it follows that these changes will have a substantial negative effect on access to justice.

Practitioners are reporting that some Tribunal judges are taking the position that if a barrister is not prepared to do the work, then the solicitor or caseworker must do it instead. No one should be obliged to work for free, and the damage that will be caused to the sector through such a stance is obvious. We are aware of the Tribunal threatening to dismiss an asylum appeal next week for non-provision of the appellant’s skeleton argument. This is not a situation that any lawyer should be placed in – carry out unpaid (or very poorly paid at best) work, or else your client’s appeal will be dismissed.

Cases that proceed to a hearing

We understand that the vast majority of cases in the digital pilot of the CCD process did not result in the Home Office withdrawing their decision, and therefore still proceeded to a hearing. The MoJ has said that cases in CCD require between 4 and 12 hours of additional work. The fee for an asylum appeal (excluding the hearing fee, which is unchanged) was previously £567, and is £627 under the new scheme. This is an increase of £60 which is entirely inadequate even on the lowest of the MoJ’s estimates as to how much additional work is created by the CCD process.

ILPA’s recommendation

ILPA’s position is that, if this is indeed a situation which requires urgent change and a temporary fee structure (which we do not accept is the case), then hourly rates must be implemented on a temporary basis rather than the proposed stage 2c fixed fee, until such time that the MoJ has been able to consult properly with all practitioners and to come up with a new and workable scheme. We believe that the proposed fixed fee will do irreparable harm to the sector, even if it is only in place temporarily. Cash flow for legal aid providers was already in crisis even before coronavirus, partly due to the fact that providers get payments in arrears, only after completion of the case. The current suspension of hearings means that these payments will be delayed even further, and that combined with the new legal aid fee and the FtT’s directions place providers at serious risk of going under. We urge the MoJ to take urgent steps to implement hourly rates during the consultation period, rather than the stage 2c payment which is simply likely to cause further delays to the appeal process due to the problems that it will cause.

Document Date
Monday May 18, 2020