General introduction to the series of articles
As from the 1st of February 2012, when new contracts started with Family and Family with Housing practitioners, the Legal Services Commission’s mainstream face-to-face civil and crime providers have been operating under the same standard terms. It is unlikely that many people have had the time and/or motivation to read the contract but it is useful to know what’s in it.
In this series of articles Vicky Ling considers the impact of the contract from a practical point of view, to help you operate in a way which suits you and your clients, and won’t fall foul of the LSC.
Clauses 11, 12, 13 & 14: Key performance indicators, contract documents and amendments, your account with the LSC
Clause 11: Key Performance Indicators
The contract contains key performance indicators with sanctions for failing to meet them. The practical problem for practitioners is that establishing whether you meet them or not involves a significant investment of resources in monitoring systems, and the LSC is not consistent about whether they enforce them.
In 2011, the LSC published its ‘provider dashboard’, which sets out its priorities for 2011-12. This is helpful when setting up your own internal systems for monitoring, as you can reasonably take the same approach – see HERE.
If you fail to meet a KPI, the LSC should not immediately impose a sanction. They should offer you the opportunity to discuss the reasons for your failure to meet the KPI, and consider whether it would be appropriate to agree an action plan to remedy the failure or ensure that it was not repeated. The LSC should also take into account the severity of the failure to meet the KPI, previous failures to meet it, any relevant term of the specification and how many other KPIs you have previously failed to meet.
They may use your performance against KPIs as an indicator that something is wrong and they should carry out an audit. They can also use it as entry or selection criteria for future contracts if your failure to meet KPIs results in a sanction.
However, you should note:
- Clause 24.1 allows the LSC to apply a sanction if you have breached the same KPI three times in 24 consecutive months and the LSC is not required to provide you with written notice of each breach.
- A contract Notice for failing to meet a KPI is not a Sanction under clause 24, and will not affect any contract bid.
Clause 12: Contract Documents and precedence, Schedules and the Specification
Unless one provision is stated expressly to override, or to be subject to another then, conflicts will be resolved according to the following order of priority:
(a) the contract for signature (including the Annex);
(b) the standard terms;
(c) the schedule(s); and
(d) the specification.
The specification contains the detailed rules that apply to the way you conduct cases and is the most important part of the contract from the point of view of day to day casework. It is important to note that the category specific rules take precedence over the general rules, so it is important to check the category specific rules first.
Clause 13: Amendments to the Contract Documents
The LSC can make some types of amendment; but they do not have the right to amend the contract to the extent that such amendments constitute a new award of a contract for the purposes of the Public Contracts Regulations 2006. If they wish to make such amendments the LSC has to terminate it in whole or part under clause 25.
The LSC has said that it will terminate the current civil and family contracts to give effect to the Legal Aid Sentencing and Punishment of Offenders Act 2012. As the government wants to bring in new contracts from April 2013, notice will have to be given by the end of September 2012.
You can ask the LSC to amend your contract in respect of:
- the closure or relocation of any location;
- the temporary or permanent reduction or cessation of any contract work;
- the temporary or permanent reduction or cessation of the provision of duty solicitor services; or
- a change in membership of a consortium.
However, the LSC may well say ‘no’, if they feel that the change you are asking for would require them to re-tender the contract under public procurement regulations. The LSC is nervous of being challenged on procurement law, and is likely to respond conservatively. However, there is no harm in asking for what you want.
Clause 14: Your account with us, claims, payments and assessments
To be eligible for payment, you must submit a claim for payment on the relevant matter or case in accordance with the provisions of the contract. You must submit a claim within six months of closing the case in respect of controlled work (Civil Standard Contract 2010 Specification para 4.31) and within 3 months of the right to claim accruing in respect of licensed work (Civil Standard Contract 2010 Specification para 6.34 et seq).
Claims must be true, accurate and reasonable and you must have regard to the content of the relevant LSC Costs Assessment Manual. This is a very helpful document. The civil version can be found HERE. The crime version can be found HERE, although it is no longer on the LSC’s website, to my knowledge it has never been formally withdrawn and has not been replaced.
The LSC is entitled to assess all your claims, except where the Contract or legislation dictates that the assessment is to be by another body. The LSC may issue a notice of assessment or of a debt due to them if they have made an “overpayment or mis-payment”; if you have breached the contract and, as a re sult of the breach, they can demonstrate that they have incurred (or will incur) a financial loss (e.g. by failing to protect the statutory charge); or where you have failed to submit a claim after having received a payment on account in respect of the relevant matter or case.
Unless the LSC consider that there is a risk to the Legal Aid Fund, they may consider allowing you to make any repayment of more than £1,000 in a reasonable number of instalments or by making a reasonable adjustment to your Standard Monthly Payments provided that repayment must be over the shortest reasonable period and must usually be complete within the current financial year.
If an audit identifies that you have made an excess claim(s) the LSC can require you to reimburse the reasonable costs of any further audit. I have not come across any example where this power has been used; but it is important to note that it is a possibility.
- Transforming legal aid survey - 30th September 2013
- PCT: incredible alternatives - 7th June 2013
- What was that we signed? - 28th March 2013
- The Low Commission: ‘no magic solution’ - 15th January 2013
- Legal Services Commission’s Standard Contract 2010 (article 8) - 11th January 2013
- ‘Massively oversubscribed’: legal aid contracts from April 2013 - 4th January 2013
- Legal Services Commission’s Standard Contract 2010 (article 7) - 1st November 2012
- Legal Services Commission’s Standard Contract 2010 (article 6) - 9th October 2012
- Welfare Benefits: in scope or not? - 3rd August 2012
- Legal Services Commission’s Standard Contract 2010 (article 5) - 27th July 2012