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 15, 16, 17, 18, 19, 20, 21, 22; confidentiality, data protection, the Freedom of Information Act, warranties, indemnity, things you must tell the LSC about, novations.
Clause 15: Confidentiality
The presumption is that information about your organisation and which you provide to the LSC is not confidential. If you want them to treat information as confidential you must notify them at the time you disclose it and expressly identify in writing those documents which you want them to treat as confidential.
You must keep strictly confidential all information concerning the affairs or business of any other legal aid provider or its clients, and anything which the LSC specifies as confidential (although you may share such information with your professional body or legal advisers, as long as they agree to treat it as confidential.
Much of the information which is not considered confidential is not controversial, e.g. information which is already in the public domain. However, some of the information the LSC may publish can cause embarrassment, such as the number of NMS you have been awarded, how much the LSC has paid you, performance, including peer review results, and decisions about your contract and the reasons for them, for example decisions to impose sanctions or terminate your contract. The LSC could also publish relevant decisions about your personnel.
Clause 16: Data Protection
You must comply with the LSC’s Data Security Requirements. These can be downloaded from its website HERE.
Clause 17: The Freedom of Information Act
You must co-operate with the LSC if it needs your assistance to help the LSC comply with the requirements of the FOIA. There is detailed information about what you need to do and set timescales for responses. You can only respond directly to a Request for Information if expressly authorised to do so by the LSC.
If the LSC has to disclose information concerning your organisation, it will ordinarily give you advance notice, or if not, it will draw the disclosure to your attention.
Clause 18: Warranties
You warrant that all the information you provide when applying for a contract or to demonstrate compliance with it, is true and accurate in all material respects. Also that no information has been omitted which would make the information you have provided materially misleading or inaccurate and that no circumstances have arisen which would materially affect the truth or accuracy of that information.
Clause 19: Indemnity
If the LSC suffers a loss or a claim of some kind is made against them by someone working for the LSC for personal injury or loss of or damage to property, as a result of something you do or fail to do then you have to compensate the LSC. You would also have to meet the costs arising from a claim against the LSC by an employee or client of yours because of something that you did or did not do.
Clause 20: Giving notices
This provides information about giving notice by the LSC and also by legal aid practitioners.
Practitioners have received six months notice of contract termination at the end of September, to take effect at the end of March 2013, in the following categories of law: Consumer and General Contract, Debt, Education, Employment, Housing, Immigration, Personal Injury and Welfare Benefits.
Notice has not been served in the following categories: Actions against the Police, Community Care, Clinical Negligence, Mental Health, Public Law and Family Mediation. In relation to Family Mediation, the LSC has said that it is very likely to extend contracts for a further two years after they expire on 14 November 2013; but they have not announced the arrangements to be made in the other categories.
If you want to terminate your contract early, you only have to give three months notice to the LSC.
Clause 21: Things you must tell the LSC about
The LSC may not be at the top of your list of people to notify when things happen in your practice, especially if you have an emergency on your hands but the Contract obliges you to notify them about an awful lot of things! The basic rule is that if you have any doubt, it is better to err on the side of caution and tell the LSC. Specifics include:
- any change in your legal status, any sale, merger, acquisition or transfer, any change in your management
- any intervention by your professional bodies (or by any other organisation) that has the effect of preventing you from carrying out Contract Work or you become aware of professional disciplinary proceedings involving a member of your staff
- proceedings for the recovery of a debt are commenced against you unless you intend to enter a defence to or pay the amount claimed
- you decide to stop providing or reduce the amount of contract work you do
- you appoint a new Supervisor
- there is any change of Consortium Members
- your staff, a trustee (if an NfP organisation) or third party appointed by you is charged or convicted of an offence punishable by imprisonment
- you become aware of an event that would entitle the LSC to apply a Contract Sanction
Clause 22: Novations
This clause is important as there is a significant number of firms wanting to merge and transfer their contract to a new entity. The LSC normally agrees to requests for novation, as long as there were no serious breaches of contracts in the past and the novation would not fall foul of procurement law. The LSC has published guidance on novation of contracts which can be downloaded from its website HERE.
The new organisation has to agree to comply with the contract and accept liabilities arising out of the previous contract. This emphasises the importance of pre-merger due diligence, as poor practice in the past by a merger partner could result in the new entity having to make substantial repayments.
- 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