I know we’re not supposed to mention fees. It’s crass to talk about money – that’s what clerks are for and all that.
But now, it seems, we are expected to keep calm and carry on without any expectation of prompt payment of fees at all. An unspecified amount on an unspecified date. Many legal aid lawyers would say this has been the case for a long while now, so erratic is the legal aid payment system, but at least there was a process and a rule book. And in fact FAS claims, at least, were reasonably efficient.
Now, as a result of the hacking of the Legal Aid Agency’s systems, they can’t see how much we are owed, can’t accept new claims, and can’t pay us. For an indefinite period of time, now acknowledged to be the situation for the foreseeable future. Here’s the message we all got last week:
It is unlikely that all services will be fully resolved in the short-term. As such we are now refining further plans for contingency, in the event that the need for contingency continues beyond this month. We will work closely with representative bodies to ensure this supports providers and their clients to the maximum extent.
We will maintain our focus on ensuring access to justice, and that providers can be confident in their payment for work done.
Brilliant.
As the extract above notes, there is a ‘contingency scheme’, apparently soon to be ‘refined’. But as it stands, this scheme invites participants to accept payment of a weekly loan equating to 25% of an essentially arbitrary figure (calculated from the amount we received in the 3 months prior to the hack, which given the lumpiness of most of our incomes is truly meaningless), which might be called back in within 2 weeks of the system being back online, at a time when presumably the LAA will have a massive, humungous and ginormous (etc) mountainous backlog of claims to process, with elongated payment times as a result. The process of reconciling the amounts paid against the claims once they come in is likely to be nightmarish. We don’t even receive a remittance for the contingency payments so it is easy to see there will be all sorts of antics and problems with this.
So for now it’s a choice between frying pan or fire (the third route is eyewateringly expensive commercial debt loans which I know some colleagues have preferred, which tells you something). Either way, the risk – and cost – is entirely on us. Don’t claim and risk not being able to pay our tax bills, mortgages etc. Or claim and risk being unable to pay them later because you are caught up in the backlog and / or in an interminable tangle of reconciliation and recoupment… or pay high rates of interest as a result of our default … but obviously, do please keep on working without complaint even thought we can’t give you any guarantees about payment at all. They didn’t actually say that out loud, but that is presumably what this coded message is intended to mean:
We will maintain our focus on ensuring access to justice, and that providers can be confident in their payment for work done.
Are you confident?
What other industry would have people working on a ‘we’ll pay you when we can if that’s ok’ basis? And a ‘we’ll borrow you some money and claim it back when we feel like it too’ basis? That isn’t even the worst of it. If and when we ever do get paid it’ll be at rates that haven’t been increased for over two decades. And while we wait for a solution, you can be sure that another arm of the government, HMRC will be ruthlessly efficient in expecting us to pay tax promptly even as our income stream has dried up entirely, apparently unable to appreciate that life at the bar is an unbreakable cycle of robbing Peter (Peter being the savings you have diligently put by for tax) to pay Paul (Paul being your mortgage, which you can’t pay because your aged debt with the LAA keeps getting bigger but nothing is coming out the other end).
I’m not especially grumbling on my own behalf, though it is somewhat anxiety inducing and is making it very difficult to plan things – holidays and home maintenance projects depend on being able to project your likely income – always difficult at the bar, but now utterly impossible.
No, I’m thinking more of the junior end of the bar, those who have been on maternity or off sick and need to get earning, and those who were planning a retirement soon, for whom this will cause very real problems. Anyone who doesn’t have a stash of savings or a private client practice to cushion them in forthcoming months is going to have to continually weigh up the risks of opting in to the contingency scheme or not.
I’m pleased that the FLBA and Bar Council are working really hard on behalf of all of us to encourage the LAA to sort out the mess, and I dare say the contingency scheme existing at all is largely down to their swift response – but the reality is that this sort of IT problem can’t be resolved quickly and the current contingency arrangements are not hugely reassuring or satisfactory for many. There are hints in the LAA emails of ‘further plans’ if the outage goes on much longer, but what those might be is anyone’s guess. Something that places the risk and additional costs in the lap of the party who is unable to meet their obligation to pay for services rendered would be a good start.
Anyway, I’m off to get an early night before another week of undertaking a legal aid trial, some of it away from home. Which I might get paid for in 2026, if I’m lucky, Perhaps the hotel and train company I’ll be using to get there and stay there won’t mind if I offer to pay for my room and ticket at some unspecified later date?