Out On A Technicality

I complain often enough about the LSC finding pathetic technicalities upon which to base the rejection of my claims for payment for work done (most recently a five figure sum which relates to work between 6 and 18 months ago on a single case, but more frequently the rejection of a smaller claim because I have a court seal (not readily forged) instead of the mandatory initial (easily forged) on my FAS form). But the recent refusal of a legal aid contract to the National Youth Advocacy Service (NYAS) to enable it to continue to represent children involved in intractable or complex private law children disputes really takes the biscuit.

NYAS LogoIn short, the LSC says that some of the office addresses of NYAS were omitted from their tender application. So that’s it. They’re out. No right of appeal. Notwithstanding the fact that NYAS dispute the suggestion the address information was omitted, saying that there was a technical error with the online portal which was the sole route for submitting tender applications. And notwithstanding the fact that the LSC presumably had the information it now complains was missing, since NYAS has been a provider since 1999.

From discussions I’ve had with local solicitors, the application process and the portal left something to be desired: no way of knowing whether or not your application had been correctly received or received at all, coupled with an inflexible deadline and no right of appeal left many very anxious.

There are around 70 organisations in the same boat, with equally valid grievances, but the NYAS case stands out for me. NYAS are unique – they are the only body other than CAFCASS who are able to represent these children, and there are some cases where a child’s trust in CAFCASS has been lost, or where CAFCASS lack capacity or expertise.

Frankly it’s scandalous that the LSC can run it’s operations in such a way as to achieve results like this. “Computer says no” is no basis upon which to run a public body whose purpose is to serve the interests of justice. What possible public interest can be served by operating in this purposely inflexible way? I often ask the same question about the non-payment of counsel’s fees – but to that there are a number of obvious skeptic’s answers (to keep a bit more cash in the bank until the end of the financial year, or to  run the bar out of business if you are really paranoid). But what about the rationale for this? If I were a conspiracy theorist I might think that NYAS have fallen foul of the Government’s antipathy towards private law children proceedings in general, but I know that in reality there is no rationale. It is just mindless bureaucracy.

I don’t know which is worse.

You can read the full appeal documentation on the NYAS website.

NYAS are asking people to write to Ken Clark or to their MP.

For myself, I’m taking bets on a JR of the LSC being launched by someone before Valentine’s day is out.


12 thoughts on “Out On A Technicality

  1. The LSC take my breath away. I had a case where the hearing was coming up and funding had been rejected multiple times for “no evidence” of my client’s financial eligibility – despite my forwarding them on letters from the DWP confirming my client had been on passported benefit since the year dot.

    Finally, I emailed the Chief Exec of the LSC and asked her why the DWP’s confirmation was insufficient for their purposes.

    I got a telephone call from a manager lower down the food chain. He told me how disappointed in his staff he was and how he was going to go back and “kick some arse”.

    I helpfully reminded him *he* was getting paid to manage – and from what I could tell – there was no managing going on.

    After I hung up, I had to wonder if this was precisely what he was intending to manage.

    And after the Yvonne Hossack JR, I would not hold my breath for the Courts to rectify application errors.

  2. The most vulnerable adults choose not to vote, the most vulnerable children can’t vote. So why would the bureaucrats worry themselves? Did you ever hear the anthem of the jobsworths? If not, you can find it here – http://www.youtube.com/watch?v=H3BkD_6kDdg

  3. If Legal Aid is finally removed from parents who merely want to minimise or stop children having a relationship with another parent, in Private Law.

    Then the likes of NYAS who I agree do a reasonable job generally and at times terrific job – Will find getting funding much easier and hopefully a larger part of the pot.

    It is the Private Law funding for one or both parents in family courts that should be ditched completely and monies concentrated on such as NYAS and Public Law proceedings.

  4. Newly qualified solicitor

    Unfortunately, I really have to disagree. I’m very sorry for NYAS who do a great job in very difficult circumstances, but we all submitted our applications through the same portal, and my firm, like many others managed to get it right. Why should there be flexibility for those that couldn’t?

    It’s the same for firms who are saying that “the LSC had all the relevant information so it doesn’t matter that we filled the forms in wrong” It does, because whilst the tender was non-competitive, it was a tender all the same and to apply for a contract you had to fill the questions in correctly.

    The questions were badly worded, the LSC admitted that before the tender started and explained what you should do. There was the opportunity to seek help via the messageboards. The complaints mainly centre around the peer review question which was a terrible question – but the LSC told you how to fill it in. And if it was that bad – how come so many firms managed it.

    I have no sympathy with the LSC and encounter their incompetence on a daily if not hourly basis but it is what it is, it’s not as if providers don’t know what they are like.

    My firm is a dedicated legal aid firm, I’ve only been qualified six months and am slogging my guts out for clients on a very low salary, but I knew that and it was my choice. We are doing everything we can to survive in the current climate and the 10% cut it going to mean working 10% harder. So its pretty galling when a firm who didn’t get a contract in the last tender (when we did) and then manages to fill the form in wrong so they didn’t get a tender this time (we did) seeks to appeal (again)

    • I think the suggestion is that the information was properly submitted by NYAS but not received due to technical error at the LSC. It’s a pretty arbitrary way to make decisions, plus the tender was non-competitive so it did not purport to be one designed to reduce numbers, although it has of course had that effect.

      I’m sad to see your comment. I don’t think the legal profession will be served if we fall into the trap of focusing on protecting our own interests rather than mutual support. If NYAS are correct about the system the LSC are operating your firm was simply lucky that the system did not swallow some of your information and leave you with no contract. Noone is arguing for special treatment for NYAS, but for the LSC not to act arbitrarily.

  5. Family Solicitor

    I agree. My firm was sucessful in the previous tender. We have always offered legal aid, and every year we discussed at partners meetings whether to continue, as from a business perpective, there is very little incentive to continue. Every year we decided to continue becasue we want to provide a full service to the community we live and work in.

    This time round, with the tnder, we submitted a full, complete applciation. It showed, on our page of the portal, as having been submitted.

    Fast forward to November and we were told our application was unsucessful, as we had not submitted a full application.

    The LSC claimed we had no grounds for appeal, despite the fact that we could show (and they will have records) of the fact that other details we had submitted had previously been lost in their system (we had changed details of key personel, due to changes in staffing. We knew theose changes had been made as we had been able to access the portal using the new details for several weeks.

    Just before the deadline, they stopped working, everything reverted back to pre-change details, and as the various settings desinged to allow you to request new passwords etc didn’t wotk, we ended up spending over 90 on the phone to the helpdesk while they tried to fix it.

    Despite this, the LSC does not accept that the problem is with their system.

    We decided not to go down the JR route, purely because, from a business point of view, we didn’t feel the benefits of having a contract were worth it. Of course, it means that there will now be something of an advice desert, and that a lot of clients will have to do without.

    I don’t know whether NYAS made a mistake in completing their applciation or not. I do know that in our case, our application was complete and was correctly submitted. We got it right, the LSC didn’t. I also know that the way that the system worked meant that we had absolutely no way to know that they had lost part of the application until it was too late to do anything.
    I am reasonably certain that the LSC did not bother to check the information we sent them when we submitted our appeal (they certainly didn’t bother to respond to any of the specific points raised) We got a form letter saying the LSC did not consider we had grounds for appeal as the only basis for appeal was where the LSC made an error. Given that our entire appeal was on the basis that the LSC had made a massive error by losing our application, we were left wondering whether anyone had actually read it…

    Mind you, when we had the previous issues, despite that fact that their OWN helpdesk admitted that there was a problem (after the frst half hour of making us re-do all the things we’d already tried, and had told them had not worked, and on the basis that it then took almost a further hour to fix the problem) there was no apology, the attitude was very much one of ‘yeah, there are glitches, it happens’.

    I am sorry that some of the most vulnerable people in my town will now be without legal respresentation, but I shall not be sorry to get shot of dealing with the LSC.

  6. Well, they will get another bite of the cherry now, given the LSC’s latest statement.


  7. But is there any guarantee the process will work this time? Surely it would be easier all round if applicants such as NYAS and Family Solicitor just supplied the data the LSC lost? It would be understandable if Family Solicitor and others who were treated in this way did not reapply, although I hope they will.

  8. Newly qualified solicitor

    Familoo I think your comments are really unfair. Simply because I am concerend about the future of my firm, and my livlihood does not in any way mean that I am not supportive of others in my profession at all and I think it is very unfair of you to assume that. If that was the case, I wouldn’t have spent my holiday responding to the Government’s proposals for legal aid, nor would I have taken a job in a legal aid firm, I’d have gone for that other offer in the cushy probate department.

    I’m sure the LSC cocked up, they do all the time and the LSC probably should make some concessions for those like family solicitor’s firm where it was a technical error but there are firms who wrongly completed the tender. They shouldn’t be getting another chance. It’s a little worrying if a solicitor of all people cannot fill a form in correctly!

    I’m suprised at the LSC saying people can apply for licence only contracts- how are people supposed to get to certificated level wihtout the benefit of legal help, are solicitors going to deal with applications for free? What about cases where you need to negotiate eg about contact? How do you get to the certificate. I would imagine however this will suit NYAS.

    • Newly Qualified, I’m sorry you think my comments are unfair, but I think you are missing the point. I’m not questioning your commitment to the job or to publicly funded work, just puzzled by your apparent lack of sympathy for others like you.

      NYAS, like many others, were saying that the information was submitted but that the LSC lost, deleted or misplaced it i.e. the result was arbitrary and not as a result of any failure on the part of the firms concerned. I don’t understand why you would find it “galling” that they should be given another shot in those circumstances or why you would criticise them for not being able to fill in a form correctly when as you acknowledge cock ups by the LSC are not unheard of.

      Since the original post the LSC have agreed to let them resubmit (along with others in the same boat), but they have not been given an extra chance: rather an administrative error that would otherwise have led to unfairness has necessitated a re-run (although how effective the re-run will be given that the same portal is apparently still in use is anyone’s guess). I don’t think that’s unfair. It would have been unfair not to let them submit again.

      Those of us who have had dealings with the LSC over a number of years, who are routinely resubmitting material that the LSC denies having received, and who have taken to sending everything by recorded delivery to avoid repeatedly having payment claims going back to the bottom of the pile, are naturally open to the suggestion that the masses of mysteriously missing information across 70 applications from apparently competent solicitors firms arises from errors at the LSC end, as opposed to there being 70 sloppy, incompetent and careless firms of solicitors who were willing to stake their livelihoods and their clients’ access to justice on slapdash form completion. Maybe some firms were sloppy and didn’t fill it in properly, but if the LSC can’t make it’s application process work properly and reliably how will we know which are which?

  9. […] to last weeks post about the rejection of the NYAS legal aid tender by the LSC, along with another 70 or so applications: the LSC, no doubt wary of further searingly […]

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