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William Ford provides clarification on the relevant fees for payment in welfare benefits cases.1See also Jeremy Ogilvie-Harris's article on securing exceptional case funding for welfare benefits cases. Payment under the legal help scheme
All welfare benefits work under the 2018 face to face contract will be paid at the rates set out in the Civil Legal Aid (Remuneration) Regulations which is currently a fixed fee of £208 excluding VAT.
The LAA has confirmed that its IT systems were amended to reflect this fee structure, but with no escape fee mechanism (ie, when the profit costs exceed three times the fixed fee). However, the information provided by the LAA was not accurate and is directly contradicted by the Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 (the Remuneration Regulations). The fixed fee under the 2018 contract is actually £150 and there is an escape fee mechanism.
Some history
After the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was introduced in 2013, legal aid contracts for welfare benefits work in London and the South East and the Midlands and East were awarded to the Law Centres Network. The fixed fee for welfare benefits was £150 with an escape fee threshold (see Remuneration Regulations Sch 1 para 3 Table 1 as in force at 1 April 2013). However, under the 2014 (and later the 2016) Standard Civil Contract (Welfare Benefits), the LAA introduced a payment mechanism whereby there was only a fixed fee payable of £208, and no scope for an escape fee (see Remuneration Regulations (as amended) Sch 1 para 2A and para 3 Table 7). This fixed fee, though, only applied to those providers working under the 2014 and 2016 welfare benefits contracts. These contracts were only for providers working in the North, South West, and Wales procurement areas from February 2014. All other areas continued to operate under the 2013 contract.
The 2018 Standard Civil Contract and the current position
After implementation of the 2018 Standard Civil Contract, the rates remained as they had been since 2013 (with the exception of providers still operating under the 2014 and 2016 contracts). As noted above, the current (2018 contract) standard fee for welfare benefits work, as set out in Remuneration Regulations Sch 1 para 3 Table 1, is £150, with the escape fee threshold set at £450.
Practitioners doing welfare benefits work under the 2018 contract should, therefore, be able to claim an escape fee for work carried out under their welfare benefits contract. If the LAA resists by referring to its IT system not allowing payment of an escape fee, you should seek to rely on the legal position as set out in the Remuneration Regulations.
The future?
The LAA is currently considering removing practitioners’ ability to claim escape fees in welfare benefits cases. It has commented on the fact that no concerns were raised by representative bodies as part of the consultation process for the 2018 Standard Civil Contract (although, as will be clear from above, the position in relation to fees was hardly made clear). Practitioners may wish to make their views on this issue known to the LAA.
It is difficult to see how welfare benefits work can continue to remain viable for providers if such changes are implemented. There are extremely few welfare benefits providers as it is, and the rates for legal help work are set very low.
Welfare benefits is a highly complex area of law, often involving vulnerable clients. It is worth asking what rational basis there is for allowing escape fees in all other areas of publicly-funded work, but not welfare benefits. A fixed fee of £150 or £208 represents around three or four hours of work. A typical UT appeal will require considerably more hours than this. However, if only a fixed fee is allowed, no matter how complex the case is, no matter how important it is to the individual client, or how important it is in terms of clarifying the law, practitioners would be limited to a fixed fee of £150 or £208.