Legal Aid: The contract does not wait for the policy

3 days ago

4 min read

On Tuesday, the Commons justice select committee described the government's response to its own legal aid report as "highly disappointing" and "inadequate".

The July report painted the bleakest picture yet of the sector, accused the lord chancellor of failing in his statutory duty, and made 58 recommendations. The response, the committee said, lacked the commitments needed to deliver the vision.

Anyone running a legal aid practice read that and felt tired. I understand why.

Legal Aid is a keystone in the provision of access to justice

What the government actually said

Strip out the language and the positions on offer are narrow:

● On the means test, it will be better placed to decide income thresholds once court reforms are fully implemented.

● On an independent pay review body, it "will consider whether there is value" in establishing one.

● Recent uplifts to police station fees are expected to help duty solicitor numbers.

● There is, it concedes, "merit in the idea" of reviewing criminal legal aid fees more regularly.

● On civil legal aid, eligibility reform is under consideration following the appointment of a new ministerial team.

● Beyond housing and immigration, the Ministry of Justice points to a programme to transform delivery of legal aid and the Legal Aid Agency's digital systems.

Catherine Atkinson MP, the committee chair, put it precisely: "A legal aid system cannot be sustained by monitoring its decline and promising to explore solutions later." Brett Dixon, the Law Society president, said the government had failed to engage in good faith.

Why this matters to your contract file today

Here is the thing about waiting for policy. The Standard Crime Contract and the civil contracts do not pause while ministers consider their options.

Supervisor requirements still apply: the supervisor must be qualified, designated and actually supervising. Key performance indicators still bite. The duty to notify the Legal Aid Agency of changes still exists, and a change of supervisor, office or ownership is not something to raise at the next audit. Matter start allocations remain the difference between a viable contract and an expensive one. And if you plan to tender next round, the evidence you need is being created, or lost, now.

When fees are squeezed, the temptation is to let contract administration slide. That is backwards. In a fixed-fee environment, contract compliance protects margin rather than eroding it.

Three things worth doing while the arguing continues

Know your supervisor position. Is the named supervisor still in post, still meeting the requirements, still supervising the file types they are responsible for? If not, that is a live contract issue rather than a policy question.

Keep contract evidence as you go. Record who supervised what, when and how you knew. Reconstructing it the week before an audit is where small firms lose days of fee-earning time.

Prepare tender groundwork early. Evidence of volume, outcomes and capacity takes months to assemble, and procurement rounds will not wait.

What this does not mean

I am not suggesting the committee is wrong, or that providers should quietly absorb a system failing the people who need it. Its central finding, that shrinking legal aid creates an unacceptably high risk of miscarriages of justice, deserves to be said loudly and repeatedly.

Nor is contract compliance a substitute for campaigning on fees. It is simply the part in your control.

I would not pretend the administrative burden is trivial. It falls hardest on the smallest firms, and it follows from a system funders have chosen not to modernise quickly.

The bigger risk is drift

The honest danger for a small legal aid firm is not a catastrophic breach. It is drift. A supervisor leaves and the role is covered informally. A matter start log falls behind. A notification is not made because everyone assumed someone else had.

None of that is negligence in the ordinary sense. It is what happens when good people work at capacity in a system under strain.

An independent look helps for the same reason it helps elsewhere: whoever is closest to the contract usually has the least time to check it.

Start with a conversation

If you hold a legal aid contract and want an independent view of where your compliance stands, including supervisor arrangements and audit readiness, I offer a complimentary health check with no obligation. The contact page is an enquiry form. Put "complimentary health check" in the subject and I will pick it up straight away.

Book your complimentary health check

Ashley Barwick is a Fellow of the Chartered Institute of Legal Executives and a Law Society accredited Lexcel Consultant. This post is general information and does not constitute legal advice. Fraxinus Business Associates is not authorised to provide legal advice.