PoPping Corks

CLA 56 is a Point of Principle (PoP) which summarises the LAAs powers when a firm has exercised “devolved powers” – now called delegated functions. Here it is;

At all times where a supplier exercises devolved powers to provide advice assistance or representation, it is only open to the LSC assessor and/or ICA to reject the claim on the basis of section 5 of the Funding Code where the supplier’s decision was manifestly unreasonable. However, the supplier must be aware that the continuing obligation to review merits and sufficient benefit is fundamental to the legal aid scheme, and therefore such review should be continued throughout the exercise of devolved powers.

“Manifestly unreasonable” is a very high threshold – and for good reason. Such decisions should be made by appropriately qualified fee earners, in the light of their then knowledge and not with hindsight, by non-qualified, non-practicing civil servants.

It has however routinely been ignored, on audit, by the LAA and even by ICAs on appeal. Following one of these, and to bring this to the attention of the Cost Appeal Committee, we went back for clarification. Only a single sentence of our proposed amendment to 56 was put before the CAC – they have however confirmed that it does apply to both “Criminal and Civil legal aid matters”.

This is a tiny victory as we thought this was implicit in any event. The real issue is that assessors are NOT using this as their starting point and simply ignore it or say it is not relevant. However as new PoPs do not come around very often nowadays it is worth a small celebration. PoP is after all the sound made when opening a bottle of cava.

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2 comments on “PoPping Corks

  • Finding the LAA very loathe to take a matter down the Point of Principle route. They just cave in (normally ungraciously) and raise the issue issue again on another matter.

  • Hard to get anything in front of CAC as they act as Gatekeepers. When they lose at appeal, on an obviously contentious point, you are right they ignore it and carry on regardless.

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