Since 1st October 2012, the LSC has been refusing applications for prior authority for experts if their fees are set within the codified rate [ as per the Community Legal Service (Funding) (Ammendment No.2) Order 2011]. However there is an exception – that is if the hours requested by the expert are ‘unusually large’. So the question for practioners is what constitutes an ‘unusually large’ amount of hours ? The odds are that if, for instance, you are instructing a psychologist for a bog standard cognitive assessment of a parent, then the hours are likely to be very much the same across the board. But as soon as any form of complexity creeps in, then how long the assessment / report takes to complete begins to vary. And when you get to Independent Social Workers, what is the ‘norm’ for the LSC and the ‘norm’ for the Independent Social Worker seem continents apart.
I have just been in case where prior authority was requested for an ISW who said she needed at least 80 hours to complete the assessment, whereas prior authority was only granted for 20 hours. The ISW said she couldn’t do it for that, and sure enough, we brought the matter back to court. At the hearing, the local authority had identified an ISW who was prepared to complete the assessment for 30 hours, and the LA made up the difference in cost. Regrettably, I agreed to this, as there was no way that the court was going to adjourn the final hearing whilst my solicitor crossed swords with the LSC. What we ended up with is a half-baked assessment, with the ISW indicating that she had only seen the parent in 3 (very positive) contact sessions, but not at home or on their own with the child. I’m not sure that with this extra bit of evidence that the case would have been won, but the parent came away feeling agrieved that they had not been properly assessed, and the further evidence of their parenting, had it been positive, might just have tipped the balance.
Of course, the expert who required the 80 hours would not have considered that amount to have been ‘unusually large’. However if the solicitor had not applied for prior authority, and simply billed the case at the end of the proceedings, then the LSC would no doubt have refused payment for those 80 hours on the basis that they were ‘unusually large’. So quite where that leaves us, I’m not at all sure.
But given this previous experience of agreeing a 30 hour assessment, my own view is that one should always establish how many hours are requested from the expert and why, and if there is any doubt that they may be deemed excessive in the eyes of the LSC, apply for prior authority. And if the LSC then only grant a limited number of hours – go all outs and take the LSC to the Administrative Court, as was suggested as a possible remedy in Re DS. Of course one is up against the current aspiration to complete care proceedings within 26 weeks. But one can always request the Administrative court to stay the proceedings in the family courts….
Please do comment if you have any thoughts on this issue.