Prior to the commencement of the new Crime Contract in April of this year we had argued the LAA should not implement a requirement that duty solicitors complete 14 hours of contract work per week to remain on the rotas. There were far simpler ways to address the issue of ‘ghosts’ on the rota. Once the new regime had begun members complained to us that experienced and dedicated solicitors were being forced from the rotas, despite carrying out legal aid representation in criminal matters on a weekly basis.
On behalf of the association I therefore initiated a survey of our membership to find out how extensive the problem was and what issues were arising. We received 145 responses to the survey. Nearly 67% of respondents either had experienced problems supplying evidence to a contract manager or anticipated problems arising. The range of problems arising was broad and included (beginning with the most popular) the impact on part-time workers, that Contract Work was too narrowly defined, uncertainty over the definition of Contract Work, insufficient volume, other responsibilities outside of work (such as caring for children), being unable to record Crown Court advocacy, relying more on private funding over legal aid and working in different branches of a firm.
11 respondents reported having either been sanctioned for non-compliance or being aware of colleagues who had. Two respondents stated they had taken pre-emptive action to withdraw several solicitors from the rota. One person revealed they had been issued warnings for minor reporting errors, another had been suspended for 6 months and a third was given one month to comply following audit. When asked if their contract manager had interpreted the rule unfairly answers in the affirmative included: failing to give any clear interpretation, not making allowances when on annual leave, equating Contract Work with chargeable time (so excluding additional phone calls to suspects in police detention or reporting to their family) and not making allowances for illness or pregnancy. When one respondent spoke to their contract manager the latter boasted about rescinding the contract of another local firm.
The survey asked what amendments should be made to the interpretation of the rule. Again in descending order of popularity answers included: allowing Crown Court advocacy, allowing non-chargeable time (of various descriptions), including time spent on private instructions, allowing part-time workers to apply a pro-rata reduction to the requisite figure, a lowering of the number of hours and finally to allow work at different branches of a firm. Though not an answer to the question nearly 35% replied it should be abolished and / or revert back to the old rules. 10% simply wanted the LAA to issue guidance.
From those replies it is clear that members risk losing their place on the duty schemes even though they regularly work on criminal cases and provide those services to legally aided clients. We were concerned the rule was operating unfairly and potentially unlawfully and so the survey asked questions to identify the type of person responding.
There was a broadly equal split between those describing themselves as partners/ managers, employees or self-employed. Just under 56% of respondents had caring responsibilities, whether towards children or adults. 40% described themselves as female, 54% male and 6% preferred not to say. Nearly 8% described themselves as having a disability with around 6% preferring not to say.
Beyond the statistics it is the detail of the replies which reveals the extent of the unfairness. One member’s position is threatened because they can only work part-time in the evenings when they are able to find a carer for their disabled child. Another member was forced to start working part-time on medical advice and though regularly providing Contract Work is unlikely to meet the minimum number of hours. Some parents of school-age children did not know if the leave they must take in the summer holidays will exclude them from the scheme. One parent and freelancer had been asked to work for free to make up the hours.
This rule is a blunt instrument for removing ghosts from the rota, those being forced to leave were not the intended target of this measure. We hope the LAA will recognise that there is a risk of unlawful discrimination. The LCCSA has attended meetings on with them and, since this survey was taken, has already won promises that the rule will be relaxed. That process will continue in the coming weeks.