Options available to practitioners facing cashflow problems when carrying out legal aid work.
Applies to England and Wales
Financial support for legal aid providers
We recognise the coronavirus (COVID-19) emergency has cashflow implications for firms. As a priority we are processing bills and other payments as rapidly as possible.
We are continuing to work with the Ministry of Justice (MoJ) and provider representative bodies to investigate any actions we can take to support firms.
Below you will find an outline of the current options already available to providers facing cashflow problems.
The Budget 2020 announced plans to provide support for public services, individuals and businesses affected by coronavirus (COVID-19). This includes Statutory Sick Pay funding, support on Business Rates, and guarantees to enable more lending via banks.
Other schemes to support business are now available:
- Coronavirus Job Retention Scheme
- VAT deferrals
- HM Revenue & Custom’s Time to Pay service
Provider debt collection
Provider debt collections and proactive (in addition to routine) work to the recover unrecouped payments on account (UPOAs) will restart from 1 July.
Advice when facing cashflow issues
Legal aid providers have a range of mechanisms available to help when facing short-term financial problems. These include:
Payments on account in civil cases
Interim payments and hardship claims in the Crown Court
Payments on account in civil cases
In civil representation cases you are entitled to claim a Payment On Account (POA) for your profit costs incurred throughout the life of your legal aid certificate. This is subject to the following restrictions:
certificate has been live for at least 3 months
you claim within the agreed cost limit of the certificate
you do not claim more than 4 profit cost POAs within a 12-month period
You will be paid 80% of the costs incurred to date. In a fixed fee case, up to 80% of the applicable fixed fees can be claimed. Payments under the Family Advocacy Scheme (FAS) can be claimed up to 100% of the costs incurred as a POA. This will remain in place until 31 July 2021.
This payment will be recouped and replaced with the final payment upon submission of your final claim. Here are some resources:
CCMS – you should refer to the CCMS Quick Guides ‘Payment on Account – Profit Costs’. These can be found here: Legal Aid Learning website
paper claims – submit your POA through eForms: Legal aid: eForms
detailed guidance on POAs in general – refer to chapter 15 of the Civil Finance electronic handbook, which can be downloaded here under ‘other guidance’: Legal aid guidance
Standard and variable monthly payments
If you have queries regarding your standard or variable monthly payments, talk to your contract manager. He or she will work with you to gain a shared understanding of the implications for your firm. General information about provider payments is available here:
Below is guidance to help representatives of assisted persons in Crown Court trials during the COVID-19 transmission control period.
This will be kept under review and amended when necessary.
Interim payments – litigators only
In the Crown Court, litigators can claim an interim payment for costs incurred after one of the following stages in the proceedings:
first hearing at which the assisted person enters a plea of not guilty (written indications of plea will be sufficient for payment purposes)
where representation is transferred to the litigator following the order of a retrial, after the date for retrial has been set
start of a trial listed for 10 or more days
Interim payments must be claimed through the Crown Court Defence (CCD) billing tool. Claims must be accompanied by:
evidence of the Pages of Prosecution Evidence (PPE)
LAC1 legal aid committal form, where applicable
copy of the representation order and the indictment
Travel claims cannot be included with an interim payment and must be claimed at the end of the case.
Hardship and interim payments – all representatives
From 1 May 2020 all representatives at the Crown Court are entitled to submit a claim for hardship under the amended arrangements. This applies when you:
have spent at least 1 month on the case
are unlikely to receive final payment for the case in the 3 months following the submission of your claim
can claim for more than £450 on the case, excluding VAT
are likely to suffer financial hardship
We will accept that trial delays, and subsequent delays to billing, during the COVID-19 transmission control period will likely result in financial hardship.
When this happens for cases you are working on you do not need to submit evidence of the likelihood of financial hardship. For example, bank statements or letters from the bank in support of your claim.
Hardship claims can be made through CCD and will be identifiable as a separate bill type.
You should note that given the speed at which this has been developed, if you use third party software, they may not have completed changes to support submitting this bill type.
You will need to provide:
copy of the representation order
case details, including offence type, PPE and number of defendants
We will deduct the hardship payment from the final payment, even if that hardship payment had been claimed by a different or substitute advocate.
The terms for interim and hardship payments covering Crown Court work are set out in the Criminal Legal Aid (Remuneration) Regulations 2013 (as amended).
regulation 14 – interim payment of disbursements
regulation 17A – interim payment of litigators’ fees
regulation 18 – interim payments in cases awaiting determination of fees
regulation 20 – staged payments in long Crown Court proceedings
regulation 22 – computation of final claims where an interim payment has been made under regulations 17A-21
You can find further information in relation to current processes under these regulations in the Crown Court fee guidance
Any hardship payments made will be offset against any interim payments received and vice versa. Hardship and interim payments will be offset against the final fee for the case. There is no right of redetermination for these payments.
As explained we will accept delays in trials/billing during the COVID-19 transmission control period as satisfying the criteria for making a hardship payment. However, these payments are intended to relieve representatives in genuine difficulties.
If you can access other forms of government assistance, you should consider whether you need to make this application. A significant number of claims is likely to result in increased processing time and a slower release of funds.
Scenario tables are available setting out the type of fee that can be claimed at various stages of the proceedings. It is expected that the majority of LGFS claims will be for interim payments:
Cracked trial fees
Cracked trials are cases which do not reach trial following an effective first hearing at which a not guilty plea is entered.
Advocate fees for cracked trials are divided into thirds for remuneration purposes. This is calculated using the period between the date a case is first listed for trial, or placed on a warned list, and the actual date listed for trial. Where a case cracks in the first two thirds a basic fee equivalent to that of a guilty plea fee is payable. Cases which crack in the final third attract a higher fee.
Clarification is needed where cases crack following effective first hearings where a not guilty plea is entered, but no trial date has been listed due to COVID-19. Where this happens, the LAA will pay the basic fee that applies where the trial cracks in the final third. This applies in cases with a representation order dated on or before 16 September 2020.
Cracked trials in cases with a representation order dated on or after 17 September 2020 are automatically entitled to the fee for a cracked trial. This is the equivalent of a basic trial fee for advocates, regardless of whether a date has been listed for trial.
Practitioners are reminded of the costs judge decision in the case of R v. Connors (2014). This outlined that it would be inappropriate to require a practitioner to wait until the end of criminal proceedings before submitting an initial trial claim.
Where trials have started and been adjourned we will, in line with this Cost Judge decision, accept a claim at this stage.
You should refer to appendix J and appendix O of the Crown Court fee guidance for further information.
Face to face hearings via video, telephone or written representations
If a hearing is conducted by video link, telephone or via written representations when it would normally be conducted face to face, providers can claim for this as a face to face hearing. This applies to hearings in both the Crown Court and magistrates.
For hearings in the Crown Court, it would be helpful if providers could encourage the courts to record this hearing on Xhibit.
This will allow for faster processing of claims. If Xhibit is not updated, we will need to ask for attendance notes/other evidence as appropriate to validate the claim which may cause unnecessary delay.
Prison video link disbursements
Where it is necessary, litigators can claim for the cost of setting up a video link to prison in lieu of travelling to see their clients. Litigators will need to provide evidence of any disbursements claimed in excess of £20.
Travel and mileage
We will allow claims from practitioners at 45p per mile where they have used private transportation to socially distance or due to a lack of available public transport. We understand there will be a need for providers to make travel claims from home locations during the COVID-19 period and this will be allowed. This applies to both crime lower and crime higher work. However, it should be noted that the 40 kilometre rule will still apply to all AGFS claims as set out in the regulations.
This contingency changes how travel may be claimed, it does not change when travel may be claimed. For example, it does not allow a Provider to claim travel in circumstances in which travel would not normally be claimable, i.e. when acting as a Court Duty Solicitor on a business day.
Criminal Legal Aid (Remuneration) Regulations 2013 – see schedule 1 paragraph 29
Deadlines for claim submission
Deadlines for claim submissions will be treated as flexibly as possible and extensions will be granted as a matter of course.
Claim rejects following submission
Where information is missing upon the submission of a claim, we will:
seek to make part payment wherever possible
invite submission of the missing information to complete the assessment
Where we are unable to make any payment at all, we will use the soft reject policy wherever possible. Providers will have 48 hours to return the necessary information.
If providers are not able to provide the necessary information to us within 48 hours, we will ‘hard reject’ the claim. But this will only be done where all other options have been tried.
LGFS interim payments
Litigators sometimes receive an interim payment following the Plea and Trial Preparation Hearing (PTPH), but later find that the Pages of Prosecution Evidence (PPE) have increased.
When this happens, you can make additional interim claims up to the 10,000-page threshold. However, these additional claims need to be evidenced in the usual way.
Stay up to date
If you have any questions about your contract, talk to your contract manager.
We are monitoring the situation and will update any changes to operational guidance in the first instance on our digital channels:
We will also share information with representative bodies to share with their members.