A common area that can cause difficulties when claiming costs is work that the LSC consider to be ‘out of scope’. The scope limitation details the work that a solicitor is authorised to undertake under the terms of a public funding certificate (Costs Assessment Guidance 10.1). Amendments to scope do not apply retrospectively (CAG 10.15) and therefore you are only covered for the additional work from the date of the amendment.
It is a standard term of the Legal Aid Contracts that the provider checks the certificates issued. So what should you be looking out for?
If devolved powers were utilised, is the date of the emergency certificate correct? No costs can be claimed before the date of issue of the certificate.
Is the emergency certificate made into a substantive certificate before it has expired? If there is a gap between the expiry of an emergency certificate and the granting of a substantive certificate then the work is not covered.
Is the emergency certificate limited to a certain date (e.g work up until a certain hearing)? If the emergency certificate is limited up to a certain hearing no work can be claimed after that unless the certificate is amended, irrespective of whether the standard 8 weeks for an emergency certificate has elapsed or not.
Does the certificate cover the proceedings in question? Be careful to check as if the certificate covers a residence application and the client applies for contact instead then it is not covered.
Are we covered to attend a final hearing? If the certificate precludes attendance at the final hearing then no fees can be claimed by either Counsel or the Solicitor for attending the hearing.
Are any notices to show causes issued at any stage? Work can’t be claimed during any periods where a notice to show cause was in place.
The LSC will not pay for any work outside of scope. If a Bill of Costs is provisionally assessed as drawn by the Court and the LSC look at the post assessment claim and take the view that out of scope work has been included then they will reject the claim and the Bill will have to be resubmitted to the Court.