Q1. Why are the Agency seeking to measure practitioner error and fraud?
The overall level of loss to the legal aid fund due to error and fraud is not currently known. This is one of the reasons why the Agency’s 2020/2021 accounts have been qualified by the Comptroller and Auditor General. The Agency have already taken steps to measure error by legal aid officials (official error) and legal aid applicants. The third possible source of error and fraud arises from practitioners. The Agency is now seeking to measure practitioner error and fraud in order to complete the estimation of the potential cumulative annual loss to the fund from all sources of error and fraud. For more information please see paragraphs 1-8 of the Practitioner Error and Fraud Guidance.
Q2. Is potential error and fraud by solicitors and barristers the only thing that is being monitored?
No, the Agency has already undertaken significant work to estimate, monitor and reduce error arising from the actions of legal aid officials. As a result, the estimated monetary value of official error reduced from £8.2 million in 2019 to £5.6 million in 2020. Further, work has commenced to estimate, monitor and reduce applicant error and fraud through a process of post-payment checking of an applicant’s financial eligibility during the life of their certificate. The third strand of the error and fraud programme is to estimate the potential levels of practitioner error and fraud and this pilot will test the methodology, which has been developed for the measurement of same. For more information on the overall error and fraud programme please see paragraphs 4-12 of the Practitioner Error and Fraud Guidance.
Q3. My case has been chosen – does this mean that the Agency suspect I have done something wrong?
No, cases are chosen using a sampling methodology, which has been developed by Northern Ireland Statistics and Research Agency (NISRA), to ensure that the overall sample is representative of the total population of bills received. All legal aid cases (save for Criminal Court of Appeal and Criminal Supreme Court cases) have the potential to be sampled in this pilot. For more information on the sampling methodology please see paragraphs 14-19 of the Practitioner Error and Fraud Guidance.
Q4. How are cases selected?
The submission of a report on case will be the trigger for matters to fall to be sampled. A weekly sample of payment requests will be selected for review. A maximum of 88 cases per month will be reviewed. Random sampling days will be selected in advance by NISRA to ensure independence in the sampling process. For more information on the sampling methodology please see paragraphs 14-19 of the Practitioner Error and Fraud Guidance.
Q5. What do the Agency define as error and fraud?
For the purposes of this pilot, the Agency have adopted the following definitions of error and fraud:
The practitioner has provided inaccurate or incomplete information, or failed to report a change in the circumstances of the case promptly, which has caused a loss to the legal aid fund, but LSA assesses the practitioner’s intent was not fraudulent as there is no evidence that they are deliberately trying to deceive or mislead the Agency.
The practitioner has made a false representation, failed to disclose information, abused their position by means of a representation or conduct in order to gain or cause a loss to another. The following three conditions apply:
- the applicant does not meet basic conditions for receipt of legal aid or the level granted;
- it is reasonable to expect the practitioner to be aware of the effect on their client’s entitlement of providing incomplete or wrong information; and
- evidence the practitioner deliberately set out to falsely represent, failed to disclose information and / or abused their position to make a gain or cause a loss.
This is set out at paragraph 12 of the Practitioner Error and Fraud Guidance.
Q6. What do the Agency define as a “file”?
A file means any papers, records, reports, correspondence or other documentation, whether held in paper or electronic format, which is held by you in relation to the conduct of an individual case for which there is a legal aid certificate/grant in place.
Q7. Do the Agency have power to make me produce my file?
Yes. The Agency has the legislative power to seek the production of practitioner files by virtue of the following:
For civil matters
Regulation 12(1) The Civil Legal Services (General) Regulations (Northern Ireland) 2015
For Crown Court matters
Solicitor: Rule 7(6) The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005
Counsel: Rule 10(6) The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005
For Magistrates Court and County Court Appeals
Solicitor: Rule 6(7) The Magistrates’ Courts and County Court Appeals (Criminal Legal Aid) (Costs) Rules (Northern Ireland) 2009
Counsel: Rule 8(6) The Magistrates’ Courts and County Court Appeals (Criminal Legal Aid) (Costs) Rules (Northern Ireland) 2009
This is set out at paragraph 13 of the Practitioner Error and Fraud Guidance.
Q8. I know that I have done nothing wrong – why should I produce my file?
It is in the interests of all those providing publicly funded legal aid services to ensure that error and fraud, from whatever source is detected and prevented. All practitioners whose claims form part of the sample must therefore co-operate with the LSA as failure to co-operate will not only mean that the bill will not be paid but it will also result in the entire cost of the bill being recorded as an error, and attributed as an error against the practitioner. The unified processes of official, applicant and practitioner error and fraud work is intended to provide public confidence that the significant sums of public money allocated to legal aid are well managed and properly accounted for by the Agency. This will be supported by clear evidence that all officials, applicants and practitioners are conscientious in fulfilling their administrative and statutory obligations and that there is no abuse of legal aid. For more information please see paragraphs 9-11 and 57-62 of the Practitioner Error and Fraud Guidance.
Q9. How will I know if my file is selected?
If your report on case is selected, the Agency will write to you via LAMS to request that your entire file be submitted to the Agency for review. A message will also issue via LAMS to draw attention to the letter. A copy of the initial letter and LAMS message can be found at Annex B to the Practitioner Error and Fraud Guidance.
Q10. I received a letter asking for my file – what should I do next?
If you operate using paper files, your entire original file should be sent to the Agency by post or hand delivery within 5 working days of the date of request. A photocopy of the file will not be accepted. You should complete the File Details Form and send it along with the paper file.
If you operate using a digital case management system, please contact the Agency directly on LAMSpaymentqueries@lsani.gov.uk to discuss the options available to transmit the file to us.
If you have a mixture of paper and digital files, we will require sight of both – the processes set out above should be followed in each case.
For more information please see paragraphs 20-29 of the Practitioner Error and Fraud Guidance.
Q11. How do I get my file to the Agency?
You can either send it using the post, secure courier or hand delivery to the Agency. The Bar Council have also confirmed the availability of a secure courier service from the Bar Library to Waterfront Plaza. If you operate a digital case management system please contact the Agency on LAMSpaymentqueries@lsani.gov.uk to discuss the options available to transmit the file to us. The Agency have developed a number of options in relation to the receipt of digital information, and are content to receive information in all formats. This is set out in paragraphs 26 and 29 of the Practitioner Error and Fraud Guidance.
Q12. Will the Agency pay for the costs of my time in getting the file ready to send it to them or the costs of postage?
No, the Agency will not pay for any costs associated with the postage/delivery of the file or any time spent in the production of the file to us. This is set out in paragraph 27 of the Practitioner Error and Fraud Guidance.
Q13. My file is voluminous and contains all of the Pages of Prosecution Evidence (PPE) received. Do I have to send in all of the PPE and disclosure?
For the purposes of the pilot, we will not require these documents to be provided with the original file if the Public Prosecution Service (PPS) has confirmed to us the page count for such PPE material in advance. It will be made clear in the letter requesting the file if we have such confirmation.
In relation to disclosure, which the PPS do not paginate and confirm the volumes, we will require the disclosure schedule only to be forwarded with the original file as this gives an indication of the page volumes. If the disclosure schedule is provided we will not require the disclosure contents to be provided. However, we will be conducting randomised checks of such cases where the full disclosure will be sampled. If the case is selected for such sampling, the practitioner will be further notified. This is set out in paragraph 24 of the Practitioner Error and Fraud Guidance.
Q14. How long will the Agency need my file for?
The Agency plan to return the files to the practitioner within three working days of receipt of same. The Agency will return the file via secure courier or another agreed route. This is set out at paragraph 30 of the Practitioner Error and Fraud Guidance.
Q15. Can I send a photocopy of the file?
No, the Agency require the original paper file to be produced. If a copy file is received by the Agency, it will be returned unprocessed and the timeframe set out in the initial request will continue to run delaying the processing of the payment request until all requested information has been provided. This is set out at paragraph 26 of the Practitioner Error and Fraud Guidance.
Q16. The case is going to be appealed or transferred to another court tier and I need the papers in order to do that. What can I do?
If you require the file to be returned more quickly than our three working day turn around, you should make this clear in the appropriate section of the File Details Form, which accompanies your file. The Agency will endeavour to expedite the scanning and return of your file. This is set out at paragraph 30 of the Practitioner Error and Fraud Guidance.
Q17. What checks will the Agency be undertaking when they receive the file?
Depending on the nature and matter of the case, the file will undergo a review about one or more of the following functional areas:
- means/financial eligibility; and/or
- merits; and/or
- payment assessment.
The Agency will not be repeating the original means and/or merits assessment but instead will be seeking to verify, based on the information contained in the files, that all relevant information was given to the Agency at the appropriate time, that there is evidence of all work claimed being done and to ensure payment accuracy. This is set out at paragraphs 32 and 34 of the Practitioner Error and Fraud Guidance.
Q18. Will I still get paid promptly?
The methodology of the pilot has been developed so that the required reviews will happen concurrently meaning the review process should not delay the release of any appropriate payment within our standard KPIs. This is set out in paragraph 33 of the Practitioner Error and Fraud Guidance.
Q19. What if I don’t send the file within five working days?
Should the file not be received after the initial request, a second letter and message will issue to the solicitor with carriage of the case via LAMS. A further period of five working days will be given for receipt of the file. Annex C of the Practitioner Error and Fraud Guidance provides a sample of the letter that will issue. This is set out at paragraph 35 of the Practitioner Error and Fraud Guidance.
Q20. I have received a second letter and don’t intend to send my file – what will happen next?
If the file is not received following the second request, a final letter and message will issue via LAMS – Annex D of the Practitioner Error and Fraud Guidance refers. Further, the payment request will be queried back to the practitioner, which will indicate that unless the file is received within 21 calendar days of the date of the query, the payment request will be withdrawn and the case will be closed without payment. This is set out at paragraphs 36-40 of the Practitioner Error and Fraud Guidance.
Q21. Will the Agency report me to the Law Society/Bar Council if I don’t comply with this process?
If a requested file is not received within 21 calendar days of the query being issued then the Agency will consider making a referral to the Agency’s Counter Fraud Unit (CFU) and the relevant regulatory body. This is set out at paragraph 38 of the Practitioner Error and Fraud Guidance.
Q22. I have not sent my file and my payment request has been closed. What can I do now?
If the file is received following the closure of the case, the Agency will consider reopening the case and request for payment. When received, the file will undergo the pilot review process and, if appropriate, payment will be made within the KPI target date of the date of receipt of the file. This is set out at paragraph 39 of the Practitioner Error and Fraud Guidance.
Q23. Do I have to get my client’s permission to release the file?
The Agency has a statutory power to seek practitioner files as set out at FAQ 7 above in relation to both civil and criminal files. In addition to this, in civil matters your client will have signed or agreed to the applicant declaration before applying for legal aid which gives their consent to the Agency making any enquiries it considers necessary. This is set out at paragraph 52 of the Practitioner Error and Fraud Guidance.
Q24. My advice to my client is privileged. Does releasing the file to the Agency put me in breach of any of my professional obligations?
No, no legal professional privilege concerns arise. More information in relation to legal professional privilege is available at paragraphs 50-53 of the Practitioner Error and Fraud Guidance. However, in any particular case a practitioner may raise a concern for consideration by the Director of Legal Aid Casework presenting grounds for a refusal to provide the requested information.
Q25. How can I be assured that the Agency will not misuse or lose my file?
The Agency applies all of the Departments’ and Governments’ policies and procedures in relation to the General Data Protection Regulations (UK-GDPR) and Data Protection Act 2018 (GDPR) and has completed a Data Protection Impact Assessment (DPIA) in relation to the pilot methodology, which has been approved by the DoJ Chief Information Officer. The Agency has given consideration to the security of data at all stages of this pilot process and is satisfied that the integrity of the data will be maintained throughout the process with the use of secure couriers, information management policies and procedures and the retention and departmental disposal policy, which the guidance is based on. The scanned copies of the file will be held securely by the Agency consistent with our obligations under the GDPR and in accordance with the Agency’s Privacy Notice. For more information, please see paragraphs 47-49 of Practitioner Error and Fraud Guidance.
Q26. How long will the Agency keep the scanned copy of my file?
The scanned copy file will be retained by the Agency until all payments, review, appeal/redetermination, audit or fraud procedure is completed. On completion of these processes the data will be destroyed. Once the legal aid case has been closed on LAMS, it will be held for a period of 7 years in line with Schedule 11.2 of the DoJ Retention and Disposal Schedule V4. This is set out in paragraph 49 of the Practitioner Error and Fraud Guidance.
Q27. What happens if the Agency has a concern about my file?
As this pilot is a “test and learn” process, the Agency will not be taking any enforcement action on files sampled and reviewed unless information is uncovered which gives rise to a concern of suspected fraud, which would then be subject to a fraud investigation. Where no issues are identified, the payment will be processed in the usual way and all of the standard rights of appeal, review or redetermination will be open to practitioners. Where any issues arise, the Agency will issue a procedural comment note to the practitioner setting out the nature of the detected error and corrective action and the payment will be made in the usual way, with all standard rights of appeal, review or redetermination remaining available. This is set out in paragraphs 41-46 of the Practitioner Error and Fraud Guidance.
Q28. What if I want to raise something with the Agency during this process?
In the first instance, you should send a message on LAMS at request level against your report on case.
Q29. What will happen if the Agency suspect I have been engaged in fraud?
Where any issue arises, which points to the possibility of fraud, the matter will be passed to the Agency’s CFU who will progress the matter within one month of the referral unless further time is required to investigate matters. CFU will commence a fraud investigation and where there is evidence of suspected fraud will refer the matter to the Police for investigation. After engagement with Police, the relevant Regulatory Body will be informed at the appropriate stage in line with the investigatory process. The Agency and CFU will continue to work closely with Police and the regulatory body until the conclusion of the investigation. This is set out in paragraph 46 of the Practitioner Error and Fraud Guidance.
Q30. How long will this pilot run for?
The pilot is scheduled to run for a period of three months from 18 October 2021.
Q31. What happens when the pilot is over?
At the conclusion of the pilot, the Agency will evaluate the operation of the pilot and identify any changes to the approach, which is required to mainstream the measurement methodology. The Agency will consult with the professional bodies and other relevant stakeholders about the final processes and will communicate with the profession to advise of refinements to the processes. At the end of the pilot, results will be validated by NISRA statisticians and used to amend the methodology, where necessary. The scale of the sample, which will form the basis of the substantive launch of the embedded process will be notified to practitioners. This is set out at paragraphs 54-56 of the Practitioner Error and Fraud Guidance.
Q32. If I am unhappy about how the process has operated, who should I raise this with?
If you have any concerns during the period that your file is being reviewed, please raise these using the messaging functionality on LAMS by sending a request level message against your report on case.
If you are unhappy with any aspect of how the wider process has operated you should raise this, in the first instance, using the Agency’s complaints policy which is available on our website at LSANI complaints policy and procedure.