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 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.
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. 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 new workstream will test the methodology, which has been developed for the measurement of same.
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.
Q4. How are cases selected?
Each month NISRA will select 45 payments which have already been assessed by officials for review. Random sampling days will be selected in advance by NISRA to ensure independence in the sampling process. All categories of service- Advice and Assistance, Representation Lower and Higher Courts, Exceptionality and Criminal will be included within the pool of cases from which samples will be derived.
Q5. What do the Agency define as error and fraud?
The review of practitioners’ files will be undertaken by the Department of Communities’ Standards Assurance Unit (SAU). SAU will raise any issues of non-compliance with the Agency. It will be for the Agency to decide whether the non-compliance requires further investigation. While the Agency expects areas of non-compliance to be minor should serious concerns be raised the Agency will adopt the following definitions of error and fraud in considering the outcome of practitioner file reviews:
Error: The practitioner has provided inaccurate or incomplete information or failed to report a change in the circumstances of the assisted person or the merits of the case immediately, which has caused a loss to the legal aid fund, however, the Agency assesses the practitioner’s intent was not fraudulent as there is no evidence that they are deliberately trying to deceive or mislead the Agency.
Fraud: The practitioner has knowingly made a false representation, failed to disclose information, and abused their position by means of a representation or conduct in order to gain or cause a loss to another. The following three circumstances may apply:
- the applicant does not meet basic conditions for receipt of legal aid, or the level granted; or
- it is reasonable to expect the practitioner to be aware of the effect on their client’s entitlement of providing incomplete or wrong information; or
- 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.
If the issues highlighted in the practitioner file review give rise to concerns about fraudulent activity, a separate review will be undertaken by the Agency’s Counter Fraud Unit.
Q6. What do the Agency define as a “file”?
A file is an umbrella term used for papers, records, reports, correspondence, or other documentation, in paper or electronic format, which is held by a practitioner in relation to the conduct of an individual case, for which there is a legal aid certificate. As a matter of ordinary revenue record keeping practitioners should hold financial information for seven years (current year plus six previous years), therefore, it is expected that practitioners will be able to produce sufficient records to substantiate any claim for payment.
Q7. Do the Agency have power to make me produce my file?
Yes. Practitioner file reviews are subject to the following statutory powers and legal framework, which empowers the Agency to seek information and files from practitioners:
Criminal Legal Aid
- Articles 36 and 38A of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.
- Regulation 3 (2) of the Criminal Legal Aid (Disclosure of Information) Rules (Northern Ireland) 2015.
Solicitor Only
- Rule 7 of the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005.
- Rule 6 (7) the Magistrates’ Courts and County Court Appeals (Criminal Legal Aid) (Costs) Rules (Northern Ireland) 2009.
Counsel Only
- Rule 10 of the Legal Aid for Crown Court Proceedings (Costs) Rule (Northern Ireland) 2005
- Rule 8 (6) the Magistrates’ Courts and County Court Appeals (Criminal Legal Aid) (Costs) Rules (Northern Ireland) 2009.
Civil Legal Aid
- Regulation 3 of the Civil Legal Services (Disclosure of Information) Regulations (Northern Ireland) 2015.
- Articles 12-14 and 34 of the Access to Justice (Northern Ireland) Order 2003.
- Regulation 12 (1) & 15 (2) of the Civil Legal Services (General) Regulations (Northern Ireland) 2015.
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.
Q9. How will I know if my file is selected?
When a case is selected for review, LAMS will issue an email notification to the practitioner (provided in the individuals contact details in LAMS Account) who submitted the report on case and the Account Administrators in the business requiring the practitioner to submit the file to the Agency within ten calendar days for review. The LAMS status on the report on case payment request will change to “File Requested”.
Q10. I received an email 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 ten calendar 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 CARB@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.
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. If you operate a digital case management system please contact the Agency on CARB@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.
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 of the costs associated with the postage or time spent in the production of the file to us in exercising their power for the request of supporting documentation.
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?
The Agency appreciates that in some cases, notably criminal cases, and in particular, those that have attracted grants of Exceptional Preparation hours, files may be voluminous due to the service of large bundles of Pages of Prosecution Evidence (PPE). 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. In relation to disclosure, which the PPS or others 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 receive separate notification.
Similarly, in family cases containing voluminous medical records and third party reports we will not require sight of all records but a Disclosure Schedule to confirm the volume and type of material to substantiate payment for the amount requested.
Q14. How long will the Agency need my file for?
Once the Agency receives the original file we will forward it to our independent delivery partner, the SAU, for review. The length of time the review takes is undefined as each case type and file is different and is dependent on the number of queries, timeliness of responses etc. However, the Agency will return the files to the practitioner within one week of its return to the Agency from SAU. The Agency will return the file via secure courier or another agreed route.
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.
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?
On receipt of the file, it will be retained until the full review has been conducted. If the file is required to be returned urgently, for example due to a pending appeal or transfer of proceedings from one court tier to another, the practitioner should contact the Agency via LAMS and set out the reasons why the file is required. If the reasons are accepted, arrangements will be made to return the file securely.
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:
(1) means: Testing to assess financial eligibility is one aspect of determining if someone qualifies and continues to be eligible for legal aid– solicitor focussed.
(2) merits: Demonstration of the likelihood of success, the reasonableness of the costs and whether a reasonable person would use their own money to pay for the case.
(3) payment assessment: Check for accuracy of payment claim and evidence to support amount claimed.
Q18. Will I still get paid promptly?
Yes. The methodology has been developed so that the sample selected for reviews will be drawn subsequent to payment assessment meaning that payment will be made as soon as the Agency receives the file.
Q19. What if I don’t send the file within 10 calendar days?
Should the file not be received after the initial request, a second request will issue to the solicitor or barrister with carriage of the case. A further period of 11 calendar days will be given for receipt of the file before the payment is suspended.
Q20. I have received a second email and don’t intend to send my file – what will happen next?
If the file is not received 21 days after the initial request the payment will be suspended. It will remain suspended until a file is received by the Agency. No payment will be released if a file is not submitted.
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.
Q22. 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.
Q23. 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. 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 of specific papers within the file.
Q24. 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 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 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.
Q25. What happens if the Agency has a concern about my file?
If the issues highlighted in the practitioner file review give rise to concerns about fraudulent activity, a separate review will be undertaken by the Agency’s Counter Fraud Unit.
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 any issues arise, the Agency will issue a procedural comment note to the practitioner setting out the nature of the query and any supporting evidence required.
Q26. What if I want to raise something with the Agency during this process?
Please contact CARB@lsani.gov.uk.
Q27. 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.
Q28. 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 contact CARB@lsani.gov.uk.
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.
Q29. My file contains personal details of third parties who are not directly involved with the case and are therefore outside the scope of the Certificate but arise in the course of material associated with the case. How does the process protect the GDPR rights of these third parties?
The Agency is content it has a legitimate reason to access practitioner files and its contents, however as FAQ 13 makes clear for cases containing reports we will not require sight of all records but a Disclosure Schedule to confirm the volume and type of material to substantiate payment for the amount requested.