Post by Patrick Torsney on Oct 15, 2006 14:23:38 GMT
This document contains some initial points on the Unified Contract (UC) Standard Terms. This document isn't exhaustive and so you need to read the full Standard Terms section – this doc contains some of the provisions that jumped out at me as being particularly interesting. I’m sure it will throw up more questions than answers at this stage
Please remember that the UC, which includes the documents identified above, is currently open to consultation (ending 12 noon on the 21st November)
Full guidance on compliance with any final version of the UC will be forthcoming: CLS Support will be producing both written guidance and training in the coming months, which will have been checked for accuracy with the LSC. I’ll keep you updated on this as things progress
Clause 2: Relationship
"Risk Rating" (paragraph 24)
This provision concerns assigning your organisation with a risk rating. This will be on the following basis:
The LSC states:
“We will assign a Risk Rating (red, amber or green) to this Contract based on your performance under it, your compliance with it, your ability to work co-operatively with us, your financial position and the state of your account with us. The rating applies to the Contract and (without limiting our rights) we may use it to help us to determine how closely we will monitor it.”
So, if you are ‘in the red’, then the LSC will be keeping a much closer eye on you! I’m not clear at this stage on the extent to which an assigned rating might affect existing and prospective funding arrangements, or status otherwise; it seems clear that if your assigned status is not good, then it won’t do you any favours
I wonder whether organisations will be proud of being ‘green’ or whether prospective job applicants will ask what stage of defcom an employer might be at as a consideration in applying for a job?
Clause 3: Looking after clients, compliance, monitoring and demonstrating compliance and required procedures
“Must you have a case management system?” (paragraph 3)
The LSC states:
“From such date as we may reasonably specify, you must have, and use for all Contract Work, a matter and case management system, and platform on which it sits, that meet such technical functionality as we may reasonably specify after consultation with the Consultative Bodies.”
The LSC is very keen on you developing sound IT systems and procedures – it’s about efficiency and also about improving that interface between you and them, particularly in terms of reporting arrangements etc. It may even bring about some of the savings the LSC anticipates, mmm....
One thought that strikes me is the transfer of files from one supplier to another – it costs money and takes up time and the LSC are saying in the UC Specification that you must request a copy of any file on behalf of any client who has received legal advice from another provider within the last 6 months
Now here, the LSC are talking about specifying technical functionality, not which system you must use – this means that all the different IT system providers will have to make sure their systems meet the spec, but not that they are inter-compatible
I know it would be virtually impossible and unrealistic to expect all the IT developers to liaise with each other to ensure that there could be a passage of data between suppliers electronically, but here’s my suggestion to IT developers: if you haven’t already got this covered, that you incorporate some way into your system of separating and pulling a case file out so that it may be copied/converted into a format which could then easily be emailed to another provider, who would then be able to access the file whatever their own respective system was
If the LSC don’t specify it within any future proposal it might be a selling point for any of you IT developers out there. For the time being, and for those who are fully computerised in terms of case management, then copying the file by cutting and pasting relevant sections might suffice – but this will need to be confirmed with the LSC
“Must you monitor your own performance?” (paragraphs 7 to 9 inclusive)
Yes, you must! You must monitor performance and compliance with the contract and take prompt and effective corrective action if you pick up any failure or deficiency
You should also keep records of doing this and any action you have taken as a consequence (see also Annex E ‘Monitoring Annex')
You’ve also got to nominate a ‘Compliance Executive’ whose responsibility is to ensure that all this takes place
The Standard Terms defines a Compliance Executive as:
“…means the member of your personnel nominated by you to monitor your compliance with this Contract”
This role is different from the another new role the LSC have put forward, that of ‘Liaison Manager’. Each organisation must appoint a Liaison Manager, which the LSC define as:
“…means the member of your personnel nominated by you to liaise with us on matters concerning this Contract”
I can’t see anything that means that one person couldn’t be both but, given the emphasis on ongoing monitoring it might be time organisations considered the effectiveness of previous systems of monitoring compliance, including performance, and how this related to subsequent discussion and negotiation with the LSC
I’ve come across plenty of organisations where these responsibilities are a little messy, e.g. ongoing compliance and monitoring (and knowledge of the contract and its limitations) being the remit of the supervisor or team leader, but the person who liaises with the LSC, usually a senior manager or equivalent, not really using (and in some cases appreciating!) this persons knowledge on capacity and viability within the operation of the contract
I think it is critical that organisations ensure that they tighten up the relationship between the day-to-day operational management of the contract with the broader strategic considerations
“Risk Register” (paragraph 25)
I always hoped that as the risk assessment procedure set out in the SQM never became mandatory that the LSC would leave it at that; unfortunately, it has raised its head again within the UC consultation
Paragraph 25 states:
“You must maintain a register of risks with specified procedures to address each identified issue should it occur e.g. if you are responsible for the provision of a duty solicitor service at a police station, you must identify the risk of your representative failing to attend and have a contingency plan.”
I know many organisations just won’t know where to start with this one, but hopefully your network will be able to come to the rescue; it could also be that this is something that CLS Support picks up and provides guidance on
Clause 12: Confidentiality and Data Protection
“What information do we intend to publish on our website?” (paragraph 2)
The LSC says it will use its website to publish information about suppliers except any information which it is bound by to treat as confidential
I know you are going to think this sounds like ‘naming and shaming’ and depending on the level to which the LSC might use this provision, it may feel like it too. There are many permutations of this provision; for one, I would have thought this is as much about the LSC trying to encourage the open market which it mentions throughout its recent literature – the information will probably be of most interest then to other providers and also funders
“What information must we keep confidential?” (paragraph 9)
The LSC says it will keep strictly confidential all information of a confidential nature concerning your affairs or business. But, it goes on to say: “However, no information about the award of this Contract (or allocation or authorisation of work under it) to you, your performance under it, or payments under it, is confidential.”
The LSC says it may ‘disclose’ information about (this list is non-exhaustive):
the award of this Contract (and work allocated and authorised under it) to you;
the terms (including payment terms) of this Contract;
the payments that we have made to you (by category, class or otherwise);
the numbers of matters and cases that you have started and completed (by category, class or otherwise);
your performance e.g. as measured by the Performance Indicators;
your status under the Contract; and about
contract decisions concerning you (or your personnel), taken by us, and the reasons for such decisions. “Contract decisions” include decisions concerning sanctions, decisions concerning the amount of payments made to you and the results of audits
"What information may we publish?” (paragraph 10)
The LSC says it may equally ‘publish’ any information that it also says it has a right to disclose. This means that it could choose to publish, as well as the things identified above, the names of any suppliers (and the names of their partners and directors, or the name of their sole principal) whose Contracts it has terminated and the names of any personnel who it has excluded from Contract Work, and why. You are also required to make your personnel aware of this provision
Clause 16: Constitutional and other changes and matters to be notified
“Do you have to tell us of material constitutional changes?” (paragraph 1)
There have always been obligations to notify the LSC of material changes, this section appears to tighten this up somewhat
The LSC says you must notify it as soon as possible before any anticipated material constitutional change of which you are aware, which will or might affect you
You must also do this on or within 14 days. Examples of changes which must be notified (my emphasis):
the closure or planned closure of any Office;
any decision on your part to cease to carry out Contract Work in any Class of Work, Category of Work or at all;
any change in the identity of any of your Key Personnel;
where you are an advisory service, any material change (including any change of chairman or treasurer or any change of 75% or more of your membership since this Contract came into force) in the composition of your management committee;
if you are a sole principal (sole trader), any creation of a partnership;
any change (by more than one third) in the composition of your partnership, or in the number of your members or directors, in the previous 12 months;
any change in your legal status e.g. to a limited liability partnership or company (incorporated practice) from a partnership;
any sale, merger, acquisition, or transfer of you
“Do you have to tell us about disciplinary and other proceedings?” (paragraph 33)
At the minute, I’m not sure how far this particular provision extends, but here it is:
“Immediately you become aware of them, you must notify us (and provide details) of any professional disciplinary proceedings concerning any of your personnel and must notify us of the outcome of them.”
Bear in mind that if the LSC subsequently decides to exclude someone from performing contract work as a consequence of this provision then it is saying it might also publish that information on that individual
Section 5 caught my attention. I suppose because it directly opposes some of the measures I thought would sustain the new contracts.
Several terms are very specifically directed to our complaints.
That this will lead to work being declined as uneconomic - admitting this will lead to breach of contract.
Also matter starts seem to be restricted; I interpret 5.11 that if there is a stay application, and Housing Benefit investigation is required, it wont be a new matter start unless 1. you know whether there is ground for an appeal or supersession, so that it can be 2. submitted to the sufficient benefit test, and the 3. financial means test from a new period requiring presumably new evidence of income taken 4. the time spent finding the cause of action will only be funded under the original matter start. This is not inconsiderable as many years of correspondence with HB handed to me in a shopping bag is not uncommon.
Do you think this restricts us in fact, as we just need to link the sufficient benefit with the impending eviction in the above example. But its administratively even worse than at present when I frequently open 2 matter starts with same income evidence.
This wont be permitted under new contract.
The news keeps on getting worse, and I suspect that the consultation exercise has been used to find out what ways around the contract we have found to avoid loss of our current funding.
But the response of the private firms is the one that they are concerned with - if LSC contracts are declined in massive numbers that will impact on the court business as representation becomes rare
Sorry I'm not clear why we won't be able to use the same income evidence when opening up more than one matter start. I know we have to complete separate CW1 forms for each, but why can you not use copies of the same financial evidence for each 'application'? Is this stated somewhere in the Unified Contract - I spent yesterday reading it and didn't pick this up... Thanks
sorry for a slow response but I just saw your question today.
No its just the conclusion i reached when I looked at the restrictions on opening more than one matter start in one interview. Whether the same income evidence could be useful at more than one interview requires consideration of the period covered. I read the following clauses to mean that in practice we need to take a single matter start to identify the issues and potential matter starts, and subsequently to take further instructions on the additional matters. Look at 5.14 Does it seem to contradict itself, or could it mean that while only one area of Law can be considered for a matter start at that first general interview, it could be justified by the requirement to do further work and need the client to come in at a later date.
Or am I doing their job in justifying internal contradictions?
5.7 As a large volume of Controlled Work is paid for under a Standard Fees and Graduated Fees system there is a risk that Suppliers will attempt unjustifiably to increase the numbers of Standard Fees and Graduated Fees they may claim by artificially creating additional Matter Starts and commencing two or more Matter Starts for the same Client where it would be sufficient and appropriate to commence only one. You are not permitted to do this. 5.9 Each separate Matter must be the subject of a separate application form. You must identify, and record on the appropriate case file, any point at which the work which you are performing for any Client on one matter becomes a separate matter and use of a separate Matter Start is necessary. 5.12 A single Matter Start should be completed to identify the issues and provide general, preliminary advice. If one legal issue is identified then the original, single Matter Start should be used for the provision of further Controlled Work.
5.14 Where the same set of circumstances gives rise to multiple issues which may fall into more than one category of law brief advice should usually be provided in relation to all those issues on one application and this will only qualify as one Matter Start. The case should be recorded as a Matter Start in the category of law into which the main issue falls, without consideration of the respective levels of any applicable Standard Fee or Graduated Fee. **If however an issue in another Category of Law is pursued beyond brief advice, then a separate Matter Start in that Category of Law should be used provided the Funding Code criteria are met and you have an available Matter Start. A Matter Start cannot be in more than one Category of Law of work.**