We had a visit from our cm this week, where we finally managed to resolve our ongoing financial stewardship issues, with a small amount of cases being nil assessed and everybody seemed happy with the result. But..... at the meeting she asked about the length of time spent on welfare appeal cases as some were fairly short. We told her that due to the length of time it was taking for cases to get to tribunal (over a year), we were advising the clients on the appeal process, preparing the submission,getting the client ready for appeal,and, as we can't represent, we then closed the case, asking the client to notify us of the outcome. If there was further work to do it would be done as part of the same case and no nms would be opened. We explained the implications for our cashflow if we were not able to do this and she appeared to accept our arguements. We have now received a letter outlining our discussion, and she has stated this; "When I spoke to a colleague about this, she advised that our Legal Team had confirmed that under the Contract, you are not permitted to do this as you should not report cases until all the work has been concluded. Therefore you should not be closing and reporting these cases until after the appeal has been heard and the matter concluded. I appreciate that you have taken this action in order to maintain cashflow and I am aware that other CABx had been told they could do this previously. However those agencies have now been told that they cannot do this anymore and so I cannot authorise you to continue to do this under this contract."
So any appeal cases we open now cannot be concluded before welfare benefits is taken out of scope. There is also the cost of disbursements which cannot be recouped until the case is claimed. Has anyone else experienced this? If this is their stance, what (if anything) can we do?
The Closing DLA thread appears to be a closed thread so this is my two bobs worth
THe LSC state you can only close after you have completed all legal work. Well as you state you have with FME and submissions and post appeal advise. I cannot see their argument. You report if client gets back in contact you would add this to the old case and not open a new one, correct. I can't see their argument. It is you that takes a hit with end points that do not fully reflect the outcome. This could be their beef as this means they cannot really see what is happening. Thankfully appeal s have reduced in our area from 12 months to 6 months as an average.
Post by Patrick Torsney on Apr 27, 2012 9:45:54 GMT
Thanks for this, iand. There are lots of issues here and it could be that things are getting lost in translation as information is being passed through different people
The most important thing for me to mention at the off is that if the LSC is saying that it has now told other CABx also that this is how they deal with DLA (and presumably other) appeals, then it is something that you need to take up with them so they can speak to the LSC at a more senior level if they feel it is necessary. By all means direct the CitA consultants (and the LSC) to my reply here for context
My view is as follows:
The Contract allows you to close a case when you consider your work is, subject to any relevant rules, completed
From what you say, you have prepared the client for the appeal including preparing the submission and submitting any relevant documents and so on. Presumably, you have also advised the client that you don't represent at appeals tribunals (at least under legal help) and they are duly armed and prepared
Attendance at the hearing itself is outside the scope of the legal aid scheme and would only be claimable if you attended as a McKenzie Advisor (though even here you may meet resistance from the LSC, particularly if you tried claiming these additional costs on an exceptional case)
To insist then that you keep cases open where you have actually completed your work and do not envisage any further work is entirely at odds with the Contract. The Government, and I include the MoJ and LSC here, makes much of Welfare Benefits tribunals being entirely open and accessible to clients so, I am unsure why they would want you to keep such cases open through this particular part of the client's appeal process
I believe the reason the LSC may have taken issue with your practice is that your files - and how you expressed the issue to them - may look like you are only closing files because of a cash-flow issue and that, importantly, you are actually anticipating further work whether during or after the appeal hearing itself in respect of these clients. If this is the case, then I can understand their objection as the work is not actually completed. It would probably have been better to have simply pointed to your practice being as I have described it earlier; which, I imagine, it actually is
As to what other organisations, including CABx do, I imagine practice varies. The obvious issue here is the end-point code: closing a case prior to the hearing will mean you are not aware of the final result and this would be reflected in your reported codes. There are no doubt some organisations that like to keep cases open (yet dormant) simply to ensure the best possible outcome code; even where very little work (remember the hearing etc is out of scope) is actually done at this later point
You mentioned that the reason this had arisen is because of low or lower profit costs figures on these particular files. Assuming you are within the fixed fee margin KPI, then again, and subject to my comments above, I think the way the issue has been expressed, and the application of such a 'motive' to the relevant rules is the cause of the difficulty. The matter is being lost in translation
One final point, if the LSC wanted to establish whether the practice of closing files at this stage were inappropriate then it could commission a peer review or just go and ask a peer reviewer their view. However, I would imagine (at least some) peer reviewers themselves are doing exactly what you say you are doing
Please take the issue up with Citizens Advice as soon as possible and let us know how you get on. At the very least, it is not in anyone's interests, including the LSC's, to be introducing (unnecessary and certainly challengeable) changes in practice at the eleventh hour that will only complicate the termination of Welfare Benefits as a category of law and the final reconciliation of the accounts of providers
This thread is open to comments from others so I don't need to remind you: professional and constructive responses only so that the issue can be resolved satisfactorily. Any replies that are simply 'point scoring' will be deleted
Thanks for responses so far. I have passed this to CitA CLS consultancy. Their view is that LSC are not going to budge on this. I agree with Patrick's comment that they (LSC) may have put too much emphasis on the cashflow point-the emphasis was not ours. Cashflow is an issue, but not the main issue. Our point was that when we have done the work why does the case have to remain open for over a year doing nothing. I appreciate that if we wait for the appeal decision we will be able to use a code that reflects a better outcome. We have been closing these cases because we consider our work to have been completed-there is nothing further we can do.
I am assuming this is the relevant paragraph in the contract;
"3.82 You may make a Claim for a Controlled Work matter when any of the following events occurs:
(a) the Client decides not to proceed, or indicates that they wish to take the matter forward themselves;
(b) the Client fails to give instructions for three months (unless the matter is on hold, for example, because you are waiting for a third party to act or you have agreed this with the Client);
(c) funding is granted under Section C of the Funding Code procedures (unless further Legal Help is required on matters not covered by the Certificate) or the matter begins to be funded outside this Contract;
(d) you consider that the matter (having regard to Paragraphs 3.40 to 3.60 and any Category Specific Rules on commencing Matter Starts) is completed;
(e) you have informed the Client that the provision of Controlled Work is no longer justified having regard to the applicable Funding Code Criteria;
(f) you can no longer act through a conflict of interest or other reason of professional conduct."
So to me,at least,it appears we are legitimately ending work with regard to (d) above.
We have also been told by Birmingham Tribunals Service that the waiting time for appeals is likely to get longer!
Thanks for responses so far. I have passed this to CitA CLS consultancy. Their view is that LSC are not going to budge on this. I agree with Patrick's comment that they (LSC) may have put too much emphasis on the cashflow point-the emphasis was not ours. Cashflow is an issue, but not the main issue. Our point was that when we have done the work why does the case have to remain open for over a year doing nothing. I appreciate that if we wait for the appeal decision we will be able to use a code that reflects a better outcome. We have been closing these cases because we consider our work to have been completed-there is nothing further we can do.
Obviously I can't advise you here on what you should do next iand, if anything. I would say however, and assuming you think what your CM has told you amounts to him/her telling you to change your practice, that there is nothing to stop you asking for an informal reconsideration of your CM's decision in writing - see Para 27 of the Standard Terms
I'll also pass this topic to the Advice Services Alliance so they too are aware of the issue
Please keep us in the loop with any developments as and when they arise
Hi all. After my last post we decided to speak to our MP to see if she could help with our situation. Attached is the reply she received from Jonathan Djanogly.
Interesting. The key bit seems to be that they are concerned you might close and then reopen under a new NMS. in other words it is a financial concern.
But the key question which seems to me unanswered is whether you can close before a Tribunal sits when you have given all the advice you can, (and you are not representing them at the Tribuna). And if not, why not? The case can always be reopened at a later stage under the same NMS should unforeseen events occur. That is true of all NMS. I don't think this can be very important to the CLS as the number of cases reopened under the same NMS is not a key performance indicator.
I agree with you ianp-the original matter would be re-opened (or further work would be done on it) and no NMS claimed. It seems to me that they are focusing on the possibility of further work on a revision/supersession or UT appeal after the First Tier Tribunal. As far as our cases are concerned, this very rarely seems to be necessary.
