The Family Graduated Fees Scheme Review

A brief guide to the changes from 28 February 2005

The review of the Family Graduated Fees Scheme (FGFS) concluded in July 2004. Agreement has been reached on changes to both the structure and rates. The majority of the changes are to make the payments better reflect the specific complexities that can arise in family law in response to concerns that the scheme was generally too 'flat' and had substantially reduced rates in areas such as ancillary relief cases. In addition, changes to the submission of claims are to improve the interaction between solicitors and counsel and reduce delays in the process.

This brief note outlines how counsel will be paid for work within the revised scheme, which will only apply to new certificates issued or amendments made to add new proceedings to an existing certificate on or after 28 February 2005. The Legal Services Commission (LSC) has produced a more detailed information pack which has been made available to counsel. This includes revisions to the LSC's guidance and changes to the rates.

Changes to how counsel will be paid

• Special Issue Payments (SIPs) are to be paid on all hearing units and on each function F2 and function F3 hearing. The SIPs have been revised so that they are specific to each of the four categories within the scheme; there will be different SIPs available for each of the four categories of work.
• In Category 1, family injunction proceedings, function F2 is to be re-defined and function F3 amended to extend to committal hearings, to reflect their seriousness and importance.
• An additional bolt-on payment in Category 4, primarily ancillary relief proceedings, is to be created for enforcement proceedings and contested injunctions to reflect their complexity and heavy workload.
• Base fees in respect of functions F1 (Advices - written work) and F4 (Conferences) are to be paid up to twice in a category when verified as necessary by the instructing solicitor.
• The "Expert" SIP in category 4 proceedings is to be payable where there is one or more expert (called or read). This is primarily for ancillary relief cases and reflects the fact that it is rare to get more than one expert used.

New SIPs to be introduced

Three new SIPs are to be added to account for different complexities that arise. These new SIPs apply to all clients represented by counsel where applicable and verified by the Judge or Magistrate in accordance with the Funding Order.

• The "Parents/allegations against others" SIP. This SIP will be paid within public law Children Act proceedings where counsel is representing a parent of a child or a person who is the subject of allegations concerning significant harm to a child. This special issue payment is automatic for those representing parents but subject to the substance and relevance test for those representing others.
• The "Difficulty giving instruction/understanding advice" SIP. This is available in both public law Children Act and private law Children Act cases to reflect the additional work required in representing clients who have difficulty giving instructions or understanding advice, either because they are suffering from a diagnosed mental disorder or have significant impairment of intelligence or social functioning. This is an automatic SIP but is subject to an appropriate report being presented to the Judge or Magistrate upon verification.
• The "Analysis of business accounts" SIP. This includes accounts relating to trusts and investments. This special issue reflects the additional care and preparation required in cases where the client's business accounts require analysis as part of their representation, and will be paid primarily in ancillary relief cases.
• Additionally, the LSC guidance will clarify that the "Assets" SIP includes work involving pensions splitting or earmarking.

For full definitions please refer to The Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2005 (S.I. 2005/184)

Further changes to the scheme

• The time limit for a claim for payment to be submitted by counsel is to be reduced from three months to two months, following the conclusion of a main hearing, or discharge or revocation of a certificate.
• Changes to the application of the Maximum Fee Principle (MFP) in the Family Proceedings Court (FPC) are to be introduced as follows:

1. in cases where prior authority for the use of counsel was granted or authority justified on assessment, counsel's fees will be paid in the sum of the family graduated fee; and
2. in all other cases, counsel's fees will be calculated at the solicitor's appropriate hourly rates under Legal Aid in Family Proceedings (Remuneration) Regulations 1991.

• Revisions will also be made to the tables of rates in Schedule 1 of the Funding Order.

General information and guidance on the scheme, and further details on the changes outlined above can be accessed from the LSC's website at www.legalservices.gov.uk.

If you would like to receive a copy of the fuller briefing pack or have any specific queries on the FGFS changes, please contact Ruth Symons by email.

To view the Ministry of Justice internet please visit www.justice.gov.uk

Civil Legal Aid Branch
Public Legal Services Division 1
Department for Constitutional Affairs
February 2005