ISW’s given fresh hope after Law Society’s successful judicial review

Independent social workers were given fresh hope over the government’s plans to cap their fees after the Law Society won a judicial review quashing the outcome of the tender round for new family legal aid contracts.

The proposal to cap ISW fees at the standard Cafcass rates of £30 per hour outside London and £33 in the capital was outlined following a Legal Services Commission (LSC) consultation last year which focused mainly on the fees charged by solicitors.

But following the consultation half of experienced children and family lawyers were not awarded civil contracts to practice from LSC tenders, according to a campaign group opposing the ISW fee cuts, which includes BASW.

This prompted the Law Society to launch a judicial review into the entire Ministry of Justice plan, news that immediately led the LSC to suspend the reforms, and this week the High Court declared that the LSC’s family legal aid tender round was unlawful and severely hindered access to justice for vulnerable children and their parents.

The Law Society’s president Linda Lee said: “The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid. We are extremely disappointed to have been left with no choice but to take legal action against the LSC, which refused to acknowledge the detrimental effect that this outcome would have on families.

“The LSC’s actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2,400 to 1,300. That would have translated into thousands of people facing grave difficulty in obtaining justice – ordinary people who are already facing extraordinary difficulties. Legal aid clients are some of the most vulnerable in society and access to legal representation where required is their only hope of achieving justice,” she added.

The LSC said it was “obviously disappointed by the result and remains committed to ensuring that vulnerable people across England and Wales have access to justice”.

It is considering the detail of the judgment and its implications, including whether to appeal.

The move raises questions over whether the ISW fee cap, which was set for implementation on 14 October but suspended for a month until 15 November after the Law Society launched the judicial review, will go ahead.

The campaign group opposing the introduction of the fee cap, comprising BASW, Nagalro and two private independent social work companies WillisPalmer and ISWA, welcomed the develiopment. Mark Willis, managing director of WillisPalmer said: “The LSC is saying it will announce more on 6 October and we are hoping for some clarity about what this means for ISW’s and the fee cap, as the whole issue was tied up with the civil contracts.

“We hope the LSC will reconsider this issue in light of the judgement made against them and we hope they will see sense and await the outcomes of the family justice review and Munro inquiry into child protection before making any further decisions,” added Mr Willis. “It is a great opportunity for ISW’s to be involved in the MoJ review of expert witnesses which ISW’s have thus far been excluded from.”

“I hope sense will prevail and this arbitrary and unfair fee cap will now be reconsidered,” Willis concluded.

Meanwhile, this week BASW has given evidence to the Justice Select Committee’s inquiry into family courts, describing how plans to cap fees for independent social workers acting as expert witnesses are ‘ill-conceived and discriminatory’.

In its written submission to the inquiry BASW argues: ‘Many BASW members view this as an affront on the social work profession, given that none of the other expert witnesses are being subjected to this treatment.’

It goes on to warn that such a move will make it untenable for independent social workers to act as expert witnesses, which will deprive vulnerable children of their expertise in complex cases and in turn lead to greater costs, given that social workers often help courts to reach more timely resolutions.