ISW fee cap set to come into force in May

Independent social workers acting as expert witnesses in family court proceedings are to have their fees capped at Cafcass rates from May following months of wranglings over the proposals.

BASW/CoSW has learned that a Legal Services Commission draft document ‘The Community Legal Service (Funding) (Amendment) Order 2011’ was published in February and comes into force on 2 May.

It states: ‘Where independent social work services are provided within England and Wales, the costs and expenses of such services are payable as a disbursement at rates not exceeding the rates routinely paid for such services by the Children and Family Court Advisory and Support Service or the Children and Family Court Advisory Service Wales.’

BASW/CoSW, which has campaigned against the planned fee cap in a group with Nagalro and two independent social work agencies WillisPalmer and ISWA, attacked the move as discriminatory.

BASW/CoSW England professional officer Nushra Mansuri said: “We are completely taken aback by the Ministry of Justice’s (MoJ’s) lack of willingness to review the decision taken in the original consultation in 2009 given that it was so obviously flawed, lacked any fiscal data and also singled out one professional group in a highly discriminatory manner, exposing a complete lack of knowledge on the part of the Ministry in terms of the role and function of ISWs in family court proceedings.”

The proposals – which will cap fees at £30 an hour outside London and £30 an hour in the capital – were first announced in a Legal Services Commission consultation on family legal aid in 2009 which focused mainly on the fees charged by solicitors. However, ISWs were given fresh hope in September when the Law Society won a judicial review on the tender round for the new family legal aid contracts, as the plans for both had been laid out in the same consultation and the judicial review led to the MoJ putting the reforms on hold.

However they faced further insult in November when the MoJ published reforms to legal aid which totally omitted ISWs from a list of expert witnesses.

Mark Willis, managing director of WillisPalmer said: “The news that ISWs should not be seen as experts will come as a surprise to the many solicitors, local authority social workers and managers who commission expert services from ISWs and also to the Judges who often rely on the evidence provided by them.

“Moreover, ISWs are expected to adhere to the Presidents Practice Direction on the role of the expert as set out in the letter of instruction. However, the LSC saw fit to include among others, psychiatrists, GP’s, occupational therapists, nurses, vets, photographers and translators in the review, but not independent social workers.

“As well as being an utterly illogical decision it is a slight upon the social work profession as a whole and demeaning of those experienced practitioners that work within the family courts,” added Mr Willis.

BASW/CoSW has been campaigning for the issue of expert witness ISWs to be reviewed as part of a Family Justice Review process, launched in June by the MoJ, Department for Education and the Welsh Assembly Government. The review is set to report in April but despite this work and ongoing calls for the fee cap to be abolished, the MoJ looks set to introduce the measures in May.