MEMORANDUM OF UNDERSTANDING BETWEEN THE SCOTTISH LEGAL AID

memorandum of understanding =========================== between the scottish legal aid board and the law society of scotland c

MEMORANDUM OF UNDERSTANDING
===========================
BETWEEN THE SCOTTISH LEGAL AID BOARD
AND
THE LAW SOCIETY OF SCOTLAND
CIVIL LEGAL ASSISTANCE
A. DEFINITIONS
In this document:
“Administrator” means the Quality Assurance Administrator appointed in
terms of paragraph F1 hereof;
“Associated solicitor” has the same meaning as in Rule 2 of the
Practice Rules;
“Board” means the Scottish Legal Aid Board;
“Civil legal assistance” means (a) advice and assistance which is
either or both of (i) advice and assistance on a civil matter and (ii)
assistance by way of representation on a civil matter, within the
meaning of section 6 of the Legal Aid (Scotland) Act 1986, and to
which Part II of the Legal Aid (Scotland) Act 1986 applies; and (b)
civil legal aid in terms of Part III of the Legal Aid (Scotland) Act
1986;
“Council” means the Council of the Law Society of Scotland;
“Practice Rules” means the Law Society of Scotland Practice Rules 2011
and any amendment thereof;
“Regulatory Committee” means the Regulatory Committee of the Council
of the Law Society of Scotland as described in Section 3B of the
Solicitors (Scotland) Act 1980
“Reviewer” means a peer reviewer appointed by the Council in terms of
Rule 15(1) of the Practice Rules;
Reviews:
“Routine Review” means a peer review of a practice unit instructed by
the Council in terms of Rule C3.13.1 of the Practice Rules, in order
to enable the Council to ascertain whether a practice unit which
holds, or has applied for, a compliance certificate complies, or will
comply, with the guidelines published pursuant to Rule C3.3.1 of the
Practice Rules;
“Extended Review” means a peer review of a practice unit instructed by
the Council in terms of Rule C3.13.2 of the Practice Rules, where
following a Routine Review it appears to the Council that a review at
the premises of the practice unit is necessary or desirable to
determine whether that practice unit complies or will comply with the
guidelines published pursuant to Rule C3.3.1 of the Practice Rules.
“Special Review” means a peer review of a practice unit instructed by
the Council in terms of Rule C3.13.2 of the Practice Rules, where on
the basis of information received by it, it appears to the Council
that a review at the premises of the practice unit is necessary or
desirable to determine whether that practice unit complies or will
comply with the guidelines published pursuant to Rule C3.3.1 of the
Practice Rules.
“Final Review” means a peer review of a practice unit instructed by
the Council in terms of Rules C3.5.2 and C3.13.1 of the Practice
Rules.
B. THE QUALITY ASSURANCE COMMITTEE
Constitution of the Committee, Meetings and Quorum
==================================================
B1 The Quality Assurance Committee (“the Committee”), which is a sub
Committee of the Regulatory Committee, shall comprise ten members of
whom five will be solicitors. The Regulatory Committee shall recommend
the members of the Committee to the Council for approval. In
recommending and appointing members of the Committee, the Quality
Assurance Committee and the Regulatory Committee will keep in mind
their duty to act independently of the Council and any other body
including the Board.
The membership shall comprise:
*
The Convener of the Committee, who shall be a solicitor in
practice with current or recent experience of undertaking civil
legal assistance work for clients, recommended to the Regulatory
Committee by the Nominations Committee. In deciding whether to
recommend a person to the Council as Convener of the Committee,
the Nominations Committee will allow the Board the opportunity to
comment on the applications, and will take into account the views
of the Board when reaching a decision. The Nominations Committee
will have regard to the desirability of maintaining an overall
balance on the committee of solicitors who are in private practice
and those practising in entities such as law centres, advice
agencies etc which may be funded by or through the Board.
*
The Committee may appoint a Vice-Convener
*
Four solicitors in practice with current or recent experience of
undertaking civil legal assistance work for clients, recommended
to the Regulatory Committee by the Committee. In relation to the
appointment of two of the solicitors, the Committee shall consult
with the Board and take into account the views of the Board. In
particular, the Committee will take into account the benefit in
carrying out its functions of including in its membership
solicitors who have experience of working within the Board, or
closely with it, in the area of civil legal assistance. In
appointing or recommending other solicitors for appointment to the
committee, the committee, will have regard to the desirability of
maintaining an overall balance on the committee of solicitors who
are in private practice and those practising in entities such as
law centres, advice agencies etc which may be funded by or through
the Board.
*
Five non solicitors, four of whom shall be chosen in the same
manner as the Council chooses non solicitors to sit on its
other regulatory sub committees but with the Board and the
Scottish Government represented on the selection panel if they
wish to be so represented. In relation to the appointment of
the fifth non solicitor the Committee shall consult with the
Board and take into account the views of the Board. In
particular, the Committee will take into account the benefit
in carrying out its functions of including in its membership
solicitors who have experience of working within the Board, or
closely with it, in the area of civil legal assistance.
All members of the Committee will act independently, and acknowledge
that in discharging their regulatory functions on behalf of the
Regulatory Committee they do not represent the Council, the Scottish
Government or the Board
B2 The Secretariat of the Committee will be provided by the Quality
Assurance Administrator who will attend its meetings in a non-voting
capacity.
B3 The Committee will operate under delegated powers from the Council
and Regulatory Committee. The Society’s Standing Orders will apply to
the Committee and the Convener will have both a deliberative and a
casting vote. The Board will be entitled to receive copies of the
Minutes of meetings of the Committee, and all review reports,
correspondence and other documents available to or considered by the
Committee in its deliberations in relation to practice units will be
available to the Board contemporaneously.
B4 The Committee will meet as many times as is necessary to deal with
the business arising. The Convener will have the discretion to call
special meetings of the Committee. Participation in meetings by
telephone, video or other digital or electronic means of conferencing
will be allowed as required.
B5 The Committee shall be quorate if three members are present
provided that one is a solicitor in practice, one is a solicitor with
a close association with the Scottish Legal Aid Board, and one is a
non-solicitor member.
Remit of the Committee
----------------------
B6 The Committee’s remit is to discharge the functions of the Council
in relation to the Practice Rules, so as to assure the quality of
civil legal assistance services provided by practice units which are
registered to provide such services, and to foster and encourage good
practice in the provision of such services. The Committee will for
these purposes:-
*
Instruct, receive and consider all peer reviews of practice units.
*
Decide whether a practice unit should hold or continue to hold a
compliance certificate and issue compliance certificates.
*
Determine the file sampling methodology for Civil Legal Assistance
peer reviews
*
Promote good practice in the provision of quality assured Civil
Legal Assistance.
*
Promote consistency in the quality assurance process.
*
Appoint, re-appoint, dismiss or terminate contracts, train and
monitor Peer Reviewers.
*
Receive and consider applications for compliance certificates.
*
Collect statistics and analyse trends in the quality assurance
process, and make recommendations to the Society, the Board and
the Scottish Government where the committee considers change
necessary. The implementation of such changes requires agreement
between the Society, the Board and the Scottish Government.
*
Consider in appropriate circumstances whether to refer a practice
unit or practitioner to the Board or to the Complaints
Sub-Committee of the Society
*
Consider requests by practice units for routine reviews to be
carried out at their premises.
Section 31 of the Legal Aid (Scotland) Act 1986
B7 Where circumstances are identified, either by a Reviewer or by the
Committee, which fall within the scope of section 31 of the Legal Aid
(Scotland) Act 1986, the Reviewer shall report this to the Committee
and the Committee should report the matter to the Board for its
consideration, in accordance with any guidance provided by the Board
or otherwise as the Committee considers appropriate.
B8 Where a report is made to the Board under paragraph B7 the
Administrator shall inform the Director of Regulation of the Society
promptly.
B9 The Committee will be advised by the Board of its decision and the
outcome of any such report and the Administrator will inform the
Director of Regulation of the Society without delay.
B10 Where in the course of a review of a practice unit, a Reviewer
identifies concerns about the conduct of a solicitor he/she shall
report that matter to the Committee who may refer the matter in the
first instance as a conduct complaint to the Scottish Legal Complaints
Commission. At the time such a referral is made, the Administrator
will also inform the Board of the referral, and will provide details
of the nature of the complaint.
B11 Where in the course of a review of a practice unit, a Reviewer
identifies any matter which he/she considers should be reported to a
Money Laundering Officer, he/she shall report this promptly to the
Administrator who will be responsible for dealing with such matter in
accordance with the Society’s Money Laundering Prevention Procedures.
C. REGISTER
C1 A Register of practice units registered to practice civil legal
assistance shall be maintained by the Board (“the Register”).
C2 The Register shall be published and publicly available.
C3 A practice unit shall be removed from the Register on the Board’s
being advised by the Committee that its compliance certificate has
been renounced or terminated.
C4 The Administrator shall maintain a record of the associated
practising solicitors of each practice unit, as intimated by the
Compliance Managers of the practice units.
D. REVIEWERS
D1 The Council shall, for the purposes of peer review, appoint such
number of Reviewers as may be agreed from time to time between the
Council, the Scottish Legal Aid Board and the Scottish Government
D2 The recruitment and re-appointment process will follow the
procedure to be agreed by the Committee. Recruitment and
re-appointment panels will include a member of each of the three
representative constituencies of the Committee.
D3 Each Reviewer shall be a solicitor and shall undertake the initial
and ongoing training prescribed by the Committee.
D4 The terms and conditions of appointment of Reviewers will be as
agreed from time to time between the Council, the Board and the
Scottish Government.
D5 The Council will publish a list of Reviewers and keep this updated.
E. REVIEWS
E1 A Routine Review will normally be conducted outwith the practice
unit’s premises. The practice unit may request that the Routine Review
is conducted at its premises, in which case any additional costs in
conducting the review at the premises shall be borne by the practice
unit. The Committee may request a practice unit to agree that a
Routine Review will be conducted at its premises, in which case any
additional costs shall be borne by the Board.
E2 Where the Committee instructs an Extended Review of a practice unit
the cost will be borne by the Board and the consent of the practice
unit to conduct an Extended Review at its premises is not required.
E3 Where the Committee instructs a Final Review of a practice unit,
the practice unit shall be invoiced for and required to pay the cost
of the final review. The cost to be charged will be determined by the
Committee, but shall not exceed the actual cost to the Society, before
reimbursement from the Board, in carrying out the Final Review.
E4 Where the Committee instructs a Special Review the cost shall be
borne by the Board and consent of the practice unit to conduct a
Special Review is not required.
E5 Where a practice unit has been subject to a Special Review, and the
outcome of that review is satisfactory to the Committee, its
compliance record will be updated to show that it will not be subject
to a
Routine Review until the expiry of the cycle in which the Special
Review occurred. However, a further Special Review may, at the
discretion of the Committee, be undertaken during this period.
F. ADMINISTRATION OF PEER REVIEWS
Administrator
F1 The Council shall, for the purposes of administering the quality
assurance process, employ a Quality Assurance Administrator on terms
and conditions set by the Council
Selection of Files for Review
F2 Civil legal assistance files for review will be selected randomly
by the Board so as to provide a representative cross-section of the
legal aid and legal advice and assistance files held by the practice
unit and its associated solicitors. Files will be selected for each
associated solicitor, separately from both designated and
non-designated categories.
In this paragraph:
“Designated categories” are those where the subject matter of the
civil legal assistance falls within such of the Board’s category codes
as may be designated by the Committee from time to time.
“Non-designated categories” are all category codes not so designated.
The “current level of civil legal aid business” is the number of
registrations of civil legal aid matters made by the associated
solicitor in the year prior to the date of the review in question.
The “designated percentage” is the percentage of designated category
files to be selected for review, as decided by the Committee from time
to time.
The “non-designated percentage” is the percentage of non-designated
category files to be selected for review, as decided by the Committee
from time to time.
The number of designated category files to be reviewed for each
associated solicitor will be the current level of business multiplied
by the designated percentage. These files will be selected from all
the designated category files held by the associated solicitor at the
date of the review.
The number of non-designated files will be selected in a similar
manner, applying the non-designated percentage to all non-designated
category files.
In the event that there are fewer than five civil legal assistance
files available for the practice unit, then all the available files
will be reviewed. The files chosen may include open as well as closed
files.
F3 Where the Board or the Council has specific concerns over a case it
will ask the Committee to include the relevant file(s) in the sample
for review. Where that is so, any such file requested shall be in
addition to the files selected under paragraph F2.
F4 Where possible both legal aid and advice and assistance files will
be reviewed. Where a file is selected for review, the practice unit
will submit all files held by the practice unit which are connected to
or associated with the Board’s reference number selected. For example,
where a civil legal aid reference number is selected the associated
advice and assistance file will be included and vice versa.
F5 Where a practice unit is unable for good reason to supply one or
more of the requested files it shall inform the Administrator of the
reason as soon as practicable and if the Committee is satisfied there
is good reason for the failure to supply the requested file(s) the
Administrator shall ask the Board to identify alternative file(s) to
be reviewed. The files not produced may be reviewed at a later date if
so determined by the Committee.
F6 The final decision as to when each registered practice unit is to
be reviewed shall lie with the Committee. Subject to paragraph F2, the
final decision as to which of the practice unit’s files are to be
reviewed shall lie with the Board. Details about files to be reviewed
shall be transmitted by the Board to the Administrator in a
sufficiently detailed manner to allow the easy identification of the
files, and any associated files, in question.
Allocation of Reviewers
F7 The Administrator will make arrangements for an appropriate
Reviewer(s) to carry out a review. When allocating a Reviewer, the
Administrator shall take into account all relevant matters including
the area(s) of civil legal assistance undertaken by the practice unit,
the Reviewer’s specialism(s), any geographical considerations, any
potential conflicts, and whether the Reviewer has previously reviewed
the practice unit within the same cycle of reviews. Reviewers will be
placed under an obligation to disclose any reason why it may be
inappropriate that they review a particular practice unit or file. Any
practice unit may make representations to the Administrator regarding
the suitability of any Reviewer to carry out a review of the practice
unit. Where a practice unit objects to a particular Reviewer any
representations must be sent in writing to the Administrator as soon
as possible and in any event at least 1 week prior to the date of the
review and must include the reason(s) for the objection. The
Administrator, where necessary seeking the advice of the Committee as
required, may decide whether the review should be carried out by
another Reviewer.
F8 The Administrator will make suitable arrangements for the
requisition, collection, review and return of files to practice units.
Where the practice unit does not deliver the requisitioned files by
the specified date, the Administrator shall report this to the
Committee who, at its discretion, may (a) report the matter to the
Professional Conduct Committee of the Society and/or (b) treat the
practice unit as having an unsatisfactory outcome of that review.
Conduct of Reviews
F9 In undertaking a review, the Reviewer shall assess the quality of
the work carried out on behalf of the client and the Board in line
with guidelines published by the Council pursuant to Rule 4 of the
Practice Rules. The Reviewer shall apply the criteria and marking
system as agreed by the Board and the Council.
F10 The Reviewer shall supply the Administrator with the completed
reports of the review in electronic or other form, using the standard
forms agreed by the Committee, and providing such additional
information as he/she considers appropriate or is asked for.
F11 The outcome of an earlier review or reviews of a practice unit
(whether or not in the same cycle of reviews) shall be brought to the
attention of the Reviewer at the next review of that practice unit and
the Reviewer will be asked to comment on any changes in performance of
the practice unit since an earlier review in his/her report.
F12 The Committee may ask a Reviewer to attend a meeting of the
Committee to discuss his/her reports on a review of a practice unit.
F13 Where, on considering the report(s) received from a Reviewer(s) on
a review of a practice unit, the Committee decides not to ratify a
recommendation made by a Reviewer, it shall record its reason for that
decision.
G. FUNDING
Reviewers
G1. Each Reviewer shall be remunerated by the Society at a rate agreed
from time to time between the Council and the Board.
G2. The cost of the Reviewers’ remuneration (including, where
applicable and appropriate, any employers’ national insurance
contributions or other reasonable associated costs of employment) will
be met by the Board. In the case of a full-time Reviewer, the cost of
renewing his/her practising certificate will be met by the Board. The
Board will not be responsible for administration or establishment
overheads relating to a full-time Reviewer.
G3. The rates of remuneration payable to Reviewers shall be reviewed
regularly by the Committee. The rates shall be reviewed not less than
once per annum, but it is open to the Committee to decide that no
increase is required. Where the Committee determines that an increase
is appropriate, the Committee’s recommendations shall be made to the
Scottish Government and the Board who shall determine the matter.
G4. The total cost of the Reviewers’ prescribed training for the
purposes of peer review will be met by the Board.
G5. Subject to paragraphs E1 and E3, travel and subsistence expenses
reasonably incurred by Reviewers in the course of undertaking reviews
and/or training will be met by the Board at the travel and subsistence
rates laid down by the Scottish Government.
Administrator
G6. The Administrator shall be employed and remunerated by the
Society. The Administrator’s contract terms and conditions will be
those of the Society.
G7. Administrative and support costs will be paid by the Board as
agreed between the Society and the Board from time to time.
Payments and reimbursement
G8. Payment of the above and, unless otherwise agreed, any additional
agreed costs, shall be met, in the first instance by the Society who
in turn, except where the costs should be recovered from the practice
unit, shall be reimbursed by the Board following receipt of an invoice
from the Society (which shall normally be rendered on a monthly
basis).
G9. The Society shall retain for at least seven years the detailed
records supporting the payments it makes and the reimbursements sought
from the Board. The Board will, for audit purposes, have the right to
inspect these records which right will extend to Audit Scotland or
their appointed auditor.
G10. Reimbursement to the Society of other costs associated with
running the civil quality assurance scheme will only be made following
agreement between the Board, the Council and the Scottish Government.
G11. Any proposed change to the scheme which may have a significant
effect on the budget or any significant proposed expenditure must be
referred to the Council, the Board and the Scottish Government for
consideration.
H. GENERAL
H1. Any exceptions to this Memorandum shall be determined in
consultation between the Council, the Board and the Scottish
Government.
I. APPENDICES
APPENDIX A
Administrative Requirements For Civil Registration
==================================================
APPENDIX B
Double Marking, Duration of Cycle, Designated Categories and
Percentages
APPENDIX C
Quality Assurance Scheme Peer Review Flowchart
……………………………………………………………….
Signed for and on behalf of the Law Society of Scotland
……………………….
Date
……………………………………………………………….
Signed for and on behalf of the Scottish Legal Aid Board
…………………………
Date
APPENDIX A
Administrative Requirements For Civil Registration
==================================================
Procedure for opening, and closing of a file for civil legal
assistance, and monitoring its status
Procedure for recording work carried out for the client, and all
material advice tendered to the client as the case proceeds.
Procedure for ensuring that all solicitors providing Civil legal
assistance remain acquainted with the Regulations
Procedure to ensure that all documents and other paperwork
submitted to SLAB are in order
Procedure for the control of incoming and outgoing mail
Procedure for the periodic review of a sample of cases being
conducted under auspices of the civil legal assistance scheme
Procedure for the review of the conduct of a sample of cases
conducted under the civil legal assistance scheme at the
conclusion of the case.
Procedure for dealing with complaints either from the client,
the Law Society or from SLAB arising from any civil legal
assistance case.
Procedure for submitting accounts to SLAB and dealing with
subsequent correspondence and queries, and recording the receipt
of payment.
Procedure for ensuring that all members of the practice unit’s
admin and support staff are aware of the practice unit’s
procedures and are observing them.
APPENDIX B
Double Marking, Duration of Cycle, Designated Categories and
Percentages
Effective for the third cycle of reviews commencing in 2011
Subject to review for subsequent cycles
1 Double Marking
In the second cycle 25% of all files were double marked. In the third
cycle 25% of all files will be doubled marked for the first half of
the cycle (in terms of number of practice units reviewed). In the
second half of the cycle double marking will be reduced to 12% of
files marked.
2 Duration of Cycle
The third cycle of reviews will commence on the date of the first
review of a practice unit in the cycle, and will last for six years.
3 Designated Categories
The designated categories of work will be:
Civil Advice & assistance / ABWOR
ASY - Asylum
IMN - Immigration
MENO - Mental Health
AISA - Adults with Incapacity
EMP - Employment
ET - Employment Tribunal
Civil legal aid
ASY - Asylum
IMN - Immigration
JR - Judicial Review
AISA - Adults with Incapacity
4 Percentages
10% of designated category files will be reviewed
3% of non-designated category files will be reviewed
12