All solicitors registered to provide children’s legal assistance are subject to peer review by SLAB. Children’s legal assistance Peer reviews commenced in September 2017.
Children’s Quality Assurance Committee (CHQAC): The peer review process is administered by our Children’s Quality Assurance Committee (CHQAC) , under section 25c of the Legal Aid (Scotland) Act 1986.
The Committee comprises three members appointed by SLAB, three members appointed by the Law Society of Scotland, and three independent or lay members appointed by SLAB in consultation with the Society.
The Committee members’ role is to instruct and receive reports from peer reviewers in respect of other registered solicitors carrying out children’s legal assistance work, to approve the reports and marks given by Peer Reviewers and recommend any further reviews or actions to be taken as a result of reports received, if appropriate.
Peer reviewers: Peer reviewers are appointed by the CHQAC. They are currently practising and registered children’s solicitors who are experienced in this field.
Purpose of reviews: The purpose of the review is to examine the quality of the work carried out on behalf of the client, based on the evidence contained within the file.
Review criteria: Files are assessed against set peer review criteria for advice and assistance , assistance by way of representation(ABWOR), Automatic Legal Aid for duty scheme work, and legal aid for Sheriff Court proceedings and Appeals to the Sheriff Appeal Court and/or Court of Session.
The criteria cover issues including:
• initial client contact
• explaining legal options to the client
• earing preparation and attendance
• communication of the outcomes
• legal aid matters
The criteria were developed in consultation with the Law Society of Scotland and peer reviewers. They are set out at paragraph 3.6 below .
Deregistration Unlike the civil scheme, under which only firms can be deregistered, the children’s scheme allows for both. SLAB can take action against both the individual solicitor and the firm.
The firm would be deregistered where all solicitors within that firm have failed the children’s peer review process.
However, the whole process is designed to provide assistance so that the end result, where possible, is not deregistration but to assist solicitors and firms in improving their standards.
A compliance partner may not always be directly affected, however he/she would still be collectively affected if action was taken against the firm.
Back to top
Frequency of reviews: The CHQAC decides which solicitors are to be reviewed at regular intervals. All registered solicitors who carry out children’s legal assistance work will be reviewed every six years.
Cost of review: SLAB meets the cost of carrying out routine reviews.
The Review Process
The Children’s Quality Assurance Team (CQAT) will contact a firm’s Compliance Partner, providing a list of files selected for review and the names of the allocated reviewer(s). The firm will then send these to the reviewer within a given timescale.
Reviewer allocation: Our Children’s Quality Assurance Team (CQAT) will allocate reviewers from the panel to carry out the review. Reviewers will not be asked to review solicitors in their own area where possible.
Reviewers must also disclose any reason (such as conflict of interest or involvement in a case) why they should not carry out a review of any particular children’s solicitor or file held by a firm.
Suitability of reviewer: If you have any concerns about the suitability of the reviewer selected, you can make representations by email to Tracy Brown Children’s Quality Assurance Co-ordinator at firstname.lastname@example.org within one week of the date when the files are due to be delivered to the reviewer. If this is accepted, the files will be allocated to another reviewer.
Location of review: Routine reviews will normally be undertaken outwith firms’ premises. A firm may ask for the review to be carried out “on-site”. The firm will have to pay the additional costs of this. Firms should contact Tracy Brown Children’s Quality Assurance Co-Ordinator by email at email@example.com if they require an on site visit.
Legal aid types reviewed: Files selected for review will, where possible, consist of all types of children’s legal assistance, namely: advice and assistance , assistance by way of representation(ABWOR), automatic legal aid for duty scheme work, and legal aid for sheriff court proceedings and appeals to the Sheriff Appeal Court and/or Court of Session.
Selection of files for reviews: The CHQAC randomly selects files for each solicitor within that firm providing children’s legal aid. Up to 10 files can be selected.
Files will be identified and selected by firm first, then by practitioner and then by children’s legal assistance type.
In general only “dead” files, that is files for which accounts have already been submitted or paid, will be reviewed at this stage.
If any file selected for review is not available (for example, because it is needed for a court appearance or where the file may be needed for a taxation) and we accept that a valid reason is given for the non-availability we may select a substitute file or files in its place.
We will provide appropriate packaging to send the chosen files and we will arrange to uplift them via courier; returning them via courier as soon as is practicable once the review has been completed.
How files are reviewed: The peer reviewers will review files in accordance with the peer review criteria and marking scheme approved by the CHQAC and set out below at paragraph 3.6 . Where more than one reviewer is involved, each will work independently of the other.
A proportion of files (25%) will be “double marked” that is marked by two reviewers independently: this is designed as a check on consistency and accuracy of marking between individual peer reviewers.
The standard to be applied in carrying out the reviews is that of the reasonable competence to be expected of a solicitor of ordinary skills, sometime known as the Hunter v Hanley test, or the IPS (inadequate professional services) standard.
Outcome of the review: After review, we will return the files to the firm as soon as practicable and put the results of the reviews before the CHQAC for discussion and approval.
Where the CHQAC decides a firm has passed the routine review, we will tell the Compliance Partner in writing and note the decision in the firm’s compliance records.
We will draw any issues arising from the review to your attention in writing, through the Compliance Partner, and give the firm the opportunity to respond and to identify what steps are needed to address matters.
We will bring these concerns to the attention of the reviewer(s) at the next routine review to ensure the firm has taken those steps.
Back to top
If a firm fails a routine review, it will become the subject of an extended review. We will inform the Compliance Partner of this in writing.
Deferring extended review
In some cases, we will defer the extended review to allow a firm to address concerns raised by the Committee.
The Committee will generally allow six months for such issues to be resolved, after which arrangements will be made for the extended review to be carried out as soon as practicable.
In other cases, we will carry out the extended review without deferral, but in either case your firm will have the opportunity to comment.
Reviewer allocation: A firm will be told the names of at least two reviewers who will be allocated to carry out an extended review. They will not have been involved in the initial routine review.
Suitability of reviewer: As with routine reviews , any concerns about the suitability of the reviewer selected can be raised with SLAB.
Location of review: Extended reviews will be carried out at the firm’s premises. The reviewers at an extended review may look at both dead and new files. They will apply the same criteria and marking scheme as with routine reviews.
Cost of review: Extended reviews will be carried out at SLAB’s expense.
Outcome of the review: If the CHQAC agrees your firm has passed the extended review, we will inform the Compliance Partner in writing and note this on the firm’s compliance record.
You will not normally be the subject of further review until the next peer review cycle. As with routine reviews, we may take up any issues arising from the extended review with the firm and follow them up at the next routine review.
Where we are considering failing a firm after extended review, we will inform the Compliance Partner in writing and give the firm the opportunity to make written representations to the CHQAC for further consideration.
If the CHQAC decides your firm has failed an extended review, we will note this on the firm’s compliance record and you will then undergo a final review.
Back to top
A final review must be carried out not less than six and not more than twelve months from the date your firm was notified by us that a final review is to take place.
In the period before the final review, we will make support and guidance available to the firm to help them address the issues and problems arising from the routine and extended reviews.
Location of review: The final review will be carried out at the premises of the firm and at its expense.
Cost of review: Final reviews will be carried out at the firm’s expense.
Reviewer allocation: Two or more reviewers will carry out the review on any children’s legal assistance file(s) opened since the extended review. Reviewers will not have been involved in the routine or extended review.
How files are reviewed: Reviewers will look for signs of progress and steps taken to remedy deficiencies previously identified.
Outcome of the review: Once completed, the reviewers will report to the CHQAC. The CHQAC will decide whether the firm has passed or failed.
If the firm has failed, then the CHQAC will make a recommendation to SLAB for possible de-registration. Any consideration of de-registration will be taken by SLAB under its existing powers in the Legal Aid (Scotland) Act 1986.
This could involve the possible de-registration of the firm or an individual solicitor as appropriate.
If, after either an extended or final review, the failure leads to deregistration, the firm or individual solicitor is entitled under section 31 of the Legal Aid (Scotland) Act 1986 to appeal to the Court of Session within 21 days of the intimation of the decision to deregister.
Back to top
In exceptional circumstances, the CHQAC may instruct a special review be carried out at any time. For example, this may come from a complaint being investigated by the Law Society, or may follow on from issues identified by SLAB at an onsite compliance audit.
A special review will be undertaken at SLAB’s expense at the firm’s premises and will follow the procedure of an extended or final review.
If the firm passes a special review it will not be subject to another routine review until the next cycle but may, in exceptional circumstances, be the subject of another special review at any time.
If a special review is to be held, the reviewers allocated for this review will not have taken part in any previous review carried out on the firm in the current cycle.
If a firm fails a special review it will be subject to either an extended review or a final review depending on the stage reached in the process and may, pending final review, be subject to further special review.
Back to top
Each file will be marked against 19 criteria. Not all criteria will apply to every case.
Section A: The legal aid application
1. Did the solicitor apply for or grant the appropriate form of legal assistance and give accurate and appropriate advice to the client regarding the client’s eligibility?
2. Did the solicitor obtain verification of the applicant’s financial eligibility, where appropriate?
3. Did the solicitor obtain and retain a complete, signed Legal Aid Online Declaration for the advice and assistance, ABWOR or legal aid application?
4. Where appropriate, has the solicitor applied for sanction and/or increase(s) in authorised expenditure in accordance with the guidelines, and if granted, instructed and obtained the appropriate experts or counsel or work?
Section B: The advice given to the client
5. If the client is a child under 12 years old, is there evidence on the file that the solicitor satisfied themselves that the child was capable of giving instructions?
6. If the client is a child, were communications with the child at an appropriate level and in a form they would understand? This will include files, notes of meetings, letters etc.
7. At the initial meeting and throughout the case, did the solicitor give accurate and appropriate legal advice to the client?
8. Is there evidence of a note of action to be taken, agreed with the client?
9. If appropriate given the timescales of work, did the solicitor issue a “Terms of Engagement” letter appropriate to the level of understanding of the client?
10. How effective were the solicitor’s fact and information gathering skills, including the identification of any investigation or any additional information required and the taking of steps necessary to obtain it? This could include obtaining relevant hearing/court documents.
11. Did the solicitor take appropriate steps to inform the client as to the date, time and place of children’s hearings or court hearings or court hearings and provide advice and take instructions in good time, where possible?
12. Did the solicitor keep the client informed on progress?
Section C: The children’s hearing or court proceedings
13. Is there evidence of adequate preparation for each children’s hearing/court appearance, to include (as appropriate) evidence that hearing papers have been considered, preparation of the list of witnesses, productions and list of authorities as appropriate to the facts of the case?
14. Where timescales allowed and were appropriate, did the solicitor attempt to make contact with SCRA to discuss case prior to each children’s hearing/court appearance?
15. Where possible, did the solicitor attempt to take steps to take instructions from the client in a reasonable timescale prior to each children’s hearing/court appearance?
16. Is there evidence that the solicitor took appropriate steps to assist the client to effectively participate at the children’s hearing?
17. Did the solicitor take steps identified/agreed with the client, advise on the outcome and, if appropriate, an appeal?
Section D: Consideration of account
18. Has the account been submitted to the Scottish Legal Aid Board in accordance with guidelines and, if asked for further information, has this been provided?
Section E: Equality and diversity
19. Has the solicitor taken all reasonable steps to address any issues relating to age, disability, gender, race, religion or belief and sexual orientation which arose in the course of the case?
The reviewer will score each file either:
1 = below requirements
2 = meets requirements
3 = exceeds requirements
In addition to the three point scale, two other marks are available for particular criteria:
C Cannot assess/not enough information
N/A Not applicable
The Reviewer will then award an overall competency mark of the review of between 1 & 5:
1 = non-performance
2 = inadequate professional service
3 = competent
4 = competent plus
5 = excellent
A score of 3 or more is a pass.
The CHQAC members will consider the peer review reports and recommended marks and then either approve the mark or, where appropriate, change the mark.
Where a mark is changed, an explanation of why this was done will be provided in the review outcome letter to the Compliance Partner.
Back to top
Files will be identified using the nominated solicitor subject to the peer review in question.
We recognise that more than one solicitor can have input to a particular case and that agency solicitors can also be used. However the nominated solicitor has the overall responsibility for the management of the case including whether work on the case should be delegated to other solicitors. Where work has been delegated to another solicitor then the peer reviewer will assess this work as if it had been conducted by the nominated solicitor who has the ultimate responsibility for the case in question.
Back to top
SLAB as a public body has a statutory responsibility to ensure that it does not discriminate unlawfully in the delivery of its functions and to promote positive equality and to tackle discrimination of any form.
By monitoring whether solicitors are asking clients the questions on the equalities card, the quality assurance scheme should contribute to efforts to ensure that clients are supported by children’s legal assistance not being disadvantaged in any way.