Fixed Fees Survey results
Some of the EJP students who assisted with conducting the survey. Pictured from left to right are Michelle Kim, Jarinda Engelbrecht, Gayathiri Ganeshan, Christine Lee and Joanne Lee. (Not pictured: Rosemary Judd, Ian Ko, Sally Wu and Helen Thompson.)
“The introduction of the new fees framework is intended to provide greater certainty for legally aided clients, legal aid providers, and for the government around payments for legal services. It is also intended to be more administratively efficient, and to provide a more sustainable base for legal aid.”
These were the words of the then Acting Deputy Secretary, Legal Services, Stuart White on 10 February 2012 referring to the newly announced consultative fixed fees policy and framework for family legal aid. Some 13 months out, do family legal aid practitioners consider that these intentions have been achieved?
It will be remembered that consultation over family fixed fees closed on 9 March 2012. Practitioners were given a very short timeframe to consider the ramifications of this radical overhaul of legal services and the impact of it on both them and their legally-aided clients. The new system was implemented on 23 July 2012.
What is probably less known is that the fixed fees policy development took place in an information vacuum, without reference to the types of litigant bringing proceedings in the New Zealand Family Court. The numbers of new substantive applications filed each year by applicants who were self-represented, and those who were legally-aided, was not information the Ministry of Justice could put their hands on at the time.1
ADLS Family Law Committee’s “Fixed Fees Survey” initiative
Aware of increasing concerns about the operation of fixed fees in the family law context, the ADLS Family Law Committee in September this year conducted a survey of members of ADLS who identified themselves as family practitioners.
Survey data reveals, from the inside, the family law practitioner’s view of the impact of fixed fees on family legal aid providers, family legal aid practices, and their legally-aided clients – both after the first year of operation, and prior to the changes arising from the Legal Services Amendment Act 2013.
These changes had the effect of further tightening eligibility, and implemented a user charge, requiring legal aid applicants to pay $50 to providers directly. So far as ADLS is aware, no other like survey has issued to date.
107 practitioners responded to the survey. Overall, the number of practitioners who responded is roughly equivalent to 10% of the total number of listed providers of family legal services (1,000 nationally, according to information from the General Manager of Provider Services).
Of the respondents to the survey:
- 78 were designated providers under the family fixed fee schedules.
- 65 were providing the legal services for which they were designated as a provider.
- 99 of respondents were providers of family legal aid services before the introduction of fixed fees.
Proportion of practice legally aided and types of fixed fee work
74 respondents answered the question “What percentage of your family legal practice is legally aided?”. 25 answered “less than 20%”, 24 answered “between 20 and 50%”, 13 answered “between 50 and 80%”, and 12 answered “between 80 and 100%”.
70 respondents identified the specific fixed fee schedules they were providing legal services in relation to: 64 in Care of Children Act 2004 cases, 54 in Domestic Violence Act 1995 cases, 46 in care and protection cases, 41 in paternity and 41 in relationship property, 16 in adoption, 9 in maintenance, 12 in protection of personal and property rights.
Only 42 of 73 respondents to the question “Have you provided legal services in ‘Fixed Fee Plus’ Cases?” answered yes. The main identified case-types for fixed fee plus grants were care of children/guardianship (39), care and protection (18), domestic violence (21), and relationship property (17).
30 respondents answered the question “Are you providing the same family legal aid service/s under fixed fees as you provided under the former scheme?” in the affirmative, and 50 in the negative.
Are practitioners doing less legal aid work under fixed fee arrangements?
A series of open-ended questions were designed to find out whether practitioners were doing less legal aid work under fixed fees and if the scope of their service delivery had changed in any way, and why.
Auckland University law students involved in the Faculty of Law’s Equal Justice Project (EJP), analysed the open-ended questions and reported to the Committee on the results.
The EJP is a youth-run pro bono initiative which strives to promote human rights and support practitioners, interest organisations, and community groups who share its goals of promoting equality, inclusivity, and respect for human dignity. The students relished the opportunity provided by this project to get a glimpse of current issues facing family practitioners working at the coalface.
The students divided practitioners into two categories, “long-term providers of family legal aid” and “short to mid-term providers of family legal aid”. 38 practitioners had been providing family legal aid services for over 10 years. These were designated “long-term providers”. 71% of long-term providers were considering stopping legal aid work.
Figure A shows the specific contributory factors to a decision to stop legal aid work.
Figure B shows the same information for the short to mid-term providers (0-10 years in practice; 8 practitioners).
Impact on service delivery
The overall response rate to the question “If the scope of your service delivery has changed, please tell us why?” was 50.5%. 44% said they were no longer undertaking as much family legal aid work under fixed fees as they had prior to the introduction of the scheme. 9% said they had stopped doing family legal aid work altogether or that they will stop the work in the near future. 9% said that communication to and with clients was reduced due to financial considerations. 3.7% said a lot more work was being done by secretarial or support staff under fixed fees to save costs on practitioner time. 15% said the scope of their service delivery had not changed since the inception of fixed fees.
Many practitioners provided detailed qualitative responses raising considerable concerns about access to justice for their legally-aided family clients since the introduction to fixed fees.
ADLS wishes to thank the Family Law Committee for undertaking this survey, the students of the EJP for their assistance, and all those practitioners who took the time to respond and thereby help provide a useful picture of how fixed fees are operating in the family law and legal aid environments.
Readers are able to access the ADLS website to view the whole survey at www.adls.org.nz/media/2805590/Equal-Justice-Project-ADLS-FFF-Survey-Analysis-v2.pdf.
1 The ADLS Family Law Committee made an Official Information Act request seeking this information from the Ministry of Justice on 16 December 2011. Specifically, the Committee sought breakdowns by type of litigant (self-represented or legally aided) in new substantive applications filed pursuant to the Care of Children Act 2004 (COCA) for the years January 2000 to date 2011. On 5 January 2012 the Ministry of Justice responded “Information not available for some questions”. Information held by the Ministry of Justice could be accessed at an “individual case level” only, requiring “substantial collation”. Hence, the request was declined on the basis of s 18(e) of the Official Information Act.