REASONABLE ADJUSTMENT and the Legally Aided Client

In October 2005, the Legal Services Commission (LSC) announced that it would meet the reasonable
costs of a British Sign Language interpreter in legally aided cases. Whilst this is clearly good news for legal aid practitioners finding it difficult to meet the cost of their responsibilities under the Disability Discrimination Act 1995, it still leaves unaddressed many similar situations. Duncan Finlyson, a Law Society policy executive in Professional Ethics, looks at the LSC concession and highlights some of the areas where problems might still arise.

Under the provisions of the DDA, all service providers are required to make those reasonable adjustments necessary to enable a disabled client to access their services. Often these will be a once only adjustment to the structure of the premises from which the services are provided – for example, ramps in place of steps. However, in other cases adjustments may be less tangible – for example changes to the way in which clients are interviewed - and may be a recurring cost every time the firm meets the disabled client. Such will be the case, for example, where a client with a hearing impairment requires the services of a British/English Sign Language (BSL) interpreter. Prior to the LSC’s October announcement, the position as to charging for a BSL interpreter had been uncertain. Initially the LSC had covered the cost as a disbursement. However, in cases where the statutory charge arose, this could have led to that cost being payable by the client where money or property was preserved or recovered. This was the situation which arose in Brooks v LSC, where the Cambridge County Court decided that the reasonable cost of a BSL interpreter was an adjustment which the solicitor providing the service should have absorbed, and should not have been charged to the LSC as a disbursement. Further details of this decision can be found in issue 47 of the LSC’s magazine, Focus. Whilst this did not apply to what could be regarded as unreasonable costs of a BSL interpreter, which could still be claimed as a disbursement, no guidance was given as to when the cost became unreasonable, thus resulting in continuing uncertainty. The change which occurred in October 2005 was that the LSC agreed, in the interests of promoting access to justice by "vulnerable members of society", that it would bear both the reasonable and unreasonable costs of a BSL interpreter, or any other language support such as lip speakers, where it was necessary to the matter. In order to ensure costs were not passed on to the assisted person by way of the statutory charge, which would have breached the DDA, firms were asked to keep a separate breakdown of the costs
involved, together with any increased attendance times incurred and, pending further decisions, to
inform the LSC of them in a covering letter or annotation to the claim form.

Whilst this has proved a valuable benefit to firms struggling with the cost of BSL interpreters in legally aided matters, and without wishing in any way to detract from what is an extremely positive step by the LSC, it has not covered all of the problems which arise, for example where:

• the client has a learning disability resulting in appointments taking longer – although note
paragraph 2D-118 of Volume 2 of the LSC Manual which states, in relation to mental health, that "Where additional time has to be spent having regard to the characteristics and/or circumstances of the client, then you may be able to justify extending the financial limit in the circumstances of a particular case"

• the client has mobility problems requiring the solicitor to make a home visit

• the client has a sight impairment necessitating the solicitor having letters and documents froduced in large type or braille.

In each of these an extra cost could be incurred which the solicitor will need to consider absorbing where reasonable. Thus, even where LSC guidance suggests that a solicitor might apply for an extension to a financial limit (as is the case in the above reference to paragraph 2D-118), if there is the possibility that such an extension might affect the statutory charge, then the terms on which the work is provided could be held to be less favourable and the principle in the Brook case apply. Two further issues arise where firms are going to have to be wary of how they deal with costs incurred:

• fixed fee work and

• those cases where they believe the required adjustment not to be reasonable.

In the former the solicitor should perhaps clarify with the LSC whether he or she is to account for the additional cost occasioned by adjusting to the client’s disability or only for that which relates to the work which would have been done had the client not had the disability The solicitor will receive the same amount regardless, but it could affect the amount which the LSC claims under the statutory charge and from the client’s point of view result in an increased liability resulting from the reasonable adjustment.

In the latter case, whether the adjustment is one which is reasonable will be a question of fact and the solicitor should first check with the LSC to ascertain that it is not viewed as one which is reasonable which the solicitor would have to absorb. If it is felt to be unreasonable then the client will need to be advised as to whether the amount is likely to be absorbed by the LSC or passed on to the client should the statutory charge arise Undoubtedly there will be other issues which arise as a result of the interaction of the DDA with the LSC regulations – exacerbated by the continuing financial pressure on solicitors who undertake legal aid cases. In all circumstances, it would be worthwhile for solicitors to think carefully before
passing on the cost of those adjustments.

Duncan Finlyson