Prior Authority Not Obtained – Can Legal Aid Fees Still Be Recovered?

Legal Aid practitioners frequently encounter situations where work has been undertaken before prior authority has been obtained, or where authority should arguably have been sought but was not. The consequences can be significant.

Concerns commonly arise regarding:

• recoverability of expert fees

• unusually large disbursements

• exceptional expenditure

• complex case progression

• assessment scrutiny

• payment delays

Whilst every case turns on its own facts, failure to obtain prior authority does not automatically mean that all recovery is lost.

Understanding the potential risks and available options at an early stage is often critical.

What Is Prior Authority?

Prior authority is a mechanism through which the Legal Aid Agency approves certain expenditure before it is incurred. The requirement commonly arises in relation to:

• expert evidence

• interpreters

• specialist reports

• substantial disbursements

• unusual case requirements

he purpose is to ensure that expenditure is reasonable, proportionate and justified before public funding is committed.

Why Does Failure to Obtain Prior Authority Cause Problems?

Where prior authority should have been obtained but was not, assessment difficulties frequently arise. Common concerns include:

• reductions during assessment

• requests for further justification

• delays in payment

• disputes regarding necessity

• challenges to reasonableness

• uncertainty regarding recoverability

In practice, assessment often becomes significantly more difficult where expenditure was incurred without prior approval.

Does Failure to Obtain Prior Authority Mean Recovery Is Impossible?

Not necessarily. The absence of prior authority does not automatically prevent recovery in every case. However, firms may need to demonstrate:

• why the work was necessary

• why expenditure was reasonable

• why authority was not obtained earlier

• why the costs should remain recoverable

The strength of available evidence frequently becomes important. Contemporaneous records, attendance notes and supporting documentation may all assist.

Common Situations We Encounter

We are regularly instructed where firms face issues such as:

Urgent Expert Evidence

Cases where expert evidence was required urgently and authority could not realistically be obtained beforehand.

Developing Litigation

Matters where case complexity increased significantly beyond original expectations.

Certificate Amendments

Cases involving changes in scope, funding or case progression.

Counsel and Specialist Input

Situations where additional expertise became necessary during the life of the matter.

Court of Protection Matters

Complex funding arrangements and evolving evidential requirements.

How Prior Authority Issues Affect Assessment

Prior authority disputes often arise much later than the work itself.

Problems frequently emerge during:

• CCMS claim preparation

• Legal Aid billing

• detailed assessment

• reassessment proceedings

• appeal processes

By this stage, reconstructing justification can become difficult. Early specialist review frequently assists in identifying and addressing potential weaknesses before submission.

Practical Steps If Prior Authority Was Not Obtained

Where concerns arise regarding prior authority, firms should consider:

• reviewing the funding history carefully

• identifying all relevant expenditure

• gathering supporting evidence

• reviewing attendance notes

• considering whether explanations can be provided contemporaneously

• assessing likely recoverability risks

Early action often provides greater flexibility than attempting to address issues after a claim has been challenged.

Managing Recovery Risk

Many Legal Aid costs problems are not caused by the work undertaken.

They arise because the work cannot easily be justified or evidenced at assessment.

Specialist costs input can assist with:

• presenting claims effectively

• addressing likely challenges

• responding to LAA queries

• preparing reassessment requests

• maximising lawful recovery

The earlier issues are identified, the easier they are generally to manage.

How SPH Costs Assists

SPH Costs provides specialist support with:

• Legal Aid costs drafting

• CCMS claims

• assessment queries

• reassessment proceedings

• High Costs Case Plans

• recovery strategy

• complex Legal Aid costs issues

We act for Legal Aid firms across England & Wales and regularly assist with difficult recoverability and assessment issues.

Speak to a Legal Aid Costs Specialist

If your firm is concerned about:

• prior authority issues

• delayed payment

• CCMS difficulties

• reassessment proceedings

• Legal Aid recoverability

SPH Costs provides specialist Legal Aid costs support across England & Wales.