House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fourth Report

Comparison with the current time standards issued by the LSC

39. Respondents, including ILPA, have pointed out that the maximum limits originally proposed represent a very considerable departure from the time standards currently recommended by the LSC and set out in the General Civil Contract.[47] The current guidance issued by the LSC for asylum work allows:

Taking initial instructions: 2 hours (up to 4 hours in complex cases)
Completing the political asylum questionnaire: 4 hours

We pause to note that this already adds up to more than the proposed maximum time limit of 5 hours for initial advice.

Advising, preparing and attending Home Office interview: 6 hours (plus travelling and waiting time)
Preparation and lodging of appeal to adjudicator: 1 hour extension (ILPA has noted that additional time may well be required in many cases)
Preparation of an appeal before the adjudicator: 4 hours (but significant extensions of up to 8-12 hours may be justified in complex cases—ILPA has noted that up to 25-30 hours may be needed for a very difficult case)
Consider merits, advise, prepare and lodge application for leave to appeal to IAT: 2 hours
Application for judicial review (now statutory review) of refusal of leave to appeal to the IAT: 2 hours.
Preparation for appeal before IAT: 2 hours (the guidance states that "extensions beyond 4 hours… would not be common even in complex cases").

The time standards above represent guidance only and the LSC allows flexibility for more complex cases. There is similar, albeit less generous, guidance for immigration cases.

40. In its response to the consultation, the Refugee Legal Centre commented that:

"However we emphasised that the guidelines were not intended to be rigid. We recognised that they were only a starting point and that individual cases may take more or less time. Factors such as the complexity of the subject mater, novel points of law or the particular characteristics or needs of the client, such as learning difficulties, insufficient knowledge or special vulnerability could lead to these time being significantly exceeded."

41. It may thus be seen that the proposals in the consultation documents represent a very considerable change of view on the part of the Government and the Legal Services Commission as to what constitutes an acceptable standard of practice.

42. In response to these criticisms, the Minister made three points. Firstly, he suggested that the "five plus four" limit was based on "what is roughly the mean average for… a typical case".[51] Secondly, he suggested that a significant part of the hours allowed by LSC in its current time standards related to the interview and travel and waiting time.[52] Thirdly, he reiterated that the consultation had been undertaken on the basis of allowing exceptions to those maximum limits in appropriate cases.[53] This statement was apparently based on paragraph 28 of the consultation paper, which stated simply,

We recognise that there will be exceptions to any maximum costs scheme. In particular, we propose to allow additional time and costs to cover applications for bail and advice in connection with a client's detention.

together with question 5, which asked whether there was a need to include other exceptions to the maximum limits. The LSC's Draft Immigration Specification proposed that an additional 30 minutes would be allowed to advise clients in relation to their right to apply for bail or temporary admission[54] and a further 2 hours would be allowed to prepare an application for bail.[55]

Suggested alternatives

43. Some respondents have put forward alternative figures, based on what they believe to represent a reasonable time limit in an average case. For example, Alison Stanley told us that, based on its own survey, the Law Society were of the view that 10-15 hours "would probably be acceptable in straightforward asylum cases" at the initial stage, with 15 hours for "an ordinary appeal", excluding the advocate's preparation time, conferences with counsel, travel and the hearing itself.[56] However, when we heard from the Minister, he said:

44. Alison Stanley, from the Law Society—like many respondents[58]—was, in any event, opposed to the notion of an absolute limit. She told us that in some cases, it had taken up to 20, 30, 40 or 50 hours of time to complete the necessary work. She therefore believed that it was "impossible…to put a ceiling on how much time is necessary in the most complex of cases".[59] Judith Farbey, from ILPA, also said:

45. Many respondents suggested there would be a real difficulty in identifying a 'straightforward case', given the nature of the work, to which a standard cap might reasonably be applied. The complexity of individual cases, the many and varying personal experiences of the client, and changing country conditions all contributed to this difficulty.[61]

46. The Immigration Services Commissioner suggested that, whilst the "the principle of capping expenditure was fundamentally right", the Government had adopted the wrong approach by proposing to cap "an individual point of delivery of service in this difficult area". He outlined an alternative approach, which he believed would be "worthy of exploration". In his view, the cap would be better placed on accredited firms (ie under the new accreditation scheme) and should be "based upon an allocation of the number of cases which they would have to do within an overall sum".[62] Alison Stanley also suggested that "it would be sensible to allow some form of devolved powers to those firms that have already demonstrated that they are working within an appropriate level of service, the category one and category two firms".[63]

Our conclusion

47. As many of our witnesses and respondents to the consultation pointed out, there was no attempt in the consultation paper to justify the figures given, or to explain why there had been such a change to the standards expected by the LSC, beyond the need to cut expenditure. We found the Minister's answers on this point wholly unconvincing.[64] The original proposals in the consultation paper have all the appearance of having been put together in a rush and, as a result, the overwhelming response from practitioners has been that the proposed limits are unrealistic for all but the most straightforward cases.

48. The alternative approach proposed by the DCA and LSC in their memorandum of 24th October suggests that the Department has conceded that there should be more exceptions available. The memorandum proposes financial thresholds, rather than caps,[65] which may be extended with prior authority from the LSC "in genuine and complex cases where there is a real prospect of success". It also proposes that "a limited number of firms, where we are confident work is to a high standard, would be allowed devolved powers to self-grant extensions up to a higher figure". However, no indication is given as to where the financial thresholds will be set, nor is there is any explanation as to what would constitute a "genuine and complex" case. The Government needs to spell out the details of the revised proposals.

49. We welcome the Department's recognition that the system needs to be more flexible than originally proposed, and the elements of "earned autonomy" for some suppliers of recognised high standards. We recommend that the Department bring forward details of the proposed financial thresholds, which should be based on a proper review of the time spent on cases of varying complexity carried out by competent advisers.

50. Nick Oakeshott, from the Refugee Legal Centre, provided us with a long list of the sort of cases where exceptions should be made which included "illiterate clients, clients with limited education, clients with learning difficulties, minors, cases where age is disputed, trafficking cases often involving issues of sexual abuse, clients with mental health issues, clients who have been tortured, raped or are suffering physically and mentally as a result of their experiences, clients with families where individual statements are required to be prepared, clients with witnesses for appeal hearings, clients with a substantial body of documentary evidence and detained clients".[66] He said that, although it was a long list, none of the suggestions was without merit.[67] However, we would agree with ILPA that it would be counter-productive to establish a complicated list of exceptions, because time would need to be taken to identify whether or not a case fell into one of those exceptions. We therefore welcome the Government's revised proposal to allow extensions in "genuine and complex cases" on application to the LSC for prior authority on a case-by-case basis. We recommend that the category of "genuine and complex" cases be defined sufficiently broadly to meet the issues which we have raised. The LSC should publish guidance on the sort of circumstances in which it would be willing to grant an extension. It may be appropriate for extensions under Legal Help to be based on a more stringent merits test than for the original application.

Are there specific aspects of advice and appeal work which will not be covered within the proposed limits on time and disbursement costs?

51. In addition to these general criticisms of the capping regime originally proposed, several organisations have suggested that there are specific aspects of appeal work which will not be covered by the proposed limits on time and disbursement costs. For example, ILPA has stated that the proposed limits will not allow time to prepare for an appeal before the IAT after permission to appeal has been granted or time to update a case where there has been delay and time to prepare for adjourned and remitted hearings. The responses suggest that there is more widespread concern that the limits will not cover the attendance by representatives at the Home Office interview and are not sufficient to cover the full cost of interpretation/translation, expert reports and conferences with counsel. It is to these issues that we now turn.

Attendance at interviews

52. In the current General Civil Contract (Solicitor) Contract Specification, the LSC explain that a representative is required to "justify attendance each time" but that assistance at interview is "normally reasonable".[68] However, the consultation paper states that "what is not guaranteed is that within the maximum fee scheme a representative will be able to claim the costs of attending with the client at either a screening or substantive interview". This is justified on the basis that:

53. The Draft Immigration Specification issued by the LSC states that "we would not expect to see attendance at interviews in routine cases. Time, including travel and waiting, spent in accompanying clients to interviews will form part of the relevant Advice Limit". This suggests two things. First, that there may be justification for claiming the costs of attending interview in exceptional cases, for example where the issues involved are particularly complex. Secondly, the cost of attending an interview must be claimed as part of the maximum five-hour fee limit.

54. Once again, respondents to the consultation strongly objected to this proposal. JUSTICE argued that "Home Office policy creates an effective Catch 22" because "as the recently adopted Protocol applying to all interviews conducted by caseworkers in the Immigration and Nationality Directorate (IND) makes clear, a representative's role is limited to observing the interview only… It allows representatives to attend provided that they don't interfere with the proceedings."[70] Therefore, the only reason that attendance at interview does not add as much value as it might otherwise is because Home Office policy says it may not.

55. The Immigration Services Commissioner was firmly of the view that attendance by a representative was "necessary" in most cases.[71] The Chairman of the Council on Tribunals, Lord Newton, indicated that he was "sympathetic" to that view because "anything that can help to improve the quality of the basic decision…is going to reduce costs further up the scale".[72] Nick Oakeshott, from the Refugee Legal Centre, believed that it would be "more costly" overall if costs were cut at such a "crucial" stage. He told us that:

56. In a joint opinion on the legality of these proposals (commissioned by the Refugee Legal Centre), Michael Fordham and David Pievsky of Blackstone Chambers state:

57. On that basis, we are not persuaded that it is reasonable to refuse to fund the cost of attendance by a representative in all but exceptional cases. It seems clear that a representative can add value at the interview stage and, therefore, a cut in legal aid expenditure at this stage may be outweighed by an increase in costs at later stages when Home Office decisions are appealed. In any event, it appears perverse to include attendance at interview within the five-hour limit. As the authors of the RLC's legal opinion point out, it is precisely in a case with special features, requiring extra care and attention by the representative, that attendance at the interview within the five-hour limit would be both necessary and virtually impossible.

58. We share the Minister's concern that "if we are paying out of the public purse at this stage then that has to add value" and we would agree that attendance by an "outdoor clerk" or unaccredited adviser may not do so.[75] However, we are concerned that the Department has not taken fully into account the concerns of our witnesses and other respondents on this issue. In its memorandum of 24th October, it has stated:

This indicates that the Department remains of the view that funding for attendance at interviews should be the exception rather than the norm.

59. We believe that the problem—that such attendance is often of "no benefit to the client"—can be addressed by a stricter application of the LSC's existing guidance that it is for the supplier "to justify attendance each time".[77] We therefore recommend:

that attendance at interview be allowed in cases where the representative can satisfy the LSC's guidance; and
that such attendance not be included within the financial threshold for Legal Help, but that it be claimable separately.

We further recommend that, as now suggested by the DCA, once the new accreditation scheme has been established, it would be reasonable to refuse public funding for attendance at interview by unaccredited advisers. In the meantime, we suggest that money could be better saved by holding interviews either within or closer to the locality of the applicant and thereby reducing the cost of travel.

Disbursements

60. The Consultation Paper states that maximum limits will be set for interpreters' costs and disbursements at the appeal stage. The Draft Immigration Specification issued by the LSC sets out the levels at which those maximum limits are proposed to be set:

Legal Help (ie initial advice stage): £250.00

Appeal stage: £350.00 (or £450.00 if the representative has to travel to visit the client, eg because of detention)

The Draft Immigration Specification also states that extensions to the disbursements limits may be applied for in exceptional circumstances and that an extension is likely to be granted:

a) if the disbursement must be incurred to comply with a direction of the IAA or IAT

b) where the Medical Foundation … has agreed to prepare a report on the client's behalf

c) where DNA/blood testing is required.[78]

61. Responses to the consultation suggested that the proposed limits on disbursements were just as inadequate as the proposed limits on hours. According to the Law Society, current rates for consultant psychiatrist reports and country expert reports range between £500 and £700.[79] The Medical Foundation charge £400 for a medico-legal report and £600 if a report requires a visit by a doctor to a removal centre.[80] In its response to the consultation, ILPA has commented:

one typical solicitor from among ILPA's members provided us with a sample of their caseload from Spring 2003. This shows that an average of £734 had been spent on disbursements. On asylum cases, the average was £833. 56% of cases, all relating to asylum, had exceeded the combined total of £600 allowed under the new Draft Specification. Of those, 84% had been successful in their claims (ie had been granted ELR or refugee status at first instance, or had won their appeals before Adjudicators).

62. Judith Farbey, also from ILPA, suggested that "there needs to be a division between interpreters and other forms of disbursement". In her view, "expenditure of legal aid money on interpreters is absolutely vital".[81] On the other hand, she indicated that whilst "good experts can win appeals", not all expert reports are of sufficient quality. In particular, she noted that in some cases general practitioners are asked to comment on matters which are simply beyond their expertise, such as the client's mental health. In other cases the expert may be under-instructed by a poor practitioner.[82]

63. In response to the consultation, Richard McKee, an adjudicator at the IAA, stated that:

64. In its subsequent memorandum of 24th October, the DCA and LSC stated:

We note, however, that in its memorandum to our main inquiry (submitted in May 2003) the LSC stated that it had:

On experts reports, the memorandum of 24th October, stated:

65. From the evidence we have seen, we accept that there may be unnecessary expenditure on disbursements, particularly on psychiatric reports. However, the LSC has made no attempt to justify the limits which it has set and the figures present the appearance of having been plucked out of the air. It is regrettable, given the importance of interpretation in the asylum and immigration field, that we were not able test the reactions of our witnesses to the revised proposals. We recommend that revised limits for disbursements be set, based on a thorough review of the reasonable costs which are likely to be incurred on disbursements in a typical case. The LSC should also examine the responses to consultation carefully to ascertain whether further circumstances in which authorisation for extensions would be likely to be granted should be made explicit. However, we would agree that it is important to draw a distinction between the cost of interpretation/translation and other costs. If the applicant does not speak English, it would not in our view be reasonable to restrict the availability of an interpreter.

66. We welcome the recent announcement by the LSC that it proposes to consult further as to when experts' reports can be commissioned and as to the proposed maximum fees. We strongly recommend that it also consults on its revised proposals for interpreters' costs.

67. We also have concerns about the proposal that circumstances where the Medical Foundation—as opposed to any other expert organisation—has agreed to prepare a medical report should be amongst those where authorisation is likely to be granted. The Medical Foundation is a very highly regarded organisation which does a great deal of valuable work, but its priorities are in therapeutic work, not in report-writing, and these priorities should not be distorted by the role it would be likely to be called on to play should the proposals be introduced in this form. The Medical Foundation has pointed out that it has already been placed "in one way or another" in the position of "gatekeeper to special treatment" under other schemes, such as the provision of NASS (National Asylum Support Service) support and the fast-track procedure at Oakington Removal Centre. It is therefore disturbing to learn that the Medical Foundation was not formally consulted by the Department before this proposal was made, and we see this as further evidence of the hurried and ill-thought out nature of these proposals.[87] In our view, it would not be helpful to the Medical Foundation, or to potentially qualifying applicants, for it to be the principal or only gateway to additional public funding for disbursement costs. We therefore recommend that the Medical Foundation not be specifically referred to in the list of exceptions to the maximum disbursement limits.

Conferences with counsel

68. Concern was expressed by consultees about the implication of the proposals for conferences between barristers and their clients in immigration cases. In its response to the consultation, the Bar Council stated that it had received a letter from the Head of Civil Contracting Policy at the Legal Services Commission, Patrick Reeve, stating:

The four hours includes all preparation. The hearing costs would be for the advocacy and travel and waiting. Clearly the advocate will have to take the client's instructions at the hearing and this will be included as part of the hearing costs and not in the four hours preparation.[

69. ILPA's Best Practice Guide states that "briefing counsel at the last minute before your client's appeal is completely against your client's best interests… since it is not uncommon for conferences to require further work to be carried out or enquiries made."[89] There is therefore a question as to whether this provision would actively discourage best practice in providing a service to clients. There is also a question over whether there are in practice any benefits to be gained from it. Referring, in its response to the consultation, to the correspondence between the LSC and the Bar Council, ILPA states

70. The Minister's responses when this question was put to him were, once again, unhelpful. When asked whether it was his intention to create a situation where conferences would normally held as part of the hearing on the day rather than in advance, he said:

It was then put to him that, if conferences were normally to be held as part of the hearing on the day, there was a risk that would lead to demands for adjournments. He responded:

71. The choice will be either to hold the conference in advance of the hearing and deprive the client of time which would otherwise have been available for other preparation; or to hold it immediately before the hearing and have it included in the hearing costs. In practice, particularly given the stringent nature of the "five plus four" formula, we consider that the majority of clients are likely to take the latter option. This would appear to result in little financial benefit to the public purse, and may lead not only to unnecessarily poor service being offered to the client, but potentially also to avoidable inefficiencies in the appeal system. In its subsequent memorandum of 24th October, the DCA indicated that "professional disbursements…will not count towards this threshold". If "professional disbursements" is a reference to counsel's fees, this would resolve the problem. If this is not the case, we recommend that provision be made where necessary for conferences with counsel to take place before the day of the hearing.

Changing legal representative

72. The consultation paper argued:

There is evidence of duplication of work. Although in 2002 there were 85,865 asylum claims, the LSC issued over 158,000 new matter starts in immigration. It is recognised that the figure of 158,000 will also represent starts in non-asylum matters and that there will also be legitimate reasons why some clients need to change representative. However, this does not explain the position entirely and there is evidence of clients 'shopping around' for advice and of suppliers continuing to pursue unmeritorious cases through public funding.[

73. To address this problem, the Draft Immigration Specification issued by the LSC states:

The Advice Limits for both Legal Help and Controlled Legal Representation represent the total work that can be undertaken in relation to a particular matter regardless of the number of times the client changes representative.

Where a client changes supplier, the new representative must bear in mind that subject only to the exceptional circumstances set out below, any legal aid costs incurred by the previous representative form part of and count towards the relevant Advice Limit. Therefore any new representative will only be able to assist a client under Legal Help or CLR using any remaining balance of hours transferred from the previous supplier.

…It is therefore essential that a supplier establish either from the client or the Home Office whether previous advice or assistance has been given. It is then the responsibility of the supplier to contact the previous representative to establish the level of any costs incurred to date. This information is required because the new representative will only be able to claim costs for the balance of any casework time remaining under the relevant Advice Limit.

Exception

74. The Office of the Immigration Service Commissioner (OISC) has particular concerns about these proposals and states that it "received no prior notification of [the proposal to link funding to recorded complaints] from the LSC". The OISC believes that the proposal "may encourage the lodging of unfounded complaints as the only means of obtaining further advice".[95]

75. The OISC also has concerns about:

76. Judith Farbey, from ILPA, also made the point that one has to distinguish between 'shopping around' and changing legal representation because of 'genuine grievances' with the previous solicitors. She said that a change of representation could turn a case around.[97] In its response to the consultation paper, ILPA has suggested that the "mechanism suggested on transfer of files…seems to be completely unworkable". In particular, ILPA questions:

77. Alison Stanley pointed out that "there is already a requirement that whenever someone has previously had public funding, the adviser, be they solicitor or not-for-profit, has to justify it on the file and if not, they are not paid". She said that "part of the problem is that that rule is not being applied sufficiently rigorously by the Legal Services Commission".[99]

78. When asked what empirical evidence he had to support the Government's view that people were abusing the system by changing advisers, the Minister said:

100

79. However, the Chief Executive of the Legal Services Commission said:

101

80. We agree with the view of the LSC that the starting point should be to stop the bad advice. However, we do not believe that applicants should be penalised for having received bad advice. Nor do we believe that a fresh time allocation should be based on a reported complaint to the OISC or Office for the Supervision of Solicitors (OSS). As the Commissioner acknowledged, this may encourage the lodging of unfounded complaints. We recommend that, on a change of legal representation, a fresh Advice Limit or threshold should be allowed where justified. In our view this should be assessed by the LSC, according to appropriate criteria, on a case-by-case basis. We consider that it is neither helpful nor appropriate to require that a complaint first be lodged with the OISC or OSS.

Charging clients when the time limits expire

81. The Draft Immigration Specification for solicitors' contracts, issued by the LSC, states that practitioners will be allowed to charge their clients on a private basis once the maximum limits have been reached.[102]

82. In response, Alison Stanley, from the Law Society, said:

103

83. Nick Oakeshott, from the Refugee Legal Centre, said:

104

84. ILPA goes on to argue that if work is necessary, and a client has been assessed as being eligible for any public funding at all, the LSC should pay for it; it would be as wrong to charge a client privately for unnecessary work as it would be for the taxpayer to fund that work. This point is even more compelling when one compares the average cost of a solicitor undertaking privately paid work (Alison Stanley quoted £120 per hour) and the legal aid rate (which, at its lowest, is £57.35).[105] In our view, the proposal to allow solicitors to charge clients on a private basis, once the maximum cost limits are reached, is not an acceptable solution to the problems presented by capping or thresholds. Many applicants will be unable to afford legal advice and representation at private rates and those who could may be vulnerable to exploitation by unscrupulous advisers.

47 General Civil Contract (Solicitors), Contract Specification-Immigration (LSC, Sept 2003) pp 239-240 Back

48 Not-for-Profit Back

49 The General Civil Contract (Not for Profit) 1st April 2003-Response to consultation by Legal Services Commission, July 2003 Back

50 AIA 24A, published on the Committee's website, available at www.parliament.uk Back

51 Q 15 Back

52 Q 15 Back

53 Q 14 Back

54 Draft Immigration Specification, para 3.2 Back

55 Ibid, para 4.2 Back

56 Q 58 Back

57 Q 20 Back

58 Including the Refugee Legal Centre and ILPA Back