Select Committee on Constitutional Affairs Fourth Report


Conclusions and recommendations

1.  We conclude that the Department needs to undertake serious further work before it is able to put any sensible proposals on the table. It is the nature of that work which forms the basis of our detailed recommendations below. Until that work has been undertaken, and a properly considered package of reforms is brought forward, we recommend that the Government place a moratorium on the proposed time and funding limits to publicly funded asylum and immigration work. We believe there should be no delay in addressing the issue of quality representation. (Paragraph 13)

2.  We strongly support the proposals for a new accreditation scheme. We trust that the Department will address the concerns as to the detail of the scheme appropriately. (Paragraph 14)

Are the measures necessary?

3.  Broadly speaking, we accept that, in the words of the Minister, there is a "need to make sure that we have the mechanisms in place to ensure that [the] money is being spent properly and that, at the same time, we are guaranteeing quality". However, we do not consider that the Government's original proposals would have achieved this result. Such stringent constraints on time could only have impacted adversely on quality and might, in turn, have lead to greater cost and inefficiencies further up the appeals process. (Paragraph 35)

4.  We welcome the fact that the Department is now proposing an alternative approach, as set out in its memorandum of 24th October, although the precise impact of the new proposals remains unclear. We support the Government's continuing drive to improve the quality of work undertaken by suppliers in this field, which involves getting rid of the bad and encouraging the good. (Paragraph 36)

5.  The Government needs to spell out the details of the revised proposals outlined in the memorandum of 24th October. (Paragraph 48)

6.  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. (Paragraph 49)

7.  We welcome the Government's revised proposal to allow extensions in "genuine and complex cases" on application to the Legal Services Commission (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. (Paragraph 50)

Are there specific aspects

8.  We believe that the problem—that a representative's attendance at the Home Office interview 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". 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. (Paragraph 59)

Disbursements

9.  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. (Paragraph 65)

10.  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. (Paragraph 66)

11.  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. (Paragraph 67)

Conferences with Counsel

12.  We recommend that provision be made where necessary for conferences with counsel to take place before the day of the hearing. (Paragraph 71)

Changing legal representative

13.  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 Office of the Immigration Services Commissioner or the Office for the Supervision of Solicitors. (Paragraph 80)

Charging clients when the time limits expire

14.  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. (Paragraph 84)

The impact on supply

15.  It is almost impossible to assess the likely effects of what the Government is now proposing because of earlier policy announcements—the effects of which have not been quantified—and further announcements after the conclusion of our oral evidence sessions. The Government's proposals have now been modified in potentially helpful, but still far from specific, ways. It is therefore difficult, not only for us but also for all the interested parties affected, to assess what the consequences are likely to be—and we are not at all convinced that the two Departments have succeeded in doing so, or even attempted to do so. In what we recognise to be a difficult area of policy-making, vigorous efforts need to be made to ensure a "joined-up" approach. (Paragraph 89)


 
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