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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