Examination of Witnesses (Questions 60-79)
MS JUDITH
FARBEY, MS
ALISON STANLEY,
MS HILARY
LLOYD AND
MR NICK
OAKESHOTT
21 OCTOBER 2003
Q60 Mr Cunningham: So you could not
put an average time roughly on difficult cases? Is that what you
are saying?
Ms Stanley: I am saying that it
is impossible to put an average time on difficult cases, but that
on more ordinary, straightforward cases, the Law Society could
work with about 10 to 15 hours, provided that was a threshold
and that could be extended.
Q61 Chairman: Is that based on the
time which you believe the majority of run-of-the-mill cases now
take?
Ms Stanley: That is based on what
our solicitors who have responded to the survey have said and
they have said that this is their average time for dealing with
more ordinary cases, the more straightforward cases.
Q62 Chairman: That must be many times
more than the Home Office, even including the clearance officers,
actually spent on the case?
Ms Stanley: Well, of course it
is because we are actually doing the work that would otherwise
be dealt with by the Home Office officials. We take the statements
which the Home Office officials then use as a basis on which to
ask questions at interviews, so obviously if we were not taking
the statements, it would be down to the Home Office to do it and
it would be effectively shifting time from one body to another.
Q63 Ross Cranston: I just want to
put this question to you and frankly it is a hard question for
you because, as the point the Minister made last week, 80% of
these cases fail. If you are in private practice or on a no-win-no-fee-type
basis, frankly you would have to give up because you could not
continue if you are only winning 20% of the cases, so what does
that say about the quality of the advice being given?
Ms Stanley: Well, I think it is
very telling about the advice and I do not think any of us here
are here to protect the poor suppliers. We are all delighted to
hear the rumour that the Legal Services Commission is intending
to get rid of the category three firms and they are not going
to have their contracts renewed. If that is true, we will all
be quite pleased because we do not want to see poor advice given
to a vulnerable group of clients. I think the statistics are quite
difficult because if you ask the more competent suppliers what
their statistics of success rates are, they are overwhelmingly
higher than that, 75, 80, 90% success rates, and indeed the Refugee
Legal Centre, which is the other major supplier out of private
practice, has a very high success rate.
Q64 Ross Cranston: I asked the Minister
to give us a note on how it breaks down in terms of different
categories of firm and success rates, so I think if you could
do the same, that would be helpful.
Ms Stanley: I think the Refugee
Legal Centre will keep those statistics, but I am not sure that
the Law Society will be able to do that because we do not ask
our members to provide us with those statistics. We can try, but
it will be anecdotal and not as scientific as that which comes
from the Refugee Legal Centre.[1]
Q65 Mr Soley: That is a helpful lead
into mine. I would like to ask Judith Farbey and Nick Oakeshott
whether they accept that there is a problem about the quality
of representation from other companies and, if so, how serious
they think that problem is?
Ms Farbey: Well, I can say from
sitting on endless days at the back of endless court hearings
that the quality, and I am embarrassed to say that that is really
what I know about, of representation is largely very poor indeed.
I spoke to the Chief Adjudicator during the summer and he thinks
that from his knowledge and experience the quality of representation
is overall very poor. How it has come to be that way is another
matter, but ILPA would strongly welcome any moves to kick bad
practitioners out of the market and there is no doubt about it,
that those practitioners are the ones who are keeping the costs
up. I think that that comes about really as follows, that, to
reflect Clare Dodgson's language, "right first time"
is the way forward. "Right first time" means resources
first time, but it also means that we have to have solicitor,
counsel and anybody else doing a good, meticulous and thorough
job both when sending the application off to the Home Office and
when appearing in front of adjudicators. ILPA would strongly welcome
and would indeed be more than willing to co-operate with any moves
to improve the quality of representation which is, on the whole,
lamentable.[2]
Q66 Mr Soley: Would you agree with
that?
Mr Oakeshott: I agree to a large
extent with that. We have to deal day in, day out with cases which
we inherit from poor practitioners and have to turn around. In
order to turn around those cases, we have to spend an awful lot
of time on them. What I would say is that there have been efforts
to improve the quality of practitioners, especially the Legal
Services Commission's efforts to finance the training of new practitioners
in dispersal areas and the funds that they have put forward in
respect of that. Therefore, one can note that there have been
some improvements in the area. I think that there is a risk with
equating poor practitioners with expense and using the blunt instrument,
as I think you termed it at the previous meeting, to try and address
that because there is a risk that the blunt instrument is in fact
a sledgehammer and squashes the decent practitioners as well and
that will not be good for anybody.
Q67 Mr Soley: Unless of course we
can make it a bit more variable and flexible to meet the difficult
cases?
Mr Oakeshott: I can see that that
is a point which would be taken. What I would also say is that
the Legal Services Commission within its contracts has the ability
either not to pay funds to practitioners who are not meeting an
appropriate standard or indeed to take away those contracts and
it may be unnecessary in the circumstances to use the capping
idea or regime in order to get rid of the poor practitioners.
There are other ways of doing it which we would say were more
appropriate.
Q68 Mr Soley: Well, I keep hearing
of these other ways, but the trouble is that policing the legal
profession is not easy actually and it sounds as though it would
not surprise any of you because for someone with an active caseload
of about 400 cases at any given time, there is between a quarter
and a third where I regard the legal representation to be unsatisfactory
to the point at which I would not be prepared to pay for it myself,
so if I am not prepared to pay for it, why should I ask the taxpayer
to pay and why should the person be expected to have poor representation?
If we are going to deal with that and if we are not going to deal
with it by capping, how are we going to police it other than us—and
by "us", I mean the Government—setting down very
tough criteria to police the service itself? Let me just explain
this to you. I have had the Law Society trawl through my caseload
in order to identify those bad cases and as a result of that,
they have issued more guidance to solicitors, but I have to tell
you, I am still getting a quality of representation which I would
not pay for.
Ms Stanley: I know you did not
ask me to address that, but perhaps I could address it. I think
that we are all hugely concerned about, as you identified, the
quarter to a third of very poor practitioners providing thoroughly
inadequate advice and we all want them out. With a different hat,
I am a peer reviewer with the Legal Services Commission and I
have been for about 18 months and that process, I would say, is
a very helpful process. We are part of the costs audit through
which firms which are identified as category three have their
files checked and I agree with you that some of them are appalling
and inadequate. The peer review process has been extremely successful
in identifying poor-quality practitioners and clawing back very
significant sums of money from them and effectively encouraging
them to leave this particular area of law or, if they are only
just at the category three level, identifying areas of training
and supervision to assist them to get better. So I do think that
there are other ways of encouraging better practice and that we
should be asking, expecting the Legal Services Commission to do
this sort of thing in order to ensure that public money is not
given to poor practitioners.
Q69 Mr Soley: Could I put it to you
that actually the law profession ought to be doing this itself.
If in a sense the really bad cases are relatively easy to deal
with, you can, as you say, make a decision not to pay in effect,
but you cannot do that with many of the run-of-the-mill bad cases
where maybe they just sent in inadequate papers or they just sent
you a covering letter asking you to take the case up or they have
not told you about double applications and things of that nature.
You cannot really justify striking them off that list, if I can
use that term, but if we are all to wait for peer review to work,
frankly we will go on paying out public money for poor representation.
That is what will happen.
Ms Lloyd: The Law Society, as
I think you know, Mr Soley, is spending significant resources
in looking particularly at immigration and asylum work. We have
targeted this particular area because of the vulnerability of
the client group and there is the inability often to complain
for themselves because of the circumstances in which they find
themselves. We have a team of specialist immigration case workers,
and the team is about ten to twelve, dealing with complaints.
With our new Practice Standards Unit, which is the unit which
goes out to help promote good practice, we are bringing immigration
specialists into that unit, but it will take time and I apologise
because these things do take time, but it is something that we
are seriously committed to. As you know, we have issued guidance
to solicitors about how to use MPs appropriately and what we would
say to you and to others in your position is that if you have
files that you are not happy with, please do complain to the Office
of the Supervision of Solicitors. There is a hotline for MPs.
What we need is to get the information in so that we can deal
with it. We are working on a number of initiatives with both the
ISC and the LSC around, for example, on touting going on around
ports. We are determined to do everything that we can to root
out this sort of practice and I appreciate that it will take time.
The first step is to get the quality right and we believe that
a strong first step to take on that is the compulsory accreditation
of everyone doing publicly funded immigration work at whatever
level. We are very pleased to be working closely with the LSC
and with the ISC in order to bring that about. We do believe that
the quality is the key to this and that we get the quality right
as well as all of the work that goes on around policing the profession.
We need to make sure we have got close arrangements with the LSC
so that when they identify bad practice, they let us know so that
we can go in officially and try to stamp that out.
Q70 Mr Soley: What you are asking
for is for us to give you more time to sort out bad practice.
Ms Lloyd: We are asking first
for the accreditation scheme to be allowed to kick in effectively
and work because we think that that will be a strong measure.
We believe that the accreditation scheme in itself, which will
be independently assessed, it is not something that the Law Society
intends to assess for itself, we will set the standards against
which others will assess, we expect that that will root out a
considerable number of very bad performers, the poor performers,
the sort that you are talking about, not the sort who would have
their contracts taken away from them, but the sort who really
need to be brought up a level. That will happen and alongside
of that, once you get an accreditation scheme, you start to get
a significant industry in training and development which we think
is crucially important. One of the important elements that we
will have for the very first time as part of this scheme is a
standard for supervisors against which supervisors of less-qualified
practitioners will be assessed to make sure that they have the
right skills in order to be able to undertake effective supervision.
The scheme itself, I think, should be up and running during the
early part of next year, so I know it is time, but it is not very
much time.
Q71 Mr Soley: Well, I look forward
to the improvement, but I note what you say, that it is not going
to be quick. That is the problem in a sense and it is not just
the money, but it is the quality of representation of the people.
Ms Lloyd: That is right.
Q72 Mr Soley: As someone who has
come to the conclusion that we do need to have capping, I accept
that the cap is probably too low and I am, therefore, interested
in where it should be set and I am also interested in the question
of what are the key exceptions and whether any of you have views
on that.
Mr Oakeshott: I think that in
respect of where levels should be at, I would endorse what Alison
has said about ten to 15 hours pre-decision and 15 hours post-decision.
The list of the sorts of cases where exceptions ought to be made
to that which we consider to be complex cases would include 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. It is a long
list—
Q73 Chairman: How many does that
leave?
Mr Oakeshott: The problem is that
that is reflective of the sort of work that we do which is difficult
work. It is not easy, I have to say, to take instructions from
clients through interpreters who are coming from a different culture,
often having been through the most horrific experiences and that
is the reason why we have pointed to that long list of exceptions,
but I think that if you looked at those possible exceptions, you
would see that none of them is without merit.
Q74 Mr Soley: I understand the philosophy
behind what you are doing there and I am not totally opposed to
what you are saying as a philosophy. I am worried about the assumption
you seem to be making that this is fairly common. My experience
is that a very large proportion of my caseload are not actually
refugees seeking asylum, but people using asylum as a form of
migration and you must be aware of that too. Indeed only a few
years ago, the third or fourth biggest group of asylum-seekers
at one time in my constituency were Polish and it was very hard
to argue that they were asylum-seekers and the reason of course
was that it delayed things until such time as people were able
to stay because of the changes in the European rules about accession
countries. Now, I cannot believe that what you are describing
applies to the vast majority of cases. I accept that it applies
to a large section, but I do not think it is the large majority.
Mr Oakeshott: If I can address
the first point in respect of whether we are representing cases
where representation ought not to be given because there is no
merit in the cases, that is considered by the Legal Services Commission
and they have two merits tests which have to be applied by practitioners
and those merits tests are auditable. The first one is a sufficient
benefit test for pre-decision cases and the second one is a more
rigorous test for those cases which go on to appeal, so in our
assessment in respect of our organisation it would not be fair
to say that we have represented those who are using asylum as
another route for migratory purposes.
Q75 Mr Soley: But your organisation
is a bit different from any other of the companies we are dealing
with, is it not?
Mr Oakeshott: No, I would not
say that it was different from any of the other companies that
we are dealing with. There is a substantial body who practise
in the immigration/asylum sector who are high-quality representatives
and that is a body which, in my view, to some degree is increasing.
Ms Stanley: In fact we are all
subject to the same tests, the sufficient benefit test for legal
help and the merits test for Controlled Legal Representation.
I would say, however, that I think there has been a problem with
implementing those tests and I think again it is down to both
the profession, but also to the Legal Services Commission to ensure
that those tests are properly carried out. If they are properly
addressed, then the people that you have been suggesting who are
effectively economic migrants rather than refugees would be merits-tested
out of the system. All of us who do operate the merits test properly
have excluded people from receiving public funding. Again I think
it is back to saying that the test is rigorous and it is a matter
of ensuring that it is presented properly and applied properly.
Perhaps I could also say that it comes down to the idea of getting
it right first time and front-loading because many of the people
that you were talking about were mis-advised and they should not
have been going through the asylum system as there were other
routes—
Q76 Mr Soley: They were not being
advised, but it is often a conscious decision.
Ms Stanley: You mean by them or
by their adviser?
Q77 Mr Soley: By them actually.
Ms Stanley: Well, obviously then
there was some poor advice and people were told to apply for asylum
when they should not have done. That comes back to the importance
of getting adequate and good advice at an early stage to ensure
that people do not make incorrect applications and applications
which can never possibly succeed.
Q78 Mr Soley: One of my biggest problems
is applications that could not conceivably and should not conceivably
succeed and I have to say that if I was asked to judge whether
it was primarily the individual's fault or the company's fault,
I would be hard pushed to put figures on it as it would be both.
In other words, I would have to do some sort of research of my
caseload to come up with the answer to that because I could not
put my finger on solicitors, but I could put my finger on individuals
who are actually aware of how to delay the system.
Ms Stanley: Well, of all of those
points, we all want to root them out too because we are talking
about poor practitioners and we do not want them in the system
either, so we are with you on that, Mr Soley.
Q79 Mr Soley: If you have an appeal
system on your list of both, how would you do it—by appealing
to the LSC or what would you do in order to trigger it?
Mr Oakeshott: In terms of the
extension of any cap, I think that there is a system which operates
in respect of disbursements where you can apply for prior authority
to the LSC and what we would suggest if we were put in that position
is that there was a similar system put in place whereby you could
apply and try and justify why it is that an appropriate extension
ought to be given, and in circumstances where it was shown that
practitioners were properly exercising their discretion, then
perhaps that power could be devolved to the practitioner again
in an auditable way.
1 Ev 34 Back
2
Note by witness: ILPA would like to emphasise that, in
immigration law as in any other area, the level of representation
spans from poor to excellent. Not all representatives are poor.
There are committed, specialised and knowledgeable representatives
who give the tax payer value for money. We endorse the remarks
of the Countess of Mar in the House of Lords on 10 September 2003,
where she commented that some representatives "deal with
matters very smartly in a very short period of time and probably
save taxpayers a huge amount of money. Is not the answer proper
supervision by the Legal Services Commission?". We add that
the government's proposals mean that it is the "smart"
representatives who will be driven out of the market place as
being unable to do a conscientious job. The Countess of Mar is
a wing member of the IAT.) Back
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