Evidence submitted by Liberty (AIA 37)
ANALYSIS OF
EVIDENCE PRESENTED
BY DAVID
LAMMY BEFORE
THE CONSTITUTIONAL
AFFAIRS COMMITTEE
ON 14TH
OCTOBER 2003
The following is an analysis of some of the
more obvious queries, errors and omissions noted in the evidence
given to the Committee by David Lammy MP and Clare Dodgson of
the LSC. These observations are not intended to be exhaustive,
and attention has been focussed on the most pertinent issues relevant
to a proper and informed understanding of the matters involved.
Question 1
In his opening statement, David Lammy identifies
the fact that "the legal aid asylum fund has increased from
around £74 million to £181 million over the last three
years" but does not provide any objective analysis as to
the contributory factors which have caused this rise. Indeed,
a recurring theme from his evidence is that there has been no
research undertaken, or if undertaken, not presented, which substantiates
the suggestion that the increase in costs is primarily a result
of overcharging by practitioners.
Similarly, there has been no coherent justification
of the need for such radical cost-cutting measures. This is particularly
alarming given the potential impact of these measures on an extremely
vulnerable group within society.
Several members of the Committee expressed concern
at the absence of a costed model for the proposals, and also at
the failure of the DCA to provide an updated memorandum as had
previously been indicated.
In relation to the rise in funding it would
therefore seem fair to expect the DCA to answer the following
questions:
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| Asylum Applications | Asylum Decisions
| Asylum Appeals |
|
| 1999: 71,160 | 1999: 32,330
| 1999: 19,460 |
| 2000: 76,035 | 2000: 110,074
| 2000: 19,395 |
| 2001: 71,455 | 2001: 119.015
| 2001: 43,415 |
| 2002: 85,865 | 2002: 87,710
| 2002: 64,405 |
| 2003: 54,000[189]
| 2003: 80,000[190]
| 2003: 72,000[191]
|
| 2004: 54,000[192]
| 2004: 50,000[193]
|
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(a) The above statistics show that Home Office decisions
rose from 32,330 in 1999 to 110,015 in 2001. Appeals determined
by the IAA rose from 19,460 in 1999 to 72,000 in 2003. This represents
a percentage rise of 268% and 270% respectively, compared to only
a 114.3% rise in legal aid costs over the same period.
Given these statistics, has the DCA carried out any research
to identify what proportion of this rise can actually be attributed
to perceived overcharging by practitioners?
(b) The statistics also demonstrate that the dramatic
rise in Home Office activity was not primarily in response to
rising applications but rather government initiatives to reduce
an existing backlog.
Now that the backlog has been cleared, and additionally,
given that new applications are now half what they were a year
ago, on what rational basis are such radical cost-cutting measures
required?
Question 2
This is clearly a pertinent question but a problem arises
from the fact that it is premised on misleading information contained
in the consultation paper, namely the statistic that costs per
matter start have risen by 93%. On this issue it would be helpful
if the DCA could answer the following questions:
(a) Does the DCA concede that it was misleading for the
consultation paper to report an increased cost per matter start
of 93%, compared to the more realistic indication of rising costs
as provided in the LSC Memorandum[194]which
looked at the cost per claim and found a rise of only 12% per
annum (by taking account of the lag between undertaking work and
claiming for it)?
(b) Furthermore, has any research been conducted to identify
the contributory influence to this rise of factors such as dispersal
by NASS, scheduling interviews in Liverpool for London-based applicants,
general incompetence at both NASS and the Home Office, and the
introduction of the Human Rights Act in 2000?
(c) What research has there been to identify the extent
of duplication within the system.
Question 3
In response to this question, David Lammy identifies the
fact that following audit, firms are categorised according to
their contract compliance including over charging. It would therefore
appear that the LSC already has a mechanism for identifying and
penalising firms who have been found on audit to be over charging.
What therefore is the rational for introducing measures which
amount to a blanket restriction when mechanisms already exist
for distinguishing between good and bad providers?
Question 4
David Lammy argues that he has seen examples of over charging.
He neglects to mention that the LSC can claw back any or all sums
claimed. Indeed this is part of the peer review process. It has
also resulted in the withdrawal of contracts from 46 firms and
a threat to withdraw contracts from a further 100 firms.
If the LSC has identified evidence of over charging by certain
individual suppliers, what savings have been made and are projected
by the imposition of sanctions, either by disallowing costs or
by withdrawing contracts?
Question 5
Reference is made to the comments under Question 1 above.
Questions 6 and 7
It is noted that a pertinent question was asked concerning
what increase in costs was anticipated as a result of the introduction
of CLR for representation at appeals, and whether any increase
has been more than expected, and that David Lammy undertook to
provide these figures.
David Lammy also concedes that part of the rational for originally
introducing CLR was to increase the efficiency of the appeals
system. Given the recognition of this fact, has any research been
conducted to assess the potential for hearings times increasing
because necessary preparation was unable to be undertaken earlier
because of the imposition of the cap?
Question 8
Reference is made to comments under Question 2.
What research has been done to support the suggestion that
the dispersal policy has resulted in a net saving, even accepting
the assertion that regional suppliers are higher value and lower
cost? Have the costs associated with dispersal, such as inevitable
duplication of work, the inefficiency of NASS in co-ordinating
dispersal, increased travel costs, problems caused by the failure
by the Home Office/NASS to properly track applicants (for example,
leading to erroneous non-compliance decisions)?
David Lammy suggests that it is not possible to "disaggregrate"
the impact of HRA on increasing costs.
Would it not be possible to, at least, identify the significant
number of additional free-standing human rights applications and
appeals which were a direct consequence of the failure of the
Home Office and the IAA to prepare themselves in time for the
implementation of HRA (necessary to comply with Section 6)?
Question 9
David Lammy indicates "a difficulty in providing"
a projection of future costs and suggests it is "difficult
to cost" the reasons behind the recent increase in costs
(ie differentiate between different factors).
Is it not relatively simple to project costs on the basis
of a 34% reduction in asylum applications and a 50% reduction
in asylum appeals?[195]
David Lammy also suggests that "the introduction of
the unique file number will enable us in a much greater way to
associate those costs in a way that previous systems have not
facilitated us in doing".
The LSC have for many years collected data on individual
matters, the majority of which will involve applicants who have
only used one supplier. When submitting claims, firms are required
to outline and distinguish profit costs (ie attendance, preparation
etc.), disbursements (counsel, reports, interpreters etc.), details
of the type of case (eg asylum, family settlement etc.) and the
outcome (win, loss etc.).
In these circumstances a unique file number will add little
to the information already available and the lack of one should
not prevent a comprehensive financial analysis from having been
conducted.
It is hard to avoid the conclusion that thus far there has
been no proper or detailed analysis conducted.
Questions 10 and 11
David Lammy suggests that the proposals will achieve "a
£30 to £40 million saving".
Clarification is clearly required on how this figure was
reached, and on what research, if any, it was based.
Question 13
The concern of the Committee is shared in relation to the
failure of the DCA to provide an updated Memorandum as previously
indicated. The absence of any substantive financial analysis in
the original consultation paper undermined the consultation process.
Question 14
We agree with Clive Soley's analysis that capping is a blunt
instrument. We believe the effect of capping will be to drive
out good practitioners and drive down quality standards.
It is of concern that David Lammy appears confused as to
content of the consultation paper. The suggestion that the consultation
paper was made on the basis of exceptions is misleading. The only
exception offered was in relation to bail applications for detainees.
See also question 19.
Question 15
It is unclear what David Lammy means by a "mean average
for what we saw as a typical case". The consultation paper
is silent on how the five hour cap was determined and this clearly
devalues the consultation process.
How is the figure of five hours reached? The explanation
offered by David Lammy is wholly inadequate. On what basis does
he assert that the average asylum seeker has "some English"?
This is not the experience of practitioners at large. On what
basis is it suggested that half an hour for correspondence is
adequate, given, for example, the well documented difficulties
encountered by all concerned (including MPs) in attempting to
conduct correspondence with the Home Office? Is it suggested,
for example, that unanswered letters should not be followed up?
We refer to the detailed responses of ILPA and the case studies
provided by Wesley Gryk solicitors which demonstrate the amount
of time necessary to properly present claims.
Were a sample of individual files profiled to assess the
level of work involved in providing a competent standard of representation?
Question 17
David Lammy states that "we have to ensure that we are
doing all we can to drive quality up." How does a rigid cap
drive quality up?
Question 24
David Lammy states that "Someone can present from a
particular part of the world where it is more obvious than not
[that they were tortured]." No such presumption exists in
the collective mind of the Home Office. Each allegation of torture
must invariably be proved and corroborated by medical evidence.
Many claims are refused despite such evidence.
David Lammy also suggests that it is easy to identify torture
victims. This is not the experience of practitioners, the Medical
Foundation and Women Against Rape. We understand the Medical Foundation
will be dealing with this issue in more detail.
Question 26
We are strongly of the opinion that asylum seekers should
be represented at interview.
The Committee has received detailed evidence on this issue.
One example of added value to the process of representation at
interview is that it reduces subsequent dispute as to what may
or may not have been said at interview—this can add substantially
to costs at the appeals stage.
Question 31
David Lammy states that there was a "flood of practitioners
into the area." In fact, the LSC offered encouragement and
financial incentives to solicitors to enter this area of law.
David Lammy suggests that there is evidence of "shopping
around" because new matter starts exceed new asylum applications.
Has there been any analysis conducted to ascertain how many
of these new matter starts relate to applicants being dispersed
outside of London by NASS? How many of these matter starts were
non-asylum cases?
Ms Dodgson rightly says that it is important to, "Get
it right first time". In our view, the imposition of capping
will undermine this objective.
Question 35
David Lammy fails to understand the appeals process and what
is involved in preparing for an appeal. Four hours is wholly inadequate
for the range of work involved.
One consequence of the four hour cap is that representatives
will be unable to comply with Court directions. This will clearly
have an adverse impact on the efficiency of the appeal, loading
costs onto the hearing itself
Question 36
What does David Lammy mean by "more determinations of
law than fact (sic)"? This is obviously not the case at Adjudicator
level where Adjudicators play a crucial fact finding role.
Question 38
David Lammy asserts that "attempts...are being made
to improve the standard of initial decision (sic) in the Home
Office (and much is going on there)". This is not reflected
in practitioners' current experience. The standard of initial
decision making remains generally poor. Poor decision making adds
to the time taken to prepare appeals.
Question 46
We whole heatedly agree with the Chairman's question.
Liberty
October 2003
189
Projected from 1st quarter statistics and the Home Office target
to reduce applications to 54,000 pa Back
190
Projected from 1st quarter statistics Back
191
Projected from 1st quarter statistics Back
192
Projected from Government's target to reduce applications to 54,000
pa Back
193
Projected from the number of appeals being received in 2002 and
the 1st quarter of 2003 Back
194
The Legal Services Commission's Memorandum of Evidence to the
Lord Chancellor's Department Select Committee's Inquiry into Immigration
and Asylum Appeals. The Memorandum also reflects the views of
the Department of Constitutional Affairs (see paragraph 50) Back
195
RLC response, August 2003 Back
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