Evidence submitted by the Advice Services
Alliance
INTRODUCTION
1. The Advice Services Alliance (ASA) welcomes
the opportunity to provide evidence to the Constitutional Affairs
Committee enquiry into legal aid.
2. ASA is the umbrella organisation for
national independent advice networks in the UK Current full members
are:
— Citizens Advice Scotland
— DIAL UK (the disability information
and advice service)
— Scottish Association of Law Centres
3. Our members represent over 2,000 organisations,
which provide a range of services to diverse groups working mainly
on a local level throughout the UK.
4. ASA convenes meetings of our members
to discuss issues of access to legal and advice services. Our
aim in this submission is to broadly reflect the views expressed
at those meetings. However, due to the pressure of time, it has
not been possible to consult our membership about the detail of
this submission. Therefore, it is important that the Select Committee
is aware that our members do not necessarily agree with everything
said in this document. Further, we expect that at least some of
our members will be submitting evidence independently of ASA.
5. We set out below our comments in relation
to the Committee's terms of reference. Our comments relate only
to civil legal aid, and more specifically to the "social
welfare law" areas within civil legal aid.
What evidence is there of the emergence of "advice
deserts"?
6. In order to attempt to answer this question,
we need to be as clear as possible about what we mean by "advice
deserts".
7. Firstly, we need to be clear about what
is meant by "advice".
8. There are different kinds of advice that
are important to our members. Some of our members give advice
and support to particular sections of society on a wide range
of issues, much of which would not generally be seen as legal
advice. This is particularly the case for the work of agencies
that are affiliated to DIAL UK, Youth Access and Age Concern.
One of our network members, Shelter, is concerned with giving
legal advice in housing matters. Other network members give legal
advice across a range of categories.
9. The question of "advice deserts"
is clearly concerned with important issues to do with access to
advice and access to justice. However, there are many other important
issues to do with access. These include:
— People not knowing that they have
rights that they can try to enforce.
— People not knowing where to go to
get advice about their rights.
— Access issues that affect particular
groups in society, such as members of Black and Minority Ethnic
communities, people whose first language is not English, disabled
people, people living in rural areas or who are otherwise geographically
isolated, young people, older people, refugees and asylum seekers,
prisoners and ex-offenders, and others.
10. In relation to legal advice there are
clearly different levels of advice, although the distinction between
them is not always easy to draw. Perhaps the most widely used
distinction is that between "generalist" and "specialist"
advice.
11. In terms of the legal aid system, "Specialist
help" is the level of advice which is funded by the Legal
Services Commission (LSC) by means of contracts with solicitors
in private practice and advice agencies.
12. Since the Committee is conducting an
inquiry into legal aid, we assume that it is primarily concerned
with advice at this level—the ability of people with legal
problems to obtain advice from a solicitor in private practice
or an advice agency with a contract from the LSC—rather
than from an advice (or other) agency which is funded in some
other way.[5]
13. This is a very important issue. It is
also the one about which there is most evidence. There is relatively
little hard evidence about the extent to which other advice is
provided.
14. There is one complication in that both
solicitors and advice agencies with LSC contracts are able to
do up to 10% of their advice work in areas of law for which they
do not have a specific contract, under the system known as tolerances.
These provide some flexibility within the system to enable advice
to be given, albeit by solicitors and advisers who are not funded
as specialists in that particular field. This can therefore alleviate
the extent to which a "desert" creates a problem. We
understand that research has been conducted for the LSC into the
quality of work done under tolerance, but this has yet to be published.
15. In considering this problem, the issue
of capacity is very important. It can seem obvious that "advice
deserts" exist where there is no supply at all. We would
argue that there are also however "deserts" where there
is insufficient supply to meet the demand for advice. This is
an issue which has been recognised within the Community Legal
Service.[6]
We have seen an advance copy of the Citizens Advice report "The
Geography of Advice", which highlights the difficulties which
CABx have had in referring clients to solicitors, even where there
are contracts locally. This is a complicated matter. It is our
view that more research is needed in order to understand issues
of need, demand and supply.
16. A further consideration is time. On
one level there is a variation over time as contracts are taken
up and terminated for various reasons. A more specific problem
is the time of year. Solicitors firms are awarded a number of
"new matter starts" to cover the financial year. Advice
agencies contract to provide a certain number of hours work per
year. Towards the end of the year firms, in particular, may be
unable to take on new cases because they have used up their case
allocation, and are unable to obtain additional matter starts
from the LSC.
17. There is also an issue about distance
and the extent to which people can be expected to travel in order
to obtain the advice they need. Many rural areas, for instance,
contain no legal aid suppliers, but people are used to travelling
significant distances (maybe 20 or 30 miles) to access various
services, or indeed to do their shopping. If the appropriate advice
is available in the nearest large town, to which they usually
travel, then this may not be seen as a significant problem.[7]
It appears however that there is also a converse problem, and
that many people in large cities are unable or unwilling to travel
a few miles to obtain the advice they need. For them, there is
a problem if the service in question is not available in the vicinity
of where they live (and/or work).
18. A central issue concerns the relative
importance of advice in different categories of law. Linked to
other issues to do with supply,[8]
this issue determines the extent to which supply should be available
either locally, sub-regionally, regionally or possibly nationally.
19. The Lord Chancellor's direction for
the CLS Fund and the Guidance and Information for Community Legal
Service Partnerships (CLSPs) issued by the LSC[9]
prioritise the following categories of law:
20. In general terms, we would suggest that,
in order to avoid the creation of "advice deserts",
there should be access to legally aided advice services:
— At a "local" level in relation
to family, housing, debt, benefits, employment and immigration
law (although we accept that the demand and need for immigration
law varies between areas depending on the nature of the local
population).
— At a "sub-regional" or
"regional" level in relation to the other main categories
of contracted supply—community care, education, public law,
actions against the police, mental health, and clinical negligence.
21. There is no simple definition of what
should constitute a "locality" for these purposes. We
would suggest that the starting point should be the "bid
zones" used by the LSC, although in some cases it may be
more appropriate to consider the areas covered by Community Legal
Service Partnerships (CLSPs). In some areas it may also be necessary
to take account of the normal traveling patterns of the population
of the area concerned.
22. In relation to mental health law there
is a specific geographical issue in that most of the work relates
to people who have been detained in mental hospitals and/or are
appealing to a mental health review tribunal in relation to their
detention. Since most clients by definition cannot travel to obtain
legal advice, the issue is whether there are enough contracted
suppliers within reasonable traveling distance of the hospitals
in which people are detained.[10]
If that is not the case, then the hospital in question would arguably
amount to an "advice desert".
23. We would suggest therefore that an "advice
desert" exists if, at any time, there is not a sufficient
number and spread of legal aid contracts to enable an eligible
client to obtain access to a specialist supplier within a reasonable
timescale:
— "locally" in relation to
family, housing, debt, benefits, employment and (where appropriate)
immigration law; and
— within a reasonable travelling distance
in relation to the other categories of law.
24. In order to ascertain whether an "advice
desert" exists, at least three factors need to be considered.
— Whether contracts actually exist
"on the ground" in the particular subject category.
— Whether the supply is sufficient
to meet the demand.
— Whether a lack of supply is mitigated
by the use of tolerances.
25. Detailed evidence as to the existence
of contracts can be provided by the LSC. Some evidence is contained
in the regional reports prepared by the Regional Legal Services
Committees (RLSCs) and the contracting strategies prepared by
the LSC's regional directors.
26. Whether the supply is sufficient to
meet the demand is more difficult to answer. Some evidence on
this can be obtained from the strategic plans published by the
CLSPs, and the consideration of these, and other material, in
the regional reports. Each RLSC has made recommendations about
the gaps which they think are the most important ones in their
region which need to be filled. The LSC will presumably have records
of the requests they receive from contractors for additional matter
starts or contract hours, which will provide some evidence of
the experience of firms and agencies on the ground. Some evidence
from agencies on the ground is contained in the Citizens Advice
report "The Geography of Advice", which details the
problems experienced by CABx in referring clients to solicitors
for legal advice.
27. The use of tolerances is very hard to
monitor, at least from outside the LSC. Some of the regional reports
and strategies give figures for the use of tolerances but it is
not generally possible to deduce from these figures the extent
to which such use is occurring in particular categories of law
or geographical areas, and therefore whether it is having any
effect on "advice deserts". The LSC may however be able
to provide some evidence of this.
28. At this stage we can only comment on
the first issue, the actual distribution of contracts "on
the ground", by considering the information published in
the regional reports and contracting strategies. Our comments
on this are attached as an Appendix to this evidence (not printed).
What action is being taken to ensure that there
is access to legally aided advice in all legal specialisms?
29. One of the aims of the Community Legal
Service is clearly to increase access to legally aided advice.
At the local level, action is taken by CLSPs. However, the evidence
which we have suggests that CLSPs have generally been unsuccessful
in levering in additional funds[11]
so as to increase access to legally aided advice either generally,
or in relation to the areas of priority need identified by the
CLSPs. This is one of the key issues being considered by the Review
of the CLS which is presently being conducted by consultants for
the Department of Constitutional Affairs.
30. Action is being taken by the LSC in
a number of ways in order to increase access to legally aided
advice, although we doubt if they would claim to be taking action
to ensure that there is access to legally aided advice in all
legal specialisms. This action includes:
— A planning process involving CLSPs
and RLSCs which aims to ensure that access to advice is available
appropriately at local, sub-regional or regional levels.
— National policy initiatives, especially
"methods of delivery" pilots, which aim to "plug
the gaps" and support existing services by way of specialist
support, generalist support, training contracts, possession schemes,
telephone advice and other methods.
— The LSC's recent proposal to institute
a national system of telephone advice in relation to welfare benefits,
debt and education advice in England, and welfare benefits, debt
and housing advice in Wales.
31. We have considerable reservations about
the extent to which this action will ensure access to legally
aided advice in most categories of law. We also have reservations
about the extent to which telephone advice can be a substitute
for face-to-face advice, which we set out in more detail below
in response to the Committee's fifth question.
32. However, we must give credit to the
LSC for the action that it is taking, which is clearly aimed at
achieving as much access as possible within the funding constraints
within which it is operating.
33. The Committee's terms of reference refer
explicitly to all legal specialisms. These are presently described
by the LSC in terms of 14 categories of law. There are particular
problems in relation to what are sometimes described as the "minor"
or "emerging" areas of law—Actions against the
police, Education, Community Care and Public Law. The regional
reports show significant discrepancies in terms of contracts outside
London. Some regions have no contracts in some of these categories.
The latest information that we have seen suggests that the distribution
of contracts in these areas between the LSC regions[12]
is approximately as follows:
|
| Actions against
the police
| Education | Community
Care
| Public Law |
|
| London | 25
| 20 | 41
| 18 |
| North West | 15
| 6 | 6
| 2 |
| Eastern | 0
| 4 | 0
| 3 |
| South Eastern | 3
| 5 | 0
| 0 |
| South Western | 1
| 5 | 6
| 1 |
| Yorks and Humberside | 7
| 6 | 3
| 5 |
| North East | 3
| 2 | 0
| 0 |
| East Midlands | 10
| 2 | 2
| 1 |
| West Midlands | 5
| 3 | 2
| 5 |
| Merseyside | 6
| 3 | 2
| 2 |
|
34. We are also particularly concerned about the position
in relation to legally aided advice in employment law. This is
clearly a vital area of social welfare law, and one that can play
a major role in combating social exclusion. There are particular
problems affecting this area of law however. Representation at
employment tribunals is not included within the legal aid scheme—which
places a limit on the extent to which LSC funded advisers can
provide a full service to their clients. Perhaps of even greater
importance however is the eligibility issue. Many persons seeking
employment advice are not financially eligible either because
they are still in work or because they have a partner who is in
work. This means that many people who are having trouble at work,
and facing disciplinary or other action or the threat of dismissal,
are unable to obtain advice that might enable them to save their
jobs (unless they happen to be members of trade unions).
35. There are serious problems in the number and geographical
distribution of employment contracts, as discussed in the Appendix
to this evidence (not printed). Telephone advice in employment
was piloted by the LSC in some areas but employment law is not
included in the LSC's proposals for a national telephone service,
for reasons that are not clear to us. This may be partly to do
with eligibility issues. However, even if this is the case, it
appears to us that there is a case to be made for changing the
eligibility rules in relation to employment advice,[13]
or at the very least providing access to proper telephone advice
irrespective of eligibility.
36. There is also clear evidence from a study carried
out in Wales that there are particular problems in accessing specialist
advice in employment cases that involve discrimination.[14]
How can the Department for Constitutional Affairs and the Legal
Services Commission provide incentives for legal aid practitioners
to continue legally aided work?
37. Although there are some issues raised by advice agencies
and our member networks about the not for profit contract operated
by the LSC, it seems to us that this question is primarily concerned
with incentives to legal aid practitioners in private practice.
38. A number of suggestions have been made by bodies
representing legal aid practitioners. The Law Society has recently
published its proposals for the future delivery of legal aid services
in a document entitled "Protecting Rights and Tackling Social
Exclusion."
39. It appears to us that incentives could include:
— Increasing remuneration rates across the board—both
generally, and in terms of annual cost of living or RPI increases.
— Alternative models of remuneration—such
as those suggested by the Law Society.
— Greater use of incentives, to encourage firms
to carry out work in particular subject and/or geographical areas,
as the LSC did in relation to the expansion of immigration advice,
and as it is presently proposing in relation to the Criminal Defence
Service.[15]
— Greater diversity of remuneration rates and systems
which, for example, could take account of firm size and geography.[16]
— Increasing remuneration rates for the best suppliers—by
reference to Law Society Panel membership or other criteria.
— Increasing the rates for doing particular tasks—eg
the diagnostic and management role in the Family Advice and Information
Service (FAInS) presently being piloted by the LSC.
— Encouraging particular ways of working—eg
the "holistic" approach in FAInS.
— Reducing the extent of administration, routine
recording of work, reporting and general bureaucracy associated
with running a legal aid contract[17]
(the LSC is presently beginning to work in this direction in its
"preferred supplier" pilot).
— Alternative contractual regimes, including some
based on the not for profit contract, or possibly block funding
arrangements.
— A wider definition of the type of work which can
be claimed under LSC contracts, to allow, for instance, more preventative
work.
— Subject to a check as to quality by peer review,
a change in the "tolerance" rules to enable firms to
do more for clients in subject areas which are related to those
in which they hold contracts
— Assistance in relation to recruitment problems.
Is the perception that legal practitioners are moving out of
legally aided work correct?
40. LSC statistics show clearly that there has been a
reduction in the number of solicitors firms with contracts for
legal help. The most recent figures, which we have seen, show
that there were:
4,383 in March 2003 (a reduction of 3.5%);
4,098 in June 2003 (a further reduction of 6.5%)[18].
41. The change in the number of contracts varies as between
different categories of law. Between March 2002 and March 2003
the number of contracts increased in the smaller categories of
law (actions against the police, community care, education and
public law), increased slightly in mental health, and increased
by 9% in immigration. The number of contracts decreased in family
(-4%), consumer (-17%), debt (-8%), employment (-9%), housing
(-6%), and welfare benefits (-5%).[19]
42. During the first quarter of 2003-04, the number of
specific categories of law covered by contracts fell by 6%, which
included reductions in family (-7%), housing (-7%), welfare benefits
(-8%), debt (-8%) and mental health (-7%).[20]
43. Details of the decline in the number of solicitors'
contracts in one region is provided in the LSC's Eastern region's
Regional Report 2004. This sets out[21]
details of the changes in contracts between the end of 2002 and
July 2003. In family law, 32 contracts were withdrawn or terminated,
while only two new contracts were awarded. In housing there was
a loss of ten housing contracts, with only one new contract awarded.
There were also smaller reductions in the numbers of contracts
in debt, welfare benefits and immigration.
44. The LSC will have the most up-to-date information
on this topic.
Can the requirement for legal aid be reduced by the resolution
of some legal issues on a more informal basis, through the Citizens'
Advice Bureaux, long distance services or otherwise?
45. We do not believe that the requirement for legal
aid can be reduced to any significant extent in any of these ways.
46. We assume that the reference to "Citizens Advice
Bureaux" is meant to refer generally to the proposition that
some of the work done by specialists under legal aid can instead
be done by generalists (including volunteers) working in advice
centres. (It should be noted of course that many advice centres,
including CABx, do specialist work already under contracts with
the LSC).
47. The nature and extent of work which can be done under
legal aid contracts is already controlled by the terms of the
LSC contract and the Funding Code. There is no evidence to suggest
that any significant amount of work is presently being carried
out under legal aid contracts which could be done by generalist
advisers. There are also concerns about the quality of advice
provided by non-specialists, which are borne out by a significant
body of research.[22]
48. We assume that "long distance services"
refers to telephone advice, information obtainable over the Internet,
e-mail advice, and advice accessed by other modern forms of technology
such as video links and video conferencing.
49. We have considerable reservations about the extent
to which telephone advice can be a substitute for face-to-face
advice. There are a number of circumstances when telephone advice
will not be appropriate. In its Evaluation Report of the telephone
advice pilot, the LSC suggests that telephone advice is not appropriate
in the following circumstances:
— Clients with learning difficulties, severe language
issues and mental health problems are likely to need a level of
support and assistance that cannot be given over the telephone.
— Complex cases or cases where there is a large
amount of paperwork should be dealt with face-to-face.
— In certain circumstances advisers may need to
see a client in order to assess whether they are telling them
the full and true facts of the case.[23]
50. We believe that services such as these have a role
to play, and a particularly important role in increasing access
for people who are geographically isolated from legal aid services,
or are otherwise unable to access them. However, our view is that
the role of such services is supplementary to mainstream legal
aid services, and that such services cannot replace mainstream
legal aid services to any significant extent.
51. We assume that the reference to "a more informal
basis" is also meant to encompass the role of alternative
dispute resolution, or ADR.
52. ADR covers a wide range of options for resolving
disputes outside the more formal process of litigation. The most
common are arbitration, conciliation, mediation and ombudsman
schemes.
53. In June 2003 we published a consultation paper on
the use of Alternative Dispute Resolution (ADR) in resolving disputes,
and in September 2003 we hosted a national forum to debate the
issues raised in the paper. As a result of responses to the consultation
and discussion at the forum, we have identified a number of key
issues relating to the use of ADR.
54. The culture change towards using mediation in family
disputes, and the potential for culture change in other contexts
such as employment and medical negligence, following the Woolf
report, are to be welcomed. However, we believe that independent
legal advice must always support a client's decision about which
process to use, and must be available to the client during ADR
processes, as it is during litigation. Where clients are eligible,
this advice should be publicly funded. However, we have concerns
about the possible promotion of ADR as an alternative to expenditure
on Legal Aid. Clients should be able to choose the most appropriate
process for resolving a particular dispute. Access to justice
should not be undermined by restricting funding for legal advice,
representation or litigation.
Would a salaried service or the provision of law centres be
a viable solution to lack of provision, either in areas without
sufficient practitioners or elsewhere?
55. ASA considers that salaried services, whether or
not on a law centre model, can provide a viable solution to the
lack of provision.
56. Such developments have already taken place. Over
the past three years, new Law Centres have been established in
Devon, Surrey and in the Greater Manchester area. Other not-for-profit
organisations have also been awarded LSC contracts explicitly
in order to meet gaps in provision.
57. We are aware that some of these projects have been
able to meet the terms of their contracts with the LSC, whilst
others have struggled. There is a growing view within our membership
that LSC contract funding alone is insufficient for the development
of new services in advice deserts. Research is needed into the
support and financial needs of such projects.
58. Finally, and importantly, it should be a requirement
that all new salaried services are properly independent and able
to work in the interests of their clients without improper influence
from funders or other bodies.
What would be the comparative funding costs of a salaried service?
59. The short answer is that there is insufficient evidence
at present. We are aware of studies in other jurisdictions which
attempt to compare the costs of salaried services with private
practice. It seems that the evidence is not clear cut, with some
studies suggesting that salaried services are cheaper and others
suggesting that the costs are similar.[24]
60. The issue of comparative costs can be approached
in two ways.
61. The first approach has been to look at cost per case.
Research[25] published
in 2001 concluded that "NFP agencies took between two and
two and a half times as long as solicitors to carry out their
work" but that "Not for profit agencies participating
in the pilot performed significantly better in terms of quality
than the solicitor participants; although the proportion of poor
quality organisations is the same in both sectors". The report
also acknowledges that in some subjects, most notably debt, NFP
agencies and solicitors tended to approach cases differently.
This, of course, makes it more difficult to make a true comparison.
62. It should be emphasised that the data for the above
report was collected in the late 1990s, before the new NFP contract
was introduced. ASA has recently conducted its own survey of NfP
contract holders and found some encouraging evidence that average
case times on closed cases are coming down. This is against a
background of LSC concern about the general upward drift in costs
per case.
63. The second approach to comparing costs is to look
at the cost of delivering a service. We understand that the DCA
commissioned study "review of supply, demand and purchasing
arrangements"[26]
in the private practice sector is near completion. A similar study
into the "Cost of Contracting in the NfP Sector" is
being conducted by the LSC itself. Questionnaires were sent to
all 414 NfP contractors in mid-November 2003 and we understand
that 185 have been returned. The LSC is currently verifying the
data that they have gathered. We hope that this work will produce
useful evidence which will inform the debate about the future
of publicly funded legal services.
Advice Services Alliance
January 2004
5
The distinction is not always clear in practice however. Most
advice agencies which have LSC contracts also have other funding.
Since LSC contracts are only awarded in relation to specific categories
of law (such as housing, debt, welfare benefits etc), many agencies
have contracts in some areas of law, but also give advice in other
areas of law, often at a specialist level. Back
6
See for instance, the Capacity Pilot project carried out jointly
by Kensington & Chelsea and Camden Community Legal Service
Partnerships. Back
7
See for instance the "hub and spoke" model proposed
in the East Midlands Regional Report 2003, p 16-17. Back
8
Such as the distribution of suppliers, the extent of demand from
eligible clients and the economic viability of contracts. Back
9
In the Guidance and Information for CLSPs issued by the LSC in
December 2000, CLSPs were asked to consider needs in five areas
in particular-housing, debt, benefits, employment and immigration.
Consideration of needs in these areas was described as a "baseline
requirement". Back
10
See the consideration of this issue, in geographical terms, in
the North East Contracting Strategy 2003, Appendix 5. Back
11
Other than through the Partnership Innovation/Initiative Budget. Back
12
We are unable to ascertain the numbers of contracts in these
categories in Wales. Back
13
One possibility might be to ignore the client's income from employment
up to a specified limit, when this is under threat, in the same
way that a partner's income is ignored in family disputes, and
the subject matter of a dispute is ignored in considering a client's
capital Back
14
C Williams and others "Snakes and Ladders: Advice and Support
for Discrimination Cases in Wales", February 2003, available
at www.cre.gov.uk/pdfs/snakes-report.pdf Back
15
Incentives could include grants, soft loans, and guaranteed income-see
Independent Lawyer 16, p 4. Back
16
R Moorhead "Legal aid and the decline of private practice:
blue murder or toxic job?"-International Journal of the Legal
Profession, forthcoming. Back
17
Ibid. Back
18
LSC Annual Report 2002-03 and Quarterly Report on Civil Contracting
(July 2003). Back
19
LSC Annual Report 2002-03. Back
20
20 LSC Quarterly report on Civil Contracting (July 2003). Back
21
Appendix 2, p 25-26. Back
22
The most recent being "An Anatomy of Access" by R Moorhead
and A Sherr, available at www.lsrc.org.uk/publications/modelclientpaper.pdf Back
23
Telephone Advice Pilot Evaluation Report, p 20-21, available
at www.legalservices.gov.uk Back
24
Future of Publicly Funded Legal Services-A Consultation Paper
by the Law Society, February 2003 (pages 53 and 58). Back
25
Quality and Cost-final report on the contracting of civil, non-family
advice and assistance pilot: Moorhead, Sherr et al, 2001. Back
26
Review conducted on behalf of DCA by Frontier Economics and Otterburn
Legal Consulting. Back
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