Evidence submitted by the Legal Action
Group
INTRODUCTION
1. The Legal Action Group (LAG) is a national
charity, established over 30 years, that is committed to improving
access to justice— particularly for the vulnerable and socially
excluded. LAG works with lawyers and advisers to improve standards
and knowledge of social welfare and criminal law amongst practitioners,
by publishing a monthly magazine and legal handbooks and providing
training for lawyers and advisers. We also comment and campaign
extensively on access to justice issues, relating in particular
to the delivery of publicly funded legal services as well as social
welfare and criminal law, the administration of justice and the
tribunal system. LAG does not represent any particular interest
group: our primary concern is with quality and access to justice
for the users and potential users of legal services.
2. LAG is pleased to have the opportunity
of making a submission to the Constitutional Affairs Committee
relating to its enquiry on legal aid. We believe that this enquiry
is timely and important. Our submission relates mainly to the
problems of access to civil and family law services. However,
there are also some serious concerns about the future of provision
within the Criminal Defence Service (CDS) and we make some reference
to these.
3. The Committee's enquiry is partly focused
on the emergence of advice deserts. However, the term "advice
desert" has entered into common usage without clear agreement
on its meaning. Before attempting to answer the questions that
have been posed, we believe it would be helpful to put this discussion
in context.
EXPENDITURE ON
LEGAL AID
4. Through the Community Legal Service (CLS)
fund, the Legal Services Commission (LSC) provides funding for
specialist legal and advice services on civil and family law matters.
The Criminal Defence Service (CDS) is the scheme through which
advice and representation for criminal defence work is funded.
Funding for civil legal aid certificates (ie, for representation
in court, otherwise known as "licensed work") represents
the largest element of CLS expenditure: in the financial year
2002-03, the net cost of this was £483.3 million. Payments
for specialist legal advice and assistance under the Legal Help
scheme, now exclusively delivered through the General Civil Contract,
stood at £359.50 million.[46]
The total net CLS payments for that year—ie, £812.8
million—compares with payments of approximately £1,095.7
million for criminal defence services (ie, CDS payments and payments
administered through the Court Service for representation in the
Crown Court and higher courts). The cost of the legal aid bill
for criminal defence work is growing: the LSC anticipates an increase
of some £77 million for CDS claims (including Crown Court
work) in the current financial year.[47]
5. The Legal Services Commission operates
within a cash limited budget. We of course recognise that there
must be reasonable containment of costs. However, we strongly
object to the arbitrary capping of legal aid expenditure. If a
cash limited budget is allowed to undermine quality of services,
access, consumer choice or independence, the legal aid scheme
will fall short of providing satisfactory access to justice. We
are very concerned about the growing pressures on the civil legal
aid budget from the increasing costs of criminal legal aid. There
is a clear need to introduce a transparent separation between
the civil and criminal legal aid budgets—not only to ensure
adequate access to civil justice, but also to ensure the long-term
survival of the supplier base for civil legal aid.
SPECIALIST VERSUS
GENERALIST ADVICE
6. The CLS fund does not pay for all the
services that are provided under the CLS "brand". With
very limited exceptions, the fund is restricted to supporting
legal and advice work at a specialist level—although it
should be recognised that not all specialist work is funded by
the CLS; a significant proportion is supported through grants
from (for example) local authorities and the Community Fund. Information
services and non-specialist advice at General Help level are funded
from a wide range of other sources, although the LSC seeks to
badge these services as being part of the CLS umbrella and to
encourage all agencies to comply with the quality assurance standards
that operate at various levels of the CLS Quality Mark.
7. Thus, what might be described as the
"wider CLS" covers a complex and diverse network of
organisations and agencies across the for-profit, not-for-profit
(NfP) and public sectors. At the end of May 2003, there were over
10,000 organisations with the CLS Quality Mark at one or more
of its five levels: Self-help Information, Assisted Information,
General Help, General Help with Casework and Specialist.[48]
There is an unknown additional number of advice providers that
have not been awarded (or have not applied for) the Quality Mark—although
none with CLS contracts, for which the specialist Quality Mark
is a requirement. In comparison, as of March 2003 there were 5,061
offices with contracts for civil and family Legal Help work.[49]
8. While generalist advice and information
agencies undoubtedly make an important contribution to the CLS,
we believe it is important to recognise that these provide clients
with a different type of service—not one that can be substituted
for specialist advice. In this context, we would suggest that
the tendency within the Department for Constitutional Affairs
to refer to the CLS as providing "advice and guidance"
only adds to the confusion that already exists between its different
levels of provision.
INDEPENDENCE OF
ADVICE SERVICES
9. LAG believes that legal and advice services
should be independent from local and central government. We are
concerned about recent moves to increase provision of advice and
information services through government agencies. The LSC is currently
working with a number of government departments, including the
Department for Work and Pensions (DWP) and Department for Education
and Skills, to set up protocols for joint provision of advice
and information delivered under the umbrella of the CLS—for
example, through JobCentre Plus and the Connexions Service. The
Chief Executive of the Legal Services Commission, Clare Dodgson,
is on record as suggesting that people seeking advice are "not
particularly concerned about who is giving that advice or what
label is on it as long as it meets your needs."[50]
10. We disagree with the Chief Executive's
point of view. We believe that these initiatives raise important
concerns about independence of advice and the potential for conflicts
of interest. For example, a JobCentre Plus employee may less readily
advise a client to appeal against the DWP's refusal of a welfare
benefits claim than (say) an adviser at a citizens advice bureau.
There are also valid concerns about the breadth and the quality
of government-sponsored advice. For example, the latest report
of the Parliamentary Ombudsman noted that over a third of the
complaints she received related to the DWP and, of these, a "significant
number" of complaints against JobCentre Plus involved either
incorrect or misleading advice about entitlement to benefits.
ADVICE VERSUS
REPRESENTATION
11. There is also an important distinction
to be made between legal advice under the General Civil Contract,
and legal representation, which is funded under civil legal aid
certificates. Legal aid certificates are only available to agencies
with solicitors—typically, private practice firms or law
centres. Once a certificate for a case has been granted, representation
may be carried out by the solicitor him/herself, or a barrister
may be instructed. For the past four years—that is, since
the advent of the CLS—it has been possible for non-solicitor
NfP agencies to receive legal aid funding for specialist advice
work delivered under the CLS General Civil Contract. However,
because these agencies do not have a solicitor on the staff team,
they are not entitled to apply to the LSC for legal aid certificates
to represent their clients in court. (It should be noted that
unqualified advisers are also denied the right of audience in
most courts.) This is particularly problematic in certain areas
of law, for example, housing and education, where litigation is
often involved; providers may be prevented from providing a comprehensive
service to clients with complex cases and have to refer them on
to a solicitors' firm or a law centre if representation in court
is required. This factor should be borne in mind when looking
at the possibility of expanding CLS contracts in the NfP sector.
THE ROLE
OF CLSPS
12. CLS partnerships (CLSPs) operate at
a local level. Their role is to carry out assessments of local
legal need, plan services, co-ordinate funding and promote effective
referrals of clients. Their membership is usually drawn from providers
of legal and advice services in both the NfP and for-profit sectors,
together with representation from the Legal Services Commission
regional office and the local authority. Using the strategic plans
drawn up by CLSPs, Regional Legal Services Committees feed recommendations
into the LSC's regional contracting strategies. However, in the
absence of additional funds, the impact of this input from CLSPs
has been very limited.
13. By March 2004, the LSC expects CLSPs
to provide 100% coverage of England and Wales. Where CLSPs are
proactive and well supported, they can be effective in planning
services and encouraging joint working between CLSP members. However,
it is important to recognise that these partnerships do not themselves
provide legal advice or information services direct to users and
few have been successful in attracting new funds. Thus, the fact
that there is an active and effective CLSP in an area is no guarantee
of adequate legal and advice services.
14. The CLS aims to provide a "seamless
service" throughout its different levels of provision. A
client approaching a CLS advice or information provider that cannot
resolve his/her problem should be referred, or at least "signposted",
to another organisation that is better equipped to meet the particular
legal need. However, research carried out on specialist Quality
Mark providers using "mystery shoppers" to test referral
activity suggests that the "seamless service" is not
working well in practice.[51]
Findings suggest that a significant proportion (up to 40%) of
clients are referred to another agency that is less than appropriate;
and a worrying minority (around 12%), instead of being referred,
were given poor advice—outside the provider's area of expertise.
This study suggests that, in many cases, access to suitable specialist
provision may be inhibited rather than facilitated by the CLS
network.
15. In summary, we believe that any analysis
of "advice deserts" needs to be rooted in a clear understanding
of the nature of the legal and advice services under discussion.
We would argue strongly that advice should be independent from
local and central government; we do not accept that government-sponsored
services are an acceptable means of plugging gaps. Services providing
information alone, even if quality marked as part of the CLS,
self-evidently do not provide advice. Likewise, advice at General
Help level is no substitute for specialist Legal Help work under
CLS contracts. In many towns, there is comprehensive provision
of generalist advice—but provision at Specialist Quality
Mark level may be limited to family law alone, or may cover only
a few areas of social welfare law. It is also important to bear
in mind the limitations on the work of non-solicitor agencies
that are contracted for specialist Legal Help work, while remaining
unable to apply for legal aid certificates to take cases to court.
Finally, we believe that client choice is an important issue that
is too easily ignored. Given the current pressures on publicly
funded services, the reality for many clients is that they have
no choice in who represents them. For this reason, it is essential
that legal aid services maintain high quality standards.
What evidence is there of the emergence of "advice
deserts"?
16. Some evidence of existing and emerging
shortfalls in the provision of CLS contracted services can be
found in the LSC's annual report for 2002-03. For example, between
March 2002 and March 2003, the number of contracts in family law
dropped by 4% from 3,760 to 3,595. Contracts in many areas of
social welfare law have also reduced in number; in consumer law,
there has been a drop of 17%; in employment law, contracts have
dropped by 9%, in debt by 8% and in housing law by 6%. The total
number of non-family contracts has gone down by 4%, from 5,176
to 4,974 during this period.[52]
Contracts for criminal defence work have remained fairly stable
at around the 2,900 mark.[53]
The LSC has just announced that it hopes to bring about a major
"cull" of CDS contracts; it seems that the reduction
is sought in an effort to reduce its own operating costs.
17. The LSC has admitted having concerns
about the level of contracted provision in both civil and criminal
law. With regard to access to criminal defence services, the Commission
stated in its report: "We are concerned that in some rural
areas and in a number of towns coverage is reaching a point where,
if existing contracted suppliers ceased to provide services, it
would be increasingly difficult for us to maintain coverage at
the level we consider necessary".[54]
Likewise, the LSC's Corporate Plan for 2003-04 acknowledges: "We
are beginning to see examples of access problems in localised
areas as a small number of [criminal defence] suppliers have withdrawn
from the scheme."[55]
18. It should be noted that any further
reduction in family law contracts is likely to have wider repercussions.
This is because the LSC operates a system of "tolerances"
permitting contracted providers to carry out a small amount of
work that is outside the scope of their specialist contracts.[56]
Although research has found that the quality of tolerance work
can be compromised, it is nonetheless important in locations where
there is no contracted specialist provider for one or more areas
of social welfare law. For example, in many rural areas and market
towns where there are no other suppliers, family law providers
maintain some coverage of social welfare law through the tolerance
system. Thus, the loss of a family contract from the supplier
base may in fact mean the loss of coverage that is more diverse.
The LSC has expressed concern about what it describes as "the
continued departure of family law suppliers", suggesting
that if more suppliers leave "there would be implications
for the provision of other services they often provide, like social
welfare law and criminal defence services."[57]
We share this concern.
19. Even where there is a supplier with
a CLS contract, they will not necessarily be in a position to
take every case that is referred to them. The General Civil Contract
for private practice firms involves a set number of case starts
for each contract category—effectively, a means of rationing
supply; once case starts are exhausted, suppliers have to turn
cases away. There are also a number of other reasons why clients'
cases are not taken on. The Law Society Gazette's 2004 survey
of solicitors' firms found that 74% of respondent firms had turned
clients away in the last year. Of these, 47% did not have a contract
in that area; others lacked the physical capacity (45%) or were
being selective about the cases they took on (42%). 36% had run
out of case starts and 24% could not see the client in time. The
worst hit area was London, with 86% of firms reporting to their
regional LSC office that they had turned clients away. This was
followed by Nottingham (83%), Birmingham (81%) and Brighton and
Chester (80%).
20. Evidence of "advice deserts"
has also been exposed in The Geography of Advice, a report that
will shortly be published by Citizens Advice based on the responses
of about 200 citizens advice bureaux (CABx) in England and Wales
to a survey questionnaire.[58]
The survey found that 39% of respondent CABx perceive their bureau
as being located in an "advice desert". 16% reported
having difficulty on a daily or weekly basis in finding a CLS
contracted solicitor who can deal with family law cases; for housing
law cases, the proportion was 26%; and for immigration cases,
the proportion stood at 19%. The report also contains a number
of evidence reports from individual CABx, reporting problems in
accessing legal services and the experiences of users.
21. It is not necessary for our submission
to recite in full the worrying findings of this evidence report.
However, it is a matter of great concern that—for example—74%
of respondent CABx in the South East region said that they had
problems referring housing and family cases, and 77% experienced
similar problems with immigration cases. The complete absence
of CLS contracts in certain parts of England and Wales is also
a matter of grave concern. Local CABx reported, for example, that
there are scarcely any solicitors' firms in the whole of Kent
providing specialist housing advice under CLS contracts; and that
Walsall has only one firm with a family law contract. There are
also, reportedly, no contracted housing solicitors in the whole
of Gloucestershire or Worcestershire. Many other illustrations
of supply shortages are to be found in the text of the report.
22. Public transport is another factor that
should be taken into account in assessing the accessibility of
services in rural areas. An apparently accessible supplier may,
in fact, be very difficult or expensive to reach without the use
of a private car. The Citizens Advice report contains numerous
case examples of clients in rural areas who were unable to travel
to the nearest CLS specialist supplier, because of public transport
problems and/or because of their personal circumstances. Conversely,
good, reasonably priced public transport can make an apparently
inaccessible service relatively easy to reach.
23. The relatively small number of contracts
in certain "niche" areas of law also gives rise to serious
concerns about accessibility. For example, as of March 2003 there
were only 39 contracts in public law; 61 and 62 for education
law and community care respectively; and 75 for actions against
the police. The spread of these contracts is not even; some regions
have no specialist provider in one of these fields whereas others
have more than one. For example, there are no contracts for public
law in the South Eastern or North East regions and only one in
the South West and East Midlands—whereas there are 18 in
London. Many of these areas of law relate to actions against public
bodies. The former Lord Chancellor rightly identified "proceedings
against public authorities alleging serious wrong-doing, abuse
of position or power or significant breach of human rights"
as areas of law that are among those having higher priority than
others for the CLS fund.[59]
Without sufficient access to specialist providers in these fields
of law, it is unlikely that this prioritisation of work can be
achieved.
24. Employment law is an area of substantial
legal need. However, the number of CLS suppliers is relatively
small, and reducing. In March 2003, there were 288 contracts,
a reduction of 9% from the previous year.[60]
One example of the impact of this shortfall on the ground is to
be found in a research report on access to advice and support
for employment discrimination cases, published in October 2002
by the University of Wales.[61]
The study noted substantial "advice deserts", with whole
areas of Wales having no specialist employment advice provision
and only limited access to generalist advice providers. It found
considerable unmet need in this area of law; many potential applicants
to the Employment Tribunal take no action following discrimination
"due to geographical, economic, psychological and cultural
barriers".
What action is being taken to ensure that there
is access to legally aided advice in all legal specialisms?
25. We take this question to refer to provision
of specialist, independent legal advice given to clients face
to face rather than over the telephone or via long-distance methods
of delivery. In our view, not enough is being done to address
the supply shortages that already exist, or those that threaten
to appear soon. However, the LSC is taking some measures to attempt
to address the shortfall of advice provision in particular areas
of law. First, it is starting to use its capacity to manipulate
the spread of contracts by reallocating resources. This primarily
happens through regional directors acting on recommendations made
by Regional Legal Services Committees (RLSCs) in their contracting
strategies. The choice of contracting priorities will be determined
according to: the Lord Chancellor's priorities (see footnote 12);
the access implications of gaps in provision that have been identified;
and the extent to which funding can be dealt with on a regional
or sub-regional basis rather than through local provision.
26. However, we take the view that reallocation
of resources within regions will make very little difference to
the large number of "advice deserts"—or, if an
impact is made, it would almost certainly be at the expense of
barely adequate provision in other areas of law or other bid zones
and/or other regions of the country. Although the contract system
was designed to allow the LSC to address problems of over- and
under-supply of CLS specialist services, we believe that the Commission's
ability to do this has been over-stated—largely because
of the pressures on its budget. It is our observation that, up
to the present time, the present supplier base to a large extent
reflects many of the strengths and weaknesses of the pre-contract
era.
27. The LSC has also indicated that it would
prefer to contract with a smaller number of high quality providers.
For example, in January 2004, it announced plans for a "preferred
supplier" pilot scheme, which would reward suppliers with
various incentives—such as greater flexibility in their
contracts—in exchange for good performance across a range
of criteria including financial health, costs compliance and quality
of advice. It seems likely that, in the longer term, these suppliers
will be given increased contract capacity. A significant reduction
in the number of criminal contracts has also been announced (see
above). While initiatives that serve to increase the quality of
advice are very welcome, the disadvantage of consolidating supply
through a smaller number of suppliers is that local access is
likely to be reduced.
28. The Commission also has the power to
award grants under its Partnership Initiative Budget (PIB) for
small scale, short-term projects that do not fulfil the criteria
for contracted work. Many of the projects funded under this budget
have provided good examples of imaginative outreach and co-location
approaches, including initiatives that have successfully focused
on hard-to-reach sectors of the population, such as ethnic minority
groups and young people. The amount committed to PIB is relatively
small, however; the total funding for projects supported by the
second round of PIB totalled £5.6 million over three years.
The fact that the funding is time-limited also means that the
future of these initiatives is very uncertain.
29. A proportion of CLS expenditure has
been devoted to developing new methods of delivery, initially
through pilot projects. For example, the LSC is piloting the Family
Advice and Information Service (FAInS), which allows experienced
family law practitioners to give early legal advice to clients
facing family breakdown, and also links holistically with other
services such as counselling and debt advice. Another initiative
is the housing possession duty scheme, which is also being piloted
at present. Based at county courts, the participating projects
give advice and assistance to tenants facing eviction from their
homes. While we welcome these important initiatives, the ability
of the LSC to roll them out on a national basis must be open to
question in the present financial climate.
Is the perception that legal practitioners are
moving out of legally aided work correct?
30. There are widespread concerns that many
private practice firms with legal aid contracts are considering
reducing the amount of legal aid work they do—or stopping
it altogether. Both the Law Society and the Legal Aid Practitioners
Group have surveyed legal aid solicitors about their future intentions
and these surveys have produced worrying results. In the Law Society
Gazette's 2004 survey of solicitors firms, 74% of respondents
said they did not anticipate undertaking the same amount of legal
aid work in five years' time. A very high level of respondents—91%—said
they were dissatisfied with the system, with 88% feeling more
pessimistic than they did this time last year. When asked what
would persuade them to stay in legal aid work, 84% said a pay
rise; 77% said less bureaucracy; and 61% said they wanted more
certainty and ability to plan for the future. Over the last year,
20% of respondents had dropped at least one contract area and
17% indicated that they were prepared to drop at least one contract
area this year. In some cases, they had not put in a bid for 2004
contracts, and in other cases they did not intend to take up new
contracts if they were offered them. It should be noted that only
5% of respondent firms were totally reliant on legal aid work,
suggesting that many firms might be in a position to strengthen
existing private client work if they decided to stop doing legal
aid.
31. There is no doubt that the low levels
of remuneration for legal aid work—particularly for Legal
Help under the General Civil Contract—has contributed greatly
to the poor morale among practitioners. Research commissioned
by the Law Society suggests that low salary levels for publicly
funded work imposes a demoralising ceiling on the earning potential
of experienced practitioners, and also present a serious obstacle
for recruitment of solicitors who are embarking on their careers.[62]
The increasing age profile of legal aid lawyers is a matter for
great concern, demanding urgent and strategic action. The LSC's
support for firms taking on trainee solicitors committed to doing
legal aid work, which we discuss below, is a welcome move—but
limited in scope.
32. Related to the problem of remuneration
is the issue of cross-subsidy of legal aid work by more profitable
areas of private client work. It is clear that cross-subsidy is
a reality for most "mixed practices". For some firms,
whether or not they are able to continue as legal aid providers
depends largely on the willingness of partners who are engaged
in more profitable areas to continue carrying the financial burden
of publicly funded work. The likelihood of "mixed practice"
firms expanding their legal aid contracts seems remote; anecdotally,
we are aware of examples of well established firms whose partners
have calculated that they cannot afford to expand the proportion
of legal aid work that they do, notwithstanding a genuine commitment
to publicly funded legal services.
33. Within the NfP sector, many organisations
with CLS contracts have started to experience problems meeting
their core costs (including salaries) because payments under their
contract have not kept pace with increases in expenditure. It
is common for rates of pay within advice agencies to be pegged
to local authority pay scales, which are subject to annual increases
reflecting the rate of inflation. The recent Citizens Advice survey
of CABx, cited above, reports that up to 46% of the respondent
bureaux strongly agreed with the need for NfP contracts to include
an annual uprating to reflect the retail price index, salary increments,
and any increase in National Insurance contributions. Many NfP
agencies find that they can only recruit staff for CLS contract
work by offering a rate of pay that is higher than the amount
allowed for salaries within the contract payment. Effectively,
they are subsidising the CLS contract activity out of income from
other sources (for example, a local authority grant.)
34. Another factor that has contributed
to demoralisation is the frustration and resentment experienced
by private practice providers as a result of the system of contract
compliance audits. These audits are used by the LSC to check that
claims for contracted work are supported by evidence from case
files, and that they only relate to work covered by the General
Civil Contract. (These audits are not yet fully in place for NfP
providers.) If an LSC auditor discovers a "failure"
in contract compliance in one case file, this can lead to a reduction
in payments right across the board in relation to all of the provider's
case files, on the assumption that the failure is a systemic one.
Providers have argued that many of these "failures"
are rooted in differences of interpretation of complex guidelines
between the practitioner and the LSC auditor, or a misunderstanding
on the part of the auditor—who is not legally qualified—as
to what is professionally necessary to ensure that the solicitor
is acting in the client's best interests.
35. There is also widespread concern, within
both private practice suppliers and NfP agencies, about the level
of bureaucracy involved in obtaining and maintaining the specialist
Quality Mark, which many perceive as assessing standards of organisational
management rather than acting as a reliable indicator of quality
of casework. The LSC is committed to introducing "light touch
audits" for firms that it assesses as producing high quality
work (so-called "category one" suppliers) and to developing
the Quality Mark so that it is better able to measure the "real"
quality of advice rather than measuring management proxies. It
has also indicated a willingness to explore the increased use
of peer review as a means of assessing quality—a development
that we would welcome.
How can the Department for Constitutional Affairs
and the LSC provide incentives for legal aid practitioners to
continue legally aided work?
36. We understand that the current review
of demand, supply and purchasing arrangements in publicly funded
work is near completion. This will no doubt provide the DCA and
LSC with some insight into what is likely to motivate suppliers
to continue with—or enter into—legal aid work. However,
we believe that existing evidence points to a number of obvious
incentives.
37. LAG believes there is clear evidence
that an increase in remuneration rates for legal aid work is essential
to ensure the survival of publicly funded legal and advice services.
The relatively low rates of pay for legal aid work, compared to
the rest of the legal profession, threaten to drive out able and
committed practitioners and will certainly do nothing to attract
new recruits into the field. The research recently carried out
for the Law Society on the recruitment and retention of solicitors
in small firms (many of which carry out legal aid work) reported
that the best trainees will not apply to these firms. It also
exposed major problems in recruiting solicitors to vacant posts—42%
of positions advertised in small firms remained vacant after two
months.[63]
38. We also believe that the social value
of legal aid work should be given greater recognition—by
central and local government at all levels. Many dedicated practitioners
engaged in publicly funded work perceive their professional standing
to be continually undermined by unhelpful and sometimes adverse
comments from senior members of the government. We believe it
is important that ministers expressly recognise that legal aid
work supports the government's policy agenda in other fields—for
example, in domestic violence, human rights and social inclusion.
39. There is a common perception that legal
aid lawyers and advisers are an ageing profession. The need to
develop strategies for recruiting the next generation of practitioners
must be addressed as a matter of urgency. Most law students complete
their courses with high levels of debt (sums of £20,000 are
not uncommon) and often cannot afford to enter low paid publicly
funded work where there are limited career prospects. To its credit,
the LSC has recognised the need to address this problem, and is
now providing grant funding for a limited number of students on
the Legal Practice Course and trainee solicitors in targeted areas
of the country. However, this scheme has been funded from the
LSC's existing resources, at the expense of direct services to
the public. We would argue that additional government funds are
needed to enable the LSC to expand the scheme to a level where
it has a real prospect of reversing the demographic trend within
this sector of the profession.
40. Many legal aid practitioners have commented
that they find dealing with the bureaucracy of the contract regime
a frustrating and time-consuming chore. In addition, the system
of auditing contract holders for compliance with the Quality Mark
and with the costs rules has caused enormous dissatisfaction.
As has already been noted, many private practice firms have been
financially penalised on the basis of cost compliance audits that
they believe to have produced flawed results. The LSC has indicated
a willingness to address these issues and, hopefully, there is
still time for the demoralisation experienced by practitioners
to be reversed.
41. For both private practice firms and
the NfP sector, there is an urgent need for the contract system
to provide a greater level of financial certainty. The Quality
Mark requires suppliers to produce a coherent business plan—but
such plans have limited value without any guarantee of contract
income. Contracts for both the CLS and Criminal Defence Service
have been constructed to give the LSC maximum flexibility in managing
its budget and its resources. For example, the LSC can impose
unilateral changes, such as removing CLS case starts from one
supplier in order to reallocate them to another. The extent to
which this flexibility can undermine the financial viability of
suppliers needs to be recognised.
42. It is also necessary to recognise the
negative and demoralising impact on practitioners of having to
deal with constant new developments. Over the past four years,
they have been subjected to wave after wave of changes relating
to audit processes, quality assurance, contract terms, the Funding
Code and various other aspects of the administration and processing
of legal aid claims. Consultation exercises have often been perceived
as the LSC "going through the motions" rather than as
a genuine wish to involve suppliers in decision making. Many legal
aid practitioners feel that their extensive knowledge and experience
of delivering publicly funded services could be better used, in
a spirit of real partnership, whenever key changes are planned.
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?
ALTERNATIVE DISPUTE
RESOLUTION
43. LAG accepts that litigation is not always
the best way of resolving disputes, and that resolution can often
be achieved through various methods of alternative dispute resolution
(ADR). ADR can be particularly useful where the parties need to
preserve an ongoing relationship—for example, in neighbour
disputes. However, it is important to recognise that ADR services
are not consistently available throughout the country, that they
are often expensive to use and that quality standards are very
variable. We believe that users should not be diverted into ADR
approaches unless they can make an informed choice about the options
available to them, having first had the benefit of independent
legal advice. There are also strong arguments for ADR users to
have access to advice throughout the ADR process, to enable them
to give informed consent to mediated or conciliated settlement
agreements. In short, we see ADR is a valuable alternative but
not a cheap option.
CITIZENS ADVICE
BUREAUX
44. There is no doubt that the CABx—and
independent advice centres—make a valuable contribution
to the CLS. Many such agencies are in fact carrying out legal
aid work under the General Civil contract; for example, some 230
CABx have contracts with the LSC for work in one or more areas
of social welfare law. All bureaux and independent advice centres
contribute to the wider CLS through their generalist advice (usually
quality marked at the General Help level) and their information
work. However, as has been noted above, there is an important
distinction to be made between advice at the General Help level,
and more complex and detailed advice under the Specialist level,
requiring the adviser or solicitor to have a higher level of training
and experience. The rationale behind the "seamless network"
of the CLS is that users should be referred to whatever level
of advice is necessary for their legal problem. The frustration
experienced by CAB advisers seeking to refer clients with complex
cases to a suitable specialist is well illustrated in their forthcoming
evidence report, cited above. Although we are not opposed to increasing
the supply of generalist advice, this is not a substitute for
specialist provision.
LONG DISTANCE
SERVICES
45. We accept that telephone advice could
be made more widely available as a cost-effective source of first-stage
advice. The LSC has recently published a draft evaluation report
on its pilot telephone advice services,[64]
which indicates that users are generally happy to use the service—and
in some cases preferred it. However, as the report recognises,
telephone advice is not suitable for all clients, neither can
it be used when a client needs representation at court. We would
argue strongly that such services should complement face-to-face
advice services, rather than replace them. Reporting on the CLS
last year, the Public Accounts Committee expressed fears that
a two-tier system of legal aid might develop, with telephone access
being the only help available to clients in rural areas.[65]
We would suggest it is even possible that, in urban areas, face-to-face
services would need to be expanded to keep pace with the demand
generated by referrals from telephone services.
46. Pilot projects delivering advice through
video link have had a limited degree of success. A three-year
project in Cumbria proved costly and seems to have offered little
reduction in client travel time; it was not continued after the
initial funding expired. Although we have no objections in principle
to this approach, it seems that the idea needs some further development
to make it cost-effective.
47. We also accept that internet-based legal
resources have a valuable role in delivering legal information
to some sectors of the population—ie, those who are literate,
motivated and have access to computers and the skills to use them.
However, while these technologies can provide background knowledge
and contribute to general public legal education, they are unlikely
to provide an alternative to face-to-face advice at the present
stage of development. This approach also has limited value for
the most socially excluded population groups, for whom use of
the internet is developing far less rapidly than for the population
as a whole.
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?
48. LAG has consistently supported the idea
of salaried services as part of a mixed economy for provision
of legal aid, provided that these services are genuinely independent
of government. In this context, we regret the LSC's decision to
directly manage the pilot Public Defender Service (PDS) offices,
rather than allowing them to be run by an arm's length body. As
part of a mixed economy, the pilot PDS offices and private practice
criminal defence firms are able to provide benchmarks for each
other, in terms of both quality and cost. We believe that robust
quality assurance models are essential in salaried services, just
as they are in private practice. Salaried services also need standards
for protecting the size of caseloads of individual staff members.
LAG's own research on public defenders in North America suggested
that a significant threat to quality is an over-heavy caseload.[66]
Subject to the findings of the evaluation of the current PDS pilot,
it may be appropriate to expand the service in areas where there
are gaps in provision of criminal defence services.
49. With regard to civil legal aid services,
LAG shares the view of many commentators that there are serious
doubts about the future of the traditional "judicare"
system of private practice provision delivered through a partnership
business model. We believe that there are several alternatives
that could be actively explored:
— Legal aid firms could be given incentives
to encourage them to restructure themselves as limited companies—or
possibly as "community interest companies" once legislation
is in place to implement this option. As companies, legal aid
providers would have more flexibility in raising funds because
they would not be required to assume personal liability for the
debts of the business. They would also be obliged to publish their
accounts—thus bringing a greater degree of external financial
accountability and transparency, arguably an appropriate development
for any agency providing a public service.
— The piece-rate system of payment
to private practice firms could be complemented—and perhaps
eventually replaced—by a funded caseworker model that does
not impose a minimum number of case starts. Research published
in 2000 (based on a pre-CLS pilot) suggests that agencies funded
in this way have higher levels of client satisfaction and deliver
work of better quality—although they tend to spend longer
on each case.[67]
Initially, this approach could be used to plug gaps in provision,
and it would be suitable for NfP agencies as well as solicitors
firms. Funded caseworkers could be permitted to offer more flexible
services—for example, outreach work in areas of undersupply;
training, supervision and support for other providers; group work
and public legal education work.
— Regardless of the funding model used,
contracted services should be less burdened by bureaucracy and
suppliers who perform well should benefit from "lighter touch"
auditing, using peer review to ensure that quality standards are
met. Providers who are prepared to commit themselves to providing
a quality service should be rewarded by contracts that offer medium
to long term financial certainty.
— There should be a planned expansion
of law centres and other NfP solicitor agencies. Although it is
unrealistic to expect law centres to take over the role of private
practice firms, we believe that every major town should have a
local resource of this type, employing at least two solicitors.
It is important for such organisations to have sufficient core
funding, to allow them to undertake activities that are outside
the scope of legal aid (for example, representation at Employment
Tribunals and at social security appeals); to pioneer work in
new areas of law and innovations in service delivery; and to undertake
community-based outreach and social policy work. Although the
LSC's initiative in supporting six new law centres is a welcome
development, experience shows that law centres cannot survive
on legal aid income alone. They require sufficient core funding—which
can be from other sources—to support these other, strategically
important activities.
— Subject to the evaluation of the
current pilot project, the LSC could consider expanding the FAInS
project (see above). Other innovative approaches, including those
currently being explored by projects funded through the Commission's
PIB budget, should be evaluated with a view to more widespread
application of successful models of provision.
What would be the comparative funding costs of
a salaried service?
50. We are not in a position to answer this
question. Hopefully, the survey of demand, supply and purchasing
of legal aid work will shortly provide the DCA with at least some
of the information that it needs to assess these comparative costs.
The LSC's internal survey of the cost of contracting in the NfP
sector will also provide some valuable insights. However, we wish
to offer the observation that, although it is important to take
into account the substantial start-up costs of any completely
new service, such costs may be an unavoidable consequence of trying
to make long-term changes to the profile of legal aid supply.
It is also vital that any transition to other models of funding
and/or service delivery is achieved gradually, after careful piloting.
Legal Action Group
January 2004
46 LSC Annual Report 2002-03, page 2. Back
47
LSC Corporate Plan 2003-04, para 3.4. Back
48
LSC Annual Report 2002-03, para 2.132. Back
49
LSC Annual Report 2002-03, para 2.6. Back
50
Legal Action magazine, July 2003, page 6. Back
51
An anatomy of access: evaluating entry, inital advice and signposting
using model clients; Moorhead and Sherr, 2002. Back
52
LSC Annual Report 2002-03, Table CLS1, page 9. Back
53
Ibid, para 3.6. Back
54
Ibid, para 3.9 Back
55
Para 3.12. Back
56
Family, immigration, mental health and clinical negligence work
is excluded from the tolerance system. Back
57
LSC Corporate Plan 2003-04, para 2.11. Back
58
The Geography of Advice-an overview of the challenges facing
the Community Legal Service; Citizens Advice evidence report,
2004 (forthcoming). Back
59
Lord Chancellor's directions for the CLS Fund, 1 February 2000. Back
60
LSC Annual Report 2002-03, Table CLS1 page 9. Back
61
Snakes and Ladders: Advice and support for employment discrimination
cases in Wales; Williams, Borland, Griffiths, Roberts and Morris
(Dept of Social Science, University of Wales, Bangor), October
2002. Back
62
Recruitment and retention of solicitors in small firms; research
study 44, Tom Williams and Tamara Goriely (available from www.lawsociety.org.uk). Back
63
See footnote 62 above. Back
64
Available on its website: www.legalservices.gov.uk. Back
65
Public Accounts Committee, Twenty-fourth report 2002-03, May
2003. Back
66
Legal Aid contracting: Lessons from North America; Legal Action
Group, 1998. Back
67
Quality and cost-final report on the contracting of civil, non-family
advice and assistance pilot: Sherr et al, 2001. Back
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