Examination of Witnesses (Questions 241
- 259)
TUESDAY 30 MARCH 2004
ROY MORGAN,
RICHARD CHARLTON
AND BILL
MONTAGUE
Chairman: Gentlemen, welcome. Thank you
for coming to assist us this morning. Mr Morgan, I believe you
are the sole principal for a busy Cardiff practice which does
work in many parts of Wales. Mr Montague, you practice in Reading,
and Mr Charlton, you run a specialist mental health practice in
London. Dr Whitehead?
Q241 Dr Whitehead: How often are you
forced to turn clients away? When you are forced to turn them
away, would you say that is because of a lack of physical capacity
or because you simply run out of "matter starts" during
the year?
Mr Morgan: I can give you a prime
example of that perhaps. We have not had to turn a client away,
but we have come very close many times and it has only been because
of the good relationship that we have with our regional office
in Wales that we have been able to badger, cajole or encourage
more "matter starts" to be given. The most crucial example
of that I can give is this: we are part of the Wales Specialist
Support Service for social welfare law throughout Wales, providing
services in housing, welfare benefit and debt. We put ourselves
in a position where I think we were probably as lean and as efficient
as we could be and yet last year we reached a point where the
head of that particular department had to say to me, "We
have one debt "matter start" left. We will have to stop
it tomorrow." Along with some direct work with Clare Dodgson
of the Legal Services Commission, I think it was one of the factors
that led to the release of some 20,000 new "matter starts"
into the system and so we were able to continue, otherwise the
service, which was not just a first tier service but a second
tier service, would have been thwarted.
Q242 Dr Whitehead: So you came within
a day of stopping that.
Mr Morgan: Yes.
Mr Charlton: Unfortunately we
have been turning a number of clients away. I should say that
I am a partner in charge of a large mental health practice in
London, but I also chair the Mental Health Lawyers' Association
as well as being on the LAPG committee. I know of a number of
cases, some of them personally. Housing and immigration are particular
difficulties particularly when clients are mentally unwell, and
even in mental health cases sometimes we ourselves are unable
to take them. Clients are often very distressed and demanding
and exceptionally vulnerable. We have to make a judgment as to
whether we can take on another case. Sometimes there are very
pressing needs in relation to the clients that need to be dealt
with very quickly. Some hearings come up as emergencies. Unfortunately
increasingly, and that is particularly in the last few weeks in
fact, we have had to turn away a considerable number of clients
even in our own specialism. We try to ensure that they are referred
to other specialist lawyers. In terms of recruitment, we are having
enormous difficulties in obtaining adequate specialist solicitors.
We are at the end of interviews after a second advert for a specialist
mental health solicitor in my practice. The standard in many cases
is terrible, but in other cases people just will not work for
the money despite the fact that we have at present a very committed
and high quality team. I think the outlook is exceptionally bleak
for high quality Legal Aid services in mental health.
Mr Montague: I speak from the
perspective of a community practice trying to cover a wide range
of work, so it is a generalist practice with specialist areas.
Historically our approach to surplus demand has been to grow.
Over the years we have grown initially from four lawyers and we
have now got the equivalent of about 12 lawyers doing Legal Aid
work but that stopped when contracting came in. So under the "matter
starts" system we do not grow any longer. These days we are
increasingly referring work on because we do not have the "starts"
to do it or we do not have the capacity or are not in a position
to take on more people to do it. Generally in my area "matter
starts" has not been a huge issue, it is not the same as
London or some of the big urban areas. "Matter starts"
has not been a major pressure point until fairly recently. It
is only this year that we have had to turn away work for the first
time because we have not had the "starts" and, strangely
enough, that has been family work as opposed to social welfare
where because we have had a limit on the number of cases we have
been able to take on we have had to arbitrarily limit how many
cases we take each month, which is the first time we have ever
done that.
Q243 Peter Bottomley: So one should go
to a firm like yours earlier in the month rather than later in
the month.
Mr Montague: We have got a number
of "matter starts" spread over a year. We try and plan
it on the basis that that is so many a month. I keep an eye on
the stats and if we are running ahead we then have to rein in
and for the first time in our history we have had to do that this
year. That is an example of the way it bites.
Q244 Dr Whitehead: You are working within
your "matter starts" allocation, it is not a question
of being able to obtain relatively easily additional "matter
starts".
Mr Montague: It was made quite
clear to us this year that we would not be able to obtain "matter
starts" across the board. The one area where we were able
to obtain "matter starts" is in mental health. Because
we had reached a position where we ended up with two mental health
specialists instead of one, we were able to persuade the Commission
to modestly increase our "starts" from 40 to 60. There
have been occasions in the history of contracting, a three-year
history in my area, where we have been able to negotiate higher
"starts".
Q245 Dr Whitehead: Looking across the
field as a whole, which areas would you say are the areas in which
more clients are turned away than other areas, speaking from your
own experience but also from your knowledge and understanding
of the field that you work in generally?
Mr Montague: We do a full range
of work. First of all, we have given up certain areas of work,
we do not do welfare benefits or debt work anymore, we only do
modest amounts of general contract work. We have very much retrenched
into our key areas which are mental health, immigration, housing,
family and crime. The areas where we find there are more people
on the stump is essentially family. Family is an area that private
practice generally still does but it is contracting equally. There
are fewer firms out there willing to take on family clients even.
Every day of the week there is a solicitor on a domestic violence
injunction rota in our firm. We are one of only two or three firms
in the area that will do that. Typically what we find is that
if we turn someone away in the morning they will come back to
us later on in the day desperately trying to persuade us to change
our mind. Family is an area where people find it hard to find
a solicitor.
Q246 Chairman: Is that complicated by
the fact that there have to be two different firms around to act
for two different parties?
Mr Montague: It could be a complication
generally in family work. Funnily enough, with domestic violence,
at the point where somebody seeks help you do not have another
side at that point. So it should not be the main issue there,
but it is generally an issue with family work. Reading is a big
area and there are 12 contracted family firms so in theory there
are firms about but it is harder to get them to take your work
on. The other area I would draw attention to would be housing.
We still do housing. We are probably the only firm in greater
Reading that have a commitment to housing now and we know that
if we turn away a housing client they probably will not get seen
elsewhere, if at all. In the early years of our firm we always
had a principle of not turning away a housing client because it
was one of the first loves of the firm, one of the reasons we
set up was to do housing work, but that has changed in recent
years as well. I speak as someone who has been very closely involved
with our CAB over the years, so I have a CAB perspective on this
and I know housing is a major issue in that area.
Mr Charlton: Immigration and housing
are both key issues. We have agreements with other firms to take
these cases on, but they are already inundated themselves and
we have to really work to get them to do this. Frequently I have
to take the issue up on a partner to partner basis to persuade
other firms to take the work. Many of our clients are detained
in hospital or in the community and they are very vulnerable,
they are not the kind of client who can go round shopping for
legal services, but they are probably desperately in need of these
services. In terms of bringing back people into society, I think
Legal Aid has a real role here. I know there has been discussion
in Government about combating social exclusion. Obviously somebody
who has had mental health difficulties in the past, who needs
to be put back on the ladder in relation to legality in an immigration
case, or who has housing and debt issues needs legal assistance
to be brought back into society so they can make a contribution
in the future. The ability to do that in inner-London is now very
strained. We have a family department in my firm and although
we have "matter starts", that department is under enormous
pressure as well and frequently has to turn away clients. We deal
with a number of mental health clients in our family department
because of the crossover, but the demands of those clients are
such that sometimes my family colleagues find it very difficult
to take up all these cases and we have had to refer even family
cases on. The picture is a bleak one, and from my point of view
it is very distressing because we deal with people with mental
health problems and we know those mental health issues are becoming
increasingly serious, MIND has made that clear year after year.
We are not being able to support people like this in an holistic
way although we were told by the Government is desirable in terms
of legal services and of course it is, but the resources are just
not there to provide it.
Mr Morgan: Wales has particular
problems not dissimilar from many rural areas of England, of geography,
of transport and in some instances court closure which means impoverished
clients having to travel enormous distances to get to the court
and to seek their advice. It is one of the reasons why in Wales
there have been a number of very specific pilots set up to combat
that. You mentioned the point about there not being two advisers
from a matrimonial point of view. In the Welsh Valleys, if there
is only one adviser it is very difficult to go into the next valley
to find a separate adviser and often one party goes without representation.
I mirror housing and matrimony in particular and also mental health
in Wales is a major problem with a very small number of suppliers
having to travel enormous distances to clients and hospitals to
provide advice.
Q247 Ross Cranston: I was going to ask
you some questions about what happened when you cannot deal directly
with the issue. To what extent can you deal with problems under
the tolerance approach? The empirical evidence tends to suggest
that it is very useful in dealing with clients in an holistic
way although the quality may not be as high as would otherwise
be the case when you have got a specialist. The first issue is
how does the tolerance system work?
Mr Morgan: The use of tolerance
has been one of the attempted solutions to the problem in Wales.
A lot of small mixed practices around the country have given up
Legal Aid or have lost their ability to provide specialist advice
and therefore they are dependent on the use of tolerances but
totally supported by the Specialist Support Service in the areas
of social welfare law, employment, immigration and mental health.
Without that use of tolerances there would be more "advice
deserts" than there are now in parts of Wales, but the use
of tolerances supported by the Specialist Support System and the
training that evolves from that is an attempted solution. Whether
it is a long-term solution remains to be seen. The biggest difficulty
is being able to maintain the advice bases because of the recruitment
problem.
Q248 Chairman: Could you tell me what
the Specialist Support Service means in practice in terms of a
firm of solicitors using the tolerance system to deal with a matter
on which they have not got real in-house expertise? What is then
available to them?
Mr Morgan: There has been a slightly
different system in Wales from the system that was piloted in
England and I will explain the major difference in a moment. Very
simply, it is a joint operation between three organisations, my
particular firm, Shelter Cymru and Citizens Advice Cymru. They
provide telephone advice to advisers, not directly to the public.
So a solicitor or adviser or not-for-profit agency can see a client,
may not have the total expertise to deal with the matter, can
make a telephone call to the manned telephone line and Specialist
Support Service who will then provide direct advice to the adviser
by telephone, can provide a written opinion, can have documents
faxed, emails, whatever, provide precedents and reports back and,
most significantly, can provide what is called supported casework.
So they can hand hold the adviser through the lifetime of the
case to enable that adviser to deal with the case and hopefully
skill up that adviser in terms of their expertise so that the
next time that sort of matter comes in they can deal with it,
and training is a further aspect that is provided, both specific
training and generalised training.[1]
Q249 Ross Cranston: I do not know whether
Mr Charlton or Mr Montague want to say something as well.
Mr Charlton: Tolerances have disappeared
as far as we are concerned in London which might sound surprising.
In our mental health contract we deal with issues around aftercare
and community care and support in the community and legal rights
in relation to that, particularly in terms of trying to ensure
that somebody who is mentally unwell has housing, has the right
kind of support for example from the Community Psychiatric Nurse,
or from local authorities. Those issues are critical in terms
of whether somebody relapses and returns to hospital. If these
services fail there may be major incidents both to them and society.
A mental health contract can be quite broad in terms of its interpretation.
The tolerance, say, so that we can formally do debt work or whatever
has been removed from us.
Q250 Ross Cranston: So this is LSC policy.
Mr Charlton: We have queried this
and we have been told "matter starts" are a very precious
commodity and therefore you can do a lot of work under your mental
health contract. If you want to do debt work formally or do housing
formally which is disassociated mental health work you must refer
on to do that, which comes back to the problems I was talking
about earlier.
Q251 Ross Cranston: I want to come back
to referral in a moment. Mr Montague?
Mr Montague: As is often the case,
once you get down to the grass-roots the ground is a bit muddier.
It is important to appreciate that tolerances have a variety of
uses. We find tolerances very helpful. The fact that we are doing
work under tolerance does not necessarily relate to a lack of
specialist expertise. I mentioned that we have withdrawn in effect
from certain areas. One area that we still do but we do under
tolerance is employment work. For the whole of greater Reading
the number of employment staff that were available a couple of
years ago was 40 which is less than one caseworker's workload.
It is not worth anyone's while going for a specialist contract
when in the whole of the area he has only got 40 available "starts".
So although we have a specialist employment team, we deal with
employment work under tolerances. The mere fact that work is done
under tolerances does not mean necessarily it is not specialist
and certainly it is a very helpful gap filler in general, and
often work would be done under tolerances because there are just
not the "matter starts" available within the area to
do it in any other way.
Q252 Ross Cranston: May I ask about the
referral on. I was interested that you have got these agreements
with other firms. Is that a common practice?
Mr Charlton: It should be the
practice of all suppliers under the Legal Services Commission
to have referral networks. This has become more and more important
as we have had to specialise further and further. As Bill says,
in order to do that it is more difficult to have specialists in
other areas, for example in debt or housing because we do not
have the volume of work now to train and maintain these specialist
lawyers. Every firm should have a referral network. The position
is that it is breaking down effectively certainly as far as we
are concerned. It is breaking down partly because there are not
enough lawyers around in London. You just cannot survive as a
specialist mental health solicitor in the London area and have
a family, financially it is increasingly difficult to do that.
Our clients are demanding ones. I phone up a partner in the referral
firm and ask them to go and see so and so as he is in hospital
at the moment and they ask if he is unwell and if it is safe to
go there and I say he is much better and so on. They know that
it will take longer to obtain instructions, longer to interview
him generally, it will take more time to do it. In terms of cherry-picking
or in terms of them looking at their own limited resources, I
will have to do all I can to persuade them to take that work.
On the whole I am successful in doing that. This is supposed to
be a seamless network from what we are told by the Legal Services
Commission, but there are seams are all over the place and large
cracks are developing. It is only a matter of time until the system
will completely fall apart. It really operates at the moment by
way of goodwill and forcing people's hands. Their commitment to
carry out Legal Aid work is really the background to it, but commitment
does not pay the bills, there is a limit to it and we are up to
the limit now in terms of providing overall services particularly
for those who are mentally unwell and vulnerable in that way.
Mr Morgan: Perhaps a different
perspective, the client's perspective. There has been a significant
amount of research carried out some years ago by Professor Hazel
Genn into the number of times that a client can be moved from
one post to another.
Q253 Ross Cranston: They get lost.
Mr Morgan: They get lost or they
lose their courage. Often it takes a lot of courage and wherewithal
to walk into an advice centre or solicitors' office. Having done
it once, to pluck up the courage to do it again (and matrimony
is a classic example) or even a third time means they are sometimes
lost in the system.
Q254 Mrs Cryer: I wonder if you heard
the announcement by the Chief Executive of the Law Society yesterday
about the fact that they are having to give advice to firms of
solicitors who have been called racist because they are taking
on the fact that a young girl has been forced to marry. The parents
are the clients of the firm of solicitors. I wonder if there is
a conflict of interest here because what you are saying is there
is very little legally aided work in immigration so presumably
these firms of solicitors are getting money from parents to push
through an appeal against a refusal of perhaps a husband in Pakistan
who is being refused the right to enter. A girl who has been forced
to marry, I just wonder how her rights are being protected in
all of this. Clearly the Law Society is concerned because they
are going to give you advice on it, but I am just wondering how
that fits in. Would the case become legally aided if it transferred
from one of immigration to one of domestic violence? Domestic
violence is really the crux of most forced marriages.
Mr Morgan: I do not know the details
of the case and I did not hear Janet Paraskeva's comment yesterday.
A solicitor has a professional duty straightaway to identify conflicts,
as I am sure you are aware. If there is a conflict, they should
refer the other party, whoever that may be, elsewhere and there
is no reason why that party should not then seek advice and be
supported by publicly funded services if they are available, but
whether they are available is the difficulty. I am not an immigration
lawyer so I am not best suited to answer that question in particular,
but in general terms a referral should be there, the conflict
should be identified. It is just a question of finding an adviser,
if that is possible.
Q255 Mrs Cryer: So a girl in that situation
would be advised to go to another firm to get advice on her position
so far as domestic violence is concerned?
Mr Morgan: From what you have
said it sounds like there is potentially a conflict and therefore
the girl should be referred elsewhere.
Q256 Mrs Cryer: It is not a specific
case, these are cases that are accumulating across the country.
Mr Morgan: It sounds like there
may well be a problem.
Q257 Ross Cranston: Mrs Cryer raises
the general issue of how you characterise cases. A case might
look like an immigration case but it is actually a domestic violence
case. How do you as practitioners fit it into your contract which
you have with the Legal Services Commission?
Mr Montague: It is back to the
issue of tolerances. The Commission has done a lot of work to
categorise things in a fairly detailed way so most situations
fit into something. What you have just said would strike me as
potentially a public law issue as well in terms of human rights.
There are lots of shaped things that you can pop things into,
but sometimes you do get gaps and that is where tolerance work
will fit in.
Q258 Mr Dawson: One of the threads running
through this inquiry has been the problem with the recruitment
of solicitors to do Legal Aid work. Mr Charlton has already alluded
to some of those problems already. This is clearly set against
a background which will have seen an increase in the number of
practising solicitors. Do you yourselves see a recruitment crisis
in the Legal Aid sector?
Mr Morgan: It is one of the biggest
problems, it may be thee biggest problem in trying to identify
where the next generation will come from. A personal issue and
then one thought on what may be a solution. The difficulty is
highlighted for specialist services. I am sorry to keep coming
back to that but it does identify the problem. I mentioned the
three organisations involved there. We have 45 lawyers, I do not
know how many Shelter have, it is a significant number of lawyers,
but we find that those lawyers are rotated between the organisations.
We are all fighting over a very small, and not increasing, pool
of talented lawyers in the welfare and social welfare areas. New
lawyers are not coming into those areas and it is difficult to
know how we will attract them. Every round of recruitment just
leads to one lawyer moving from one organisation to another leading
to an increased salary, increased costs and reduced viability
of the organisation continuing. The problem starts at a very early
stage with lawyers in their first year of university, maybe 12
months into a degree not yet knowing which direction they wish
to go in. Research shows that many lawyers come in with the right
intention from a social perspective, they want to help people,
they want to provide a service. They are burdened with debt very
quickly, they know the debt will increase, they are confronted
with the law fairs in universities and colleges presented by the
corporate organisations who entice them down the corporate road
as the quickest way to pay off their student debt. So it is encouraging
students away from that pathway. The problem is that many academic
organisations have responded by dropping some of the traditional
subjects. Many universities no longer teach housing law, no longer
teach welfare benefits law, no longer teach debt and so on. It
will not be long before they drop family law the way it is going.
There was mention in earlier evidence to this Committee by the
Legal Aid Practitioners Group of the collegiate system and this
is something where we are trying to work with both the LSC, the
Law Society etcetera to put some meat on the bones of an idea
that may prove attractive to young law students coming into university
and providing a pathway and perhaps a partially salaried service
and hopefully we can channel them not down the corporate road
but towards Legal Aid work and high street work generally.
Mr Charlton: I have completed
a frustrating second round of interviews following a series of
advertisements for specialist mental health lawyers. I think I
may, finally, have found somebody to come and join us. The solicitor
who is being replaced went to work in a local authority where
she gets more money, longer holidays, pension facilities and she
knows that she can finish at 5.30 every day rather than dealing
with somebody who is unwell in a hospital who will not let her
go home at that time. The situation in London is appalling. A
qualified solicitor who has had seven years of training cannot
afford to buy his or her own flat let alone have a family home.
This is not an unfamiliar problem in London, it affects teachers
and nurses and so on, but it is a key issue for Legal Aid solicitors.
How can I sell this job to somebody really just on the basis of
commitment alone? Commitment does not pay the bills. We have a
situation where we have retained a number of solicitors but they
are under enormous personal pressure to survive during the work.
They may move out of London and have to face commuting in or they
may have to work long hours. We deal with very demanding clients
legally and there are the issues about misdiagnoses, mistreatment,
very demanding work and, as we know from recent children's cases,
experts can be wrong, people can be misdiagnosed in the most appalling
way. We have represented people who were detained for religious
beliefs. They have had, for example, an active exclamatory form
of religion and they are detained for mental illness. You need
to examine these situations. You need to make sure that the aftercare
is in place so people do not relapse and become a danger to themselves
and others.
Q259 Mr Dawson: What sort of salary levels
are you paying?
Mr Charlton: We are paying levels
hardly higher than teachers. For a qualified panel solicitor,
in other words a specialist solicitor in London, it is the thirties,
forty is very difficult to pay although I know some firms try
to do that. Then we have the other drive which is to reduce quality
and you say okay, we are not going to have solicitors, we know
the law is complicated, it has moved on a lot, but we will use
unqualified, possibly inexperienced paralegals who are much cheaper,
but then for the client who is out there some legal issues are
not identified, important issues about social exclusion and support
in the community are not picked up and the whole system starts
to decline and fall away. In London I believe that the quality
of the mental law provision is very close to breaking down. If
you have a situation where people cannot even afford to buy their
own flats in London let alone plan for a family you cannot retain
them.[2]
More money is desperately needed. A lot of the changes and complexities
are driven by Government legislation and I am sure we could all
discuss that to some length. This is why in many cases the work
is more demanding both in terms of the kind of work legally and
the time involved and so on.
1 Note by witness: Generalised training covers
courses considered to be relevant to advisers within the particular
category of law (housing welfare benefits or debt). Specific training
covers those occasions when a particular adviser or group of advisers
have been demonstrating a need for similar types of advice or
a particular geographical area is seen to have some common problems.
A training programme can be tailor-made to address the particular
problems that are arising and the advice and assistance that needs
to be given. This has the added advantage of developing the expertise
of the advisers in that particular area or category of work. Back
2
Note by witness: The Committee has already received a
paper from the Mental Health Lawyers Association reviewing as
to why the need for changes and greater remuneration is critical
in this area. At page 5 of that paper we refer to a comparison
between our solicitor members payments and those for plumbers
in the London area. This survey was carried out in August 2002.
This showed that plumbers earned over 50% more than our members.
A recent update shows this now to be closer to 100%. We presume,
therefore, that plumbers can generally afford accommodation in
London, something denied to our own members in most metropolitan
areas. Back
| 
