Examination of Witnesses (Questions 20-27)
ROGER SMITH
AND EMMA
SAUNDERS
9 FEBRUARY 2005
Q20 Ross Cranston: They are working successfully
in other areas.
Roger Smith: That takes you to
the economics of the insurance market and so on. It is almost
not proper for Government, it is silly for Government to pay a
premium when it does not need to do so.
Q21 Peter Bottomley: If we can go through
the stages, if someone wants to make an appeal the advice centre
lawyer has to decide whether, having heard one side of the case,
it is worth taking forward, and they ought to take the approach
of at least is it as likely as not that it would be justice to
take it forward. The second stage comes in when they get some
idea of what the Home Office has to say, the other side of the
case so to speak, because they are the only two places where the
evidence comes from the appellant and presumably from the Home
Office. Is there a stage where there is reconsideration by the
adviser or lawyer representative, having heard the other side,
to say we cannot take it further because the evidence is such
that you cannot do it? Would it not be more sensible to have a
system where you depend on reasonably experienced advisers, who
are always likely to come into the field, who can actually do
the first stage and the second stage and then start asking why,
if it goes on, there are still more cases than not that do not
succeed when the appeal is actually heard?
Emma Saunders: I am not sure I
quite understood the question.
Q22 Peter Bottomley: The first thing
we heard is that if an appellant comes to seek advice a decision
has to be taken by the adviser as to whether it is worth taking
on at all, and they can only do that on what they hear from the
appellant because they have not necessarily got everything from
the Home Office; they make a judgment, is this a runner? The second
question then, when you know all that the Home Office have to
say, is to make a decision, "Now we have heard all that the
Home Office have to say, you have not got a chance and I am not
going to do it." That, presumably, is a lower cost than actually
having gone to a hearing.
Emma Saunders: Yes. As I said
earlier, we are under a contractual duty, under the terms of our
contract with the Legal Services Commission to review the merits
at any significant stage and in any event if there is a change
of circumstances. To take your example, an individual comes in
and says "I would like you to represent me in my claim for
asylum"—and initially you will only have their side
of the story. Once they are then served with their refusal by
the Home Office that will set out the reasons for refusal. Putting
to one side for the moment the quality of those decisions not
being high at all, if it does raise real problems for that individual
and that individual is not able to answer those, then the provider
or the Refugee Legal Centre would say "We are sorry, matters
have moved on, there is not merit now in pursuing this."
Equally, continuing through the system, the individual goes to
the hearing in front of the adjudicator and perhaps the evidence
comes out differently or badly, particular points are made by
the Home Office, there is even a change in circumstances, again
when it comes to the higher appeals team in the Refugee Legal
Centre we automatically merits-test every case at that stage to
see whether or not we think it is proper to then pursue it to
the higher tribunal. It should be said about 35% of cases at that
point we do merits-test out, because we decide, perhaps because
of the way the evidence has been at the hearing, perhaps because
of a change of circumstances in the political situation, whatever
it may be—
Q23 Peter Bottomley: It is no longer
a runner.
Emma Saunders: It is no longer
a runner, it would no longer be in our interest, professional
or otherwise, to pursue the case.
Q24 Chairman: You have given us quite
detailed written evidence about the potential impact of this on
the service that you provide. Assuming things were to go as you
feel they might go, and discounting for the moment the prospect
that the premium might go down to the surprising extent Mr Smith
suggested, where the Government is actually losing money on the
whole operation and it is costing them more, what would you as
an organisation have to consider doing, if the Government went
ahead with its plans as so far described?
Emma Saunders: We would consider
very carefully whether, in good conscience, we could remain within
the system. If we were having to say to individuals, who we believed
have a real prospect of success, having been refused by an adjudicator,
that nevertheless we were not able to take the risk with our funding
of representing them further, there is a five day time limit in
which to refer out and our experience shows it is very difficult
to refer cases out in any event once they reach higher stages
because there is a shortage of good quality providers. If, ultimately,
as we think to be the case, we would be leaving people high and
dry, as an organisation we would have to question whether the
system really was delivering justice at all and, if not, as would
appear to be the case, whether we in good conscience could continue
to act for people in a very partial way.
Q25 Chairman: How would you resolve that?
Would you pack up and go home or would you say we do not go beyond
the appeal stage?
Emma Saunders: That would obviously
be a matter for discussion with the organisation and trustees,
but it would be a very, very difficult decision to make and we
would be very fearful that it would leave already increasing numbers
of people who are badly served or not served at all by representatives,
even more vulnerable without our services.
Q26 Chairman: Thank you both very much,
unless there is anything you especially want to add.
Roger Smith: Just to say that
with the Centre what you have got is an ultra-proper provider
who is delivering a service which everybody accepts is high quality,
under a contract situation, and the question to ask it seems to
me is why does the Commission not get the same level of success
out of its other providers. There will be particular reasons for
that; other providers will act for particular communities which
are more difficult and so on, but in a sense here is a provider,
we accept the provider is not an abusive provider, is not swinging
the system in any kind of way, you are getting a reasonable result—70%
is not a bad result in any area of law, I think most lawyers would
be happy with a 70% success rate just as a crude indicator of
personal success—and contracts are the way to do that. That
was how they had been sold to the rest of the system and you just
do not need to go to the uncertainties of retrospective payment.
Q27 Peter Bottomley: The dilemma that
the Refugee Legal Centre might anticipate is essentially the same
one that the Government should be facing, which is saying to someone
who is more likely than not to be successful in appealing, in
practice you cannot appeal. That is essentially what it comes
down to, is it not?
Emma Saunders: Yes.
Chairman: Thank you very much indeed.
We have some more witnesses and I am going to invite them to come
to the table.
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