House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Third Report

6 Sustaining high quality and expert advice

188. Achieving and maintaining high standards of quality in the provision of publicly funded legal advice and representation lies at the heart of the idea of value for taxpayers' money. We have therefore given much weight in our inquiry to the issue of adequate quality control of legal aid work and to the conditions and incentives allowing quality to be maintained and developed.

Peer review and the new quality assurance mechanism

189. Given the economic incentives provided by competitive tendering to cut costs, an independent and rigorous system of quality assurance for publicly funded legal advice and representation is vital. Lord Justice Thomas put it succinctly when he gave oral evidence to us: "Certainly you have to have a system which monitors quality control. If you are to have a system of price competition, as we all know in our daily lives where we buy something on price, you must have regard to quality."[222]

THE LSC PROPOSALS

190. The LSC published its final proposals for a quality assurance mechanism for solicitors' legal aid work in December 2006.[223] Under these proposals developed by the LSC in collaboration with Professor Avrom Sherr of the Institute of Advanced Legal Studies in London, quality assessment will be a process consisting of three steps:

a provider must achieve a 'green' rating in the measuring of 'key performance indicators' against specifications set out in the Unified Contract between the supplier and the LSC;
a 'file assessment value for money' will be carried out by LSC senior caseworkers on the basis of a questionnaire which has been specifically developed for use by caseworkers and does not require specialist legal knowledge; and
only where this file assessment has resulted in a 'green' rating (the most positive one) will there follow a proper review by a peer solicitor. This review will be based on a number of randomly selected sample files. It is thus exclusively paper-based. [224]

191. In civil legal aid work, the full peer review would be limited to those contract categories (such as debt or housing) which exceeded £50,000 in value. Categories that did not exceed this value will only be file assessed by a caseworker but not properly by peer reviewed ('file assessment (quality)'). If a supplier does not hold a single contract category of a value exceeding £50,000, a supplier's largest category would be peer reviewed. Peer review and the processes leading to it would be organisation-wide rather than based on suppliers' different offices, where these exist.

192. Peer review, which is intended to take place in three-yearly intervals per supplier, will lead to the rating of a supplier on a scale of 1 to 5, with 1 being the best ('Excellence'). The LSC envisaged that for the first round of competitive tendering for criminal legal aid contracts suppliers would be allowed to bid who have attained levels 1, 2 ('Competence Plus') and 3 ('Threshold Competence'). In subsequent bid rounds, only providers with a peer review rating of 1 or 2 would be permitted to bid for contracts. For the first bidding rounds for civil and family legal aid contracts envisaged to start in April 2009, the group of bidders will be limited to level 1 and 2 rated suppliers straight away.[225]

COMMENTS ON PEER REVIEW

193. Most of the evidence we received generally welcomed the introduction of peer review and the Preferred Supplier status. However, Professor Cape cautioned that there had been no research on the effectiveness of peer review and that no one knew whether it was robust enough a mechanism for dealing with the problems associated with the current reform proposals,[226] Richard Jenner strongly supported peer review "as probably the best available measure of the quality of legal work".[227] In this assessment he was supported by Richard Charlton, himself an experienced peer reviewer, who, while conceding that it was not a perfect system, approved of peer review as the best of available alternatives.[228]

194. Nonetheless, as another peer reviewer, Helen Cousins, pointed out peer review had to mean what it said: review of a provider's case work by a proper peer, i.e. a reviewer with sufficient experience in the case work he or she was reviewing. She criticised the current LSC practice of reviewing criminal defence solicitors intending to participate in the first bid round for entry to the VHCC panel by solicitors without their own experience of dealing with VHCC. Reviewers other than those with proper experience in VHCC work would not be able adequately to judge the quality of the actual work done by a VHCC provider.[229]

195. Another general point of criticism was the fact that only contract categories with a value of more than £50,000 would be peer reviewed, unless all categories of a provider were below this threshold. Contract categories below this value would only be subjected to a potentially less rigorous 'file assessment (quality)'. This was criticised by Richard Jenner:

"It is also worth pointing out that organisations with small contracts may, in the end, only be peer reviewed in one of their subject areas, so there is no guarantee that everyone who will eventually become a preferred supplier will have achieved the peer review. Our concern, therefore, is that you might get some organisation that you really would not want to contract with getting through."[230]

196. Peer review is, in principle, a promising quality control mechanism. Where a quality assurance mechanism is based on quality control through peer review, this review has to be carried out by experienced legal aid practitioners with their own experience of the work they are reviewing. This peer review should cover all contract categories which a supplier provides.

QUALITY ASSESSMENT ON THE BASIS OF A FILE

197. Most of the concerns raised by our witnesses were about the adequacy of peer review as a purely file-based system of quality control. We wanted to know whether a basically paper-based control system would work or whether more than just a file-based assessment of a provider's legal aid work was needed. We asked Richard Miller whether more was needed and he replied:

"I think you do, particularly in criminal law. On the civil side I think the file does tell you a lot more because it is very much more paper-based. Criminal work very much more depends on the actual performance of the lawyer in the police station and in the court and I think the current systems do not adequately measure that. That is one concern that I do have, that if firms are being excluded from criminal law on the basis of the system as it currently stands measuring only the paper file [does not] necessarily [exclude] the right firms. Firms could be keeping paper files absolutely fine and doing a poor job in the advocacy and the police station work or, vice versa, they could be doing excellent advocacy but just not maintaining the files as well as they should. In either event you could find that the peer review is targeting the wrong firms on the criminal side."[231]

198. Professor Cape and Lord Justice Thomas shared the view that the quality of defence work in the police station or advocacy in court could not be measured adequately solely on a file basis.[232] In a similar vein, Richard Jenner sought to emphasise that the peer review, while probably able to identify suppliers cutting corners because of the pressure of fixed fees, would not notice cherry picking of easier cases by a provider who turned away clients with complex matters.[233] Simon Hutchence summed the criticism up:

"It is at best naïve, and at worst dishonest, to suggest that a system of paper file peer review will provide an effective system of monitoring and quality assurance any more than it could assure the quality of open-heart surgery. It can do nothing more than assure a minimal level of competence and recording."[234]

The LSC saw things markedly differently when it commented in a consultation paper published in February 2007:

"We do not accept the LAPG's assertion that the fact that Peer Review does not directly test the advocacy skills of crime suppliers means that it is not fit for purpose as a quality standard. It is entirely legitimate to assess the quality of documents in a crime case, and to take action if the standard of these documents is not acceptable. In any event, we do not accept that the documents are not an accurate reflection of the quality of work provided on the file in general. The peer reviewers are highly experienced practitioners who are, in our view, capable of forming an accurate view from the file and the outcome achieved for the client whether the advocacy in a particular case has been of a satisfactory or unsatisfactory standard."[235]

199. We do not share the LSC's view. Where the pressure on legal aid providers to provide cut-price legal advice and reduce the quality of their publicly funded work will be greater than ever through the introduction of fixed fees and competitive tendering, peer review will be the best but a limited means of identifying below standard providers. It will not be able to measure the quality of advocacy by legal aid providers in the courts or certain aspects of the provision of defence services in the police station.

PERMANENCE OF QUALITY STANDARDS

200. Another concern about peer review which recurred throughout our inquiry related to the issue of permanence of quality standards. Where peer review only takes place in three-yearly intervals, it may not be possible to ensure that the quality of a supplier's publicly funded legal services, once rated level 1 or 2, would not deteriorate in the interval (e.g. as a result of an initial miscalculation of case prices of a provider's competitive tendering bid). The envisaged quality assurance mechanism might thus prove to be too slow in picking up a sudden deterioration in the quality of a provider's legal aid work and in preventing eventual harm to clients.

201. On the basis of her own experience as a peer reviewer for criminal legal aid work, Helen Cousins warned us that:

"[…] part of the concern is that peer review looks at what has happened in the past, it does not have any benefit in ensuring it happens in the future. Of course you can see a pattern. You can decide that a firm who is well set up and well supervised is likely to continue to be so, but in the bigger firms particularly the turnover of staff is so great, as it is bound to be, that you can have one rogue member of staff which will affect a whole load of files at a peer review and, two years later when there are peer reviews, that member of staff has gone anyway and the firm is still being assessed on that person's work all that time ago."

However, she concluded that, while being "an inadequate tool" it was "probably the best that there is".[236]

202. When we asked Alison Hannah, Director of LAG, about the potential of peer review as a robust quality control mechanism, she alerted us to another medium to long-term risk inherent in any peer review system but potentially exacerbated by the economic pressure of fee reductions under the new schemes or market-set rates:

"Will there effectively be grade inflation? If the peer reviewers, who are themselves working under the same pressures, are going to think 'It is not as good as it was two years ago but, on the other hand, what do you expect for the fees that are available?' effectively will you end up with people purportedly being at the same level but actually not providing as good quality. That is a bit of a concern as to whether, over time, it is going to be able to maintain its level."[237]

Richard Charlton agreed and concluded that the peer review system should be "watched very carefully in terms of not allowing standards to slip".[238]

203. Peer review as currently designed is a tool to measure quality. The possibility of sudden dips in quality in the three-year period between peer reviews is of concern to us. We doubt whether a simple 'light-touch' measuring of a provider's 'key performance indicators' against contract specifications will add much protection against a sudden loss of quality, particularly if the peer reviewers are influenced in their expectations by the cost pressures placed on providers.

204. It is crucial that the standards for peer review levels should not be subject to slow erosion over time under the economic pressures faced by the legal aid supplier base and the peer reviewers as providers themselves.

Recognition of expertise

205. While the Government rightly emphasises the absolute importance of a quality legal aid supplier base in providing effective access to justice and value for taxpayers' money, the Government does not seem to pursue a coherent policy when it comes to ensuring that publicly funded legal services are provided at high quality. We identified two areas in which the DCA/LSC were adopting a course which, we believe, risks a lowering of quality in certain fields of legal aid work: child care proceedings and police station work.

CHILD CARE PROCEEDINGS

206. The first relates to the abolition of the 15% uplift on case fees for solicitors doing child care proceedings who are members of the Law Society's Children Panel. Membership of this panel requires a significant amount of formal training and practical experience and panel members are expected to abide by high standards of professionalism and quality set by the panel. When the DCA/LSC published their initial family fee scheme proposals in July 2006, they intended to abolish the uplift entirely, as "the development of peer review as a direct measure of quality means that we can significantly reduce our reliance on proxies, such as panel membership to ensure and measure quality."[239] In November 2006, DCA/LSC explained that "the current arrangements have not led to an increase in panel membership […]. Any uplift arrangements would also increase the complexity and cost of managing these payments for both providers and the LSC".[240] These initial plans attracted sharp criticism; Professor Masson and the Chairman of Resolution's Legal Aid Committee, David Emmerson,argued for a retention of the uplift when they gave oral evidence to us.[241] Sir Mark Potter, President of the Family Division, confirmed that the planned abolition would be "absolutely regrettable" and that "one of the ways in which quality has been maintained is by the provision of that uplift for these expert solicitors and […] it is by their expertise that matters are dealt with in a more conciliatory fashion and earlier settlements are reached".[242]

207. Following the re-consultation on the family fee schemes in Winter 2006-07, the LSC announced in March 2007 that the 15% panel uplift would be retained under the new Care Proceedings Graduated Fee Scheme, but that it would be limited to those cases that reached the escape threshold of twice the value of the fixed fee for court case preparation or three times the fixed fee value for initial advice and negotiation. It will be subject to further review in the future. Despite this concession, the LSC reiterated that "peer review will remain the route to ensure the quality of services provided. More experienced staff will have their expertise rewarded as they will gain under standard fees by dealing with cases more efficiently and achieving better outcomes for clients".[243]

208. Commenting on the these changes, Professor Masson wrote to us:

"Although the uplift for panel membership is retained where cases are paid at an hourly rate, it is clear that the LSC does not support the notion of the child care panel as providing an indication that the solicitor has particular expertise in this area. This has major implications for the continuation of the panel, which remains an important indicator for other professionals (especially where they are referring parents or relatives) that the solicitor has the necessary knowledge and skills. Should child care work cease to be a specialist area of practice, the consequences for vulnerable families, the courts and local authorities are likely to be negative with cases taking longer, more disputes and less satisfactory resolution. […] The LSC notes that it has absorbed the uplift into the standard rates it has set. Effectively this means that those without expertise who do this work will get the same benefit as those with it."[244]

POLICE STATION WORK

209. Similar criticism was levelled at Lord Carter's proposals for new working arrangements for police station defence work which have been adopted by the DCA/LSC. Under these proposals, the provision of initial advice and assistance by telephone or in person under the Duty Scheme to suspects held in a police station, which currently is restricted to duty solicitors, would be de-monopolised so that solicitors without a duty solicitor qualification or accredited representatives could provide initial advice.[245] While both accredited representatives and solicitors with the necessary police station qualification will generally have to be regarded as sufficiently qualified for this task, the standard for duty solicitor accreditation is a higher one. Simon Hutchence criticised this approach to the maintenance of high quality standards of criminal defence work when he wrote in his submission to us that, "the only way of assuring quality is to pay for quality. Qualification as a solicitor, qualification as a duty solicitor with experience both at the police station and in advocacy at court. The current system of allocation, accreditation and supervision is the best assurance of quality".[246]

210. While the current fee scheme proposals encourage quick dealing with cases, they do not provide sufficient economic encouragement to aspire to a high quality standard in legal aid work. Peer review might provide a quality floor but might also lead to clustering around a median quality point. Economic incentives should be created, rather than abolished, to make high quality work pay better and thus make it more attractive.

222 Q 173 Back

223 LSC, The Preferred Supplier Scheme - Questions and answers for providers, December 2006, p 7 Back

224 Ibid., p 4 Back

225 Ibid., p 7 Back

226 Q 117 Back

227 Q 186 Back

228 Q 229 Back

229 Q 289 Back

230 Q 186 Back

231 Q 239 Back

232 Q 129 and 136 Back

233 Q 186 Back