Evidence submitted by Resolution (LAR
30)
INTRODUCTION
Resolution's 5,000 members are family lawyers
committed to a non-adversarial approach to family disputes. Resolution
solicitors abide by a Code of Practice which emphasises a constructive
approach to family problems and encourages solutions that take
into account the needs of the whole family and the best interests
of any children in particular.
2,700 Resolution members provide family legal
aid services in private and public law work. Of that 755 are accredited
specialists, specialising in domestic abuse, private law children
work, financial provision and niche areas such as international
law and child abduction work. Many Resolution members are Law
Society Children Panel members, accredited to represent children
in public law Children Act cases.
Those 2,700 members work in 1,557 firms holding
family legal aid contracts, forming the vast majority of the LSC's
family contract holders.
The profile of Resolution's members doing family
law work shows that the majority are at the older end of the spectrum—53%
of Resolution members doing legal aid work are 15 years or more
qualified and only 9% are less than five years qualified. Similar
figures show that membership of the Law Society's Children Panel
are also an aging population of practitioners which is not being
replaced by a younger generation—out of around 1,700 panel
members, there are only 15 under the age of 30.
The lack of younger people coming into and doing
legal aid work is a matter of considerable concern, which the
Constitutional Affairs Committee has commented on previously.
THE CURRENT
POSITION OF
FAMILY LEGAL
AID
There are currently 2,887 family contract holders
(contracts are held by offices, so for example a firm with five
offices may hold five contracts). This is down from 4,500 in 2000,
representing a drop of over a third of contracts. Matter starts
(the beginning of a case) are also down from 410,916 in 2000-01
to 283,274 in 2005-06.
This represents a huge decline in access to
justice for people with family problems as firms have given up
legal aid work because of the poor rates of pay, the bureaucracy
and costs of administering legal aid contracts and difficulties
in recruiting and retaining suitably qualified staff. Once lost
to legal aid work, firms will not return. Combined with the lack
of younger people coming into legal aid work, there is an extremely
worrying picture of systemic decline in the provision and the
availability of publicly funded firms doing family work.
This decline in publicly funded family lawyers
is likely to have a particularly negative effect on women and
children, who tend to be most dependent on legal aid to support
them in getting the protection of the law against threats of domestic
abuse, the muscle of more economically powerful men and the wide
ranging powers of the state to intervene in family life. Legal
aid is very important in helping to redress the power imbalances
that often arise amongst separating couples and between the individual
family member and the state.
We believe that the Carter proposals represent
a significant worsening of contract provisions for legal aid work.
Large numbers of our members report that they would be working
at a considerable financial loss under the current proposals and
simply would not be able to afford to continue to do publicly
funded family work. This will lead to large numbers withdrawing,
often reluctantly, after many years dedication to legal aid, from
publicly funded work, leading to fewer and fewer members of the
public getting access to legal help. In addition, there will be
an increased burden on the courts, which will face significant
increases in unrepresented litigants. That in turn will lead to
cases lasting longer, with an impact on all court users as delays
in listing increase. There is already concern in many areas of
the country at delays in the family courts. This will be exacerbated
by the impact of these proposals.
CARTER'S
AIMS
Lord Carter stated that his objectives from
a restructured legal aid scheme were to ensure:
— Clients have access to good quality
legal advice and representation.
— A good quality, efficient supplier
base thrives and remains sustainable.
— The taxpayer and government receive
value for money.
— The justice system is more efficient,
effective and simple.
This submission considers the extent to which
Lord Carter's report and accompanying the DCS/LSC consultation
paper would achieve those objectives.
GOOD QUALITY
LEGAL ADVICE
AND REPRESENTATION
Standards in publicly funded family work are
generally high. Accreditation for Public Law Children work has
been established for over two decades and specialist accreditation
has been established for over five years. 1,200 Resolution members
are accredited specialists. There are 1,700 solicitors on the
Law Society Children Panel (down from 2,009 last year) and further
482 solicitors are members of the Law Society advanced panel and
2,760 of the Society's general family panel.
Of Resolution's 1,200 accredited specialists,
two thirds do legal aid work. Similar proportions of Law Society
family panel members are likely to do legal aid work; all Children
Panel members do publicly funded work.
Specialist accreditation has been developed
with the encouragement of government. This was seen as being in
the interests of consumers—enabling the public to identify
specialists and encouraging high standards in the profession.
In 2001 the LSC awarded a 15% uplift to accredited specialists
to encourage the development of specialist skills and knowledge.
It is therefore surprising and disappointing
that the DCA/LSC consultation paper states that it will no longer
recognise accredited specialists, but will rely solely on peer
review as its sole quality measure. We believe that this is not
in the public interest. Peer review is a relatively new system
and we are concerned it could prove to be inflexible and expensive.
Accreditation tests individual knowledge and expertise, while
peer review assesses, retrospectively, the performance of the
whole firm or department. Accreditation allows the public to identify
particular experts; peer review does not enable individual expertise
to be identified. Experience demonstrates that reliance on one
quality measure is insufficient to guarantee quality and carries
considerable risks of getting it wrong.
We are concerned that the proposal to scrap
the uplift for accredited specialists will discourage the involvement
of specialists in legal aid work and give the message that publicly
funded work can be undertaken at the lowest level.
A THRIVING AND
EFFICIENT SUPPLIER
BASE
The existing supplier base of publicly funded
family lawyers has already been acknowledged as fragile. Over
a third of suppliers have abandoned family legal aid work since
2000. This is largely as a result of frozen pay rates and the
increased burdens of administering legal aid. Most practitioners
would welcome a reduction in bureaucracy and a more streamlined
system.
However, while fixed fees would deliver improved
administration, the current fixed fees schemes proposed are too
crude and inflexible to work. The DCA/LSC report describes the
new family fees as "graduated" fees. This is inaccurate.
They are fixed fees without any flexibility built in.
We do not believe that a single fixed fee system
is suitable to either public law or private law family work. Family
work, by its very nature, is variable. In private law cases, family
disputes can involve straightforward divorce, contact disputes,
domestic abuse problems, complications arising from marriages
being contracted in other jurisdictions, parents with mental health
problems or disabilities, children with disabilities, complex
family structures and child abduction.
A single fixed fee would not be sufficient to
meet the needs of the variation of family work. Separate schemes
in private law would need to be constructed to deal with the differing
profiles of injunction work, Children Act cases and financial
matters. In addition, there would need to be exceptional payments
to deal with complicating factors, such as clients with English
language difficulties, mental health problems, physical disabilities,
addiction problems and international elements.
In public law work, the legally aided practitioner
may act for the child, for the parent(s) or for joined parties,
such as foster parents, grandparents or other family members.
The legally aided practitioner does not control or drive the proceedings.
The issuing of proceedings is a matter for the Local Authority
and the case is then subject to the Public Law Judicial Protocol
which determines the timing of the stages of the case.
We are not convinced that fixed fees are suitable
at all for S31 Children Act cases, given the lack of control the
legal aid practitioner has over the proceedings.
The LSC appears to have simply added up the
total family fees for each region and then divided the total by
the number of historical cases to arrive at an average fee. This
approach is far too crude and does not reflect the variation in
practices, expertise and kinds of work done. It assumes that practices
will be able to swiftly move to doing a large volume of all kinds
of family work within a short period of time, in order to sustain
the kinds of "swings and roundabouts" approach they
envisage for the fixed fee regime. This simply would not work
and smaller and more niche practices will be driven out of legal
aid work.
Added to this is the difficulty of the functioning
of the court system. Cases can take a long time to come to court.
There are delays in CAFCASS report writing. Cases can be adjourned
repeatedly for a number of reasons. In many areas the delays in
the family courts are significant and while parties are waiting
for hearings, further complications can arise.
Children panel members undertake to do much
of the advocacy in their cases. This is seen as important to continuity
and quality in public law work. However, the proposed advocacy
fees for public law work are far too low and are significantly
less than barristers' advocacy fees. As a matter of principle,
solicitors advocacy fees should be equal with the Bar's. The lowness
of solicitors advocacy fees will create a disincentive for solicitors
to carry out their own advocacy with the resulting impact on quality.
Lord Carter acknowledges the deteriorating relationship
between the LSC and its suppliers. This relationship has not been
helped by the clumsy, over-hasty and poorly thought through proposals
in the DCA/LSC paper.
Lord Carter stated he wants market driven changes
to the structure of legal aid practices. In principle, we agree
with the encouragement of larger family law practices. However,
a number of issues must be borne in mind. In family disputes,
each party needs to be represented, so in each region, there will
several suppliers to avoid conflicts of interest. Similarly there
needs to be a range of public law practices to represent all parties.
There is also a problem with the transition
from the existing pattern of provision. With the encouragement
of government and the LSC, those practices which could, have increasingly
specialised. This gives clients better guarantees of quality.
The LSC now believe that firms need to undertake the full range
of work. For many smaller practices, this will mean doing more
cases, and more of the straightforward simple cases to achieve
the so-called "swings and roundabouts" effect, where
low cost cases are financially rewarding and subsidise the losses
of high cost cases. Significant changes in the structures of practices
will be needed. This will take time to achieve, and therefore
more time is needed to implement any new scheme.
All these factors will have a negative impact
on the professions ability to provide an efficient and thriving
supplier base to meet legal need in family law.
VALUE FOR
MONEY
Clearly, achieving value for money is very important
and is an aim we would support. Fixed fees will achieve certainty
for the Treasury but the current proposals will drive the more
experienced practitioners out, there will be no incentives to
do the more complex and demanding cases and an incentive to do
only simple cases and to do the minimum at the lowest standard.
Perversely, in private law cases, there will be incentives to
drag cases out to court proceedings. There are no incentives in
the private law scheme to encourage early settlement, as there
has been in the recent Family Help pilot.
We believe that in the interests of justice
and the interests of clients, the fixed fee schemes need to be
much more sophisticated to reflect complexity and to encourage
early settlement. The current proposals will achieve neither of
these objectives.
A MORE EFFICIENT,
EFFECTIVE AND
SIMPLE JUSTICE
SYSTEM
The proposals are likely to have a negative
impact on the operation of the Family Justice System. Legal aid
will be less available to individuals, leading to more litigants
in person or no access at all to the courts. This will lead to
further delays in the already over-stretched family courts.
Furthermore, we are concerned that the proposals
do nothing to promote the government's objectives to encourage
early settlement. Nor do they reflect a number of proposed changes
to the Family Justice system. We are concerned that the lack of
flexibility in fixed fees will then frustrate new initiatives,
such as improving openness and transparency in the family courts
and the increased representation of children in difficult contact
cases.
Nothing in these proposals will lead to a more
efficient, effective or simple family justice system.
CONSULTATION
Lord Carter was appointed in July 2005 to report
in January 2006. This timetable was extended to July 2006. The
majority of his report and his team's effort was concerned with
criminal legal aid. Although there was some limited consultation
with family practitioners towards the end of this period, there
was not the opportunity for firms to open their books to Carter
to discuss the funding of legal aid cases, the profile of the
work legal aid pays for and other issues that would have led to
better informed, researched and balanced proposals for family
work. We believe that there is a very poor understanding of the
environment in which family legal aid practitioners operate and
it seems that family work has been treated very much as an afterthought,
despite the importance of family work as part of the legal aid
spend.
DATA
The data on which the LSC and DCA prepared their
proposals was not made available to us until late in the consultation
process. This has made the basis of the proposals difficult to
understand. More time is needed to share the data, understand
the assumptions that the LSC and DCA have used and to negotiate
more flexible and better graduated rather than fixed fee schemes
to reflect the variety of family law cases.
TIMETABLE
The timetable seems to be wholly unrealistic.
Although the consultation period is three months, this has taken
place over the summer holiday period. There has been little time
for consultation with our 2,700 members and for them to assess
the impact of the proposals or for Resolution to understand how
the figures have been arrived at.
There is also insufficient time between close
of consultation and implementation. The timetable leaves no time
for meaningful negotiation between the close of consultation and
decisions on the final shape of the restructured family legal
aid scheme and then implementation in April 2007.
Legal aid practices also need time, when the
final shape of the scheme is decided, to decide their future direction
and to make the necessary changes. They will need to take into
account existing obligations, such as leases, their duty as employers,
redundancy obligations, etc.
CONCLUSION
Resolution members are concerned that unless
the proposed new fee structure is significantly altered, there
will a further exodus of publicly funded lawyers from family work,
leaving vulnerable adults and children without representation.
Women will be particularly badly hit by these proposals as they
tend to economically more vulnerable and more likely to rely on
legal aid to help them achieve fair outcomes from divorce and
separation.
Resolution is not in principle opposed to changes
in the legal aid scheme—indeed we would welcome a simplified,
less bureaucratic scheme that gave administrative savings, therefore
freeing more money to directly assist those needing legal help.
However, it is a complex and difficult process to move from the
existing extremely complicated system to a simplified system that
will achieve the objectives of Lord Carter's review to ensure
a good quality system, with a robust supplier base that serves
both the needs of the public and also the legitimate expectations
of the taxpayer.
To achieve that balance, an improved dialogue
between practitioners and the DCA/LSC is needed as well as more
time to deliver a system that is capable of achieving Lord Carter's
objectives.
October 2006
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