Evidence submitted by Nicola Mackintosh,
Mackintosh Duncan Solicitors (LAR 76)
1. Mackintosh Duncan solicitors was formed
in 1999. We are a small firm with two partners, one assistant
solicitor, a trainee solicitor and support staff. We have a national
reputation for representing vulnerable clients with disabilities,
including physical and/or mental disabilities.
2. We have contracts with the Legal Services
Commission in community care, mental health, public law and employment.
We also undertake private work in conveyancing, probate, Court
of Protection work and employment.
3. Our mental health and community care
client groups include adults and children with disabilities, and
both service users and carers. The types of cases that we undertake
include:
— representing mentally incapacitated
clients (via the Official Solicitor) in relation to adult abuse
and neglect cases in the High Court
— advising physically disabled clients
about their rights to access services to allow them to remain
in the community as independently as possible and not in institutions
(eg bathing, shopping, aids and adaptations, incontinence supplies)
— ensuring that people who are terminally
ill are able to live in as dignified a way as possible in accordance
with their wishes
— assisting clients who have complex
mental disorders to access health and social care services (eg
clients with autism, Asperger's Syndrome etc.)
— ensuring that clients are not inappropriately
discharged from hospital without a proper assessment of their
needs for services, so that discharge is safe for them
— advising and representing vulnerable
older people in relation to decisions to close their residential
care homes
4. Many of the cases involve human rights
issues and often engage situations where people would be at serious
risk without our assistance. Examples of some recent cases which
we have undertaken are attached to this paper.
5. Although the Carter report focused primarily
on criminal work, the DCA/LSC has (without any advance warning)
also published a series of proposals which will, if implemented,
have a devastating effect upon the future of legal aid supply
in relation to the client group we represent. Put simply, access
to justice will be wholly theoretical for vulnerable people and
many will be at risk of harm to their health and welfare. It is
not overstating the case to say that some will die as a result
of not being able to access the advice and representation that
they need.
6. At the outset we would like to emphasise
two matters. First, it is of vital importance to recognise that
in order to assess how the Carter and DCA/LSC reforms may affect
the clients for whom legal aid is intended to benefit, it is artificial
to separate the interests of the clients from the practitioners
delivering advice and representation services. If practitioners
cannot continue to provide the service due to adverse changes
in the way that the services are procured, then they will continue
to leave the legal aid "profession" and there will be
no supplier base to serve the clients. Already, morale is so low
that well established and extremely committed practitioners are
at the end of their tether and counting the days until they leave.
7. Secondly, it is also artificial to separate
the effect of reforms to criminal practices and payment for family
work from the effect upon civil practice. Most criminal firms
also undertake some family, and many also undertake civil work.
Quite apart from the DCA/LSC proposals (which in themselves will
result in severely reduced services), if firms which undertake
criminal work close down, which Carter envisages, we anticipate
that the civil work, including social welfare work, will cease
completely. The main objective for the Carter reforms was stated
to be to reduce the cost in large criminal cases in order to address
the reducing budget for civil legal aid. Tragically, the consequence
of the failure to listen to practitioners who work "on the
ground" is that civil, and particularly social welfare law,
will be areas which will be even harder hit through the criminal
and family payment reforms.
8. Civil, and particularly social welfare
law practitioners, are now few and far between. It is well known
that the remaining legal aid practitioners in social welfare law
regularly turn away several clients each day. These clients are
not taken up by other suppliers as they are already at full capacity.
There are only 60 contracts for community care law in England
and Wales, and the vast majority do not undertake any general
disability or mental health work, focusing on asylum support cases.
The number of firms specialising in mental capacity cases is less
than ten. Given the dearth of supply, and the high demand from
clients, it is somewhat galling for existing practitioners to
face yet more hurdles and barriers to serving their clients, instead
of being supported and their experience drawn upon to foster the
next generation of legal aid lawyers.
9. The purpose of legal aid is to ensure
that people are not disadvantaged in respect of enforcement of
their legal rights simply because they do not have the means to
pay for legal advice and representation. A robust legal aid system
is the cornerstone of the whole justice system and a modern democracy.
We regret that the proposals in the Carter review and the DCA/LSC
consultation paper will result in the destruction of the existing
fragile legal aid system, with the consequence that the State
will have failed in its obligations to ensure fairness and equality
of arms for those who are poor and disadvantaged.
Is there a need to modernise the procurement of
legal aid?
10. We do not consider that the way that
legal aid operates at present is outdated or needs "modernisation".
There are, of course, improvements which could be made, but not
in the way that is currently envisaged. However, it is important
to set the current changes in context—since 1999 there have
been a series of fundamental changes to the way that legal aid
operates. The most important change was that of the introduction
of contracting in 2000, which limited the number of firms able
to offer legal aid advice overnight from over 11,000 to just over
4,000, and imposed quota systems to control how many clients could
be taken on by a firm in any category of law. There have also
been several other initiatives and practitioners are weary of
the constant reviews without any tangible benefit to the way that
services are provided for clients.
11. In early 2000, we brought a judicial
review challenge in the Divisional Court to the way in which contracting
would adversely affect access to justice for clients with disabilities
and mental health needs (R v (1) Ian Duncan (2) Nicola Mackintosh
v (1) Legal Aid Board (2) Lord Chancellor's Department [2000]).
We did not challenge the concept of improved quality, but the
artificial quota system which would prevent firms from accepting
new clients. The challenge did not ultimately succeed as the LSC
made a central concession on the last day of the hearing allowing
firms to take on unlimited numbers of clients in the first 6 months
of the scheme.
12. However, the judgment in the case is
significant not just for the detailed analysis as to the operation
of the contracting scheme, but for the comments made about the
importance of access to justice for vulnerable client groups in
the early days of the contracting scheme. For example,
"In the fairly near future the demands
made on skilled solicitors in this field are going to increase
exponentially. The rights and freedoms identified in the Convention
may not be limited or restricted or interfered with except on
one or more of a number of clearly identified grounds, and any
such restriction or limitation will have to be objectively justified
... Unless the Lord Chancellor tells the Board that it need no
longer concern itself with the provision of legal services of
high quality to these socially disadvantaged people, a lot still
needs to be done to empower premier league mental health solicitors
to expand their practices and to make their skilled services more
readily available without the present constraints whose existence
these proceedings have illuminated."
A copy of the judgment is being sent with these
submissions, and merits consideration.
13. We have consistently made constructive
suggestions to the LSC and DCA about how the existing civil legal
aid system could be improved and costs saved whilst not compromising
access to justice (and even improving access). None of our suggestions
made over the years have been taken up, to our knowledge. It is
now very disappointing to see that changes to the payment structure
for civil (currently mental health, but in the not so distant
future, in all civil cases) are being made when the existing supply
base is so fragile, and when the expenditure on civil law is minimal
in the overall legal aid budget, and not overspent. There is no
need for any change to the civil payment system. If suppliers
are leaving the scheme now, then when restructured (lower) payments
are introduced which bear no reality to the work undertaken are
imposed, then the future is bleak indeed.
14. For example, the proposed changes to
payments for mental health cases are bizarre. If, as is expected
of us under the new payment structure, we are to travel to take
instructions from a client in a psychiatric hospital, spend time
with the client, speak to staff, consider notes, travel back to
the office, undertake all community care and Mental Capacity Act
advice, and accompany a client to a care planning meeting, all
for £90 (Stage 1 of the proposed graduated fee), then we
will be working at far less than the minimum wage. The proposal
is not based on any sensible data. We have requested the base
data from the LSC twice since the consultation paper was issued,
but have not had the courtesy of any reply. Any graduated fees
or faxed fees must be based on accurate and representative data
which relate to the work which is required, which is not currently
the case.
Is the timetable for implementation suggested
in Lord Carter's Report realistic?
15. In our view the timetable is far too
short. The report fails to appreciate the realities of running
a business, and how long it might take to adjust to the reforms
so that they bed down in a way which is sustainable.
16. Our main concern at this stage is how
the criminal and family reforms will affect the supply of civil
services. We would wish to see the effect of the criminal reforms
monitored over at least a three year period to see how they affect
supply of services and structure of firms before any changes to
family, and as a third stage, civil and social welfare are made.
We think it is irresponsible in the extreme to impose multiple
sets of reforms together without analysing the effect of the criminal
reforms first and allowing them to be implemented gradually so
that effects on supply in other areas of law can be monitored.
17. However, we are also seriously concerned
about the prospect of introduction of graduated or fixed fees
for all civil certificated work in future. If the LSC's proposals
for family and mental health work are any indication (and we assume
that they are), then the change to the payment structure will
not be based on any real understanding of how legal aid cases
are conducted. Although the fees for mental health are stated
to be "cost neutral", the LSC has reduced the payment
for initial work to below the minimum wage, thus creating a deterrent
to undertaking mental health work at all. The result will be a
payment scheme which expects vastly more hours of work to be done
for far less money, and this is hardly attractive in the context
of a legal aid scheme where in most areas of law there has been
no increase in payment rates for years.
What will be the impact on different communities
(such as BME)?
18. We are particularly concerned about
the impact of the Carter reforms on people who are already disadvantaged,
including those with disabilities or BME clients and firms. By
definition, disabled people are less likely to have private means
to be able to afford private legal advice and representation and
more likely to be eligible for legal aid. Therefore, any system
which affects access to justice for clients who are impecunious
will also disproportionately disadvantage disabled people.
19. BME clients whose first language is
not English will also be discriminated against as more time will
be needed to deal with the case through an interpreter for which
the practitioner will not be paid. BME firms are smaller and as
the Carter model is predominantly directed to the model of high
volume, they will be discriminated against.
20. The effect of the proposals on poorer
communities will be that they will be even further isolated from
society. It is rather ironic that at the same time as Government
policy is spending considerable sums on regeneration of communities,
and promoting a "respect" agenda, it is removing the
means for socially excluded people to exercise their rights and
to protect themselves from unlawful acts.
21. It is not difficult to see that provision
of fewer outlets offering family and social welfare advice will
lead to more homeless people on the streets, more domestic violence,
premature/unsafe discharges from hospital, children being placed
at risk, disabled adults remaining in situations of abuse and
neglect.
How the proposals will affect firms of differing
size, structure and practitioner mix?
22. We have already stated that we are seriously
concerned that the criminal reforms and the family law payment
changes will have a profound effect upon civil and social welfare
practices.
23. The proposals will result in large numbers
of small to medium size firms closing or ceasing to undertake
legal aid work. Many firms undertake only a small amount of legal
aid work, but for their clients this is a vital service and one
which is not capable of being replaced, particularly in rural
areas. Provision of telephone advice is potentially a useful tool
to diagnose a problem, but beyond this, face to face meetings
are essential, and documents often need to be considered so there
is a limit to the use of telephone advice.
24. Whilst some practitioners may decide
to go to other firms to continue work, we do not think that this
can be assumed across the board. There will undoubtedly be a loss
to the legal aid scheme of practitioners who will see this as
the last straw in the legal aid reform saga, and decide to retire,
move into the private sector (without all the unsurmountable hurdles
that the LSC places in the way of serving clients), or retrain
in another career.
25. We are a small firm providing a unique
service to a specialist client group. Whilst our turnover exceeds
the proposed exclusion limits of £25,000 or £50,000
in the LSC consultation paper, the volume of cases is not high
and those cases with which we deal are complex and unsuitable
for a "swings and roundabouts" approach. If the LSC
proposes a similar graduated fee system in community care to that
proposed in mental health or family work, then we will not be
able to continue offering a legal aid service.
Will the measures proposed promote the provision
of high quality advice and support the effective and efficient
operation of the justice system?
26. The measures will, in our view, result
in a severe reduction in access to justice for the most vulnerable
in society, for all the reasons given above.
27. We do not have sufficient lawyers to
meet the needs of the clients we serve. However, instead of being
encouraged to expand our services, a range of disincentives are
added to daily to deter us from continuing at our present level,
let alone increasing our capacity for serving more clients.
28. Quality advice is not fostered by payment
schemes which "reward" cutting corners, or cherry picking
cases to exclude complex cases or cases where the client will
require more time to deal with (eg where English is not the first
language, or disabled clients). The proposal for standard fixed
fees for all initial legal aid work will result in a reduction
in quality, and drive firms out of legal aid.
29. We are also very concerned by the proposal
to terminate existing contracts for civil and social welfare law
when the LSC decides to set up a CLAC or a CLAN in a particular
area. This was not in the LSC's consultation paper regarding its
five year strategy, but then suddenly appeared in its final strategy
document. CLACs are new, untried, and untested. There are a whole
host of issues which have not been properly thought through, including
major conflict of interest issues with the local authority being
involved in procurement. The notion of terminating contracts with
existing firms with a proven track record who serve clients on
a daily basis, when there is a dearth of supply, and great demand
for services is short sighted at best. The LSC has previously
disguised inadequate supply of legal services to date by stating
that practitioners in other geographical areas will be able to
cover the demand (without first consulting with those firms) (see
the Regional Legal Services Commission's reports). Our experience
is that in social welfare law, all practitioners are working at
full capacity, and are turning away clients daily. Terminating
a social welfare contract in these circumstances will be disastrous
for clients.
30. The proposal that a contract could be
terminated within, say, 3 months is yet another deterrent to continuing
in legal aid. As businesses employing staff, renting premises
and planning for future financial stability (as we are required
to do by the LSC), we operate on at least a 3 year forward plan.
31. Our clients are referred to us by a
range of other solicitors, social workers, psychiatrists, charities
and voluntary organisations. If we, and firms like us are effectively
driven out of legal aid provision by ill thought out reforms,
then our clients will be left without adequate protection. In
a civilised society, this is unacceptable, and we hope that the
Committee will ensure that the voices of people who are unable
to advocate for themselves, namely people who are disabled and
vulnerable, will be heard.
October 2006
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