Evidence submitted by the Housing Law
Practitioners Association (HLPA) (LAR 81)
On behalf of the Housing Law Practitioners Association
(HLPA) I am submitting this letter as evidence for the Constitutional
Affairs Select Committee inquiry into the implementation of the
Carter Review.
HLPA is an organisation of solicitors, barristers,
advice workers, independent environmental health officers and
others who work in the field of housing law. Members work in housing
law for the benefit of homeless people, tenants and other occupiers
of housing. The Association is regularly consulted on proposed
changes in housing law by the relevant departments, chiefly the
DCLG. Our members work for clients is almost exclusively funded
by the Legal Services Commission under the Legal Help Scheme and
Public Funding Certificates.
The following points below outline HLPA's position
on issues which arise from the Carter review and the likely impact
of these on our members and vulnerable people in need of housing
advice.
CLACS /CLANS
HLPA is committed to promoting, fostering and
developing equal access to the legal system and we welcome any
proposal that meets that objective. However we favour informal
arrangements, for example "Lambeth Housing Lawyers"
and "Southwark Housing Lawyers" rather than formalised
networks.
HLPA does not consider that CLACs to be viable
or desirable. We are particularly concerned about the impact of
local authority funding on the independence of CLACs and the potential
for conflicts of interest that this presents as a significant
part of practitioners' cases involve disputes with local authorities.
We understand that with the Gateshead and Leicester CLACs the
local authority has the right to inspect case files being dealt
with by the CLAC. We believe that the expense and complexity of
setting up a CLAC far outweighs the benefits of CLACs. Therefore
we are in favour of retaining the existing supplier base with
refinement through preferred supplier status and improved, but
informal, links and systems of referral between suppliers. The
reality is that many large firms do no more than tolerate departments
undertaking legal aid work and it is simply unrealistic to expect
that such firms will be prepared to invest time and funds in becoming
a CLAC.
MERGING SOLICITOR
AND NFP
CONTRACTS
HLPA is concerned that the LSC/DCA has not realised
the enormity of merging the solicitor and NfP contracts. Further,
the proposal to achieve this by April 2007 is completely unrealistic.
Solicitors have worked on a time/cost basis for many years but
nonetheless the move to a tailored fixed fee required considerable
adjustment in working practice. For the NfP sector the change
from a hours contract to a standard fee contract requires a far
greater transition which, the LSC/DCA, propose should be completed
in little more than six months. We believe that the LSC must properly
research the implications of merging solicitor and NfP contracts
and consult fully with interested parties, such as ASA and the
National Association of Citizens Advice Bureaux, before any changes
are implemented. Merging contracts now may be convenient to the
LSC but vulnerable clients will pay for any ill-prepared proposals.
STANDARD FEES
HLPA was opposed to the including disbursements
in the tailored fixed fee and therefore we welcome the proposal
to exclude disbursements from the standard fee.
However HLPA is strongly opposed to the proposal
for a national fixed fee. The work of housing practitioners is
greatly affected by regional practices and resources and as a
consequence it is not viable to have a national fee which ignores
these trends.
HLPA does not consider that the proposed standard
fees are fair or reasonable remuneration for the skilled work
undertaken by housing practitioners. Amongst our membership tailored
fixed fees of in excess of £350 are commonplace and as such
many of HLPA's members are likely to experience a 30-50% reduction
in income if the proposed regional fees are implemented. It is
inevitable that a significant number of housing practitioners
will be unable to absorb such a reduction in income. This poses
a grave risk to the provision of quality social welfare advice
with the consequence that vulnerable clients, including those
from BEM groups and rural communities, will be further disadvantaged
by being unable to obtain good quality local social welfare advice.
Under the tailored fixed fee scheme where a
supplier did not hold a contract in 2003-04 the regional average
determined the level of payment under the contract. In London
the regional average was £272 net. The proposed standard
fee of £206 is some 25% below this. We do not understand
how two figures supposedly representing the regional average should
be so different[35]
and we have sought explanation from the LSC under the Freedom
of Information Act 2000 (Appendix 1).
HLPA is concerned that the LSC has not properly
researched the appropriate level of the proposed regional and
national standard fees. We understand that the average figure
has been obtained by dividing spending on housing cases in 2005-06
and by the number of case starts.[36]
That approach is too simplistic as it ignores the wide variation
in tailored fixed fees and the reasons for this. We recognise
that in the long term this variation will need to be narrowed
but it is unacceptable to impose a standard fee which will half
the income of some suppliers without first researching the reasons
for that variation in average costs.
HLPA believes that there is a strong correlation
between higher tailored fixed fees and high ratings on peer review
(ie "excellent" and "competence plus"). If
that is correct, introducing a standard fee well below the tailored
fixed fee of these quality suppliers may have the perverse consequence
of driving the wrong suppliers out of business by threatening
the viability of quality suppliers whilst giving poorer quality
suppliers the opportunity to flourish. That is contrary to the
LSC's objective of contracting only with suppliers who have achieved
a rating of "excellent" or "competence plus"
on peer review. HLPA therefore believes that the tailored fixed
fees should remain in place until the LSC has completed the process
of peer review, in preparation for the preferred supplier scheme.
Only once that process has been completed will the LSC properly
understand the link between quality and cost and only then can
it properly determine the appropriate standard fee.
HLPA considers that that if the LSC wishes suppliers
to aspire to a category 2 or category 1 rating the regional fee
should be based on the average costs for category 2 and category
1 firms.
The Advice Services Alliance has compared the
proposed regional and national standard fees with average case
lengths in 2004-05 and 2005-06.[37]
The picture that emerges is that, with the exception of the South
region, the proposed regional fee would require the NfP sector
to reduce the time taken on each case by approximately 1½
hours. That has the potential to compromise quality. No research
has been carried out regarding solicitors firms.
TOLERANCE
HLPA is not in favour of removing the ability
of suppliers to undertake work under tolerance. Whilst we are
in favour of expert practitioners we consider that tolerance work
enables practitioners to develop expertise in new areas and also,
where appropriate, allows practitioners to assist clients with
other minor problems without the need for a referral.
SMALL CONTRACTS
A practitioner with a small contract with the
LSC of £25-50k per annum would be handling only 250 matter
starts per year and as such we feel that it is unlikely that many
of our members will be affected by the decision not to automatically
renew contracts of less than this value. However if the LSC are
not willing to contract at a low level we wonder how potential
suppliers will develop the expertise to bid for larger contracts.
IMPACT OF
PROPOSALS ON
PARTICULAR GROUPS
A system of standard fees will mean that there
is no incentive on providers to take on complicated cases or clients
who are likely to be more time consuming, such as clients with
physical or mental impairments or those who need an interpreter.
Thus the system is likely to lead to discrimination against people
with a disability or those for whom English is not their first
language.
CONCLUSION
HLPA is strongly opposed to the introduction
of a national standard fee and the regional standard fee for the
reasons outlined in this letter. The system of publicly funded
legal advice is too fragile to bear significant change to the
funding arrangements without full and appropriate research, particularly
into the correlation between quality and average costs. HLPA believes
that a significant number of suppliers will no option but to cease
practising if the proposed national or standard fees are implemented
before that research can be undertaken.
I would welcome the opportunity to meet with
members of the Constitutional Affairs Committee to discuss in
more detail the likely impact which the implementation of the
Carter Review will have upon housing lawyers and those in need
of housing advice. If this is at all possible I would be grateful
if you could contact HLPA's Parliamentary Officer, Nowsheen Bhatti
on 0207 505 4693 to arrange this.
APPENDIX 1
Letter to Legal Services Commission (27 September
2006) from the Housing Law Practitioners Association requesting
information regarding the calculation of the proposed national
and regional standard fees.
REQUEST FOR INFORMATION UNDER FREEDOM OF
INFORMATION ACT 2000
The Housing Law Practitioners Association is
preparing its response to the LSC/DCA Consultation "Legal
Aid: A sustainable future?". We note in particular the proposals
for a regional or national standard fixed fee. We do not understand
how the proposed fees have been calculated and therefore request
the following information:
1. Please provide full details of the calculations
undertaken to arrive at the proposed regional and national standard
fees. Please also identify the period over which the fees were
calculated and the size of the sample from which the average was
drawn.
2. Of the suppliers in the sample please
confirm how many of those had a peer review rating of one, how
many had a peer review rating of two and how many had a peer review
rating of three.
3. Please disclose the tailored fixed fees
for all suppliers holding contracts in the franchise category
of housing in the years 2004-05 and 2005-06. We recognise that
it will be necessary for you to redact the names of the suppliers
and obviously we have no objection to that.
4. We understand that the Legal Services
Commission has the right under the contract with suppliers to
reduce the tailored fixed fee where the supplier's average costs
fall more than 20% below the tailored fixed fee. Please confirm
how many suppliers were subject to such a reduction in the years
2004-05 and 2005-06.
5. We understand that under the tailored
fixed fee scheme where a supplier did not hold a contract in 2003-04
the regional average determined the level of payment under the
contract. Please confirm how that regional average was calculated
and explain why the proposed regional standard fee is approximately
30-50% lower than the former regional average fee.
We would be grateful for your response as soon
as possible and in any event within 20 working days.
Housing Law Practitioners Association
APPENDIX 2 ABOUT HLPA
The Housing Law Practitioners Association (HLPA)
is an organisation of solicitors, barristers, advice workers,
independent environmental health officers and others who work
in the field of housing law.
Membership is open to all those who use housing
law for the benefit of the homeless, tenants and other occupiers
of housing. It has existed for over 10 years. Its main function
is the holding of regular meetings for members on topics suggested
by the membership and led by practitioners particularly experienced
in that area, almost invariably members themselves. The Association
is regularly consulted on proposed changes in housing law (by
primary and subordinate legislation and also by other means such
as relevant codes) by the relevant Departments, chiefly the DCLG.
The Chair Viv Gambling is an experienced housing
specialist and a partner in a leading firm of solicitors. Although
the Association is London based, the membership is countrywide.
The Association is also informally linked with similar Housing
Law Practitioners Groups in the North-West, South Yorkshire and
the West Midlands.
Membership of HLPA is on the basis of a commitment
to HLPA's objectives. HLPA's objectives are:
— To promote, foster and develop equal
access to the legal system.
— To promote, foster and develop the
rights of homeless persons, tenants and others who receive housing
services or are disadvantaged in the provision of housing.
— To foster the role of the legal process
in the protection of tenants and other residential occupiers.
— To foster the role of the legal process
in the promotion of higher standards of housing construction,
improvement and repair, landlord services to tenants and local
authority services to public and private sector tenants, homeless
persons and others in need of advice and assistance in housing
provision.
— To promote and develop expertise
in the practice of housing law by education and the exchange of
information and knowledge.
October 2006
35 We acknowledge that the former regional average
included disbursements but this alone cannot explain the difference.
The LSC has the power to reduce the tailored fixed fee where a
supplier's costs in each financial year fall more than 20% below
the tailored fixed fee. To our knowledge the LSC has not widely
exercised that right and we infer from this that suppliers average
costs have not fallen significantly since 2003-04. Back
36
Indeed we hear that the LSC may not have used figures for the
whole of the financial year 2005-06 but rather may have rounded
up figures from the first eight months of the year. Back
37
Assuming hourly rates of £50. Back
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