House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Written Evidence

Evidence submitted by Law Centres Federation (LAR 104)

INTRODUCTION

The Law Centres Federation (LCF) is the national body representing a network of community based Law Centres specialising in social welfare law.

Law Centres are members of the not-for-profit (NfP) sector. They employ solicitors who are regulated by the Law Society's Solicitor Practice Rules. They employ lawyers and paralegal staff who are experts on the areas of law they cover. Law Centres promote equality and specialise in challenging discrimination in all its forms using casework, as well as awareness-raising of legal rights, and legal education to promote good practice. They aim to improve the quality of life for the people living in their catchment areas and for people nationally who share common problems (communities of interest).

There are 58 Law Centres in England, Wales and Northern Ireland with 63 outlets. In Scotland there is a separate Scottish Association of Law Centres. Most Law Centres are based in urban areas, but the catchment areas of Law Centres are expanding. For example, the Law Centre in Carlisle covers the whole of Cumbria and provides a mobile legal service to outlying towns.

All Law Centres have been awarded the Specialist Level Quality Mark: 51 hold not-for-profit contracts with the Legal Services Commission and seven have private practice contracts. Their other main source of funding is from local authorities and charities. Funding from local councils remains precarious and has led to the closure of some Law Centres, for example Humberside in 2005. The number of Law Centres has fluctuated at around 60 for the last 20 years.

Since they began in the late 1960s, Law Centres have revolutionised civil non-family legal aid, developing and testing new areas of law. They initiated new ways of providing legal services, reaching out to local communities and demystifying the law and its processes. Law Centres take a strategic approach to providing services, combining expert advice and representation, (including representation at tribunals), with working with community groups to help empower local people to bring about lasting change.

The number of Law Centres declined during the 1980s but we have seen some growth since the launch of the Community Legal Service. We welcome the opportunity to submit evidence to the Committee. However, we fear that the proposals further threaten the viability of Law Centre services, and could lead to many more areas where there is no access to face-to-face specialist legal services.

1. Is there a need to modernise the procurement of legal aid?

1.1 The LCF questions whether it is appropriate to adopt the market-based approach to publicly funded legal services. For example, in guidance produced by the Treasury's Office of Government Commerce,[38] the benefits of procurement are balanced against potential drawbacks. The issues highlighted cover the need for highly-skilled procurers and contract managers; the possible distortion of the market, and missing out on innovation. The paper observes, "Centrally managed and large contracts may not be responsive to local needs", "Large and complex contracts can often entail a lengthy and costly procurement process." "It is possible for the total cost of a consolidated procurement to exceed those that would have been incurred if parts of the total requirement had been procured separately.", "In most markets there is a point at which it is no longer possible to exploit further economies of scale" and finally with regard to specifications, "Unless the critical requirements of all members are met… better overall value for money in whole life terms may be achieved by contracting separately."

1.2 In addition, in the European Union there is a debate about distinguishing between "general interest" public services and services of "general economic interest". There is a concern that "subjecting public services to public procurement rules will lead to a race to the bottom with private providers seeking to cut costs, rather than invest in quality".[39] In a paper published in May 2006[40] the European Socialists Group reported on the importance of public services. "High quality public service—open and transparent, with equal access for all—are essential elements in the European model of society. Market forces alone cannot ensure the public services we need." A report is expected in November from the EU commission on general interest services.

In the Government's National Action Plan[41] access to justice is listed along side access to education and health as part of the UK's anti-poverty strategy. We believe that legal services are "services of public interest" because they are services where there is a wider public interest in their availability, quality and accessibility.

1.3 Similar reservations were expressed by the Legal Aid Board in 1995[42] who said that although they welcomed the Lord Chancellor's commitment to ensuring access to quality, value for money legal services, they recognised the tensions between them. "We believe that introducing competitive price tendering across the board without proper exploration of the likely effects could put at risk the delivery of legal aided services to the required level of quality." The Board pointed out the "Patterns of provision, types of providers and areas of need vary considerably and it is unrealistic to assume that all other variables could be held constant so the sole determining factor would be price. We do not think that we could achieve the strategic objectives for the legal aid scheme if this was the case."

1.4 In an article in the Law Society Gazette[43], Lord Carter spoke about the need for lawyers to be more efficient and "be a little more in the 20th century". There are considerations to take into account when looking at "efficiency"—does it only relate to the running of an individual case or is it also about looking for the root causes of problems and looking strategically at the best way of solving those problems not only for individuals and their families, but for others in a similar position ? This surely is also an "efficient" way of tackling problems—because practitioners look to long-term solutions—solutions that will save the taxpayer money. This is the point made by the Advice Services Alliance—that the cart has been put before the horse—the government needs to know what it wishes to buy before it can impose blanket payment regimes.

1.5 Lawyers providing services in social welfare law contribute to meeting other key objectives, such as tackling social exclusion and promoting community cohesion.[44]

2. Is the timetable for implementation suggested in Lord Carter's Report realistic?

2.1 The timetable for Law Centres is not realistic. The proposal to introduce Unified Contracts, Peer Review and Preferred Suppliers as well as standard fees in April 2007 seems at odds with Lord Carter's statement that he wants to have a managed transition. These proposals together with the piloting of Community Legal Advice Centres and Networks during this period add to the difficulties being faced. For example, the three areas chosen for CLACs are ones where there are already Law Centres—Leicester, Gateshead and recently Derby. This has in itself created excessive work during the Summer to bid for the contracts, which they have been obliged to do in order to carry on providing services.

2.2 Lord Carter has suggested that providers should approach banks and other professional services to help adapt to the new procurement arrangements. Law Centres and others in the not-for-profit sector will find it hard to get this support. Ironically, the one factor that banks are most likely to be interested in is future financial security. Without private paying clients, the sector has no similar security nor are there opportunities to make the investments that are necessary. The future lies in the hope of retaining and perhaps increasing the number of contracts they have from the Commission. In particular, this will make it very difficult for Law Centres to buy the necessary technology required by the Commission to monitor cases. A grant programme for private practice was recommended to help them restructure as well as a match funded grant programme to help with information technology. As this is to be administered by the Law Society, it is not clear whether the not-for-profit sector will have access to this fund. If not, this will not provide the level playing field needed if there is to be a tendering process in 2009.

2.3 Law Centres with not-for-profit contracts have not had the same experience as private practice solicitors in managing standard fees. Solicitors firms have been operating tailored fixed fees: the not-for-profit sector in general have not. There must be equality between the sectors again if the tendering is to be introduced.

2.4 It is also doubtful whether the Commission will be ready to implement all the changes according to the timetable proposed. If all the changes are to be introduced they need to be phased in more slowly and evaluated at each stage.

2.5 The change in payment methods should be deferred until peer review and the preferred supplier scheme is bedded in. Further research on the determinants of case costs in areas of social welfare law should be carried out with perhaps the adoption of tailored fixed fees in the first instance to help identify different types of cases. Law Centres, for example, provide a specialist legal service taking referrals from other agencies, where the case is complex and requires expert intervention. Their case mix differs considerably from many other suppliers, particularly from front-line generalist providers and they will naturally have longer average case times.

3. Are there any benefits to be generated for defendants and others by adopting these proposals?

3.1 As the proposals stand, it is difficult to see how they will benefit ordinary people who seek legal advice in social welfare law cases, and in particular how they will be of benefit to those who experience harassment and discrimination. We cannot comment on criminal legal aid, but the rushed plans to implement changes in the delivery of civil legal aid work appear to be ill thought out and could be detrimental, as illustrated in the evidence submitted by the Advice Services Alliance.

What impacts/disadvantages could result from implementation?

3.2 The current gaps in provision are likely to increase. The LCF has conducted a survey[45] which show that from 10 returns:

— Nine out of 10 Law Centres are turning clients away.

— Nine out of 10 are turning eligible clients away.

— All Law Centres believe that Lord Carter's proposals will lead to further gaps in supply.

3.3 The proposals will potentially reduce access to specialist legal services. This is because:

(a) There are disincentives to take on more complex cases or cases for the most vulnerable people.

(b) Specialist skills will be undermined by the pressure to conduct straightforward cases.

(c) Loss of expertise will be long-term. It will discourage new lawyers from choosing civil legal aid work as a career option.

(d) Strategic work to find long term solutions to problems will be lost.

The proposals could seriously jeopardise the progress that has been made by Law Centres during the past forty years in terms of their innovative and strategic approach to service provision and their accountability to the people they serve.

3.4 The proposals are likely to have a detrimental effect on quality. Law Centres only spend the time that is needed to achieve a positive outcome for their clients. The new funding regime will make it more difficult for them to accept referrals of complex cases. They will be forced to take on simpler cases and those with less expertise will stop referring and struggle to advise clients themselves. This will have a negative effect on quality.

3.5 Research published in 2001[46] should be referred to as it made a number of significant findings and recommendations, including:

(a) It takes time to get good results, and solicitors and advisers need a regime which allows for this.

To illustrate this, a typical Law Centre reported in September 2006:

"A high number of our clients do not speak English well enough to attend without an interpreter. We also have a high percentage of clients with learning disabilities, mental health problems or drug or alcohol dependency. Some of these attend with support workers but some come in on their own in a very distressed or agitated state and we have to calm them down before starting to deal with the current issue"

3.6 The proposal to discontinue Level One work is a retrograde step. The ability to provide expert early one-off advice is essential to providing a comprehensive service. This work could be said to provide a "triage service", a concept used in dealing with medical issues and more recently by the Law Commission[50] to describe diagnosing problems and determining priorities as well as "signposting, oversight and intelligence gathering".

3.7 Level One work is about one-off pieces of advice, often provided by phone. The suggestion is that the advice given under these circumstances will have to be interpreted as a new matter start. This increases bureaucracy. Those clients who would have advice over the phone will now have to visit the Law Centre. This will reduce access to services for, say, many elderly or disabled clients. It will also reduce the availability of employment advice for those with complaints about unfair practices in the workplace.

3.8 In order to unify contracts, the ability to carry out Level One work could be extended to the private sector.

4. What impact will the proposals have on different communities (such as Black, Minority Ethnic and rural communities)?

The proposals are likely to have detrimental effect on those experiencing exclusion.

4.1 From the findings of the research[51] mentioned above, the NfP sector has a higher percentage of vulnerable clients. In a report by the DCA[52] they recognise that, "vulnerable people need a greater level of help, and good telephone or face-to-face advice is vitally important. These people are often unable to engage effectively with, and do not trust, the person or organisation with which they have a dispute. Instead they are more likely to trust and be willing to work with independent advice services."

The reduction in the number of suppliers and the lack of specialist advice will disproportionately affect vulnerable clients.

4.2 The LSC are committed to protecting people's rights.[53] Many vulnerable people experience discrimination, especially in the workplace. This is an area of law where Law Centres have developed their expertise and take up important cases that bring about lasting change. A Law Centre with a private practice contract comments:

"At the Law Centre we've been operating under the fixed fee system for the past year and we have to keep a check on the kinds of cases we're taking on. For example, too many time-intensive employment discrimination cases in one financial year could have major financial consequences. So what do we do—send people away? We're trying to protect against our services becoming distorted by the fixed fee scheme but it's a struggle and we have seen an impact. It's difficult to imagine private practice operating the same concerns or protections. It is only natural that in carrying out a business, they will opt for the easiest and most straightforward source of profit—although there may be some exceptions to that general position, I can't imagine they'll be many. Particularly given that any profit to be made has otherwise got to come from `efficiency saving', we predict a significant impact on the most vulnerable."

4.3 Law Centres believe that casework services should be combined with strategic work in the community. Working with groups and providing legal education is equally important and enables Law Centres to reach the most vulnerable and socially excluded people in society. Many vulnerable clients do not recognise that they have a legal problem and need to be encouraged to seek advice. The capacity to do this work has already been damaged by casework targets. The new proposals will erode these services even more as they provide disincentives to Law Centres. This is because the clients that Law Centres seek to reach are those that are likely to have the most complex and multi-faceted problems. To apply market forces to outreach work that targets disadvantaged people is not appropriate. Whilst outcomes in terms of monetary benefit may be small, the subsequent advantage of resolving what may be a small matter could be large, in terms of cascading problems and later calls upon the public purse for support.

4.4 Law Centres are ideally placed to provide the range of specialist legal services needed on discrimination and human rights when the new Commission for Equality and Human Rights is established next year. For example, LCF SORBAEE Project (Sexual Orientation, Religion and Belief and Age Equality in Employment) has provided training and support for Law Centres including resources for Law Centres to run legal education and community awareness projects around SORB (Sexual Orientation, Religion and Belief) and Age in their local areas. Law Centres want to be there to make sure everyone knows about their new rights and have the means to protect those rights if need be.

4.5 The LCF is concerned about the impact of any proposals to standardise the fees for disbursements. These could have a discriminatory effect on people whose first language is not English and against those with disabilities, such as the availability of appropriate sign language facilities.

The inclusion of interpreting and translation fees within the graduated fee scheme for work carried out under contract in asylum cases does not take into account the wide range of languages used in some of our communities, especially in poorer areas and where there are new migrant populations.[54] This could lead to organisations favouring English speaking clients and cutting corners, perhaps by skimping on statement read-back time or by using the interpreter only for statement taking and not for advice giving, etc Others may rely on the client's friends or family to interpret which can mitigate against the disclosure of personal issues. Outside of London, interpreters of most languages are less available and are therefore more expensive, as are those who can offer interpretation services in relatively rare languages. This may be seen as unfair because no similar proposal exists for any other client group.

4.6 The proposal to eventually withdraw the ability to do work under "tolerances" maybe a retrograde step. A regional report from the LSC[55] commented," Due to the partly rural make up of our region, it is fair to say that tolerances play an important role in establishing access to justice for a large number of clients." In Law Centres, a considerable amount of discrimination work is carried out under tolerences, where it falls outside of the contract area. It is to be noted that there is no specific category of law for discrimination work.

4.7 Part of the strategic approach taken by Law Centres is to find solutions that will be of benefit to many people. This can involve work with local authorities about the difficulties people face when trying to access public services. Many Law Centres work with their local councils on policy issues that help promote equality and overcome any practices that could be discriminatory. The new proposals could damage the work done to improve local public services.

5. What impact will all or any of the recommendations have on legal aid providers?

5.1 Independent research carried out by LEGC for the Law Society[56] found that more than 800 legal aid firms could be forced out of business if the proposals are carried out. The Law Society's own survey found that out of 400 civil legal aid practitioners, 95% said that the introduction of fixed fees would mean the work would no longer be viable, while nine out of 10 said the new pay rates would make it unlikely they would be able to continue civil legal aid work. The 7.2% decrease in the number of solicitors with general civil contracts over the last two years has already placed a strain on Law Centre services.[57]

5.2 The proposed fixed fees (except perhaps for housing) will be devastating. A Law Centre says:

"Under the proposed contracting arrangements we would be reduced not to cherry-picking the easier cases, but, what is worse, dealing with all cases whether simple or not in a routinised way, aiming to conclude it at the lowest and earliest level compatible with having provided some kind of service. For example, advising a client with disabilities that it would be difficult to challenge a suitable offer of accommodation, rather than actually challenging it; telling a client how to put in their own appeal or review where doing it ourselves would have a far better chance of success. Not so much cherry-picking the easier cases, but, in one way or another, limiting the service provided in the difficult cases."

This will not provide real access to justice. There will be fewer opportunities to call providers of public services to account. Without effective formal legal challenges such as statutory request for reviews and appeals, the institution is under no pressure to change, and cannot be challenged by judicial review as alternative remedies would not have been properly exhausted.

5.3 The LCF is very concerned about the impact on immigration and asylum and asylum advice. Problems in these areas give rise to and exacerbate other legal problems and are an essential component of common problem clusters.[58] The proposal to have national and regional suppliers mirrors the Home Office business plan for new asylum-seekers, however, new asylum seekers are a very small proportion of those requiring immigration and asylum advice. The plans seem to ignore the complex needs of the vast majority of immigration and asylum clients and will jeopardise the concept of providing a holistic service.

5.4 The DCA's Department Report for 2005-06 sites "Rights" as one of their three key functions. In the chapter, "Protecting Individual Rights" it states that the DCA remain focused on protecting the vulnerable and socially excluded. Asylum seekers and those seeking asylum support are some of the most vulnerable and excluded members of society and should be considered along with the other priority groups referred to in the report.

5.5 It is difficult to know what types of contracts will be available to Law Centres[59]. A very wide variety of cases are undertaken at the moment and there are very few small cases (especially in asylum). A high number of clients are from the BME communities[60] and a reduction in access to the full range of immigration advice services could be discriminatory. The graduated fees being offered are too low and many suppliers of immigration advice and representation—in both the private and NfP sectors are considering whether they can continue this work.

6. How will the proposals affect firms\Law Centres of different size, structure and practitioner mix?

6.1 The intended pace of change makes it difficult to foresee the future. As specialist providers, there is the danger, as outlined above, that skills will be undermined by being forced to undertake the routine casework previously carried out by generalists.

6.2 The introduction of Community Legal Advice Centres places a strain on local agencies. The government aims on the one hand to create "one stop shops", however, the process of competitive tendering can drive a wedge between providers. This can lead to even fewer referrals as each will want to maximise their potential as the main supplier—the CLAC. The process of merging with other agencies is complex, as illustrated by NCVO's[61] and Charity Commissioner's guidance. The issue of how for profit and not for profit organisations could merge or form consortiums is still subject to Law Society regulations.[62] Sub contracting will bring additional dilemmas such as issues of identity, accountability and management. There is a concern that all of these changes will detract from the key objective of providing services to clients.

6.3 The LCF has welcomed Lord Carter's recommendation that the LSC should carefully evaluate the impact of the transition. The introduction of CLACs will have a devastating impact on organisations in the area that are unsuccessful and will as a result, have their contracts with the LSC terminated. Combined with the inability to apply for new contracts this year to meet new needs, there is considerable anxiety throughout the sector. All of the proposed changes hamper the planning of future service provision.[63] The uncertainty about future funding could have a knock on effect with local authority funders, charities and other funders that will look for stability and sustainability in those they support.

7. Will the measures proposed promote the provision of high quality advice and support the effective and efficient operation of the Justice System?

7.1 If the measures produce a national network of suppliers who have the skills and experience to provide the full range of legal services to all those who have been treated unfairly and who are disadvantaged, the measures will prove to be a success. However, we have some serious reservations which we have outlined above.

7.2 The system must be independent of vested interests and be flexible enough to cope with new challenges. The use of telephone advice cannot be relied upon to fill gaps in provision. The option of face-to-face advice must be available especially for the most vulnerable and socially excluded. Changes in legislation will always have a big impact on the demand for services. It will be interesting in the coming months to see how the system copes with possible high influx on enquiries and cases on age discrimination. It is one thing to create and advertise new rights, but another to provide the legal and advice services needed to respond effectively to new demands.

The LCF hopes that the measures will allow for an expansion of Law Centres and that they will be able to continue with their specialist casework services and their work to empower and help educate local communities.

7.3 Overall, the LCF believes that the proposed changes, rushed through, have enormous potential to create a worse system for provision of social welfare law than that which currently exists and has some potential to destroy meaningful access to justice altogether for the most vulnerable people. We urge extreme caution and a far more prudent approach than is currently proposed.

RECOMMENDATIONS

1. Publicly funded legal services should not be considered suitable for the operation of market forces. Legal services, targeting the vulnerable and socially excluded are a public service with a much wider public interest.

2. Any changes should be phased in more slowly and evaluated at each stage. The introduction of standard fees should be deferred until the Preferred Supplier scheme is established.

3. The NfP sector should be given financial assistance to adapt to the new proposals and to purchase the required software.

4. Research and analysis should be carried out into the types of cases undertaken in social welfare law; the types of clients helped; the case mix of different providers and the factors that are linked to different case lengths. We support the recommendation made by ASA that this should be a joint exercise between the LSC and representative bodies, including the LCF, whose members carry out complex casework and focus on discrimination issues.

5. Legal aid for representation at Employment Tribunals should be considered. This could be limited to complex cases; cases where there are discriminatory issues and to cases where the client is unable to represent themselves. There is an expectation that employees will be challenging their employers on age discrimination in the coming year. This could lead to the new rights being illusionary without access to experts to test the law and represent their interests.

6. Alternatives to the existing proposals should be considered. ASA has listed these as: tailored fixed fees, high fee levels; more categories of fees; graduated fees and special provision for niche organisations.

7. The proposals to remove level one work and ultimately to discontinue work under tolerance should be reconsidered.

8. The plans to centralise the provision of both immigration and asylum suppliers should be reconsidered.

9. The LCF supports ASA's final recommendation that further research and debate needs to takes place before any changes are made to the allocation of funding for social welfare law between the regions.

October 2006

38 Aggregation-Is bigger always better? Office of Government Commerce at the Treasury. Back

39 Press Release from EuroActiv 12 September 2006 "Parliament demands clarity on public services". Back

40 Call for European Legal Framework for Public Services. Political groups within the Parliament's Economic Affairs Committee reached an agreement on the report on 12 September 2006. Back

41 UK national Action Plan on Social Exclusion 2003-05 p 42. The plan outlines the most important issues for the UK in the fight against poverty and social exclusion. Back

42 Now the "Legal Services Commission". View expressed in it's response to the Conservative Government's consultation paper, "Legal Aid-Targeting Need". November 1995. Back

43 Law Society Gazette article "Eye of the Storm" 7 September p 24. Back

44 Advice services have a role in helping to reduce the likelihood of criminal activities as well as improving the health of citizens. Back

45 Copy of the survey attached. The study was conducted by LCF in September 2006. Ten of the 58 Law Centres responded in time to be included in the survey. Back

46 Quality and Cost Final Report on the Contracting of Civil, Non-Family Advice and Assistance Pilot. The research was commissioned by the Legal Services Commission and carried out by Richard Moorhead, Prof Avrom Sherr and Lisa Webley 2001. Back

47 Ibid page 97 Summary and Conclusions of Profiles of Contract Times. Section 4.70 concludes that time is driven by a complex set of factors and is not susceptible to a single paradigmatic description. This renders competitive tendering for contracts unsafe since it would be difficult to ensure that all appropriate drivers were taken into account. Back

48 Ibid page 74 Section 3.173. Back