Further evidence submitted by Pierce Glynn
Solicitors (LAR 169a)
1. This is submission is from Pierce Glynn
Solicitors, a firm practicing from offices in Borough, London
SE1. It describes the impact which we forecast the proposed
reform of Legal Aid will have on our firm and our clients if the
programme currently put forward by the Legal Services Commission
is carried into effect.
DESCRIPTION OF
THE FIRM
2. The firm is a provider of legally-aided
services in social welfare law.
The firm has contracts with the LSC in Housing, Welfare
Benefits, Community Care and Public Law. The firm is classed as
a Category 1 supplier. In terms of LSC expenditure, the firm is
the largest civil supplier in the London Borough of Southwark,
and the principal provider of advice, assistance and representation
in social welfare law. The firm functions as a "second tier"
organisation, taking almost all cases by referral from other organisations.
3. The firm comprises eight fee-earners
and five support staff. Of the eight fee-earners, there are seven
solicitors and one trainee solicitor. The fee-earners practice
across the range of categories of social welfare law that the
firm undertakes, such that all fee-earners are able to deal with
a range of problems for our clients, thus achieving a "seamless"
service across what are commonly inter-related problem areas.
4. The firm's caseload is 95% legally-aided.
THE CLIENTS
WE SERVE
5. The high proportion of the firm's work
that is legally-aided follows naturally from the fact that the
firm's practice is in social welfare law. Its follows also that
almost all are clients are on low or very low incomes. The firm
has deliberately set out to be able to deal with clients who have
multiple overlapping problems across the areas of law which the
firm practices.
6. A high proportion of the cases undertaken
(over 80%) are referred to the firm by other organisations, including
advice and other local voluntary sector agencies, law centres,
other solicitors, health service practitioners, social workers,
local authority and central government departments, national voluntary
organisations, advocacy services, and welfare groups working with
ethnic and other minorities.
7. This combination of the matrix of legal
services and expertise offered with the development of extensive
referral networks has lead to the firm having significant categories
of clients who are among the most disadvantaged in society as
a whole. The firm has substantial numbers of clients in the following
groups
— Physically-disabled people
— Mental patients and others with mental
health problems
— Other persons from abroad suffering
destitution and the deprivation of accommodation and care services
— People with learning difficulties
8. The work of the firm is best illustrated
by examples:
— Mr S is a man with learning disability
and anger management problems, who is facing possession proceedings
by the housing association landlord in respect of his supported
accommodation, and the withdrawal of community care services and
disability benefits because of a recent (and disputed) change
in his diagnosis
— Ms B is wheelchair-bound and living
in unsuitable accommodation. An offer of re-housing has been withdrawn
by a housing association on grounds of her disability, despite
the availability of adaptations to enable her to use the offered
accommodation safely
— Ms J is elderly and suffers from
dementia. She faces eviction for rent arrears because her family
members are subjecting her to financial abuse and the local authority
refuses to intervene to take on management of her finances.
9. The firm's expertise in these areas means
that it has a high and wide reputation.
THE PROPOSALS
10. The LSC's proposals for the reform of
legal aid in the area of social welfare law are contained the
paper jointly published by the DCA and the LSC entitled "Legal
Aid: a sustainable future". The material reforms for social
welfare law are as follows:
1. The replacement of the current Tailored
Fixed Fee Scheme for Legal Help with a standard fixed fee scheme,
to be introduced from April 2007
2. The withdrawal of contracts from existing
suppliers and the replacement of the service by Community Legal
Advice Centres in urban areas and Community Legal Advice Networks
in rural areas with a target date for implementation of 2009.
HOW THE
PROPOSALS WILL
AFFECT OUR
FIRM
1. The replacement of Tailored Fixed Fees
by Standard Fixed Fees
11. The tailored fixed fee scheme was designed
to pay suppliers according to the amount of work done on cases.
The level of fees in the different categories of law is based
on each firm's historic average costs per case in a previous 12
month period. For example, a fixed fee is paid for a housing case
whether the actual costs incurred in the case are more or less
than the fixed fee.
12. The present scheme thus creates two
incentives for suppliers:
(a) to select cases that involve less work,
because that will maximise profit per case
(b) to open a new case whenever a "fresh
matter" can be identified under the rules of the scheme,
since a new case will generate another fixed fee, whereas previously
a number of matters for a client might have been dealt with as
a single case.
13. These incentives have had the effects
that were predicted for them. The number of "matter starts"
has increased, for our firm as for other suppliers, and overall
matter starts have increased despite the withdrawal of many suppliers
from the market. In our firm, this has happened despite a deliberate
policy of maintaining the current case mix, and of not selecting
cases that are likely to involve less work. These effects have
served the purposes of the LSC, which has been determined to reduce
average costs per case. However, although the LSC is able to show
more "acts of assistance" resulting from this scheme
for the same expenditure, our view is that this is likely to be
a statistical effect only, and not reflective of any significant
change either in the actual cost of providing a particular legal
service to a particular client, or in the actual number of clients
assisted.
14. The TFF scheme is to be replaced by
a standard fixed fee scheme. Under this, a fixed fee will be paid
for Legal Help cases. Under the scheme preferred by the LSC, the
only differentiation will be by category of law. For example,
all welfare benefits cases will be paid at a standard fee of £143.00.
This standard fixed fee takes no account of
— The actual work which is reasonably
required in any particular case
— The level of work undertaken by any
particular supplier
— The difference in the cost of supply
in different areas of the country
15. So far as the differential between the
fixed fee and the actual work required on a case is concerned,
the LSC's response is that there will be a "swings and roundabouts"
effect. The higher cost cases will be balanced out by the lower
cost cases. However, for all suppliers, there will be an incentive,
as under the TFF scheme, for suppliers to "cherry pick"—to
select those cases that are likely to cost less, and to avoid
taking on those cases that are likely to cost more. The LSC in
its public statements simply denies that there will be such an
effect, despite the evidence of the TFF scheme that this is just
what will occur. The LSC points to safeguards in the form of its
intention to monitor supplier's "case mix" to prevent
cherry picking, but these safeguards have been applied under the
TFF scheme, and have not prevented suppliers exploiting the scheme
by increasing the numbers of case starts to increase the number
of fixed fees paid. It is surely naive on the part of the LSC
to think that in introducing a scheme which has built-in incentives
to increase the number of cases started for the same amount of
legal services provided, the altruism of lawyers can be relied
on to resist such economic pressure, in circumstances where payment
rates have steadily declined in real terms.
16. In taking no account of the level of
work undertaken by particular suppliers, the effect of the reform
is to force all suppliers to be generalist and not specialist.
Our firm is a case in point. We are specialist suppliers with
a high level of expertise undertaking complex cases. These cases
take more time. At the Legal Help level, the time spent by our
highly skilled and highly qualified lawyers on these complex cases
is charged at the same rate as work undertaken in other suppliers
by unqualified caseworkers. It is not economically-viable for
such skilled practitioners to undertake this work, but in our
firm, we do it because of a commitment to our clients, and because
the higher rates of pay we receive for court work subsidises the
Legal Help work. Our fixed fees under the TFF scheme reflect the
higher level of work we do. For example, our net tailored fixed
fee for welfare benefits work is £397.78, compared with the
proposed national standard fixed fee of £143.00. Disbursements
are included in the TFF but not in the SFF; allowing for this
element, the average net TFF we have received in the past 12 months
for costs alone is £370.98.
17. With the introduction of standard fixed
fees, we will no longer be able to afford to provide a specialist
service. To continue to provide the current service would involve
a cut in income of 31.48% under the proposed SFF. In order to
be able to continue, what are we supposed to do? The following
options emerge:
— to expand and take on a large number
of cheaper unqualified staff to do shorter cheaper "low level"
cases, to balance out the complex, longer, "high level"
cases we do at the moment—we do not have the space to accommodate
such numbers of staff, nor would our existing staff agree to devote
the amount of time required to supervision. Besides, we do not
believe such volumes of shorter cheaper "low level"
cases exist
— to re-deploy our staff on shorter
cheaper "low level" cases—this is simply not cost
effective—the SFF income would not be sufficient to meet
the overhead costs of staff pay.
— To merge with another supplier or
suppliers undertaking larger volumes of shorter cheaper `low level'
cases, so as to balance out our longer more complex work—this
hardly seems a viable proposal—what incentive would there
be to such other suppliers to merge with a firm such as ours,
when the work we do costs more and is paid less?
18. In our view, the SFF scheme will see
the end of the provision of high quality expert advice and representation
in Legal Help cases which involve more than a minimal level of
work. It will also see the end of "second tier" specialist
providers, dictating rather that all suppliers be generalists.
19. The SFF scheme must also be considered
in the context of the overall thrust of the Carter reforms, which
is directed at the early resolution of disputes, by clients seeking
assistance at an early stage, with a view to avoiding unnecessary
litigation. The SFF scheme will work directly against this objective,
since it will create an incentive to suppliers to avoid taking
on cases that require lengthy efforts at dispute resolution under
Legal Help, and to select those cases where litigation has already
been started (usually by a non-Legally aided opponent) or those
where litigation is the only reasonable course, since in those
cases the amount of work undertaken under Legal Help will be minimised,
and the profit on the fixed fee maximised. The SFF scheme is therefore
likely to have the perverse effect of reducing early resolution
of disputes and increasing the amount of litigation.
20. The SFF scheme will also deny access
to solicitors to some of the most needy, and challenging clients.
If firms like ours cannot continue to act for challenging and
disabled clients, who will? It is of enormous concern that no
assessment of the effect of the scheme on the most vulnerable
and socially excluded clients has been undertaken.
2. The Replacement of Existing Suppliers
with CLACs and CLANs
21. Our firm is located in an inner London
borough with high levels of deprivation, and according the LSC's
paper "Legal Services Commission's Strategy for the Community
Legal Service 2006-11" the intention of the LSC would be
to set up a Community Legal Advice Centre to provide services
in social welfare law.
22. The CLAC will be a single centre providing
an advice and representation service across 5 areas of social
welfare law—including the areas of law undertaken by our
firm—housing, welfare benefits, community care, and also
including debt and employment. For a fixed sum of money, the CLAC
will contract to undertake a prescribed number of "case starts".
Under the contract tender documents published for the first 2
CLACs in Leicester and Gateshead, a ratio of "generalist"
level help to `specialist' level help is prescribed—in the
case of Leicester, 12,000 case starts were required of which 9,000
were to be at a general level.
23. As a Category 1 firm specialising in
the mainstream social welfare law areas, and being the largest
civil supplier in Southwark in terms of LSC spend, it might be
thought that our firm would be a likely candidate to apply to
form a CLAC in Southwark. However, there is not prospect of this,
for the following reasons:
— to become a CLAC we would have to
transform ourselves from a relatively small group of highly trained
and qualified legal practitioners undertaking specialist work
into a much larger organisation, involving considerable commercial
risk, where the lawyers in the firm would effectively have to
give up the complex litigation and casework (for which they are
qualified), and devote their time to the management of a large
business probably with extensive sub-contracting arrangements,
and the supervision of large number of caseworkers (for which
they are not).
— not only are the members of the firm
not qualified to do this, it is simply not what they want to do.
It is not what they became lawyers for. They will look for employment
as lawyers elsewhere rather than do this.
24. The LSC wishes to reduce it management
and administrative role in providing Legal Aid, but it is management
and administration that nonetheless needs to be done. The LSC
expects existing suppliers to take this on. But this is surely
an unreasonable expectation. It is surely not a reasonable use
of lawyers to expect them to undertake this work, nor are they
competent to do so. The LSC paper and the Carter report contains
sections about "supporting suppliers through this process",
but these are quite unreal—they do not come close to understanding
the degree of dislocation involved.
HOW THE
PROPOSALS WILL
AFFECT OUR
CLIENTS
1. The replacement of Tailored Fixed Fees
by Standard Fixed Fees
25. The effects of the introduction of these
proposals follow on from the effects on the service which we and
other suppliers will be able to provide. We forecast an overall
"dumbing down" of legal services provided under the
Legal Help scheme. Perversely, the depression of the Legal Help
scheme is likely to lead to clients becoming involved in unnecessary
litigation.
26. Clients with complex cases are likely
to be unable to find lawyers to take them on, since the more work
a case will involve, the less profitable it will be.
27. Clients with particular characteristics
which lead to their cases absorbing more time will be adversely
affected for the same reason.
— physically-disabled clients frequently
need to be visited at home
— mentally-ill or disabled clients
frequently need to be visited in hospital or at home, and the
process of obtaining instructions and communicating advice typically
requires considerable time and consultation with family and professionals
involved
— people from abroad usually do not
have English as a first language, and the use of interpreters
and translators lengthens the time spent and cost incurred in
cases
— asylum seekers, as well as having
language problems, are frequently withdrawn and traumatised, and
interviews absorb more time in consequence
28. The tendency of the reforms to destroy
specialist suppliers and require all suppliers to be generalists,
identified above, will mean that those clients with complex and
difficult cases are unlikely to find the standard of service and
expertise that their cases require.
29. Clients who do find a lawyer to deal
with their case are likely to find that—far from providing
the "holistic service" which the reforms are directed
at achieving—the lawyer will be under pressure to do the
minimum amount of work to bring the case to a conclusion, whether
the presenting problem is resolved successfully or not, and ignoring
any inconvenient associated problems that may arise in the course
of the case.
30. Clients with problems that are in their
early stages are likely to find that they cannot get a lawyer
to deal with the case until the case is or can be litigated. For
example,
— a client with a complex housing benefit
problem involving, say, an appeal, is unlikely to be able to find
a lawyer until the rent arrears created in consequence prompt
the landlord to start possession proceedings.
— a client in receipt of complaints
about the nuisance behaviour of her children and served with notice
of possession is unlikely to find a lawyer to assist in managing
the problem until the landlord issues ASB or possession proceedings
in the court.
— A homeless applicant will be refused
legal assistance with seeking a review and will only get it when
turned down on review and an appeal to the court is the only option.
Failure to ensure the availability of early
intervention has serious consequences for clients—homelessness,
hospitalisation,
children going into care—each of which prove
very expensive for the state.
2. The replacement of existing suppliers
with CLACs and CLANs
31. For our clients, the consequences of
the introduction of a CLAC will be, quite simply, the loss a legal
service. A CLAC would mean that our firm would close down, and
the resource we provide to the community would be lost.
32. We anticipate that several other suppliers
heavily dependant on legal aid would also simply disappear, and
those suppliers for whom legal aid forms a small portion of their
income will simply stop doing legal aid and concentrate on other
sources of income.
33. Whether these forecasts are correct
or not, there will be a massive and unnecessary upheaval and dislocation
of the supply base in Southwark. Unnecessary because the borough
already possesses a comprehensive and sophisticated network of
suppliers, that have developed to meet local needs, and from our
client's point of view, a CLAC, even when up and running would
deliver no significant improvement in the legal services currently
being delivered.
October 2006
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