Evidence submitted by Citizens Advice
Bureau (LAR 170)
1. INTRODUCTION
1.1 Citizens Advice is the national body
for Citizens Advice Bureaux in England, Wales and Northern Ireland.
The CAB service is the largest independent network of free advice
centres in Europe, with 496 main bureaux in England, Wales and
Northern Ireland. Bureaux provide advice from over 3,200 outlets,
including county and magistrates' courts, prisons, GP surgeries
and hospitals, probation services and prisons. All CABx are registered
charities. We aim to provide free, impartial, confidential and
independent advice to local communities.
1.2 The CAB service has twin equal aims:
— To ensure that individuals do not
suffer through a lack of information about their rights, and equally.
— To exercise a responsible influence
on the development of policies and practices, both at a local
and national level.
1.3 In 2005-06, Citizens Advice Bureaux
in England and Wales dealt with 5.2 million enquiries, including
1.5 million on benefits, 1.4 million on debt, 400,000 on housing,
473,000 on housing and nearly 300,000 relating to legal issues.
1.4 In the current financial year, over
250 bureaux in England and Wales hold legal aid contracts providing
over 600,000 casework hours in debt, welfare benefits, housing,
employment, immigration, community care or mental health.
2. BACKGROUND
2.1 The review was established to consider
delivery options for the Government's vision, set out in A Fairer
Deal for Legal Aid, in procuring publicly funded legal services.
The expected outcome was to a "plan" or "route
map" for delivering a procurement system that achieves maximum
value for money and control over spending whilst ensuring quality
and the fairness of the justice system. We believe that the outcomes
of the review which proposes a wholesale shift to a market based
system of fixed prices have been a missed opportunity to identify
best practice, and more imaginative approaches to the delivery
of publicly funded legal services in the community.
2.2 Whilst we welcome some aspects of Lord
Carter's report, we consider that this is a missed opportunity
for a more systemic review of publicly funded legal services,
with respect to promoting the sustainability, quality and accessibility
of legal services for the most vulnerable groups. Firstly, the
review has a clear emphasis on the costs and delivery of the Criminal
Defence Service. Whilst recognising the disproportionate costs
of criminal defence, it is important to appreciate that public
funding for both the criminal and civil justice systems needs
to work as a whole, and be supported by effective advice and prevention
strategies. A whole systems approach is needed to avoid driving
a wedge in legal aid between criminal and non-criminal matters.
Indeed little, if any reference is made to the complementary sources
of public funding for civil legal advice and support, and to how
these could strategically rationalised and developed to produce
best value.
2.3 More crucially though, the important
principle of "equality of arms" (article 6, Human Rights
Act) has not been considered with respect to procurement of legal
services from the public purse. Other parties, such as local authorities
legal and enforcement arms, will not experience the same constraints
on their casework imposed on legal representatives funded by fixed
fees. Indeed, if the overarching purpose of the Carter reforms
is to establish reasonable ceilings over rising legal costs and
services procured by the state, it needs to be remembered that
government department, agencies, NHS trusts and local authorities
all employ legal professionals at commercial rates in defending
legal actions commenced against the state or pursuing citizens
over their legal responsibilities. Yet it is only those service
providers working with weaker parties—debtors, socially
excluded clients, domestic violence victims, the homeless, and
those at threat of criminal sanctions—who are subjected
to this new procurement regime.
2.4 Finally, we consider that there has
been a significant misunderstanding of clients' experiences and
delivery issues in specific sectors. Assumptions have been made
throughout about the cost drivers in certain types of legal work,
but no evidence or research has been presented to back these assumptions.
We therefore welcome that the Constitutional Affairs Select Committee
is considering these issues.
2.5 We now consider the committee inquiry's
terms of reference.
3 IMPACT ON
THE JUSTICE
SYSTEM
3.1 Ensuring that there is a commitment
to efficiency within all elements of the justice system is essential.
There are many factors that impact on the cost of delivering legal
aid and the LSC and the DCA must acknowledge that a number of
these are not within the control of providers but are managed
by other participants in the judicial system. While judges clearly
have a part to play in this process through management of trials
there are others. For example the way in which prisoners are taken
to court and the delays that can occur as a result of prosecution
witnesses not being available need to be tackled.
3.2 It is also important that all participants
in the justice process have incentives to work efficiently. The
LSC proposals, inspired by Lord Carter, place demands on providers
which will mean that they will have to look to keep costs to a
minimum—but the same cannot always be said of advocates
representing local authorities, government departments and others
who will not be working within the confines of a fixed fee.
4 PROPORTIONALITY
IN EFFECT
ON PROVIDERS
4.1 We have major concerns about the impact
on not for profit providers. Traditionally, civil legal aid has
been understood as a public service. A key aspect of legal aid
reform over the past decade has been the introduction of contracting
with non-solicitor advice providers in the Not for Profit Sector.
Public service delivery from the voluntary or "third"
sector is now very much an established part of the government's
agenda for the delivery of services, especially for "hard
to reach" groups. This approach to service delivery attracts
widespread support across the political spectrum due to the expertise,
innovative techniques, and community ties offered by the voluntary
sector, which are not always available readily available to public
bodies or private business contractors. However, it is also well
recognised that the voluntary sector operates in a climate of
endemic insecurity. Voluntary sector organisations face challenges
in managing risk and delivering the value of their expertise in
a public policy context. In studies undertaken by ACEVO, it was
found that:
— 92% of respondents from the VCS had
public service contracts of one year or less, although two to
five years is considered to be the minimum time needed to have
an impact;
— 86% said problems with the current
funding regimes were adversely affecting the services they offer
to users; and
— 81% said funding regimes hindered
their organisations' ability to plan for the future.
4.2 Challenges posed by additional costs
and risks incurred by the voluntary sector are increasingly recognised
as having potential long-term implications. Before the last general
election, Alan Milburn, then Cabinet Office Minister, identified
the key problem of a "vicious cycle that limits the voluntary
sector's ability to deliver as the sector ends up chasing dozens
of short-term funding streams, rather than investing in staff
development and service improvement", thus in turn government
agencies become "nervous about contracts with organisations
that lack capacity. They then want voluntary organisations and
charities to account for every penny, micromanaging the relationship
and clawing back resources whenever they can. In turn, this keeps
capacity in the sector down, preventing it from moving up."
Picking up on ideas from prominent voluntary sector leaders, Alan
Milburn argued that there needed to be a step change in procurement
policy—contracts should be more long term which "could
have the potential to lever into the voluntary sector significant
additional resources. A voluntary sector equivalent of the private
finance initiative—VFI alongside PFI—becomes possible
when organisations can borrow from the markets against the long-term
contracts they receive... It is this model that should be taken
forward in Labour's manifesto for a third term."
4.3 The Treasury have also recognised the
"added value" for the government of contracting with
the voluntary sector for the delivery of public services. This
agenda became integral to Sir Peter Gershon's review of public
sector efficiency, and cross-cutting work on the role of the voluntary
sector was commissioned. In turn, this led to the Treasury stating
in that; "Funders should recognise that it is legitimate
for providers to include the relevant elements of overheads in
their cost estimates before providing a given service under service
agreement or contract."
4.4 It is therefore disappointing to note
that Lord Carter does not include the NfP sector in his recommendations.
If NfPs and solicitors are to work to the same contracts and compete
on a level playing field then it seems essential that NfPs can
access a fund similar to that for solicitors. Many NfPs will need
to restructure to ensure that they remain competitive and can
deliver the service that the LSC wants to buy. For example they
may want to work with other providers across much larger geographical
locations, offering more categories of law. Setting up these arrangements
or separate entities that can run these services will require
time and resources. Although the NfP sector does have a range
of funds that it can access the reality is that there is not an
equivalent charitable source that could fulfil this role.
4.5 Another significant development has
been the central role of the "voluntary sector compact."
Brokered by the Home Office's Active Communities Unit on behalf
of all government departments, the compact remains probably the
most central and earliest initiative by the Labour government
to change the relationship between the state and the voluntary
sector. In the compact, Government promises to respect and support
the independence of voluntary and community organisations. It
effectively gives the VCS rights that include:
— The right to be consulted on new
policies that may affect demands on services.
— The right for the impact on the sector
to be assessed when developing new policies (especially Regulatory
Impact Assessments).
— The right to fair access to funding,
including adequate notice of new funding opportunities or changes
in funding.
— The right to campaign and comment
on Government policy even though the VCS receive funding from
Government.
— The right to be properly funded for
the work the VCS does for Government.
4.6 It is therefore particularly worrying
that the regulatory impact assessment to the DCA proposals set
out in "A Sustainable Future" states that "We have
modelled the impact of NFP organisations moving to the TFF Replacement
Scheme if fees are set on a national basis and our preliminary
analysis suggests that if NfPs do not increase the numbers of
matters undertaken, 92% will experience significant decreases
in their publicly funded income, and the total spend with the
sector in the categories of work covered will reduce by 50% (£21
million)."
4.7 The compact's funding Code of Practice
clearly recognised the importance of public funders budgeting
for core management and administration costs, which could be identified
through "multi-year strategic funding", and other that
other funding methods such as project, partnership or development
funding, should have appropriate core cost contributions. The
reality though is that the procurement of publicly funded advice
and legal services from the voluntary sector has followed a very
different model. Many agencies report that they are effectively
subsidising their legal services contracts, and there has been
widespread concern about the unnecessary and sometimes wasteful
micro-management.
5. IMPACT OF
FIXED FEES
5.1 For specialist legal advice, the LSC
proposes to pay a fixed fee per case and is consulting on whether
to fix fees on a national or regional basis. It aims ultimately
to pay fees fixed nationally, and use the money saved, particularly
in London where average fees are higher, to fund services in areas
where there is less provision. Serious concerns have been raised
about these proposals.
5.2 Providers fear that the levels of fixed
fees are inadequate and will drive them out of business. Lord
Carter has indicated the not for profit sector could lose up to
50% of its funding under LSC contracts, and an on-line survey
conducted by the Law Society indicated that 95% of the solicitors
who responded thought that the proposals would result in the work
not being viable.
5.3 It is feared these proposals will impact
most on the most vulnerable clients, such as those who have mental
health problems, language problems, or disabilities, which mean
that advising them is more time consuming, and those who have
the most complex cases. The proposals do not allow enough flexibility
for complex cases. For a case to be categorised as "exceptional"
and paid at an hourly rate, it has to take four times as long
as usual. This seems an unreasonably high test to meet. It may
not be economic for solicitors and advisers to take on cases which
will involve extra work that they will not get paid for. Neither
Lord Carter nor the LSC has researched why some cases take longer
than others, so the LSC does not have the information it needs
to structure the scheme in a fair way.
5.4 We now turn to the key questions posed
by the committee in its inquiry.
6. IS THERE
A NEED
TO MODERNISE
THE PROCUREMENT
OF LEGAL
AID?
6.1 We consider that there is certainly
scope for improvement and innovation in the procurement of legal
aid. The procurement scheme that has developed following the implementation
of the Access to Justice Act 1999 has proven to be overly bureaucratic,
and focussed on micro-managing inputs in stark contrast to more
modern procurement methods which focus on quality and outcomes.
Research has demonstrated that everyday legal problems are rarely
experienced within the narrow silos of legal aid categories; rather
they involve numerous issues of basic social well-being, and commonly
those with unmet legal needs experience issues with the civil
law as "problem clusters".
6.2 This points to the clear need and priority
for delivering advice and representation services in a holistic
model; that social welfare law advocacy, independent advice, and
other statutory and voluntary sector services should be delivered
in a joined up process. There is much talk of the need for "one
stop shops", "triage services", "seamless
service delivery" etc, and the LSC now wants to see service
providers and different specialists operating as Community Legal
Advice Centres or Networks—in fact this is precisely the
service model pioneered and practiced by Citizens Advice Bureaux.
6.3 However, we believe that the current
system of legal aid contracting and the proposed fixed fee regime
cannot facilitate this approach to service delivery. Rules on
scope and eligibility, combined with narrow definitions about
what can be claimed as legal work against contract hours, restrict
the capacity of caseworkers to respond appropriately to clients
problems.
6.4 Whilst the voluntary sector is skilled
at developing and balancing services supported from a wide range
of funders with different requirements, ultimately a more holistic
approach to service delivery, requires a holistic approach to
funding and procurement.
6.5 In our submission to the Carter Review,
we argued the case for a significant simplification of the contractual
regime. Consider for example the size of the current contract
document. Even for a contract of 550 hours (the equivalent to
employing a half time adviser) the contract is 250 pages long.
Within that contract document there is far too great an emphasis
on micro management of time rather than providing a quality service.
The guidance in itself is sometimes nonsensical, for example while
an adviser cannot claim for reading "a short letter, they
can claim for reading a long letter".
6.6 Services providers can be penalised
for minor administrative errors, for example when completing the
Legal Help form the adviser must indicate how much capital a client
has. One example cited by bureaux is that where agencies wrote
the figure "0" rather than the word "nil"
then all the time claimed for that file could be cancelled out
by the LSC, regardless of the quality of the advice or the outcome
of the case. LSC requirements mean that more time has to be devoted
to form completion and setting up of files. The need to time record
to a high level of detail also means that more staff time is devoted
to setting up systems and checking and rechecking time recorded.
Failure to meet target hours can trigger sanctions in the form
of cuts, claw-backs, or specific orders, with only 80% of the
contract price actually guaranteed by the LSC.
6.7 Whilst it is true that a fixed fee regime
dispenses with some of the problems of time-management and recording,
the weakness of these proposals is that they are based on an outdated
system of "matter starts". Solicitors have long been
used to creating "separate matters" dating back to the
existence of the old "Green Form" scheme. Advisers in
the NfP sector have never worked in this way (although some have
tried to pick it up) and accordingly now find themselves at a
disadvantage.
6.8 Ironically in November 1995 the LSC's
predecessor body, the Legal Aid Board, explained in its response
to the then Lord Chancellor's consultation paper Legal Aid—Targeting
Need that it was "particularly interested in this sector,
not only because they were actually providing the equivalent of
green form advice and assistance, but also because of the way
they approach their clients in providing the legal service. They
deal with people and problems rather than narrowly defined pieces
of `green formable' work."
6.9 In order to retain their LSC funding
under the proposed new contract NfP organisations will have pick
up the "skill" of identifying separate matters and fast.
In requiring this, the LSC is taking publicly funded legal services
back full circle to the production of narrowly defined pieces
of work—and all in pursuit of playing the numbers game.
7. WHETHER THE
TIMETABLE FOR
IMPLEMENTATION SUGGESTED
IN LORD
CARTER'S
REPORT IS
REALISTIC?
7.1 We do not believe that the LSC has the
capacity to implement wide-ranging changes to legal aid, the preferred
supplier scheme and the CLS Strategy simultaneously. Moreover,
a model contract for 2007 has yet to be put out for consultation
so it hard to see how the suggested "unified contract"
can be in place in place by next year. It is questionable also
whether the LSC have peer review resources to keep to their own
timetable in relation to preferred supplier, or the timetable
proposed by Lord Carter. We do not see how the LSC can implement
any such changes and at the same time reduce their administration
costs by 30%, as suggested by Lord Carter.
8. WHAT BENEFITS
MIGHT BE
GENERATED FOR
DEFENDANTS AND
OTHERS BY
ADOPTING THESE
PROPOSALS? ALSO
WHAT IMPACTS/DISADVANTAGES
MIGHT RESULT
FROM IMPLEMENTATION?
8.1 We consider that the introduction of
fixed fees in social welfare law, as proposed by the LSC, would
be seriously detrimental to the provision of advice and assistance
in this area of law, given the variation in case costs/lengths
that exists within these areas.
8.2 The proposed scheme concentrates on
quantity; however there is a risk that this may be at the expense
of quality. There is too great an emphasis on increasing the volume
of people seen rather than safeguarding and improving quality
of service offered to clients. More clients may receive some advice
as a result of more matter starts becoming available (assuming
of course suppliers are willing to take them on and provide the
service). This will enable the Department for Constitutional Affairs
to demonstrate that it has increased, "the number of people
who receive suitable assistance in priority areas of law…"
(PSA target 6). We are concerned though that there is a real risk
that some of this advice will turn out to be of little or no benefit
to clients because some suppliers will limit the range and depth
of the service previously offered in order to remain profitable.
Suppliers may also be tempted to cut corners by eg failing to
take or return calls from clients unless it is strictly necessary
in order to progress the case.
8.3 There is a very real risk that the proposed
scheme could potentially create conflicts of interest between
clients and suppliers. Clients are interested in getting the right
service with the best outcome whilst the supplier, although wanting
the same as the client, will also be concerned to ensure that
they don't spend more than the fixed fee on the client's case.
Proposed control measures to ensure that the scheme does not have
an adverse impact on services delivered to clients are insufficient.
The LSC proposes to review matter start allocations and as against
the supplier's previous years to ensure that case mix remains
approximately the same. Whilst this may monitor supply levels
in particular case types and it cannot safeguard against attempts
to cherry pick cheaper case types. Indeed, it is unclear how any
of proposed monitoring will prevent suppliers filtering out the
most vulnerable clients, the very clients that the DCA has in
mind in Strategic Objective 3 (Public Service Agreement 2001-04)
when it talks about, "the use of public funds" securing
"greater social justice" and reducing "social exclusion".
9. WHAT IMPACT
THE PROPOSALS
WILL HAVE
ON DIFFERENT
COMMUNITIES (SUCH
AS BLACK,
MINORITY ETHNIC
AND RURAL
COMMUNITIES)?
9.1 Unfortunately it is hard to see how
Lord Carter's proposals will do anything other than reduce the
diversity and geographical coverage of the supplier base. A market
based system that is focused on the delivery of numbers of cases
rather than services for clients will suit the larger providers.
Both Lord Carter and the LSC have made it clear that the future
lies with fewer, larger suppliers. The reality is that it is the
smaller providers that tend to provide diversity within the supplier
base. If these suppliers merge with larger ones there is a good
chance that the unique qualities of the niche provider could easily
be lost.
9.2 Fixed fees are most suitable for large
organisations with a large and mixed intake of cases and clients.
That description does not match many organisations, and especially
NfP organisations, which have a high proportion of clients of
diverse backgrounds. The problem may be particularly acute in
London; where the introduction of a national fee would have a
huge impact on the providers, as their current costs are generally
more expensive than providers outside London. The LSC states that
it accepts that the costs of running a legal aid firm in London
are higher than in many parts of the country but does not think
that this can justify the much higher average prices in London.
London has a greater concentration of social issues than in any
other region and this may have a big effect in increasing the
cost per case. According to the Mayor of London report "London
Divided" (2002) found that:
— The proportion of ethnic groups is
higher than anywhere else in the country (which may have low rates
of educational attainment and may not have English as a first
language).
— London has the highest proportion
of children in households reliant on income based jobseekers allowance.
— Most minority ethnic groups have
unemployment rates well over twice as high as the white population.
9.3 The Advice Service Alliance's analysis
of NfP cases in 2004-05 also revealed that the proportion of clients
who were classified as other than White British was 64% in debt,
73% in housing, 74% in benefits and 75% in employment. The overall
effects of fixed fees, in terms of case mix and quality, are likely
to be the same for NfPs as for solicitors' firms. In London at
least it seems that it will be largely non-white British clients
who will suffer as a result. A further problem concerns the recommendation
by Lord Carter that the allocation of social welfare law funding
should be based on a formula using data from means tested benefits
eg income support as a proxy for legal aid eligibility. The effect
of implementing such a proposal would be a reduction in the allocation
of funding to London of approximately 24%. Such a change would
have an indirect discriminatory impact given the high proportion
of members of BME communities in London.
10. WHAT IMPACT
ANY OR
ALL OF
THE RECOMMENDATIONS
WILL HAVE
ON LEGAL
AID PROVIDERS?
10.1 As stated previously we are particularly
concerned about the effect on these reforms on the not for profit
sector. As the new mixed economy of service providers has developed,
there has been considerable debate around the role that different
types of suppliers should play in the delivery of services under
CLS. The LSC's Final report Quality and Cost on the Civil
Advice and Assistance Pilot 2001 compared how solicitors and not
for profit agencies work. It concluded that NfP agencies were
more expensive per case and often took longer, however they provide
a higher quality service and better outcomes for clients than
other suppliers. The report concluded that the additional time
taken on cases reflected the profile of more vulnerable clients,
but that the methods of service and delivery used in the NfP sector
gives clients added value and keeps overheads to a minimum.
10.2 The success and appeal of this model
was reflected in a recent Law Society consultation and reports,
which explored amongst other options how legal aid solicitors
could become more like NfP agencies. We also have concerns though
that many solicitors firms may not find sufficient incentives
to contract under the fixed fee regime—given the importance
of the solicitors network to legal practice this could be disastrous,
and an on-line survey conducted by the Law Society indicated that
95% of the solicitors who responded thought that the proposals
would result in the work not being viable. There is a real risk
therefore that the growth of advice deserts could be exacerbated.
11. GROWING ADVICE
DESERTS
11.1 One of the aims of the CLS and introducing
a contractual regime, was to provide a seamless network of legal
information, advice and representation throughout the country;
yet in the last five years there have been growing numbers of
"advice deserts"; that is, areas of the country where
the LSC has insufficient contracts—or no contracts at all—for
specialist legal advice in one or more areas of social welfare
law. This problem has been highlighted both by the Department
for Constitutional Affairs Select Committee, and by the Independent
Review of the CLS. In 2003 Citizens Advice published a report
identifying the growth of "advice deserts" in various
parts of the country and the major geographical inconsistencies
in the availability of advice from the CLS, with increased clustering
of services in urban centres, and a rapid decline in the number
of solicitors firms providing publicly funded services. Thirty
9% of CABx reported that they considered themselves to be working
in an "advice desert."
11.2 Advice deserts are distinct geographical
areas where there is nonexistent or insufficient supply of free
specialist legal advice in one or more areas of social welfare
law, due to local solicitors pulling out of legal aid. This means
no access to justice, as where clients are eligible for legal
aid it is because they are on low incomes, and often cannot afford
even small amounts of money on travelling to get legal help. Often
clients need help urgently and cannot wait months for an appointment.
In all regions there is evidence of insufficient supply, and the
result is that clients that are turned away. The government deny
that there are "advice deserts", but recognises that
there are many parts of the country with areas of "unmet
legal need" for clients who are eligible for legal help.
11.3 There is also evidence that, even in
areas where there are solicitors and advice agencies with civil
contracts, people find it hard to access advice. Over 60 % of
CABx report that they have problems referring clients to solicitors
with LSC contracts. It is not unusual for individuals seeking
advice to say that they phoned 10 to 15 solicitors or other agencies
before obtaining an appointment. Agencies have to turn large numbers
of callers away due to pressure of work including those with an
urgent and justified need for assistance.
11.4 There is evidence that the number of
people helped by legal aid is falling; (see tables below). Indeed,
since the introduction of contracting the number of firms providing
legal services has declined from over 14,000 to around 3,000 In
2004-05, the LSC failed to meet a key target to increase by 10%
the number of new cases in areas of law that involve social exclusion
(excluding immigration cases). In fact, compared to the previous
year, the number of new cases declined by 5%. Between 2000 and
August 2005 the number of legal help contracts in the main areas
of social welfare law [excluding immigration] changed as follows:
| Subject |
2000 |
2005 |
Difference |
% change |
|
|
|
|
|
| Debt | 688 | 396
| -292 | -42.4% |
| Employment | 455 | 227
| -228 | -50.1% |
| Housing | 914 | 580
| -334 | -36.5% |
| Benefits | 749 | 465
| -284 | -37.9% |
11.5 The total number of new legal help cases started
in the last three years of contracting are as follows (figures
are rounded to the nearest thousand):
| Year |
Solicitors |
Not for profit agencies |
Total |
|
| |
| 2002-03 |
690,000 | 119,000 |
809,000 |
|
| 2003-04 |
583,000 |
136,000 |
719,000 |
|
| 2004-05 |
503,000 |
159,000 |
662,000 |
|
11.6 The real effect of advice deserts though can only
be measured in human cost. Below are some examples provided by
bureaux:
A CAB in Lincolnshire Boston saw a client who had been working
as a Nursery Nurse since mid 2004. She had been off work for a
couple of days and then received a letter dismissing her for gross
misconduct. Grounds for dismissal were that the client's work
had been found inadequate during a recent Ofsted inspection. However,
when the bureau saw the report now mention was made of the client.
The bureau's funding for specialist employment had ceased. The
client will need to go to Tribunal to win her case. There is no
legal help available in the town for employment advice. The nearest
town is 45 minutes away. This is because local solicitors are
withdrawing from the Legal Aid scheme for employment help and
are only giving advice on a no win-no fee basis or for direct
payments.
A CAB in the South West Bristol saw a single mother who has
overstayed her visa and is in constant fear of deportation. Her
young baby is seriously ill and she worries that if she was forced
to return to Senegal her baby would be in serious danger. She
has not applied for benefits as she scared that if she applied
the authorities will try and deport her. She is currently surviving
on charity. The client clearly needs specialist advice but there
is not a single solicitor in Bristol that will take on her case.
The bureau has made the client an appointment with solicitors
in Cardiff.
A CAB in Kent Faversham saw a client whose eldest son is living
with him as the child does not want to live with his mother. However,
the client does not have parental responsibility and urgently
needs to obtain it in order not to be charged with child abduction.
The bureau tried to locate a solicitor offering legal aid using
the CLS directory. However the nearest one, which is nine miles
away could not offer an appointment for 10 weeks, the next closest
which was 30 miles away could only offer an appointment in two
weeks time
11.7 In various surveys undertaken by the Law Society
of legal aid suppliers, respondents have consistently cited the
contracting regime and associated bureaucracy as the key factor
for firms withdrawing from legal aid. Whilst Citizens Advice does
not advocate a return to the previous demand led system, we consider
it is essential that procurement policy provides sufficient incentives
to keep good suppliers in the system. The Law Society's recent
survey of solicitors assessments of the proposed reforms are therefore
a cause for concern.
12. HOW THE
PROPOSALS WILL
AFFECT FIRMS
OF DIFFERING
SIZE, STRUCTURE
AND PRACTITIONER
MIX
12.1 We would expect the proposals to affect firms of
varying sizes in different ways. Smaller firms may find it harder
to achieve a sufficiently varied case mix to enable them to benefit
from fixed fees. Niche or specialist firms may find it particularly
difficult to continue. Larger firms may find it easier to achieve
a varied case mix, but, by virtue of their size, may feel more
exposed, and less willing to take the risks involved of continuing
in areas that seem particularly likely to be unprofitable. Firms
that will benefit will be those able to "cherry pick"
their cases.
13. WHETHER THE
MEASURES PROPOSED
WILL PROMOTE
THE PROVISION
OF HIGH
QUALITY ADVICE
AND SUPPORT
THE EFFECTIVE
AND EFFICIENT
OPERATION OF
THE JUSTICE
SYSTEM
13.1 No. The Carter report is particularly disappointing
in this respect—the overall effect of fixed fees in social
welfare law will be to reduce the provision of high quality services
and access to the justice system. A better balance needs to be
struck between price and quality.
14. CONCLUSION
14.1 We would suggest that consideration is given to
a payment system based on incentives and rewards explicitly linked
to the quality of service provided rather than penalties and disincentives.
Alternative payment methods that should be considered; these include:
an extension of tailored fixed fees; higher fee levels; more categories
of fees; graduated fees; more sophisticated escape mechanisms;
and special provision for niche organisations. There could be
a basic fixed fee as well as a system of automatic uplifts payable
to those suppliers who provide enhanced access to priority groups,
eg people with a mental health problem, learning difficulties,
literacy or language difficulties, any hearing or sight impairment
or where other factors, such as rurality, influence the cost of
delivering services as well as uplifts for particular achievements
linked to quality of service and case outcomes. Fixed fees will
only work if set at the right level initially and subsequently
reviewed on an annual basis
October 2006
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