Examination of Witnesses (Questions 174-179)
ALISON HANNAH,
RICHARD JENNER
AND ADAM
GRIFFITH
30 JANUARY 2007
Chairman: Good afternoon and welcome.
We are very glad to have the benefit of your advice and experience.
First, we should declare any interests we might have around the
table.
Bob Neill: I am a non-practising barrister,
formerly dealing with criminal work.
Keith Vaz: I am an employed barrister
but I do not do legal aid.
Q174 Dr Whitehead: In 2003-04, we
conducted an inquiry into the adequacy of civil legal aid and
we did find that there was substantial evidence still of unmet
demand but, at the same time, the LSC has announced with some
pride, it is fair to say, that more legal help has been provided
to more people last year in particular than in any other year
since 2000. In the light of that announcement and other information
that you have, do you think there are still civil legal aid advice
deserts and areas of unmet need? I think they were described in
the House this afternoon as possible bare patches. Is it your
view that there are deserts or bare patches or simple areas of
under-watering?
Richard Jenner: Obviously we welcome
the increase in numbers and that has helped. It is worth pointing
out, though, that that increase was probably largely due to two
factors: one is the inclusion of help provided under CLS Direct,
the telephone service, and also, if you look at the figures closely,
there has been quite a significant increase in the number of matters
dealt with by the not-for-profit sector, which is partly the result
of an increased number of contracts to that sector but mainly
we think the result of improvement in the sector's performance.
Those are probably the two main factors driving the numbers up.
We are not sure that the debate about advice deserts and the use
of that term is necessarily constructive. Some of the debate has
been conducted in quite an anecdotal way, we think. We are clear
that provision, especially in many categories of social welfare
law, remains very patchy across different areas of the country
and in some areas of the country remains fairly poor. Even where
there are providers, they frequently lack capacity under their
contract to deal with demand in their local area. There is also
some research evidence that particular groups in the community,
for example black and ethnic minority communities and young people,
face difficulties in getting access to legal advice for reasons
we do not entirely understand and are quite complicated. Our concern
is that if you look at the current reform proposals, which have
not been tested and in our view are not based on any firm evidential
base, they could run the risk of reducing access to justice to
some of the most vulnerable clients. We have made a written submission
to you. Could I briefly refer to the centre of our submission?
ASA looked at case lengths in not-for-profit sector contracts
over a one-year period originally, and we have updated that since.
That was looking at all cases conducted under contract by advice
agencies. They showed that there was a number of factors that
tended to make cases longer. It is worth briefly going through
them. Some cases take longer because of the type of case they
are; for example, multiple debt cases, welfare benefit appeals,
unfair dismissal, discrimination and employment cases. In other
words, matters that you might think are a little bit more complicated
take longer. There was clear evidence that cases for certain types
of client take longer, especially ethnic minority clients, and
to a lesser extent some evidence that the cases of some clients
with disabilities take longer. There was evidence that case length
was at least in part related to location and particularly that
cases in London take longer. Again, perhaps unsurprisingly, where
more work is being done for clients, that takes longer. If you
like, the greater the degree of intervention by the adviser/lawyer
on the client's behalf, the work will take longer. There was some
evidence using the LSC's own outcome codes that where cases took
longer, actually better outcomes were achieved for clients. Our
concern is that the proposed scheme for fixed fees—and I
should emphasise here I am in particular talking about social
welfare law cases—will create a disincentive for firms and
for agencies to take on longer complex cases or cases for clients
where the work may take longer and in fact create an incentive
for people just to do easy cases for easy clients. I should emphasise
that we are particularly concerned about the effect that will
have on black and ethnic minority clients. It is worth pointing
out that in London, where we think there is a link between long
case lengths and black and ethnic minority clients, 74% of legal
aid clients are from black and ethnic minorities compared to 38%[1]
national average, but the regulatory impact assessment suggests
that 68% of London providers will suffer a drop in income compared
to an average of 38% of providers nationally. We are quite concerned
that these proposals will have an adverse impact on vulnerable
clients.
Q175 Dr Whitehead: If I could perhaps
paraphrase some of what you have been saying to us this afternoon,
your suggestion is that rather than, as it were, advice deserts
existing, there are certain plant species within the environment
that are under threat and may have slow growth or no growth?
Richard Jenner: That is what I
am saying. Again, trying to remain brief here, there is a risk
that the admirable desire to get the number of people helped up,
which the Commission is committed to and we would fully support,
will be achieved only at the expense of dumbing down the system.
Alison Hannah: I want to make
a point about the numbers because that was one of the things you
mentioned in asking the question. The numbers are interesting.
It is quite difficult to get to the bottom of the numbers. I was
interested in the last annual report of the Legal Services Commission
where they said that the number of matters started had increased.
That is interesting because CLS Direct has of course taken over
part of the service and has helped a number of people but the
categories in which CLS Direct advise was also reflected in the
number of face-to-face figures rising, particularly for not-for-profit.
In debt, employment, housing, welfare and benefits there was an
increase both in face-to-face and in CLS Direct, which to me suggests
that there is an element of double counting, which really makes
sense. You ring CLS Direct, you get some advice, then they refer
you elsewhere for some further advice. I am not sure whether the
numbers are quite as good as claimed. Obviously it is good that
more people are being helped. The second point is: is it more
people that are being helped or is it more recording of the issues?
You touched with Professor Ed Cape earlier about: what is a case?
Also, in one of the previous sessions you were asking about some
Scottish research. What is interesting there is that that seemed
to find that fixed fees led to an increase in the legal aid budget
because solicitors then split the cases, and so they would record
different cases for the same person. Whether more people are being
helped or more cases are being resolved is a bit of a moot point.
The figures are not quite as clear as you might think they are.
Q176 Dr Whitehead: Could I seek some
clarification on that? That seems to me to be rather an important
point, particularly in terms of people who are ringing up a service
and then seeking face-to-face advice perhaps directly as a result
of ringing up for the advice in the first place. Treating those
as separate episodes, as it were, could be very misleading. Do
you have any evidence, other than supposition, that this might
be the case and that that is occurring or is it possible to make
that inference by comparison of the figures, for example?
Alison Hannah: No, I have not
been able to make it from an analysis of the figures. I think
that would be quite difficult to do. I have heard from a solicitor
that it can happen, so that a housing case can also be a homelessness
case; it might also be a housing benefit case. There are ways
in which it can be done. I am not saying this is at all a wrong
practice. I think it is just a question of how you define a case.
It may be a consequence if fixed fees are going to lead to less
income that there is going to be a more determined effort to maximise
payment for work done that might involve classifying things as
separate cases whereas previously you might not.
Q177 Dr Whitehead: You speak about
a wider basis but is there not a utilitarian argument that actually
this is the greatest happiness for the greatest number and that
therefore it is reasonable policy to concentrate on numbers, even
if some cases are disadvantaged?
Richard Jenner: That is not what
the Government is saying. It is worth saying that if it is reasonable—I
do not think it is—it is not what the Government is saying
that they want to achieve. They claim that the proposals will
ensure that excellent services remain available to all. Our view
is that it is very important that you do not lose the ability
to undertake what are often quite cutting-edge cases involving
issues that may, for example, clarify whether particular local
authority practices are lawful or unlawful. Some of these kinds
of cases that we are talking about actually have impact beyond
the individual clients. It is important, in our view, that the
scheme continues to have the capacity to allow that kind of work
to be done. We appreciate there is a balance to be achieved. Ideally
of course across the country you would have a spread of providers
who are doing fairly straightforward cases and providers who have
the expertise to do more difficult cases. Unfortunately, you do
not have that at the moment, so there is a degree of lottery code
to it, but we would not support coming down on the side of going
for the cheap and cheerful and the greatest number.
Q178 Chairman: Can I clarify that
for a moment? If you came across a case which, let us say, was
fundamental to the issue of what constitutes medical or personal
care for the elderly, the sort of case that we have had, and you
decide at the advice service level that this is really pretty
major and it is the one you want to take further, maybe you have
to chance a bit more of your own money up-front and take it further?
Presumably, once it gets to higher levels in the court system,
there must be some way in which funds can be attracted to resolve
it, must there not—once the local authority appeals against
an adverse decision, for example?
Richard Jenner: If it goes to
the higher levels, yes, you can apply for a certificate. The assumption
that anyone can do this stuff is simply wrong. In an area, for
example, where there is reasonable provision, and there are some
areas where you would be lucky to find someone with the expertise
to take this work on and that in itself is a problem, what has
tended to develop within specialist services is a certain degree
of niche provision. You have maybe a firm or a law centre that
specialises in doing those more complicated community care cases
and other providers refer to them. The difficulty with these proposals
is that those agencies that only specialise in that more complex
type of case or whose services are directed, say, to a particular
ethnic minority community, will have a real struggle to be able
to make that work within the fixed fees because basically the
fixed fees will not cover the true cost of the cases. We do not
think it is healthy. I think what the Government wants to achieve
is basically to say that everyone should be doing a bit of everything
and it will balance out by swings and roundabouts. We do not think
at the moment the system has the capacity, the spread of expertise,
for that to happen. What is far more likely to happen is that
those higher specialist agencies will be forced and they will
have to start taking on simpler cases in order to make the swings
and roundabouts work. There will be clients being pushed from
pillar to post and you will not be able to find anyone who is
prepared to take them on. It may end up being dealt with by agencies
that are not funded under the legal aid scheme but that may well
not have the expertise to get the client the best service possible.
Q179 Dr Whitehead: You mention in
that context the increased numbers of people who are approaching
independent advice centres for help. Do you think that is directly
related to the reduction in solicitors' firms holding civil legal
aid contracts? In any event, do you think that advice centres
have the resources to deal with those larger numbers of cases?
Particularly in terms of your last comment, should that further
increase as a result of further changes and is the situation going
to get even worse in terms of ability to cope?
Richard Jenner: I do not think
that the increase is particularly due to solicitors dropping out
of legal aid, although that is clearly happening. In fairness
to the Commission, it is more because they have made a commitment
to funding agencies to do that work and agencies have, after a
period of transition, improved their performance under contract.
That is the main reason why that work is going up. There is, however,
an issue about closures of legal aid practices. What does happen
certainly—it is anecdotal evidence through feedback rather
than any clear research that I am aware of—from the feedback
we get is that increasingly clients, for example with family problems,
end up coming to the door of advice agencies because they are
not finding it as easy as they did before to find a solicitor,
certainly locally. Agencies cannot take on that kind of work.
They neither have the capacity nor often the expertise to do that.
There is that issue. Similarly, looking at it the other way, for
people who come to advice agencies in some areas, it is not as
easy to refer to a solicitor as it used to be because the local
supplier has stopped doing legal aid work. It has an impact that
way, but at the moment I certainly do not think we are absorbing
work that would previously have been done by solicitors.
Adam Griffith: There has been
very clearly a change in terms of what we call the categories
of social welfare law, particularly debt and benefits where there
has been a considerable reduction in the number of solicitors'
firms doing that type of work; they have dropped out. There has
been a shift so that, over time, debt and benefits in particular
have become overwhelmingly concentrated in the not-for-profit
sector. Now, we are talking about 70% to 75% of cases in debt
and benefits actually being done in the not-for-profit sector.
When contracting started, essentially solicitors who were doing
legal aid work could sign up to do as many categories as they
wanted, and they gradually dropped the ones that they did not
want to do or lost the expertise to do, and so on. Debt and benefits
went in particular. Housing is now something like 60% in the solicitors'
sector and 40% in the not-for-profit sector. The balance used
to be more highly with solicitors, so there has been a change.
Going back to the advice centre questions, the problem that we
have is: what are you counting? You could have a firm that is
still doing legal aid but they have cut down and they are just
going to do matrimonial and crime. Do you count them or do you
not count them? Do you count matrimonial as civil work or not?
Probably you do not. I think there has been quite a clear shift
and the solicitors have said that basically they are not going
to do some of that social welfare stuff and that they will leave
that to the not-for-profit sector. It seems to me that there is
a very real risk—we are guessing now and this is crystal
ball stuff—that that will be accelerated if solicitors'
firms face the prospect of doing work under a fixed fee that is
significantly lower than the tailored fixed fee they had worked
on before and many of them will stop. They will say, "We
will not do this and we will not do that. We will concentrate
on the ones where our fees are closer to what we are going to
be paid for". You could end up with the same number of firms
doing legal aid but half the number doing housing work, or half
the number doing employment. We will see and it will obviously
take some time.
1 Note by witness: This should be 34%. Back
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