Memorandum submitted by the Citizens Advice
Bureau
1. BACKGROUND
1.1 As individuals and families across the
country are facing conditions of economic adversity, the need
for good quality advice could scarcely be more important. The
CAB is a network of 2,429 independent advice centres providing
free, confidential and impartial advice and advocacy from over
3,300 outlets, in high streets, community centres, health settings,
courts and prisons. We are seeing a significant rise in demand.
Compared to the same quarter last year; in April to September
we saw an increase of 51% in problems concerning mortgage and
secured loan arrears, a 69% increase in redundancy problems, a
28% increase in Jobseeker allowance problems, an 18% increase
in employment discrimination problems, and a 22% increase in bankruptcy
problems.
1.2 Approximately 20% of bureau income comes
from the Legal Aid (Community Legal Service) Fund, with half of
the bureau contracted with the Legal Services Commission to provide
debt, benefits and housing casework services. LSC procurement
strategy for civil legal aid is to "integrate" legal
and advice services by moving increasingly towards joint commissioning
with local councils via a best value tendering process. This is
to be done either by purchasing services in single `centre' (CLAC),
or through commissioning a local "network" of service
providers (CLAN); to enable the purchase of `general advice' alongside
specialist advice on family and social welfare law problems.
2. COMMUNITY
LEGAL ADVICE
CENTRES—SOME
CONCERNS
2.1 Integrated services are an extremely
good idea, and there are clear advantages in being able to tie
local authority and LSC funding down for three years. Citizens
Advice has no objection to funders and policymakers challenging
the advice sector through procurement practices to improve effective,
joined up and efficient delivery, demonstrate good outcomes for
clients, and value-for-money. The fact that competition for Community
Legal Advice Centre tenders may threaten the viability of some
not for profit agencies is no valid objection in itself.
2.2 However, we do have serious concerns
about the implementation of the LSC's policy in the current economic
climate, and some questions about the sustainability and suitability
of the LSC's model for the organisation of advice services. These
are as follows:
— Is a level playing field possible?
— Is the model appropriate for dealing
with changing and variable need, especially in a recession?
— Is too much emphasis placed on quantity
and targets at the expense of quality and flexibility in meeting
need?
— Is monopoly supply detrimental to
the contestability, diversity and sustainability of the supplier
base?
— Is good practice being exercised
or developed appropriately in respect of co-commissioning?
— The impact for governance structures
and regulation in the not-for profit sector.
2.3 These are the questions we have been
putting to the Ministry of Justice and Legal Services Commission—so
far, we have not had adequate answers, and despite consultations
on strategy and specifications, the LSC sometimes appear unwilling
to engage with our evidence and knowledge base in planning services.
As a result, we find that the current policy is having a detrimental
impact on the CAB service at a time when Government should be
supporting advice networks to help people weather the recession.
3. A LEVEL PLAYING
FIELD?
3.1 For competition and integration to work
and achieve better client outcomes, the tender process needs to
be sensitive to the different strengths and capabilities offered
by solicitor firms, commercial providers and community based third
sector agencies; the judgements taken on the shape of service
design should involve recognition of the track record of existing
brands and services. Price alone should never be the only criteria.
3.2 It is well recognised in Government
that the voluntary sector can bring "added value" to
service delivery through volunteer involvement, engaged citizenship
and community links, and through working to influence the design
of statutory services. We do not consider that these benefits
have been adequately captured in the CLAC tender specifications.
3.3 There is inevitably concern that the
not for profit sector is being put at a disadvantage in this process;
a Community Legal Advice Centre was established in Leicester,
leading to the closure of Leicester Law Centre—a centre
that delivered highly rated (by peer review) quality services,
and the establishment a Community Legal Advice Centre in Hull
has favoured a commercial provider at the expense of the CAB which
has consequently been at risk of closure. Failure to recognise
the value that voluntary sector organisations bring will result
in CAB closures and loss of social capital.
4. IDEOLOGY VERSUS
NEED
4.1 When Community Legal Advice Centres
were first proposed in the draft CLS Strategy, the LSC said that
they did "not intend to replicate an existing provision where
this is serving communities well" and indicated that a few
CLACs would be piloted and evaluated before any widespread commissioning.[1]
Instead, the LSC have proceeded with a policy to set them up wherever
they can—there are five in existence, eight more are planned
before 2010 with 10 more a year from 2010 onwards. Is this really
planning services around need, or pushing ahead with delivery
of an agenda?
4.2 Secondly, Community Legal Advice Centres
have been developed as a one size fits all solution to the variables
of local need. The CLAC concept is based on a simplistic interpretation
of research evidence that problems come in "clusters"
and referral arrangements do not always work well.[2]
But we are not convinced that the LSC is working with the correct
assumptions for addressing problem clusters and delivering a more
seamless process for addressing clients' problems. In particular
we are concerned that:
— the tender specifications use a rigid
standardised template for needs assessments;
— these assessments appear to have
overlooked needs for some specialist services such as immigration
and mental health law;
— no impact assessments are included
in this process; and
— there is no evidence that the needs
assessments have taken into account changes in the economy, or
in public policy—for example LSC have not taken into account
the anticipated 30,000 additional benefit appeals estimated as
likely to arise as a result of the DWP welfare reforms.
4.3 In the current economic climate, advice
need is an increasingly moving target as new anxieties around
job, home and income security arise. Many of the LSC's assumptions
and methods for measuring need are questionable from a research
perspective. For example, the needs analysis suggests that the
LSC is not able to effectively aggregate indicies of need for
legal help with local indices of deprivation.
5. QUANTITY V
QUALITY—PRESCRIPTIVE
APPROACHES TO
ADVICE DELIVERY
5.1 We are concerned that the emphasis is
on quantity—the numbers of clients/cases of general and
specialist advice, and meeting specific targets for different
advice categories, rather than the quality of the advice provided
and its outcomes. Whilst it is important to improve capacity and
access in advice services, we have concerns about the way in which
these targets have been set:
— there are big differences in the
general advice target between the specifications of three different
CLACs from 9,400 to 6,000 to 4,450 clients, but for similar amounts
of local authority funding in each case;
— it is not clear what the specifications
intend to be counted as general advice; and
— the specifications and contracts
are highly prescriptive—the targets for generalist and specialist
advice are generally set very high; there no flexibility both
generally and between the different levels and categories of service.
6. MONOPOLY SUPPLY,
CONTESTABILITY AND
LOCAL ADVICE
NETWORKS
6.1 Community Legal Advice Centres are monopoly
providers within defined catchment areas, and the tendering process
requires that the provider(s) bid competitively as a single legal
entity for the contract on a winner takes all basis. To date,
five CLACS have been commissioned:
— Gateshead—provided by CAB,
formerly in partnership with the Law Centre;
— Leicester—provided by A4E with
subcontracted specialist work to Howells;
— Derby—provided by Derby Citizens
Advice and Law Centre;
— Portsmouth—provided by Southern
Focus Trust, with CAB as a sub-contractor; and
— Hull—provided by A4E with subcontracted
specialist work to Howells.
6.2 There is a risk of reducing contestability
in local supply markets by creating a system of effective monopoly,
and restricting access to advice through further concentration
of supply. This could result in an over-concentration of publicly
funded legal services covering a wider number of areas of law
and targeted only on areas of dense populations. We have other
concerns about the co-commissioning of monopoly provision:
— it enables local authorities to cut
their funding for advice;
— it carry high risks for funders who
have put all their eggs in one basket, and who may have no alternative
but to bail out a Community Legal Advice Centre if it runs into
financial difficulties;
— monopoly provision can restrict choice
and cause problems for clients if the CLAC is unable or unwilling
to help them; and
— monopoly provision may undermine
the "level playing field" for local NFPs in relation
to subsequent rounds (since unsuccessful bidders are likely to
have closed).
7. CO-COMMISSIONING
AS A
PROCUREMENT VEHICLE
7.1 Whilst we have no objection to the principle
of co-commissioning, we think that it should only be undertaken
on the basis of a genuine funding partnership. We have major concerns
about the way co-commissioning has been carried out, the level
of consultation and democratic input, and why funding arrangements
vary considerably between the CLACs that have been established
so far. These have revealed tensions and difficulties in the co-commissioning
process which need to be addressed by policy-makers:
— The LSC's commissioning duties were
established under the Access to Justice Act—to secure the
provision of publicly-funded legal services for those who need
them; the duties of local authorities with respect to funding
services in their area are very different and broader, and encompass
community well-being and sustainability. A process and partnership
is needed for reconciling these different roles.
— What is best practice with respect
to procurement and division of funding in the co-commissioning
process—there is a palpable sense that the LSC is making
this up as they go long, evidenced by the significant variability
of the budget of each Community Legal Advice Centre relative to
the size of the local population.
7.2 Effective co-commissioning should take
place as an extension of the principle of "match funding";
instead we are concerned that local authorities may use co-commissioning
in order to reduce their funding commitments to local advice services.
8. GOVERNANCE
ISSUES
8.1 In order to establish a CLAC as a new
legal entity, complicated organisational and structural issues
can arise, including potential conflicts of interest, TUPE requirements,
and regulatory confusion; these issues need to be carefully negotiated
and the independence of not for profit agencies maintained. They
take up a considerable and disproportionate amount of management
resource, are we not convinced that the LSC's model has resolved
these issues at a policy level; for example:
— each CLAC is responsible to a "Liaison
Board", that consists primarily of funders, in contrast to
all the good practice guidance issued by the Charity Commission,
that funding bodies should remain a minority in Not for Profit
management committees; and
— another governance issue that has
not been resolved is the CLACs' relationship to the local authority
in terms of taking action against the council and its relationship
to council services; indeed in some cases "in house"
council advice services may be inside the CLAC.
9. IMPLICATIONS
FOR CITIZENS
ADVICE BUREAU
9.1 CAB are a national network of local,
volunteer based, quality assured advice organisations that have
taken many decades to build up. They provide local opportunities
for volunteering and active citizenship with 20,000 volunteers
in the Citizens Advice service (78% of all workers in the service).
They are well recognised locally as focal points for advice, information
and help on a wide range of topics—not just legal issues.
The Citizens Advice service is well known by the public, 95% of
the population have heard of CAB (MORI 2005).
9.2 Citizens Advice Bureau have extensive
and long lasting relationships with a range of third sector funders;
local authorities (accounting for 51% of income), the Big Lottery
Fund (formerly Community Fund) and Primary Care Trusts who all
support local advice services to varying degrees. Where LSC procurement
policies and practices involve building their own relationships
with such funders, and affect the management of advice service
funding streams, the whole network of may be affected.
9.3 One of the unique selling points of
the CAB service in the public services reform and delivery debate,
and developing partnerships with government agencies, has been
flexibility and innovation in service delivery. Key elements of
these partnerships are universal coverage and social policy work,
which collects data nationally. Innovation and reach enables partnerships
with various govt departments and agencies to deliver educational
initiatives such as the OFT's "Save Xmas" campaign and
financial capability programmes, benefit take up campaigns and
DWP self help initiatives, or acting as approved intermediaries
with front line agencies.
9.4 It was precisely this flexibility and
responsiveness to immediate problems that lead the previous Government
to conclude that CAB were in many ways better equipped to provide
social welfare law advice than solicitor agencies, and so commenced
the policy to award legal aid contracts to the Not for Profit
sector,[3]
a funding stream that has increased from almost £48 million
in 2002-03 to £80 million last year. This has enabled the
sector to provide legal aid to an increasing number of people.
Last year over 250,000 of the 800,000 acts of assistance in legal
aid cases were delivered by Not for Profit agencies. It has contributed
to a wider picture of local advice provision whereby bureaux,
by operating as a national network, have been able to deal with
5.5 million problems over the past year.
9.5 However, the LSC's strategy for advice
provision is built around discrete specialist law categories of
means-tested legal aid work within the scope of the Access to
Justice Act Funding code. In contrast generalist advice is an
`add on' for the purposes of co-commissioning CLACs. So, potentially
all CAB work in CLAC areas is being put at risk by a policy which
places competition above other considerations. We are about the
concerned potential fragmentation of the CAB network with a resulting
loss of public benefit could occur unless the implementation of
CLACs is kept under review for its impact on the voluntary sector.
An analogy can be made with the situation of the Post Office network,
which has likewise been under competitive pressure in maintaining
a national network to deliver services such as the Post Office
Card Account. James Purnell, in announcing that Government had
abandoned the procurement exercise for the post office card account,
said "now is not the time for the government to do anything
to put the network at risk."
10. WHAT IS
THE ALTERNATIVE?
10.1 One of the key arguments of the LSC
has been to present the policy of Community Legal Advice Centre
procurement as a choice between the status quo and the vision
of more integrated services. This is a false choice—there
are alternative routes to achieve more integrated, effective delivery.
At various consultation stages, we have indicated our preference
towards the CLAN or "network" concept, whereby advice
agencies can join up as consortia and funders could purchase a
bundle of services consortia on the basis of an agreed division
of labour. These consortia could build on the work of Community
Legal Services Partnerships—such partnerships were a successful
innovation, but floundered due to lack of support from the LSC
and local authorities.
11. THE MINISTER'S
REVIEW
11.1 The Ministry of Justice have now announced
a review in order to study the provision of legal advice at local
level, including the impact of recession; we welcome this and
hope that it is as precursor to reconsidering the policy, especially
in relation to Community Legal; Advice Centres.[4]
11.2 The emphasis in the review on the demand
side is particularly welcome; we have ample evidence that demand
is increasing and that clients rarely fall within discrete legal
aid categories. However, the review is missing one key part of
the picture- policy consideration of who is, or should be, eligible
for legal aid?
11.3 We consider that eligibility also needs
to be addressed by the review as a policy issue in the current
context. We note that in Scotland last month the Scottish Executive
increased the upper disposable income threshold for financial
assistance for civil legal aid from £10,306 to £25,000,
subject to a higher rate of statutory contribution. The capital
limits which exclude equity holders of over £10,000 has not
changed for some time. There is certainly a case to extend eligibility
for legal aid for debt clients in the current economic climate,
or for those facing an immediate homelessness crisis. The LSC
are already, under their court desk contracts, dropping the requirements
of advisers having to do the means test before receiving emergency
advice from the court desk.
12. CONCLUSION
12.1 We consider that it may be time for
the Government to suspend the Community Legal Advice Centres programme
so that everybody in the advice sector—whether as funders
or providers, can concentrate on seeing more people, and delivering
more immediate and effective solutions, in response to the credit
crunch. There are too many unanswered questions about where the
policy may be heading, and how much it can achieve. There are
doubts as to whether the funding for Community Legal Advice Centres
is sufficient to match the expectations; so far the amounts allowed
for the general advice service are far from generous, their benefits
have not been proven, and the tensions between funders and providers
have been exacerbated at a time when a culture of partnership
and co-operation is needed.
December 2008
1 Making Legal Rights a Reality, LSC 2004. Back
2
Causes of Action, LSRC. Back
3
Lord Chancellor's consultation paper Legal Aid-Targeting Need.
The Legal Aid Board (the LSC's predecessor), explained in its
response to the then 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.". Back
4
Written Ministerial Statement, MoJ 4 December. Back
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