Legal Aid Reform - Justice Committee Contents


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 CENTRESSOME 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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