Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Citizens Advice Bureau (LA 15)

This briefing focuses solely on Part 1 of the Bill, which aims to reduce the legal aid budget. Whilst there is widespread understanding of the need to control legal aid spending, 90 per cent of all respondents to the Legal Aid Green Paper, including Citizens Advice, thought this package took the wrong approach. Whilst the Bill appears to prioritise the needs of the most vulnerable, in reality many people in difficult circumstances will not get the help they need. The reforms do not shape services around communities and needs cost effectively. We have the following concerns:

· The proposed new criteria for civil funding in schedule 1 are targeted at crisis situations, rather than prevention. It is likely to be cumbersome and costly to apply, and could lead to more cases ending up in court.

· The scale of service reduction could leave many vulnerable people desperately in need of help

· The financial viability of not for profit charitable advice providers could be threatened

· More people are likely to have to navigate the legal system completely unassisted, with an impact on the poorest and most vulnerable people’s capacity to access redress

Citizens Advice believes that there is scope to cut the cost of legal aid, but policy makers will need to look at the whole system of advice services and legal assistance to target resources effectively. Our briefing for the second reading of the Bill called a number of improvements:

· A discretionary scheme for early social welfare advice with flexibility around scope and procurement;

· Testing or piloting any new contract under the revised legal aid scheme to assess its viability

· Linking the Bill to a wider strategic and cross-government review of advice funding and delivery.

We are pleased that these calls have been partially met by Ministers. A cross-cutting review of advice funding has been started by the Cabinet Office with an additional £20 million funding for the advice sector. However, we believe the following improvements are needed to this Bill to make it workable, and ensure that legal aid and other advice services remain viable and accessible:

· An enabling amendment to allow more flexible funding delivery around partially legal aidable cases

· Legal aid interventions for ‘loss of home’ should not have to wait until proceedings are issued

· Complex reviews and appeals in benefit cases should be covered by the scheme

 

Citizens Advice is the national body for Citizens Advice Bureaux in England and Wales. The CAB service is the largest independent network of free advice centres in Europe, with nearly 400 main bureaux providing advice from over 3,300 outlets, including bureaux in the high street, community centres, health settings, courts and prisons. In 2010/11 Citizens Advice Bureaux in England and Wales advised 2.1 million people about seven million problems in total.

The Ministry of Justice, through the Legal Services Commission (LSC) is the most significant funder of specialist advice services from its civil legal aid budget. In 2009/10, it provided £27 million for specialist advice delivered by the Citizens Advice service. This has enabled over 300 CAB specialist advisers, working under contracts with the LSC, to deal with:

· 43,234 welfare benefit problems,

· 56,990 debt problems,

· 9,129 housing problems, and

· 2,954 employment problems.

This accounts for over 20 per cent of all publicly funded cases in these topic areas. Around 80 per cent of social welfare legal aid cases record positive outcomes for clients, with additional savings for other public services. Half our member bureaux hold LSC contracts, accounting for up to 20 per cent of the CAB service’s income. [1] Bureaux without contracts rely on LSC contracted services to refer clients to, or to deliver outreach advice on specialist topics in bureaux.

Citizens Advice is an active supporter of the Justice4All, a coalition of charities and community organisations concerned about access to free legal advice

The Bill abolishes the Legal Services Commission (LSC). Instead, provision of legal aid will become the Lord Chancellor’s responsibility under the operational auspices of a Legal Aid Casework Directorate at the Ministry of Justice. This creates the potential to radically change, simplify and improve the way in which services are procured and delivered, and to reduce administration and costs. The costs of commissioning and audit processes have risen dramatically in recent years. In 2010 the LSC’s administration costs alone were £124.4 million.

However, it is hard to see how a simpler system can be achieved, as the Ministry of Justice and providers of legal services (whether private practice or not for profit agencies) will have to apply the excessively complicated new rules, categories and regulations found in Schedule 1. The level of detailed and top down prescription will make it extremely hard to deliver a workable system of civil legal aid contracts – especially for the social welfare law categories of law where advice and representation in housing, debt and benefit cases are commissioned as a single package of services. The application and interpretation of the rules and regulations is likely to be bureaucratic and administratively cumbersome. We believe more flexibility is required to ensure a minimal level of cost effective and responsive provision.

The test for any reform should be whether the system is able to innovate to deliver help and appropriate levels of service to more people for less money. The new arrangements which flow from this legislation do not reform legal aid; they simply abolish a large part of the civil scheme and leave a rump scheme that will not work effectively unless it is joined up with other forms of advice to help people solve their problems such as money advice. These challenges are not just operational ones; we need to get the legislative framework right.

Citizens Advice is therefore seeking an enabling amendment which could provide greater flexibility on how legal aid funding can, within a fixed budget, be distributed to best meet client need at a local level. The basic problem that needs to be addressed is this:

An agency which provides both legal aid and other levels and types of advice on a range of issues, sees a client with multiple problems. The agency holds a not for profit legal aid contract for delivering legal advice only and employs one full time legal aid caseworker working in two locations as well as the county court and who specialises in housing and debt issues, one welfare rights caseworker funded by the local authority, and a part-time employment adviser who also knows a bit about immigration law funded for one year by special grant. This team is supported by several by volunteer advisers – one of whom is a retired social worker, and a small reception staff who undertake the initial triage interviews. The agency also has an arrangement with a local firm of solicitors to refer family, mediation and domestic violence cases to them. The client, who is not originally from this country but speaks good English, came over fifteen years ago as a migrant worker from a conflict zone in Eastern Europe and married a UK national. However she was now extremely vulnerable, had some debts, had lost her job, and the breakdown of her relationship with her sometimes abusive partner could leave her homeless. Under the proposed arrangements, it would not be possible for one person in the agency to manage her case – some aspects of her problem would be legally aidable, other would not. She would have to repeat her story several times to different people. The case could not be co-handled with the solicitors firm. Whilst the agency has the resources and expertise at its disposal to help her, the byzantine funding, auditing and reporting arrangements make it impossible for the volunteers to utilise the specialist caseworkers effectively.

So in order for the new arrangements to work, there needs to some flexibility both for legal aid caseworkers and other advisers referring cases to them. As another example, discrimination problems (ie breaches of equality law) are mentioned as a priority for the new funding scheme. However, discrimination cases arise out of or in connection with other legal issues – housing, employment or welfare benefits, for example. If it is not possible to obtain funding for these parts of the claim, it will be very difficult to take action to pursue the discrimination claim at all.

In many cases there will be ‘boundary issues" about what aspects of clients’ problems are within scope – the Legal Services Commission itself has said that "there is a risk that the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to." [2] We are seeking to ensure that this does not happen.

To get to the heart of this issue, a more sophisticated understanding of advice process is called for. The Green Paper and subsequent Ministry of Justice policy documents appear to operate on the assumption that there are only two types of advice – expert professional "legal advice" linked to specific court proceedings and litigation – and "general advice" providing assisted information on the law. In reality there many different levels and types of advice (legal, financial, support etc) which differ according to individual clients’ needs, requiring different levels of specialisation. For the system to work well at an operational level, there is a need to allow for permeability between different types of advice.

We have therefore welcomed the Government’s recognition that a strategic review of advice funding is needed, but we also consider that more could be done within the context of the Bill to assist.

Civil legal aid services - Clauses 8-11 and Schedule 1

Inevitably, Government has to prioritise what type of cases legal aid is willing to fund. In determining priorities, we consider that spreading resources to assist the greatest number of people should be the overriding policy objective – for example at the legal help level an early intervention at a fixed fee of around £200 can save public service cost further down the line in thousands of welfare cases. Outcomes data from early advice in social welfare cases show an 80 per cent success rate of beneficial outcomes, and we would refer to the committee to research showing savings between £2 and £8 for every pound invested owing to the avoidance of adverse consequences which engage other public services. [3]

It seems perverse to us that the proposed new criteria for civil funding set out in schedule 1 are structured around crisis point situations such as immediate homelessness and domestic abuse, or pursuing expensive judicial review proceedings, when the emphasis clearly needs to be on prevention and early intervention. Whilst recent announcements on advice funding suggest there will be resources available for advice on out of scope issues, this may still fall well short of advice levels and volumes currently delivered under the "legal help" scheme, and further work is needed to develop a strategy on how advice on out of scope issues might be accessed or delivered. We are particularly concerned about the exclusion of the following categories:

· Welfare benefits – all cases including cases such as appeals against decisions for sickness and disability benefits and advice on benefit refusal

· Debt – except cases where the client’s home is at ‘immediate risk’. For example advice on unsecured debts, like credit cards, overdrafts, utility bills and insolvency will be removed.

· Employment – except cases involving discrimination. Advice or representation at Employment Tribunals will not be funded in any other cases, or advice on issues such as claiming holiday pay and maternity leave rights.

· Family – except in cases involving domestic abuse, only a mediation service will be available for family law problems including difficult divorces, financial issues, or child contact problems.

· Housing – except cases with potential homelessness or disrepair endangering health. Cases such as ‘quiet enjoyment’ (which protects against landlord harassment) will not be funded.

· Immigration – except instances where the client is detained. Advice and appeals on applications for asylum support, without which destitution follows, will no longer be funded.

Research shows that these are the categories of problems experienced most by the public at large – benefits/money/debt or consumer problems account for over 25 per cent of all legal type problems according to survey data, and there is strong clustering of employment, family breakdown, housing and money related problems. [4] Yet these are the problems the legislation takes out of scope in by far the greatest volumes – affecting over half a million people who may no longer be able to obtain any level of advice or help on these issues. [5]

As above we would therefore like to see some flexibility introduced into the Lord Chancellor’s funding prerogatives in order to enable some discretionary support for the work that advice services might do on out of scope cases, where this would be in the interests of economy and justice to make such services available. For example:

A CAB in Shropshire funded by LSC to provide debt and benefits advice reported that a couple with severe learning difficulties had incurred £30,000 of debts over the last ten years whilst working on a low income. Things came to a head when the husband had to give up work to care for their very disabled child. On top of ten credit debts, the couple also had significant rent and council tax arrears, and a shortfall of income each month due to their disability related expenses. The bureau helped the clients deal with their debts by petitioning for bankruptcy. This involved obtaining a written agreement from their landlord that their rent arrears would be written off by inclusion in the bankruptcy petition, and also applying for a charitable grant to pay for the bankrutpcy deposit fees. The bureau also helped the wife claim disability living allowance for her and the disabled child in order to improve their income in the future.

A Sussex CAB’s welfare benefits caseworker challenged a DWP decision that their client had failed to inform them that she had been living with a partner for four years. This decision resulted in an alleged housing benefit overpayment of £15,000. The client’s former partner, and father of her children, had visited her property on a regular basis to see his children, but they did not live together as he lived elsewhere. He did not provide any financial support for the mother or the children. The housing benefit department wanted to recover the alleged overpayment at the rate of £9.50 per week from the client’s current housing benefit claim, which would affect her ability to pay her rent. The bureau successfully requested that recovery of housing benefit overpayment was suspended pending an appeal. This case went to an independent tribunal, for which the bureau provided a submission in support of their client. The appeal was successful, and consequently the £15,000 overpayment was cancelled. The client and her children did not have to suffer the hardship of repaying a large debt from a very small income, or worry about rent arrears and possible threat of homelessness.

We would also point to the committee to looking at some of the inconsistencies in Schedule 1– for example a child welfare case that may qualify for legal aid under international law but not under domestic law.

In keeping with the general thrust of Schedule 1, we are therefore seeking some small amendments which we think will help make the new system more workable, specifically:

Housing and debt issues – section 27(1) of schedule 1 (Part1) refers to "loss of home" and legal aid availability in cases involving court orders for sale or possession or eviction proceedings. We would suggest that this should include situations where someone’s financial difficulties could be likely to lead to loss of home. It should not be necessary to wait for court action, in order for housing caseworkers to be able to act to prevent someone from losing their home. Job loss, other debts and other loss of income, or unexpected changes in family circumstances such as bereavement, are common reasons for mortgage or rent arrears. Early advice in arrears cases can stave off legal proceeding which can result in loss of home. For example:

A London CAB saw a 44 year old woman who had multiple debts including credit cards debts, rent and council tax arrears. Her social landlord was threatening possession action for the rent arrears.. She came to the bureau for assistance and was referred to their LSC funded debt advice project for specialist assistance. The specialist debt adviser established that she had got into arrears with her rent and council tax as the credit card companies she owed money to were pressurising her to make payments she could not afford.. Due to threats made by her housing officer, she had also made arrangements to repay the rent arrears she could not maintain and so did not have sufficient money for travel to work or housekeeping. However, the CAB was able to successfully negotiate affordable and sustainable repayment arrangements with her landlord and the council tax department and her credit cards. After getting advice, she had arrangements in place that she could afford to maintain and enough money to live on.

Welfare benefit cases – section 15 of Schedule 1 (Part2) excludes all welfare benefit issues. We understand the Government’s reasoning that legal aid should not be funding advice on issues of benefit entitlement, as accurate information and support on entitlement should be delivered via DWP agencies. However, the situation is different with reviews and appeals. There is a high level of decision-making error within DWP agencies in applying the law correctly – the resulting issues which often end up before the social entitlement tribunal can be extremely complex and involve interpretation complex statute and case-law precedents. It is unrealistic to expect people without specialist welfare benefits knowledge to be able to put together coherent review requests or appeals with no input at all from independent specialist welfare rights advice. For example:

A CAB in Wales sawwas very vulnerable young man with mental health issues. Unable to even open his own mail, he had failed to attend an appointment for a work capability assessment and so his employment and support allowance had stopped. He did not appeal in time. However the LSC caseworker he saw successfully put forward grounds for late appeal and provided support with the appeal in putting together relevant evidence and arguments. His appeal was successful at Tribunal. Without Legal Help, the bureau would not have been able to provide the in depth work or provide the continuity of advice from one caseworker.

Criminal legal aid – Clauses 12-19

We do not provide advice in criminal law cases, so do not intend to comment in detail on these clauses. However, we do question whether the introduction in Clause 12 of an "interests of justice" test, as applied by the DLAC, for accessing advice and assistance in custody, is an appropriate judgement for a civil servant to make.

Eligibility – Clauses 20-25

These sections, which cover financial eligibility and contributions to both civil and criminal legal aid, will largely be fleshed out through regulations. However, we would like to see both the retention of and streamlining for the automatic passporting for people on benefits – in their Green Paper response the Ministry of Justice makes it clear that the regulations intend to abolish any provision this. We would highlight that again it seems wasteful for different Government agencies to be applying a similar means-tests for accessing a public service benefit, when the process could be better consolidated into a single means test.

Alternative proposals on legal aid

Careful thought has gone into designing, and how to best achieve the Ministry of Justice’s savings whilst protecting access to justice. However, we remain disappointed that the Ministry of Justice do not appear to have given a great deal of consideration during the consultation period to many of the constructive alternative proposals put forward for achieving comparable or even greater levels of savings. [6] For example:

§ The Legal Services Commission suggested actions that could be taken to deal with the costs of experts’ fees, Queens Counsel remuneration, very high cost cases, and advocacy, procedural, expert and CAFCASS costs in public law child welfare cases – combined expenditure in these areas is over £800 million – but is being directed towards relatively small case volumes

§ The Law Society suggested an extensive package of reforms to fee systems, disbursements, and reforms of procedures and costs in the criminal courts.

§ The Bar Council proposed a package of criminal justice and law reforms, improved case management systems, recycling the statutory charge, implementation of the new family fee scheme, combined with introducing a Contingency Legal Aid fund (CLAF) mechanism for damages based contributions to legal aid and a contributions scheme from interest on Lawyers Trust Accounts.

We would add to this our own proposals, which aim at radically reducing the administrative costs associated with delivering the legal help scheme, especially in the social welfare and family areas where most savings are sought by Government. We believe that resources could be shifted from administration to the frontline locally by passing the funding to Local Legal Advice Partnerships, which could bring together local government, existing advice providers, the private sector and other relevant agencies and local representatives in designing, prioritising and delivering services appropriate to a local areas’ needs. Mechanisms for channelling and co-ordinating social welfare law funding already within the not for profit sector. This could take up to £100 million of administrative costs out of the system. However, it would require shifting commissioning and monitoring arrangements towards a grant in aid model.

July 2011


[1] As a proportion of income, LSC funding varies year to year from 20 per cent in 2005-6 to 15 per cent in 2010

[2] Legal Services Commission’s Board response to the Green Paper

[3] Towards a business case for legal aid, Citizens Advice, 2010

[4] Causes of Action - Civil Law and Social Justice . LSRC 2008 Survey shows about a third of the adult populatio n experience legal problems; whilst the majority of those experiencing problems seek advice, only half successfully obtain it

[5] Impact Assessment

[6] Saving Justice – Where next for legal aid, Justice for All, 2010

Prepared 18th July 2011