Legal Aid, Sentencing and Punishment of Offenders Bill

Additional Memorandum submitted by the Citizens Advice Bureau

(LA 26)

Addendum - the future of social welfare law advice

In our briefing we referred to our preferred alternative proposal for social welfare legal aid, that funding in these areas could be more cost effectively administered through a structure of local advice partnerships which could enable different funding streams to be brought together to deliver a more seamless service to clients. It has long been recognised that the system of legal aid contracting may not be the best way to deliver social welfare law advice. For example in the last Government’s final review of legal aid funding administration Sir Ian Magee recommended that the Ministry of Justice should "pool social welfare law funding available to CAB with other government departments such as BIS, and allocate to CAB as grant-in-aid for distribution to local offices." [1]

In the context of this Bill two problems need to be addressed; the removal of categories of social welfare work will leave a large "advice gap" at a time when resources available to the advice sector are under pressure. We also highlighted in our briefing that there will be many advice clients whose cases may remain partially within scope, and that there therefore needs to be some permeability between the legal aid system and other advice services provision – for example enabling such cases to be handled by a single person or agency. Our proposals are meant to intended to tackle these twin problems of how advice needs can be tackled with reduced resources, and how these resources can be most effectively managed.

To these ends we have sought an enabling amendment to provide for greater flexibility on how social welfare legal aid funding, including advice for issues that fall outside the coverage (or at the margins) of schedule 1, can be cost effectively distributed within a fixed budget.

The Government have indicated to us that our proposals may not be practical within the policy parameters of the Bill which aims to reserve civil legal aid funding for justiciable problems that engage specialist lawyers and serious human rights issues such as loss of liberty, homelessness, discrimination, protection from violence, and abuse of power by the state.

However, we are assured by Government that they acknowledge the problems we have highlighted about the growing need for advice and the issues faced in the wider advice sector, and that the recent announcements of a cross-cutting review on advice with a new £20 million fund for advice services under the auspices of the Cabinet Office are a first step to addressing these issues.

We welcome discussions with Government about how social welfare might be funded in the future, and we are open to alternative funding and delivery mechanisms. The relationship between legal aid and other types of advice needs to be included within this discussion. Our key priorities for these discussions are:-

· Certainty and clarity about how the new funding stream for advice will work, both in terms of sustainability and distribution

· Ensuring that specialist knowledge within the sector can be maintained

· Establishing robust referral and onward case handling procedures for clients whose problems remain within scope

· Making sure that the new landscape of provision has the capacity to respond effectively to multiple needs and problems of clients

Background note: A history of NfP contracts

The ‘Green Form’ scheme by which solicitors could apply for public funding for some clients, developed from a system of legal aid in England and Wales established by the Legal Aid and Advice Act 1949, based on the Rushcliffe Committee’s recommendations. The Legal Aid Board (LAB) was then set up under the Legal Aid Act 1988, and took over the administration of legal aid from the Law Society in 1989; it developed the concept of ‘franchising’ to take forward the ideas in the Lord Chancellor’s consultation paper of 1994, which suggested that NfP sector could provide contracted services in social welfare law fields.

The first pilot contracts for legal services from the not for profit sector (non solicitor agencies), ran from 1 Jan 1995, 42 organisations were involved including 21 bureaux and were extended for a further 2 years; the pilot had 3 objectives.

· To investigate whether non solicitor agencies could meet franchise quality standards for legal aid

· To investigate the effect of franchising on non-solicitor agencies

· To evaluate benefits of extending legal aid funding to non solicitor agencies. Various bureaux joined the scheme over the next few years (Phase 2 Pilots).

The Access to Justice Act 1999, replaced LAB with the Legal Services Commission (LSC) with the specific brief of bringing a Community Legal Service (CLS) into being to replace the old legal aid system. The basis of the CLS was that all legal aid provision would be made subject to contracting. Providers would be encouraged to work together with funders in planning services and analysing needs through Community Legal Service Partnerships (CLSPs). Providers would be encouraged to obtain the LSC Quality Mark, but would have to obtain it if they wished to run LSC contracts. The CLS would cover a spectrum of services from provision of information about the law and legal system and availability of legal services, to funded legal help, advice and representation. A New General Civil Contract (Not for Profit) came into effect on 1 April 2003 and provision within this sector grew to over 400 agencies with subject specific contracts, based on recordable hours of casework.

As this mixed economy of service providers developed, there has been considerable debate around the role that different types of suppliers should play in the delivery of community legal services. The LSC’s Final report ‘’Quality and Cost’’’ on the Civil Advice and Assistance Pilot compared how solicitors firms 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. [2] 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.

The system underwent another large change following Lord Carter of Coles review of legal aid procurement in 2005. From 2007 all civil legal aid suppliers were moved onto the same system of contracts, based on standard fixed fee rates for individual cases ("matter starts"). In setting a new strategic direction, the LSC increasingly wound down CLSPs and instead a small number of Community Legal Advice Centres were launched which jointly tendered legal aid work with local authority funded work.

In the last contract round, the focus of the LSC’s commissioning system changed towards bundling up all social welfare law issues into larger scale contracts for designated "procurement areas". Following the 2010 bid rounds not for profit agencies moved to "integrated social welfare law contracts" whereby advice (and sometimes representation) in housing, debt, benefit and some other cases were commissioned as a single package of services.

July 2011


[1] Review of Legal Aid Delivery and Governance , Sir Ian Magee , March 2010

[1]

[2] Moorhead Quality and Cost: Final Report on the Contracting of Civil, Non-Family Advice 2001

Prepared 18th July 2011