Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Advice Services Alliance (LA 32)


1. This briefing focuses on the proposals to reform legal aid, which are found in Part 1 of the Bill. Our particular concerns are:

· The impact on the most disadvantaged people of the proposed changes in the scope of legal aid (Clause 8).

· The wide discretion given to the Lord Chancellor about how and by whom services will be provided (Clause 26).

· The impact of the Bill on the not-for-profit (NfP) sector.

About the Advice Services Alliance

2. The Advice Services Alliance (ASA) is the umbrella body for advice networks in England and Wales. Our full members are:

· AdviceUK

· Age UK

· Citizens Advice

· DIAL UK (part of Scope)

· Law Centres Federation

· Shelter

· Shelter Cymru

· Youth Access

3. Between them, our members represent some 1,743 organisations which provide advice in England and Wales. Of these, around 270 organisations currently have contracts with the Legal Services Commission to deliver legal aid services.

4. The voluntary advice sector provides support to the poorest and most vulnerable people e.g. disabled people, those facing homelessness, young people from disadvantaged backgrounds and older people. People often seek advice during times of personal, medical or financial crisis, events that can throw lives off course.

Proposed changes in the scope of legal aid (Clause 8)

5. The effect of Clause 8 (with Schedule 1) of the Bill is to remove several areas of law from the scope of legal aid. This includes the removal of employment and welfare benefits as well as significant parts of housing, debt and education law.

6. Of particular concern to the NfP sector is the proposed removal from scope of many debt cases (unless they directly concern the loss of a home) and all welfare benefits cases.

7. As currently drafted, the Bill gives no power to reinstate areas of law within scope. However, we note that the Ministry of Justice states that it is intending to monitor for any adverse effects consequent on the reform of legal aid [1] and take mitigating action, if appropriate. We therefore consider it essential that the Bill is amended to allow for such mitigating action to be taken.

8. There is considerable evidence of the link between housing, debt and welfare benefit problems [2] . We are concerned that removing welfare benefits and most debt advice from the scope of legal aid will prevent the early resolution of problems and increase the risk of homelessness.

9. Further, even when the prospect of homelessness has triggered eligibility for housing or debt advice, there is a risk that a failure to deal fully with other debts or any underlying welfare benefit problems will lead to incomplete and short term solutions. Unless all linked problems are resolved, it is likely that, within a short period of time, clients will again be facing the loss of their home.

10. We therefore propose that the Bill should be amended to ensure that clients who are facing the loss of a home are given necessary help to resolve other debt and welfare benefit problems.

11. We do not accept the Government's view that benefit problems are simply about money and therefore of low priority. In some situations, people have little or no money at all and cases are about enabling them to pay for basic essentials such as food, heating and shelter.

12. While some benefits are relatively easy to claim, others, and in particular some disability benefits are highly complex.

13. Therefore, we believe that it is essential that legal aid should be available for welfare benefit advice, at the very least, to cover cases concerning: certain disability benefits; those involving reviews and appeals; where benefits advice is necesary to resolve housing problems and avoid homelessness and where clients have insufficient funds to cover basic essentials.

Discretion about how and by whom services are provided (Clause 26)

14. We are concerned that Clause 26 as drafted gives the Lord Chancellor considerable discretion as to how and by whom services are to be provided.

15. Our concerns centre on the Government's proposals that individuals seeking advice in some areas of law (debt, Special Educational Needs, discrimination and community care) will be required to use a "mandatory single [telephone] gateway". The Government's consultation response implies that most clients who use the mandatory gateway will then receive telephone advice only.

16. We are concerned that a mandatory telephone scheme would exclude some disadvantaged people [3] . This concern was acknowledged by the Ministry of Justice in their consultation paper [4] .

17. We are particularly concerned about the proposal to include community care law in this scheme. This area of law is not currently included in the CLA telephone service and therefore the ability of community care clients to use a telephone service is untested. These clients are likely to be amongst the most vulnerable.

18. We should emphasise that we are not opposed to the provision of advice and casework on the phone. We believe that telephone services can improve access for some people. Our concern is that, at this stage, there is insufficient evidence to justify restricting access to telephone only.

19. The Government itself acknowledges that face-to-face advice will be needed in some situations, including emergencies and for those who are under 18 years old. However, we are concerned that the diversion of a significant number of cases to telephone advice will lead to a reduction in the availability of face-to-face advice. In some areas, particularly rural and suburban areas, we fear that there will not be sufficient funding to secure a viable face-to-face service.

20. We therefore propose that in exercising his discretion, the Lord Chancellor should be required to take into account the need to ensure that services are accessible to those that need to use them and that face-to-face services are available where needed.

Impact on the NfP sector

21. We are concerned that, taken together, these reforms will have a significant impact on the NfP sector.

22. The Government's response estimates that the NfP sector as a whole will lose up to £51 million, or 75%, of its legal aid funding [5] . We estimate that this represents a loss to the sector of some 900 specialist advisers and solicitors [6] . It is widely considered that the expansion of legal aid to non-solicitor agencies, first piloted in the early 1990s, enhanced the professionalism of the sector as a whole. We fear that these gains will now be lost.

23. It is important to emphasise that the impact on the NfP sector will be felt across England and Wales. NfP agencies have contracts with the LSC in housing, debt and/or welfare benefits (often all three) in 90% of procurement areas [7] . NfP agencies are the only such providers in 40% of procurement areas [8] .

24. These changes are being proposed at the same time as significant cuts to other funding sources for advice. These include the termination of the Equalities and Human Rights Commission grant scheme for discrimination advice as well as cuts by local authorities and other funders.

25. It is important to emphasise that these cuts are not only affecting organisations, such as CABx and Law Centres, whose main focus in the provision of advice. The cuts are also affecting organisations for whom advice provision is one part of their service. For example, in April 2011, Youth Access estimated that their members can expect to lose between 20% and 40% of their funding over the next year. Similarly, in March 2011, DIAL estimated that their members were losing 39% of their funding [9] .

26. On their own, these cuts will lead to greater demand on those advice services which survive. In addition, the Government's impact assessment estimates that a total of 316,000 people will lose access to legal aid for their social welfare problems and 255,000 people will lose access to family law advice. We anticipate that many of these people will seek advice from NfP sector agencies.

27. Whilst we welcome the Government's announcement of an additional £20 million funding for the advice sector, it is not yet clear what the funding will be for. Our fear is that this funding will simply not be enough to ameliorate the impact of the cuts on the sector.

July 2011

[1] see paragraph 92 of the Equalities Impact Assessment

[2] Causes of Action: Civil Law and Social Justice, 2004, Pascoe Pleasence and others

[3] For example, evidence supplied by the LSC in Feb 2011 in response to an FOI request suggests that in housing face-to-face providers see about twice the proportion of non-white clients than the CLA telephone service

[4] p10 Telephone Advice Impact assessment

[5] page 75 MoJ Consultation Response

[6] About 100 of the NfP agencies with LSC contracts employ solicitors.

[7] 112 of the 125 LSC procurement areas

[8] 50 out of 125 procurement areas

[9] Mainly in cuts by local authorities and health authorities.

Prepared 18th July 2011