Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Law Centres Federation (LCF) (LA 34)

Summary of Key Points

· The Law Centres Federation’s submission relates to Part 1 of the Bill, and more specifically to the proposed changes to legal aid in civil law, which is the area in which Law Centres work.

· Law Centres accept that cuts were to be made and that this necessitated service rationing and prioritisation. However, prioritisation by area of law rather than by client needs makes the legal aid left in scope inadequate for the needs of its target groups. The curtailment of the scope of legal aid will affect our client groups most severely (Section 8 and Schedule 1)

· The Bill anticipates future policy changes on legal aid and makes it more difficult to reintroduce areas of law into the scope of civil legal aid (Section 8)

· The Bill raises concerns over the independence of decision making regarding exceptional cases by removing the ‘at arm’s length’ autonomy of the commissioning body without adequate provision for its replacement (Section 4)

· Scope and funding cuts to civil legal aid will hit Law Centres and other local not-for-profit agencies very hard, and will compound with local authority funding cuts to a destabilising and potentially devastating effect, and figures are provided to support this

· Local face-to-face legal advice can be managed efficiently and cost-effectively by local agencies working together, as evidence presented below shows. The early intervention of legal professionals is outstanding value for money and raises questions over the choice of areas rendered out of scope in the Bill

· Telephone advice, even and especially through a telephone gateway service, is useful as one of several channels of help but as a mandatory gateway it is inappropriate for people who are most in need. (Section 26)

· Appended to the submission, the Law Centres Federation proposes amendments that address the above issues.

Law Centres and the Law Centres Federation

The Law Centres Federation is the representative body for the national network of community-based Law Centres. There are currently 56 Law Centres delivering a range of innovative legal services to financially and socially disadvantaged individuals and communities. Embedded in local communities, run by committees of local people, not-for-profit and staffed by teams of expert lawyers who have chosen to base their careers on service rather than on profit, Law Centres provide free legal advice and assistance to the poorest and most vulnerable members of society. Without Law Centres and other not-for-profit advice agencies, hundreds of thousands of people will have no meaningful access to justice.

Law Centres provide legal advice and representation on a variety of civil law matters, including housing and homelessness, employment, discrimination, immigration and asylum, more complex debt and welfare benefits cases, community care, mental health, education and family law work. Each year Law Centres help 120,000 people. Independent research found that for every £1 spent by a Law Centre in the provision of legal service, at least £10 was generated in savings and social benefits. Law Centres rely on legal aid, local authority grants and corporate and individual generosity to provide these services. All of these areas of funding are under threat.

Curtailment of Scope

1. The Law Centres Federation has considerable concerns over the significant curtailment of the scope of civil legal aid, in particular the exclusion of the vast majority of social welfare law as specified in Schedule 1, which will have catastrophic effects on socio-economically disadvantaged people. As our colleagues in other advice networks acknowledge, the lack of provision of legal advice on welfare benefits and in 40% of housing, all of debt and 78% of employment law will deny our clients access to a legally binding solution to their legal problem because of their limited means, education and legal wherewithal, thereby perpetuating and aggravating their disadvantage.

2. We are concerned that the Bill not only serves as the statutory vehicle for new policy but also sets out to make it more difficult to change it at a later date. Should government policy change or financial circumstances improve, to include again the services currently listed for exclusion in the Bill would require nothing short of primary legislation.

3. It is problematic that the Bill as currently drafted pre-empts future policy changes in civil legal aid. Part 1, Section 8, Subsection 2 of the Bill empowers the Lord Chancellor to exclude more areas of law from the scope of legal aid, but as drafted it does not allow him to reverse current exclusions by bringing some areas back into scope.

4. The Law Centres Federation proposes to redress this imbalance by amending the above Subsection to empower the Lord Chancellor to include areas of law currently listed as excluded or excepted from the scope of legal aid [see appendix 3 below].

Impact on Law Centre clients

5. The Law Centres Federation is concerned about the impact on Law Centre clients of the arrangements for civil legal aid proposed in the Bill. This expected impact was acknowledged and protested across the legal profession and the advice sector, not least in the vast majority of over 5,000 responses to the legal aid Green Paper. We have collected some case studies demonstrating the effect of the scope changes for the Committee’s consideration, and these are presented below in appendix 1.

6. Law Centre clients are the most vulnerable and disadvantaged members of society. To give an indicative demonstration of the level of deprivation of Law Centre clients we would like the Committee to consider figures relating to Coventry Law Centre’s clients – an example to which we will return later in this submission:

In general a disproportionately high number of the clients of Coventry Law Centre are from deprived areas of the city. 62% of our clients live in areas that are amongst the most deprived 20% of areas in England (taken as the yardstick of a deprived area in the Marmot report) and only 32% of the total population of Coventry live in these areas. 23% of our clients live in areas that are amongst the most deprived 5% of areas in England whereas only 8% of the total population of Coventry live in these areas.

Complex Cases: Scope and Area of Law Boundaries

7. The Law Centres Federation opposed to the scope restrictions proposed in the Bill, not least because they will create artificial distinctions between parts of client problems that are otherwise causally linked. Retaining some areas of social welfare law within scope of legal aid and excluding others will prevent legal aid lawyers from fully addressing the multiple and interlinked problems experienced by our clients, e.g. a housing problem resulting from a wrongly imposed debt.

8. The following case study (and others in appendix 1) demonstrates this point:

David and Tina were Czech nationals both working for a cleaning company contracted to a major national supermarket chain. They lived in private rented accommodation with three children and were at the early stages of a threatened possession action for failure to pay rent. Their debt and income problems arose directly from the employers’ uncompromising actions. The company failed to pay sickness pay when Tina was sick due to pregnancy. David’s hours of work had been reduced unilaterally and his hours given to another employee. David complained and was verbally abused by his manager, ordered off the site, and then dismissed. David tried to sort matters out, the company would not engage with him. It was apparent that the company was acting in the belief that David would not know how to manage his complaint. He was not paid for several months nor provided with pay slips. David received his P45 in the post, without comment. The family could no longer pay their rent.

To avoid eviction, the employment matter had to be resolved; the housing issue could then be settled. David wanted to resolve the problem himself but the time limit for filing an application to the Employment tribunal was imminent. He went to the Law Centre who filed a claim for unfair dismissal and unpaid wages to reserve his position and continued to contact the company. Daniel was not sure whether there had been discrimination: the Law Centre advised that the evidence was unclear.

On receipt of the legal submissions from the Law Centre the company solicitors became involved and assessed the situation. They realised that David could succeed at tribunal with all the company costs that would involve. Shortly after the company reinstated Daniel and paid back wages. Tina was eventually paid the wages arrears that she was due following pressure from the Law Centre and was able to clear some of the family debts. With employment resolved, the Law Centre was able to resolve the housing issue and the threat of eviction was removed.

The impact of the Bill on this situation would be to put areas of law out of scope at an early negotiating stage, thereby increasing the legal complexity of multidisciplinary claims. In particular, this claim would be in scope only at a later stage when court action is involved. Lack of legal aid for one part of the solution would be a waste of public resources.

9. We propose to address this problem and others raised in this submission by the amendments suggested in appendix 3.

Prioritisation and Service Rationing

Prioritise by client groups, not by areas of law

10. The Law Centres Federation holds that the Bill does not pay due regard to socio-economic considerations of the people for whom legal aid exists, being the most vulnerable members of society. Clients’ circumstances should inform eligibility for civil legal-aided advice; but the rationing of this public service should not be solely determined by its cost and availability.

11. We find it worrying that the Bill reflects the prioritising of certain areas of law over others, but not the prioritisation of those social groups that are in greater need as its target beneficiaries. Bearing in mind the needs of legal aid’s target groups would support the retention in scope of the areas of social welfare law, not their proposed exclusion.

Independence of Exceptional Casework Decisions

12. The Law Centres Federation is concerned about the potential for undue political intervention in legal aid casework following the restructure and merger of the Legal Services Commission into the Ministry of Justice as an executive agency.

13. This potential problem arises from Part 1, Section 4, Subsections 3(b) and 6 of the Bill, which allow the Lord Chancellor to revise guidance for the provision of legal aid and compel the future Director of Legal Aid Casework to ‘have regard’ for ministerial guidance.

14. Our concerns were echoed in a recent public analysis of the Bill published in the Law Society Gazette on 30 June 2011. Furthermore, the Chief Executive of the Legal Services Commission, Carolyn Downs, suggested in her oral evidence to this Public Bill Committee of 12 July 2011 that the issue of the continued independence of decision making in the forthcoming executive agency is of concern to her current commissioners.

Local Provision of Legal Advice

Impact on Law Centres

15. Law Centres are concerned that the cuts enabled by the Bill will significantly compromise their financial viability, forcing many longstanding community Law Centres to close. We forecast that if all of the government’s proposals regarding civil legal aid are implemented, they would withdraw £6.87m from Law Centres, which is a staggering 85.8% of the current legal help funding for Law Centres [see appendix 2 below].

16. The sharp cuts to legal aid funding by central government would compound in individual Law Centres with further cuts already made by local authorities. Law Centres have lost an average of 53% of their local authority funding [see appendix 2 below].

17. The Law Centres Federation forecasts that up to 18 Law Centres might be lost because of this extensive removal of their resources. This would have a direct impact on the local ecology of advice and would create ‘advice deserts’ where there is now a functioning service.

18. The Lord Chancellor himself acknowledged the potentially devastating impact of planned legal aid cuts on not-for-profit legal aid providers, and saw fit to try and mitigate the initial impact in advance through a targeted short-term transition fund, announced in the House of Commons second reading debate on 29 June 2011. While welcome, it does not ensure ongoing availability of services for vulnerable citizens.

Importance of early legal advice

19. The Law Centres Federation argues that advice on social welfare law provided by competent legal professionals is in the public interest, represents good value for money, and therefore should continue to be funded by the taxpayer. The social welfare problems that our clients face are legal by nature, and therefore require legal solutions provided by legal professionals. The legal aid service provided by Law Centres uses legal skills to provide legal advice that resolves a legal (and not general) problem.

20. We believe that recent experience supports a joined-up approach to legal advice, in which Law Centres and other advice organizations can be efficient and effective participants, providing a streamlined and cost-effective service to their community. Coventry Law Centre, for example, leads the local partnership Advice Services Coventry, established in 2005. The partnership provides best value by defining and agreeing client pathways through the local advice system that ensure that specialist legal advice, provided by the Law Centre, is only accessed when it is needed.

21. The Coventry experience demonstrates how local face-to-face legal advice can eliminate wasteful referrals and duplication of services through coordination. In Welfare Benefits cases, the Law Centre only steps in when clients want to challenge benefits decisions, opening a case file only once the tribunal appeal papers are received. In Employment advice, clients are assisted by partner agencies while they are still in employment, and are only referred to the Law Centre if they have lost their job. In Housing, too, clients are only referred to the Law Centre when there is call for its specialist capacity, for example, with court hearings.

22. Funding comprehensive early intervention makes prudent use of public funds in preventing avoidable suffering to clients and greater expenditure on corrective measures down the line. The Administrative Justice and Tribunals Council (AJTC) acknowledged this in its response to the Legal Aid Green Paper, pointing out that legal-aided welfare benefits cases, which in 2009/10 cost the taxpayer £28.3m, had a success rate of over 90% and thus represented exceptional value – yet the Bill proposes that funding for it be withdrawn altogether. We are concerned that the Bill proposes to remove legal aid for some solutions before having resolved the causes of problems.

Mandatory Telephone Gateway

23. The Law Centres Federation has concerns about Part 1, Section 26, Subsection 2 of the Bill, which allows the Lord Chancellor to exercise personal discretion in the choice of medium for providing legal-aided advice, mentioning telephone and other electronic means as alternatives – presumably interchangeable – to traditional face-to-face advice.

24. Law Centres oppose the insistence on the introduction of a mandatory telephone gateway to legally aided legal services, as presented in the Ministry of Justice’s Green Paper response, published alongside the Bill. We hold that the arguments regarding provision put forward by the Ministry of Justice in its response to consultation support a legal advice helpline – which is already in existence and to which we raise no objections – but are fundamentally insufficient as a justification for a compulsory gateway service.

25. The example of Advice Services Coventry mentioned above demonstrates how local advice agencies are capable to provide best value help to clients when empowered to do so. A mandatory telephone gateway would be a wasteful additional procedure to an otherwise efficient and cost-effective process.

26. The mandatory telephone gateway seems to be inappropriate especially for those most in need. The Coventry referral system was informed by Experian’s national Mosaic study and by the Legal Services Commission’s methodology for measuring need. The Coventry research shows that those clients with a strong preference for face-to-face legal advice are also the ones least able to switch to other means of accessing advice, such as telephone and internet. The areas of Coventry where these clients live correlate strongly with the areas having the greatest need for legal advice [see appendix 1 below]. Introducing a mandatory telephone gateway into this system would mean that those clients who call the telephone gateway are unlikely to be those who most need it. Further details are provided in appendix 4 below.

Appendix 1: Evidence of Impact on Law Centre Clients

A. Case Study: COMMUNITY CARE

Elderly Client will not access services without a trusted intermediary.

Mary is an elderly lady living independently with considerable care needs. Her reluctance to use services and seek help meant that her needs were not assessed. She lived with her husband. A family member eventually contacted Age UK because of concerns for her safety. Age UK involved the Law Centre but Mary was still reluctant to accept advice or assistance.

Following discussions with Mary the Law Centre wrote to Mary detailing the care that she was entitled to: this importantly addressed the legal requirements of the welfare authority. Only after receiving this letter and having it read by a trusted family member would Mary take her case further. Mary still felt reluctant to use anyone she did not trust.

After a number of contacts she asked the Law Centre to intervene at which stage a legal help case was opened. They obtained a care assessment providing limited care and some safety adaptations to the home.

Her situation deteriorated suddenly with the death of her husband. Mary then contacted the Law Centre herself after she had failed to get a reassessment of her care requirements, which her family tried to obtain on her behalf. Following a threat of legal action, the Law Centre was able to negotiate with the local authority to secure the appropriate adaptations and support services that allowed Mary to live independently and with dignity.

Legal Aid Bill Impact: Case remains in scope but client would have to access help via mandatory telephone gateway. Therefore Client is unlikely to obtain assistance.

B. Case Study: DEBT

Client tries and fails to challenge unfair court action by large corporation and wrongly imposed debt; Unequal playing field

Daniel was recently made redundant. He had also been criminally charged with defrauding a high street bank in a credit loan application. Expert handwriting evidence confirmed the signature on the documents were not his.  The CPS was convinced and criminal charges were dropped. Nevertheless, the bank pursued the £18,000 debt and obtained a charging order on his home. 

Daniel tried on his own to have the order overturned but was not successful. He was not believed; English was not his first language. He approached the Law Centre who identified the need to obtain evidence from the criminal case records and to address issues under the Charging Orders Act 1974: he had merits in a case to apply to set aside judgement. The Law Centre prepared legal submissions with the evidence, with their investigation of the contractual law that applied and addressed rules relating to identity in contract. Rather than head straight to court, they presented these legal arguments to the Banks solicitors who accepted that the Order would be set aside and agreed terms of a consent Order. A further appearance in court was not required.

Legal Aid Bill Impact: Case unlikely to be picked up mandatory gateway service at an early stage as within Debt scope. Legally complex debt matter that if not resolved will later come into scope once order taken out for sale of home.

C. Case Study: IMMIGRATION

Client married to British National beaten and forced to work as sex slave.

Anna was a Thai national who came to the UK as a spouse of a British man. He had money from his own business, and she did occasional work to help him in his business. He was not well off, but had enough money to support the two of them.

However when she arrived she found that her husband wanted to coerce her to work as a prostitute and sleep with his friends. When she refused he beat her.  She had very little English and no relatives in the country. She was subjected to increasing physical and sexual violence over 18 months. Neighbours were unresponsive; one night being locked out of the house in the cold she called for Help but no one came.

Finally she met another woman from Thailand who helped her to go to the police. She left to stay with a friend who helped her get a few hours work in a factory to support her and pay some rent. She took her to the Law Centre who assessed her as qualifying for legal aid

She had been told that she should claim asylum in order to get away from her husband. The Law Centre reviewed the law and advised her that she should lodge an application for settlement under the immigration rules because she was a victim of domestic violence and married to a British citizen.

It became apparent that Anna’s trauma was severe and she was referred to mental health counselling: she was very ashamed at what she had gone through. It was essential that her mental health was calmed to enable her lawyer to obtain clear instructions on her position.

The preparation of her case needed an understanding of the interaction of immigration rules, guidance and practice, the content of requisite evidence and specialist knowledge to interpret them within the submissions. Her application was successful applying the Immigration Rules 1994 and the Immigration Act 1971, the settlement rules for spouses who have been subjected to domestic violence.

Anna is now safe from violence and has continued to work to support herself and find her own accommodation. She attends college to increase her skills.

Legal Aid Bil Impact: Immigration application regardless of domestic violence will go out of scope. Client would become destitute or would work illegally. Her immigration status would likely become illegal. If eventually she is caught and detained, she would then be eligible for legal aid.

D. Diagram: The Impact of Legal Advice on a Case

Appendix 2: Evidence of Impact on Law Centres

Impact Of Legal Help Cuts on Law Centres July 2011

 

Total Law Centre

% Reduction

NMS after

% Cut to

Telephone Advice

Fixed Fee

Fixed fee

Total £ in LH

Total reduction £

Category of Law

NMS Nov 10

MOJ figures

Legal Aid Cuts

Tel advice

Reduction 75%

 

10% less

before cuts

 

 

 

 

 

 

 

 

 

 

Debt

4,384

74%

1,140

80%

228

200

180

876,800

835,766

Housing

11,192

40%

6,715

80%

1,343

174

157

1,947,408

1,737,088

Welfare benefits

9,962

100%

0

0%

0

167

150

1,663,654

1,663,654

Employment

3,319

78%

730

80%

146

230

207

763,370

733,141

Mental Health

480

0%

480

10%

432

607

546

291,360

55,358

Community Care

1,079

1%

1,068

80%

214

296

266

319,384

262,470

Education

459

58%

193

0%

193

302

272

138,618

86,220

Public Law

148

14%

127

80%

25

288

259

42,624

36,026

Consumer

133

100%

0

80%

0

177

159

23,541

23,541

Asylum

2,073

0%

2,073

50%

1,037

460

414

953,580

524,469

Immigration

3,130

92%

250

0%

250

314

283

982,820

912,057

 

 

 

 

 

 

 

 

 

 

Total for Law Centres

36,359

 

12,526

 

3,617

 

 

8,003,159

6,869,790

Impact No of cases :

90%

reduction in Legal Help Cases

 

 

Reduction of

£6.87

m in Legal help funding to Law Centres

Loss of at least

32,742

Legal Hep cases

 

 

Impact :

85.8%

reduction in funding for Legal Help

Please note:

1. Telephone % reduction figures are estimates. Exact figures not available. These may be an underestimate.

2. These figures do not include legal aid certificated work.

3. The work done by Law Centres uses legal skills to solve legal problems. These matters are not 'general advice'.

Impact of Local Authority Funding Cuts on Law Centres

Local Authority funding is used by Law Centres to undertake the strategic work that legal aid does not cover. Law Centres target vulnerable client groups and provide services at community gathering points such as children’s centres or youth clubs with this funding. They run emergency services, link with PCTs, undertake public legal education, and develop responses to the underlying causes of the legal problems. It is the systemic and preventative work that is most at risk with local authority cuts.

London Councils Funding

About half of the local authority funding cuts in the London area, representing 41.3% of the current funding, comes from London Councils. This is a group of strategic funding streams aimed at prevention and early intervention work, as well as other legal work not covered by legal aid, such as representation in welfare benefits and employment tribunals. The award of this funding to Law Centres comes in recognition of their capacity for such strategic work, which meets client and community needs well beyond the scope of legal aid.

If current plans to ‘repatriate’ London Councils funds to respective councils go ahead, this funding is unlikely to be allocated to the same projects, or indeed to legal advice services at all. This would cause irreversible damage to the current services of Law Centres, hitting preventative work and, through caseworker redundancies, significantly reducing service provision in the future.

Outside of London

The average rate of 42% cuts in local authority funding for non-London Law Centres actually spreads across the widest range (100), with most results polarised. Some Law Centres that have experienced no cuts because they had no local authority funding to begin with. Precious few Law Centres with local authority funding are still unharmed by cuts. The remaining majority have either had relatively small cuts (Bradford 9%, Chesterfield 10%, Nottingham 10%, Sheffield 10%) or have had their entire local authority funding withdrawn (Birmingham, Warrington, South Manchester, Wythenshawe, Oldham).

All Law Centres experiencing cuts have reported actual or planned reductions in their services and the need to make redundancies. For the harder-hit Law Centres, the local cuts were enough to compromise their viability, and indeed some of them (Hounslow) have closed or are considering closing as a consequence.

Law Centre Funds*

TOTAL

London

Out of London

Current LA funding

£7,923,993

£4,718,013

£3,205,980

Cuts made and announced

£4,219,606

£2,870,604

-of which direct council: £1,397,097

-of which London Councils: £1,473,507

£1,349,002

Rate of LA cuts

53%

61%

42%

*Based on data collected from each Law Centre in March 2011.

Appendix 3: Comments and Amendments to Sections 1-9 of the Bill

Section 1

Purpose

This section seeks to set and limit the Lord Chancellor’s powers in respect of the provision of legal aid.

Discussion

This section reflects a change from the Access to Justice Act ("AJA") and in particular at Section 1(3)(b). Under Section 4(2)(a) of the AJA the LSC was obliged, as part of the Community Legal Service, to fund "the provision of general information about the law and legal system and the availability of legal services" although this element of the definition has always been excluded from Legal Help.

In this Bill Section 1(3)(a) and (b) contain a broader definition of services which may be secured by the Lord Chancellor. Subsection (a) deals with general information about the law and legal system but subsection (b) information about the availability of advice (previously part of Section 4(2) of the AJA) but goes on to add "and assistance in connection with, the law and legal system".

It reflects a material change designed to specifically limit the Lord Chancellors obligations to provide legal aid. In particular this appears to make both "advice and assistance" discretionary which could leave scope to remove funding from much of what is currently covered under the Legal Help scheme.

However this section needs to be considered hand in hand with Section 7 which contains the remaining description of services to be funded.

Suggested Amendments

1. Delete the words ", and assistance in connection with," from Section 3(b) thus returning the definition to that in the AJA – although it is necessary to understand why this changed wording has been proposed before pushing forward with any amendment.

2. Page 1, line 6, after ‘Part’ insert –

for the purpose of promoting access to justice and equality of arms.

Section 2

Purpose

This Section is a broad empowering section necessary to allow the Lord Chancellor to perform his functions under the Act.

Discussion

Section 2(2) mirrors the powers of the LSC under the AJA to award Grants and should stand un-amended.

Proposed Amendment

None

Section 3

Purpose

This section allows the Lord Chancellor to allow for accreditation and the quality mark.

Discussion

This Section mirrors the wording previously contained in Section 4(7) – (9) of the AJA with amendments to reflect the outsourcing of the accreditation functions. Other than that it reflects no material change over what has been in the AJA since 1989.

However, that these provisions have been amended to reflect the fact that the quality assessment functions have already been (and will no doubt continue to be outsourced) gives us reason to seek some limit on the capacity to charge for accreditation / quality assessment – especially for NfP providers.

Suggested Amendment

Add the words "Except where the accredited organization or organization seeking to be accredited is a registered Charity " to the start of both Section 3(4) and 3(5).

Section 4

Purpose

This Section creates the role of Director of Legal Aid Casework ("the Director") and purports to set out her powers. The Director is effectively the replacement for the Commission.

Discussion

It is not clear however why the Director should be a civil servant. In fact it seems that making the Director, who is ultimately responsible for all operational legal aid decisions, including funding decisions, a civil servant creates the very conflict that the AJA, by establishing an NDPB, sought to avoid.

It should be argued that the Director should be appointed to run the successor body to the LSC and to make all necessary operational decisions but that a non civil servant / inspector of legal aid / independent body be set up to set oversee funding criteria and funding decisions and to have final say (whether directly or through independent panels) on legal aid decisions – especially given the complexity of exceptional funding applications likely to be made under Section 9 of the Bill.

The difficulty is that much of what remains in scope will be challenges to Government, Departments and indeed to the decisions of civil servants.

Those framing the Bill have recognized the risk of impartiality in respect of individual funding decisions in that Section 4(4) precludes the Lord Chancellor from interfering with individual funding decisions but that protection seems fundamentally flawed if a civil servant from the Department of Justice can influence and indeed make such decisions.

Suggested Amendment

Add a new clause to Section 4 which will be clause (7)

The Director of Legal Aid Casework will at all times act in an independent and impartial manner.

Section 5

Purpose

To allow such delegation as is necessary for the appropriate operation of the legal aid scheme.

Discussion

A delegation clause is normal in legislation such as this. This clause is far more detailed that the provisions contained within the AJA and it is not clear why it has been thus drafted.

In particular there are some peculiarities in the drafting anomalies. For instance it is not clear why subsections (3) and (4) are both necessary – as both allow for delegation of functions by the Director – though subsection (5) anticipates functions set out in Regulations rather than directly under the Act.

However the collective effect of Section 4 (discussed above) and subsections (2), (4), (5) and (6) of this Section allow the Lord Chancellor to compel the Director to delegate certain of her functions to another person or indeed to that persons employees (which again seems a rather peculiar choice of drafting).

It is far from clear why this specific power is being reserved to the Lord Chancellor and under what circumstances it is anticipated that it will be used and, more particularly why the Lord Chancellor, having reserved certain functions to the Director, would then seek to compel the Director to delegate those functions elsewhere.

There is a risk that this provision could be used to undermine the Director and, insofar as there is any independence (see above), her independence and decision-making.

Suggested Amendment

Add a new sentence to Section 5 (5) after (b) but not part of (b)

Provided that in all cases the person so delegated acts in a manner compatible with the Director’s independence and impartiality as specified in Section 4.

Section 6

Purpose

This section seeks to govern the way in which authorizations and delegations are performed.

Discussion

This is a technical section.

Section 7

Purpose

This section sets out the types of services available under civil legal aid.

Discussion

This Section replaces section 4(2) of the AJA that has been routinely used by the LSC to refuse payment for Legal Help work (in Financial Stewardship audits) on the basis that that work fell outside the definition of legal services contained in that section.

Although this provision differs in drafting from that contained within section 4(2) of the Act there is no material change in what is being funded and the drafting change reflects no material attempt to further limit the scope of funded services.

Section 8

Purpose

This section basically sets out what is to be funded under the Civil Legal Aid Scheme.

Discussion

There are two broad and critical issues for debate in respect of this section.

Under the AJA all areas of law were covered by legal aid unless they were excluded. In this Bill some areas of law are covered because they are mentioned in Schedule 1 Part 1 and others are specifically excluded under Parts 2 and 3 of Schedule 1.

In choosing to draft the Bill in this way there is a risk that areas of law which are not specified in Part 1 but which are also not excluded under Parts 2 and 3 fall under the exceptional funding scheme set out in Section 9 – even if there is no good reason to do so. This form of drafting however also means that the act will be slow to adapt to changes in the law or new legislation – which may not be mentioned under Part 1 and which therefore may not attract legal aid where clearly they should.

.

Recognising that restricting what is covered by legal aid may cause problems, the Bill seeks to give the Lord Chancellor power to amend Schedule 1 by order.

By its very inclusion in this Bill, the Government seems to suggest that the extent of the legal aid scheme needs to be set out, in detail, in primary legislation. It then however provides that that primary legislation can be amended and changed, to the extent that whole areas of law could be taken out of scope (or indeed new areas added) by order of the Lord Chancellor.

This broad power for the Lord Chancellor to modify Schedule 1 will create significant uncertainty about what will or will not remain in scope and allows for inappropriate interference in the legal aid scheme as enacted.

The extent of the legal aid scheme should be a matter for primary legislation – in which case the safest option is to mirror the approach of the AJA in clearly defining what is excluded (and providing for an exceptional funding route) and accepting that everything that is not excluded is capable of being funded under the Act.

Proposed Amendments

1. Revert to the approach contained within the AJA and delete Part 1 of Schedule 1, moving any exclusions contained therein to an appropriately drafted exclusions provisions.

2. Add a new sub-clause (1A) to clause 8:

"(1A) Services consisting of advice, assistance and representation are to be available to a group, incorporated or unincorporated, or a class of individuals where the need for such services can conveniently or appropriately by met by such provision if either

(a) they are provided by an organisation designated under section 1(1A) or

(b) the Director has determined that the group or class qualifies for the services in accordance with this Part (and has not withdrawn the determination)"

and add to Schedule 1 Part 1 the following additional paragraph:

"Groups and Classes

40 Civil legal services including advocacy and including services provided to a group or class of individuals under section 8(1A) in relation to any issue before any court, tribunal, enquiry or authority where the legal rights of members of the group or class are affected."

Section 9

Purpose

This section sets out the exceptional funding scheme.

Discussion

Those framing the bill recognise that in excluding so many services from legal aid (and indeed in drafting the Bill in such a way that areas may slip through the net – see Section 8 above) that a way of funding otherwise excluded cases in exceptional circumstances is necessary to ensure compliance with European Law and with Human Rights obligations.

This provision is however far too restrictive – basing exceptional funding ONLY on the basis of Convention rights and EU law. This will necessitate long and complex human rights and international law arguments wherever exceptional funding is being sought.

There are however many thousands of clients who are likely to be excluded from access to law and thus unable to assert or protect their rights but where it is difficult to argue that either Convention rights or rights to legal services under EU law have been breached.

These are clients who are vulnerable and who are unable to represent themselves or indeed to find assistance other than through the legal aid scheme.

Therefore this Section be amended to include a third ground for exceptional funding which is not so closely related to Convention rights and EU law but instead to the specific circumstances of the client and on the impact and consequences of the failure to provide legal aid funding.

Given that this Section will lead to complex and costs funding applications (often likely to need expert legal opinions and / or expert evidence), there should also be a provision for the costs of such applications to be met from the legal aid fund under the terms of any funding finally granted.

Proposed Amendments

A new Section 9(3)(c) which reads:

"(c) that it is appropriate to do so, in the particular circumstances of the case, having regard to the particular circumstances of the client (vulnerability, capacity to represent themselves, health or mental health issues), the actual availability of alternative sources of advice and assistance and the impact and consequences on the client, or his family, of failing to receive advice and assistance under this Part."

A new Section 9(7) which reads:

"The Director shall make provision for payment of the reasonable costs incurred by any person making a successful funding application under this Section.

Appendix 4: Coventry Law Centre Case Study - Telephone Service

 

A national study commissioned by Experian, called Mosaic, has produced profiles of household types. The study gives information on the characteristics and behaviours of each household type defined and it has been used extensively by the public sector to assist with service planning.

One aspect of this study covers the preferred approach to service delivery by means of: (1) the Internet; (2) telephone; (3) Mobile phone; (4) post; and, (5) branch – face to face contact. The approach was to rank the various means of service delivery by social type preferences. There were five preferences: Strong; Neutral but positive; Neutral; Neutral but negative; and Weak.

With each service channel preference analysed by the 69 household sub groups it is possible to identify the probability that people would switch between them. For example people could have strong preferences for more than one channel and that would suggest that they are able to switch between them.

It is possible to identify four types of user;

· Those who can switch - having a strong/neutral positive preference in another service channel

· Those who could switch - having a neutral preference in another service channel

· Those who would find it hard to switch – having at best neutral negative only in the other service channels

· Those who cannot switch – having weak in the other service channels

The map below shows this break down as a proportion of all households in Coventry. Social groups exhibiting a strong or neutral positive preference for face to face service delivery accounted for 18% of households (24,504) in Coventry.

Those who can (1%) and could (2.4%) change account for just 3% of households in the city. Those households that would find it hard to change account for 6.3% of households (8,577), and those who cannot change for 8.8% of households (11,980)

The blue areas depict the areas where the majority of households exhibit a strong preference for face to face contact and cannot change their service channel. You will see the correlation between these and the areas that the LSRC model show as having the greatest need for advice. It is these areas that our services target. It seems clear that people living in these areas need advice services to be delivered face to face. The telephone gateway will present a barrier for them.

It is early intervention by advice services for such clients that ultimately saves costs on other departmental budgets. Whilst a telephone service will no doubt save money, it is unlikely to really penetrate these areas and so the benefits that come from advice services in terms of savings elsewhere will be threatened.

Whilst the provision of advice by telephone is a valuable and, for some people, suitable method of delivery, for others it will prove an insurmountable barrier to accessing the legal advice and assistance that they so desperately need.

For those people who do make contact via the helpline it may be possible for a significant number of them to be adequately assisted, but for all the reasons set out above, this misses the point that those who call are unlikely to be those who are most vulnerable and most in need.

July 2011

Prepared 18th July 2011