Written evidence from AdviceUK (AJ 32)
1. EXECUTIVE
SUMMARY
1.1 The combination of proposed legal aid reforms
with other local and national funding cuts could create the perfect
storm in which local, face-to-face advice provision is wiped out
in many areas.
1.2 89.5% of respondents to an AdviceUK survey
of independent advice services were facing funding cuts, leading
to reduced capacity, service changes and closures, insolvency
and redundancies.
1.3 Appropriate alternative sources of help for
cases taken out of scope do not exist. Conditional fees are not
appropriate for most social welfare cases. Self representation
is not a viable option that ensures equality in access to justice.
Failing to provide advice for housing, debt, welfare benefit,
immigration, education and employment cases taken out of scope
could lead to costs for other Government departments and services,
such as the NHS.
1.4 The Government should take action to reduce
bureaucracy within legal aid and related justice systems and to
free up advice services to intervene earlier and tackle systemic
failings in public services and administration. AdviceUK studies
have shown that nearly a third of demand for legal advice is the
result of preventable failure in public administration. Other
studies have also shown the cost benefits of early intervention
by specialist advisers.
1.5 The Government should also conduct a review
of advice provision in the areas of law ear-marked for legal aid
cuts. This review should look at current funding sources, access
and quality, infrastructure support and recommend a strategic
way forward. It should be conducted before reforms to legal aid
are considered.
2. ABOUT ADVICEUK
2.1 AdviceUK is a membership organisation for
not for profit (NFP) organisations that provide advice services.
AdviceUK has 860 member organisations throughout the UK, 777 of
which work in England and Wales—most of which are community-based
and many are volunteer-led. Our members work in some of the poorest
areas, helping people to solve social welfare problems, providing
advice and legal support to over 2 million people a year. Around
60 AdviceUK member organisations currently deliver legal aid services
(55 have confirmed legal aid contracts. A further 8 are awaiting
the outcome of tenders).
2.2 AdviceUK supports members to improve the
quality and effectiveness of their services and provides a national
voice.
2.3 We have consulted member organisations regarding
the issues on which the Committee seeks evidence. However the
views expressed in this submission are not necessarily representative
of the views of all AdviceUK members.
2.4 AdviceUK is a member of the Advice Services
Alliance and has contributed to its evidence. We do not repeat
the evidence submitted by ASA.
3. IMPACT OF
PROPOSED CHANGES
ON THE
NUMBER AND
QUALITY OF
PRACTITIONERS
3.1 We have evidence that the overall impact
of the proposed changes to civil legal aid scope, fees, eligibility
and delivery channels, coupled with reductions in local government
funding and the loss of other central government funding streams
such as the Financial inclusion fund will create the "perfect
storm" in which independent face-to-face legal aid in many
localities will be wiped out.
Lcal, community based, face to face advice no
longer viable
3.2 As evidence submitted by the Advice Services
Alliance shows, NFP advice providers will be particularly hard-hit
by the legal aid proposals. AdviceUK member organisations deliver
legal aid funded advice primarily on social welfare law matters
and immigration and asylum, with some focusing on education. The
impact alone of cuts to scope, transfer of cases to the telephone
advice channel and a 10% reduction in fees would mean that what
they would have left by way of matters starts during the lifespan
of current contracts would not be viable. The income from the
small number of matter starts that would remain in scope would
not be sufficient to employ suitably qualifies staff to deliver
them. The only way that face to face legal aid services in the
housing, debt, discrimination and immigration matters that remain
in scope would be viable if scope cuts are implemented would be
on a regional or national delivery basis, due to the low volumes
involved. This would present real problems in providing localised
access to legal aid advice on these topics. Cuts in other (local)
funding streams could spell the end of local, community based
advice provision.
Reduced quality
3.3 AdviceUK members with legal aid contracts
predict that even without changes to scope, coping with a reduction
of 10% in civil fees will be very difficult. Most are already
struggling to deliver legal aid services on current fixed fees
and have indicated to us that they feel the quality of service
they are able to provide has reduced. Several of our members did
not bid for new legal aid contracts in 2010. One member (Refugee
and Migrant Justice), closed due to financial problems associated
with their legal aid contract. An additional 10% cut in income
will at least mean that quality will deteriorate further and more
agencies may well become insolvent. Some will decide to pull out
of legal aid provision, leaving gaps in provision. This will be
the case particularly in areas where local authority funding is
being reduced. Local authority funding has supplemented legal
aid funding for many providers, enabling them to continue to provide
a holistic service as legal aid funding has reduced in recent
years.
Cmbined impact of legal aid, local authority and
other funding cuts
3.4 A survey of AdviceUK members commenced in
summer 2010 found that 41% have had funding cuts already and 58%
expected cuts to be made to 2011-12 years funding. 71% were subject
to a review of voluntary sector or advice funding.
3.5 A follow-on survey commenced in December,
which is on-going, has so far found that 89.5% of respondent organisations
are experiencing major funding cuts to their advice services.
The total funding cut for these organisations is £2.17million—£64k
per agency—an average 64% cut in advice funding per agency.
55% of organisations had seen already implemented, planned or
proposed cuts to local authority funding.
3.6 What such cuts mean for advice services,
according to our survey is reduced services and redundancies and
in some cases, closure:
Anti-localism
3.7 Flying in the face of the current Government
emphasis on localism, we are seeing smaller local agencies close
due to funding cuts and approaches to commissioning by local authorities.
Sheffield, Birmingham and Gloucester City Council, for example
are moving to the commissioning of single advice services for
their areas. Such commissioning tends to favour larger, regional
and national bidders. Gloucester advice agency GL Communities,
for instance, which was formed by the merger of three smaller
agencies, looks set to close its advice service in March. Such
patterns are being repeated throughout England and Wales.
3.8 In London, the decision of London Councils
to cut funding for advice services and repatriate funding to London
Boroughs will have a dramatic impact. The Black and Minority Ethnic
Advice Network (BAN), coordinated by AdviceUK, will lose £684,000
in funding, which enabled its 18 member agencies to advise nearly
11,000 BAME clients in 2009-10. The network also delivered public
legal information workshops and advice seminars for 1,245 people.
Government cuts other debt advice funding
3.9 The proposed cuts in legal aid and local
advice funding will also be compounded by the loss of other vital
funding streams, such as the Financial Inclusion Fund face-to-face
debt advice scheme. The scheme has funded over 300 debt advisers
to assist 77,000 people per year since 2006. According to a statement
by Treasury Minister Mark Hoban in the House on 19 January, this
scheme appears due to end in March 2011. To date there have been
no announcements regarding an alternative scheme.
4. CASES AFFECTED
Aternatives do not exist or inappropriate
4.1 The evidence of widespread cuts in funding
for advice services indicates that the suggestion in the Green
Paper that there are alternative sources of advice to pursue cases
affected is erroneous.
4.2 Some suggested sources of alternative advice,
such as Job Centre Plus and the Benefits Enquiry Line are inappropriate.
They are not independent agencies.
4.3 It is certainly not the case that capacity
exists to soak up demand spilled by reducing legal aid scope.
In the half-million cases cut loose, people may well find no alternative
source of legal advice. The knock-on effect of this will be felt
by other Government funded services, like the Health Service.
Research published in 2006 found that adverse physical and mental
health consequences follow over a third of civil justice problems
and that 27% of civil justice problems led to stress-related illness.
Nearly a quarter of the people affected by stress sought medical
treatment, with an average of nine visits each to a general practitioner.
(Causes of Action: Civil Law and Social Justice (2nd edition)
Pleasence P, 2006, page 60, TSO). Indeed, a range of professionals
including GPs, Social Workers and Advocates, plus Members of Parliament,
are likely to feel the impact of the reduced availability of free
face to face legal advice.
4.4 Courts and Tribunals are also likely to see
more traffic. The legal help services provided under legal aid
(and other funding) by AdviceUK members frequently provide early
intervention before recourse to Courts and Tribunals. For instance,
housing advice services assist tenants to negotiate with landlords
on rent arrears and disrepair matters at early stages, preventing
later Court action.
4.5 Pro bono services from larger law firms are
equally, no substitute. Though pro bono legal advice makes a valuable
contribution to the advice sector, lawyers from larger city firms
do not normally carry out casework and representation as part
of the service and often do not have expertise in social welfare
law and the justiciable issues presented by clients of legal aid
providers. Pro bono advice also takes considerable resources to
organise and administer.
4.6 We have deep concerns regarding the Government's
belief that in employment and welfare benefits cases the appellant/claimant
would be able to represent themselves when making an appeal or
legal challenge at court or tribunals. This misrepresents the
reality of social security appeal tribunals and ignores the fact
that social security law is ever changing and highly complex with
many Acts, regulations, guidance and case law. Without specialist
legal advice many claimants would not be able to make their case
at tribunal, even more so at Upper Tribunal on a point of law.
The same applies to employment tribunals - without help to prepare
their cases appellants will be placed at a huge disadvantage.
Legal help is not currently available for the actual tribunal
hearing, yet the DWP and most employers have legal representation.
Taking away help for preparing for these hearings will leave appellants
even more disadvantaged.
4.7 The Green Paper contained suggestions that
conditional fee arrangements could be used more widely. Such arrangements
are not suitable for the majority of social welfare law cases.
Unequal impact
4.8 Legal aid services in the areas of law ear-marked
are cuts are disproportionately used by people with disabilities,
mental health difficulties, carers and from Black, Asian minority
ethnic and refugee communities. Typical client breakdowns at AdviceUK
member advice centres show, for example:
Agency A
| Mental Health Difficulties
| 48% of clients |
| Physical Health Difficulties | 50% of clients
|
| BME | 37% of clients |
| English Language and Literacy | 30% of clients
|
| Carers | 25% of clients |
| Families with Children under 4 | 15% of clients
|
Agency B
70% of our welfare benefits clients are BME, also 70% are disabled.
95% of our immigration clients are BME, 20% are disabled.
50% of our housing clients are BME, 52% are disabled.
5. WHAT ACTION
COULD THE
GOVERNMENT BE
TAKING ON
LEGAL AID?
Cut red tape and tackle preventable, systemic failure and waste
5.1 We believe that there is action that the Government could
take to both reduce bureaucracy and red tape within the legal
aid scheme and justice system and free up advice services to tackle
systemic failings in other public services and administration.
5.2 AdviceUK's RADICAL and BOLD work has highlighted:
The bureaucracy that permeates legal aid funding conditions and
leads to agencies doing things that are not in the interests of
clients.
The systemic failings that legal advice tackles, particularly
in some of the areas to be taken out of scope. Work in Nottingham
has found that nearly a third of demand for advice is the result
of preventable failure in public services/administration.
(It's the System,
Stupid! Radically Rethinking Advice, AdviceUK, 2008, Radically
Re-thinking Advice Services in Nottingham, AdviceUK, 2009)
5.3 Not being able to deal with this failure
does not mean that the failings go away—the failing public
service and potentially other services will have to deal with
a customer they have failed and the consequences of this failure.
What's more, removing sources of independent advice means that
the failure may not be spotted and challenged. It will be repeated.
Rather than paying for a fleet of ambulances at the bottom of
the cliff, better to fund a strong fence at the top and plenty
of warning signs on the approach. Advice could actually do more
to prevent problems associated with systemic failure if freed
up to do more to improve the design and delivery of public services.
The current funding focus on legal advice "after the event"
does not permit/fund proactive work. Allowing legal advice services
to address systemic failings must make economic sense.
5.4 There is a strong case for reforming legal
aid. But rather than reducing scope and eligibility we should
be looking at how publicly funded legal advice work in all currently
funded areas can be freed in order to proactively tackle system
failings. Intelligently funded advice work could save £millions
and improve public services.
5.5 Furthermore, on the subject of systemic failings
in public services and administration, the Government should be
looking to tackle poor design and bad behaviour within Government
departments and agencies which adds to legal costs rather than
the advice and support for the "victims" of this failure.
Costs associated with the complexity of law and judicial process
should also be examined. Many commentators have noted problems
in particular areas of law and administration in their responses
to the Green Paper. The Immigration Law Practitioners Association
(ILPA) for instance has highlighted, in its draft response to
the Green Paper, the failings of the UK Borders Agency and legal
complexity which add to legal aid costs (http://www.ilpa.org.uk/).
5.6 Indeed, the Solihull Early Legal Advice Pilot,
in which the UK Borders Agency and Legal Services Commission were
involved, showed the benefits of early intervention on behalf
of clients by specialist asylum advisers. This led to far better
decision-making and the potential for cost savings in the asylum
process. (Evaluation of the Solihull Pilot for the United Kingdom
Border Agency and the Legal Services Commission Independent Evaluator
Jane Aspden, October 2008.)
5.7 We strongly urge the Government to tackle
such "pollution" rather than deciding that whole swathes
of legal action that tackles it are "undeserving" of
state support. This will disproportionately affect the most vulnerable
and disadvantaged members of society and leave the maladministration,
cost and waste in place.
Conduct a full and proper review
5.8 As we have outlined in sections 3 and 4 above,
the proposals in the Green Paper will have widespread, unintended
but very serious and costly implications. While the Green Paper
sets out a rationale for the cuts, we believe they are rash and
not fully thought through. They do not consider the combined impact
of the proposals with other advice funding cuts. They are made
on the back of many years of turmoil in legal aid that has seen
providers jumping to new tunes every few years: The Making Legal
Rights a Reality Strategy saw the now aborted project of joint
commissioning of Community Legal Advice Centres and Networks:
Fixed fees were introduced in 2007: A new procurement approach
was introduced just last year in which the combined delivery of
social welfare law was deemed essential.
5.9 The time has surely come for the Government
to take stock and embark on a carefully considered strategy that
ensures adequate access to legal advice. We suggest that the Government
should therefore establish a review to examine how advice on social
welfare, immigration, education and employment matters is currently
funded and delivered. It should look at access to and the quality
of this provision and how it is supported by infrastructure bodies.
This review should be completed and publicly scrutinized before
any further reforms to civil legal aid and other government funding
schemes for advice are considered.
January 2011
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