Written evidence submitted by the Legal
Aid Practitioners Group (AJ 41)
1. LEGAL AID
PRACTITIONERS GROUP
We are a membership organisation of firms and not-for-profit
organisations. LAPG was founded over 25 years ago to call for
access to justice and to represent legal aid practitioners. Our
membership covers practices of every size from sole practitioners
to the largest legal aid practices, our members carry out all
of the areas of law covered by legal aid contracts. Our members
are situated throughout England and Wales.
2. EXECUTIVE
SUMMARY
2.1. We are concerned that there will be a massive
reduction in the number of providers both private practice and
not-for-profit. (Section 3)
2.2. We believe that quality will suffer. (Section
3)
2.3. We have given some examples of the types of
cases that will be out of scope and raised concerns about where
vulnerable people will be able to access any advice, assistance
or representation. Private practice has a lot of pressures on
it including reduced income from other areas of work in an economic
downturn and the challenges posed by alternative business structures.
Not-for-profit organisations are affected by other spending cuts.
However spending cuts in the police and local authorities will
affect e.g. family and housing legal aid work. Or indeed there
may be no service. Furthermore, there will be additional costs
elsewhere e.g. on local authority housing departments, social
services departments, courts, tribunals and the health service.
(Section 4)
2.4. We have made limited comments on alternative
funding and on Jackson. (Sections 5 and 6)
2.5. We share the concerns raised in the Consultation
on the effects on social cohesion, increased criminality, reduced
business and economic efficiency, increased resource costs for
other departments and increased transfer payments from other departments.
(Section 7)
3. What impact will the proposed changes have
on the number and quality of practitioners, in all areas of law,
who offer services funded by legal aid?
3.1. The Consultation Paper estimates that the number
of providers will decrease to less than 1000. In the early 1990s
there were 11,000 providers. The current number is, we believe,
in the region of 3000.
3.2. It is already difficult for many clients to
obtain advice and representation, in rural and urban areas. Even
in parts of the country where there appears to be good supply
as in London, clients often try many organisations before they
either give up or find a practitioner to see them.
3.3. What will drive people away from providing legal
aid services? It will be the combination of the effects of the
proposals:
(i) The contracts awarded in 2010 in social welfare
law demanded for the first time a holistic service in housing,
welfare benefits and debt. Within weeks of those contracts starting,
the Government proposed that welfare benefits and most debt be
omitted from future funding. All the providers who spent a considerable
amount of time and money re-designing their services will have
to re-design them again.
(ii) Similarly in family work, the LSC wanted
a holistic service and awarded more points to those who did a
wide range of family work (Area A only). The contract was overturned
following a successful Judicial Review brought by The Law Society.
The Consultation proposes that large amounts of family law will
be excluded from future contracts. Thus the firms geared up to
deal with client issues at all levels will need to reshape themselves.
(iii) It is hard to do any business planning
when there are so many changes proposed by the sole purchaser
of the services.
(iv) Profit margins are very low at present.
The hourly rate in legal aid work varies depending on the area
of law and the type of case. Rates of pay in some areas of law
have remained static for over 10 years or have decreased. Practitioners
who would be allowed rates of over £200 per hour by their
local county courts for privately paying work will be paid rates
starting at £50 - £70 per hour for many legal aid cases.
The proposed reduction across the board in civil fees of 10% will
make it extremely difficult for many providers to continue.
(v) Indeed the plethora of payment ranges adds
to the difficulty of delivering the service by making it much
more time consuming to calculate fees and any profitability.
(vi.) Fixed fees which are not considered generous
were brought in based on the current mix of cases. If the mix
of cases changes, this will affect the ability of providers if
the shorter cases are taken out of the system. Similarly if uplift
on more complex cases is capped the 'swings and roundabout' argument
breaks down.
(vii) Not-for-profit providers will suffer the
added blow of reductions in local authority funding and the decline
in grants from charitable organisations and Government Departments.
(viii) Private practices have often subsidised
legal aid work from other work which is more profitable. At a
time of recession, other areas are not necessarily providing that
cushion so legal aid work becomes even more unattractive.
(ix) With the advent of alternative business
structures in October 2011 it is not predicted that they will
want to run legal aid firms but they may seek out any part of
the High Street practice that is profitable. That will destabilise
legal aid mixed practices further.
3.4. It is difficult to stress enough quality concerns
that have already arisen.
(i) With hourly rates, providers were paid for
the work they did and all bills were checked by the LSC or the
courts. With fixed fees there is pressure to deliver the service
within budget and that may mean that clients are given a poorer
service.
(ii) With such low rates, the only way to deliver
the service is to use lower paid individuals. These may be well
trained and work in a small area of law and provide adequate or
good advice. The fear is that there is not enough quality assurance
to be certain of this.
(iii) The client base is extremely vulnerable.
It is therefore important that the right advice is delivered and
that standards are high. We do not believe that the system as
currently designed can be certain of this.
4. The Government predicts that there will be
500,000 fewer cases in the civil courts as a result of its proposed
reforms. Which cases will these be and how will the issues they
involve be resolved?
4.1. The cases to be taken out of scope are set out
on pages 7 and 8 of the Ministry of Justice's Impact Assessment
28
4.2. Ancillary Relief (where domestic violence
is not present):
(a) What types of cases? An example of a case
which will no longer be covered: a pregnant woman Ms A has a child
by her previous partner and a child by Mr A. She lives with Mr
A. Mr A works and there is a reasonable lifestyle. Mr A tells
her to leave as he has a girlfriend who is pregnant. Ms A goes
to the local authority to ask for housing. Currently she could
obtain advice and representation to return to the property thus
ensuring that the state does not pay for her accommodation. In
this case that is what happened so the woman was able to return
to the property and was not separated from her children. Generally
we have concerns about clients who have English as a second language
or have mental health issues and cases where disbursements have
to be funded, paperwork prepared for court and statements prepared.
Form E is a complex form.
(b) How will they be resolved? While mediation
is important it must be stressed that mediation has to be entered
into willingly. There must be openness on disclosure and there
has to be the back-up of the courts in case people do not comply
with the mediated arrangements. The government appears to believe
that mediation can take the place of litigation and cites the
statistic that in 2008 73% of ancillary relief orders were not
contested (4.157 green paper) to evidence that the majority of
individuals are able and willing to take responsibility for organising
their own financial affairs. This statistic is wholly misleading.
How many of those had the benefit of sensible and practical legal
advice in order to equip and enable them to work together towards
agreement? Many of them will be agreements that could not have
been achieved in mediation but were negotiated via solicitors.
Arguably the statistic demonstrates that solicitors are an effective
gateway to resolution without litigation for those in relationship
breakdowns.
4.3. Clinical Negligence:
(a) What types of cases? While the CFA regime
remains as it stands at present, the cogent arguments for retaining
Clinical Negligence within legal aid scope which held sway in
the consultation preceding the Access to Justice Act 1999 still
apply. Assuming implementation of the government's preferred civil
costs reforms, there would be a case for reducing the scope of
legal aid for clinical negligence in connection with those claims
for which CFA funding would be financially viable. However, as
the consultation paper recognises (4.167) there will be cases
for which legal aid should remain available, for example those
involving exceptionally high disbursements. Another example would
be long-running cases where final settlement must of necessity
be deferred (e.g. cases involving severe brain damage to children).
(b) How will they be resolved? If these cases
are not resolved one result may be that the state will pay for
the care of the person rather than from insurance companies paying
out.
4.4. Consumer and General Contract Law:
(a) What types of cases? Very few of our members
carry out cases in this area of law but some have raised concerns
that claims for professional negligence will be outside scope
if the paper is implemented. It is very difficult to bring a claim
for professional negligence.
(b) How will they be resolved? We think that
there will be very few organisations able to provide basic advice
and for professional negligence cases we think it unlikely that
there will be a thriving CFA market.
4.5. Legal help for Criminal Injuries Compensation
Authority applications
We accept that CICA claims are a lower priority than
some other forms of civil legal aid. However, it should be recognised
that they cover a wide range of injuries from the lower tiers
of the scheme through to injuries of the utmost severity and it
is misleading to characterise them as relatively straightforward
matters for which legal expertise is not required.
Consider, for example, CICA awards relating to non-accidental
head injuries to infants which not only involve complex assessments
and awards but can also take many years to finalise. Long-running
CICA claims are problematic to firms in the private market in
funding terms in view of the substantial unpaid work in progress
that may become tied up for years on end but without the prospect
of a costs award or success fee on conclusion of the case, meaning
that costs must normally be met from the claimant's award.
4.6. Debt matters where the client's house is
not at immediate risk:
For many years the policy of the LSC and the Ministry
of Justice has been to recognise the importance of early advice
and to place importance on early acts of advice. We refer to the
experience of others in this eg Citizens Advice.
4.7. Education:
(i) This is a small amount of the legal aid budget.
LAPG are very concerned that there is a proposal that education
should be removed from scope. The clients represented in this
area are often children with disabilities from deprived backgrounds
who are trying to access essential educational services.
(ii) According to the Legal Services Commission
Statistics, at least 92% of education cases are successful and
the majority of these cases are Special Educational Needs cases.
This represents extremely good value for money for the Government.
(iii) There are three main areas of work undertaken
by education lawyers and these are as follows:
— Admissions
— Exclusions
Special Educational Needs, including appeals to the
Special Educational.
Needs & Disability Tribunal and appeals from
the Special Educational Needs & Disability Tribunal to the
Upper Tribunal (the vast majority of cases fall into this area).
(iv) In addition, cases such as bullying, transport
for disabled children and disputes concerning higher education
are also dealt with by education lawyers. Although education negligence
is currently in scope, these cases are now very rare.
(v) Much of the work done by education lawyers
is completed under the legal help scheme, which provides advice
and assistance but which does not cover representation in court
proceedings and pays at the rate of just £53.60 per hour.
(The private rate for experienced education lawyers is often between
£200-300 per hour.)
(vi) The types of cases covered include e.g.
a disabled child unable to attend school but where no alternative
was considered. The child was out of school for three years. Following
legal advice an annual review was arranged (a statutory requirement
but it had not taken place for three years) and the child is now
in full-time specialist provision. We have many examples of local
authorities not complying with their statutory obligations and
disabled children being out of school but after legal intervention,
they did comply and the child is now receiving education.
4.8. Employment
At this stage we make no comment on employment.
4.9. Specified housing matters:
(i) While it is welcome that many housing cases
remain in scope, there seems to be an acceptance that the scheme
will now fund litigation in court rather than the early advice
currently funded.
(ii) It is unclear if the current proposals cover
the following.
Homelessness reviews which have to be very thorough
because if unsuccessful there are only grounds to appeal based
on what is included in the review. Some reviews can take experienced
practitioners ten hours to complete.
Gypsy and traveller advice on issues which if successful
may prevent eviction in future?
Cases where nuisance needs to be pleaded eg an infestation
or water penetration. It will be difficulty to run a case where
some causes of action are within scope and some are not.
Breach of the covenant of quiet enjoyment. Landlords
who harass tenants will be able to do so with very little chance
of redress particularly if local authority cuts mean that they
will not prosecute harassment and unlawful evictions.
4.10. Immigration where the litigant is not detained
The difficulty for the advisor is that a person can
receive advice for the detention aspect but not for the immigration
problem which has led to the detention. Who else will advise?
It is a criminal offence for a non OISC registered provider to
deliver advice. For desperate clients however the fear is that
unscrupulous providers will charge for this work. We refer to
ILPA for detailed consideration of this question.
4.11. Private law children and family cases (where
domestic violence is not present) other than international child
abduction cases, though mediation will remain in scope:
(i) An example of a case which is covered now
is Mrs B who allowed her estranged husband to have their two boys
every weekend. Mr B is Turkish but a British Citizen. Mr B threatened
to remove the children from the jurisdiction if Mrs B did not
terminate her new relationship. Mrs B wanted the children to see
their father. They also had a good relationship with her new partner.
With legal representation she sought a Prohibitive Steps Order
to prevent the children being removed from the jurisdiction. Without
access to that she might have resorted to not allowing contact.
(ii) Will parents in future only obtain representation
once their children have been abducted?
(iii) Access to private law children act proceedings
often saves the state money and concerned family members may take
proactive steps to look after children where their parents pose
a danger. Many then look after vulnerable children who would otherwise
be costly for the state to care for.
4.12. Welfare benefits. It is self-evident what these
cases are about and MPs will be aware from their surgeries of
the many welfare benefit problems people have to deal with. These
cases involve complex areas of law and the amounts involved can
make a profound difference to the people receiving them. Importantly
benefits problems addressed early can prevent many other problems
in future, most obviously homelessness.
We do not have space to cover the following.
4.13 Miscellaneous matters
4.14 Upper Tribunal appeals (from the General
Regulatory Chamber of the First-Tier Tribunal)
4.15 Public Interest cases
4.16 Tort and general claims
4.17 We would stress that the reference in the Green
Paper to the possibility of exceptional fees being funded must
not be taken out of context. Currently we understand that a few
hundred cases are dealt with every year. They take months to be
decided. That funding will not be able to cover the 550,000 cases
no longer being funded under the current proposals.
4.18 While Legal Action Group and Advice Services
Alliance have prepared excellent submissions on the advice sector
we would highlight the lack of provision that will be available
with the reduction of private practice in family matters. Here
is an illustration from a member:
"I want to stress generally that neither the
nfp sector nor any part of local authority-type organisations
will be there to pick up the shortfall, if legal aid isn't there.
For example, Domestic Violence: no solicitors to look at DV situations;
in Devon, the County Council are proposing completely to scrap
DV support services; 700 redundancies have been announced for
Devon and Cornwall police; and of course there are budget threats
to CAB, Shelter etc".
5. What action could the Government be taking
on legal aid that is not included in the proposals (for example,
on Very High Cost Cases)?
5.1. The Government is referred to the Law Society's
Access to Justice Review which is a thorough review of alternative
sources of income and positive suggestions to ensure the future
of a quality service for clients.
6. Do the proposals to implement the Jackson report
recommendations on civil court funding and costs adequately reflect
the contents of that report?
6.1. The Jackson Report stresses the importance of
the legal aid scheme in ensuring access to justice. We have insufficient
space to deal with this (very large) topic.
7. What are the implications of the Government's
proposals? The Committee now intends to extend this inquiry, and
will be taking oral evidence on it in February (witnesses to be
confirmed)
7.1. We refer to pages 9 and 10 of the Ministry of
Justice's Impact Assessment 28 which identifies that "A significant
reduction in fairness of dispute resolution may be associated
with wider social and economic costs such as:
Reduced social coherence.
Increased criminality.
Reduced business and economic efficiency.
Increased resource costs for other departments.
Increased transfer payments from other departments.
On page 10 there is a discussion that if people address
their disputes in different ways there may be implications for
the economic efficiency of dispute resolution.
7.2. Many vulnerable people will be left unable to
obtain advice, assistance and representation on complex areas
of law.
7.3. We would ask the Committee to use its knowledge
of the litigation process with its reliance on precedent and evidence
to scrutinise how realistic is it for people with mental health
issues, disabilities that make it harder to process paperwork,
where English is not a first language or where the person is not
literate to obtain a just resolution of their cases. The Green
Paper recognises the disadvantaged composition of the client base
for civil legal aid.
7.4. The telephone gateway proposals are brief but
potentially will transform the delivery of legal aid work. The
implications are that clients will no longer be able to obtain
the advice, assistance and representation they wish. If a telephone
gateway comes in which means that advice can only be accessed
through that service, this has grave implications for client choice.
A client could return to a firm or law centre he or she trusts.
They may have advised in the past or been recommended. Under the
proposals the client may have to ring the phone line and not be
allowed face to face advice at all. We urge the Committee to ask
that there be a further consultation on this.
January 2011
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