House of Commons - Justice Committee

Government's proposed reform of legal aid - Justice Committee Contents

Written evidence from the Advice Services Alliance (AJ 44)

1.1 The Advice Services Alliance (ASA) welcomes the Justice Committee's inquiry into Access to Justice. This submission aims to give the Committee an overview of the likely impact of the proposed changes on the advice sector as a whole.

1.2 We conclude that:

the impact of the proposed legal aid cuts are made starkly clear in the impact assessment. Legal aid funding to Not for Profit (NfP) agencies as a whole will be cut by 77%.[102] The average impact on individual NfP providers will be a 92% cut in income from legal aid;[103]

some agencies currently funded by legal aid will be forced to close as a result of these proposals and others will offer a much reduced service;

the loss of access to specialist expertise will result in a reduction in capacity in advice agencies not currently funded by legal aid;

for many people, there will be no realistic alternative sources of help;

as a result, a significant number of poor and disadvantaged people will be unable to resolve their problems;

in some areas of law, people will have to wait until their problems have become serious before they are able to get the help they need;

the cuts in legal aid will result in additional costs to other parts of the public sector, including to courts, tribunals, social services and the health service; and

telephone advice can not be a replacement for face to face advice.

2. About the Advice Services Alliance (ASA)

2.1 ASA is the umbrella body for independent advice networks in the UK. Full membership of ASA is open to national networks of independent advice services. A draft copy of this submission has been sent to our members for their comments. However, please note that this response does not necessarily represent any individual member's view.

2.2 Between them, our members represent 1,743 organisations which provide advice services in England and Wales. We estimate that our members provide support to over five million people every year. In addition, the advice sector provides some 20 million pieces of information annually to members of the public—via websites and through leaflets. These services are largely funded through public sector grants and contracts, and charitable fundraising.

2.3 The voluntary advice sector provides support to the poorest and most vulnerable people eg 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.

2.4 Prior to the most recent Legal Services Commission (LSC) tender, 377 voluntary advice organisations held contracts to deliver legal aid services. At the time of writing, the LSC have only recently published information about the outcome of the 2010 civil tender. We have not yet analysed this information and have therefore decided to use pre-tender figures in this submission. We do not anticipate that the current position is significantly different.

2.5 An outline of ASA's membership illustrates the diversity of the advice sector (the figures refer to England and Wales only):

AdviceUK

Represents 777 advice organisations, ranging from small community organisations to large, regional or national providers of legal advice. 61 AdviceUK members had a contract with the LSC.

Age UK

Formerly Age Concern and Help the Aged. About 180 of their 335 members in England provide advice to older people.

Citizens Advice

Has 394 members in England and Wales, of which just over half (216) had a contract with the LSC.

DIAL UK

Is a division of SCOPE and has 89 members providing advice to disabled people. Four of their members had a contract with the LSC.

Law Centres Federation

Represents 57 Law Centres in England and Wales, all of whom had contracts with the LSC.

Shelter

Provides advice and representation in housing and other areas of law through 40 services in England. Shelter has a contract with the LSC to deliver legal aid services.

Shelter Cymru

Provides advice and representation in housing and other areas of law throughout Wales. Shelter Cymru also has a contract with the LSC to deliver legal aid services.

Youth Access

Represents 244 organisations in England and Wales which provide advice and counselling to young people.

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?

Impact of legal aid changes

3.1 The impact of the proposed cuts to legal aid on the advice sector are made starkly clear in the impact assessments. Legal aid funding to NfP agencies will be cut by 77%.[104] The average impact on NfP providers will be a 92% cut[105] in income from legal aid.

3.2 The impact on the advice sector is severe because NfP agencies tend to specialise in those areas of social welfare law where the Government proposes to make the deepest cuts. In 2008-09, the NfP sector accounted for 46% of the spend on legal help in housing; 84% in debt; 76% in welfare benefits, and 60% in employment.

3.3 The extent of the impact will depend on how reliant agencies are on income from legal aid. Citizens Advice has published information[106] indicating that 15.1% of total bureau income in 2009-10 came from the LSC. Legal aid accounts for around 50% of Law Centres' income.[107]

3.4 The impact of the legal aid proposals will be felt at three points:

the proposed 10% reduction in all fees, expected to be introduced in October 2011, is likely to result in some insolvencies. Some organisations are already struggling with increasing costs whilst incomes have not increased with inflation;

the proposed changes in scope, apparently planned for October 2012 (before the end of the current LSC contract), will remove from scope welfare benefits, education, immigration, most of debt, and some housing work. This will mean that, for many NfP agencies, LSC contracts will cease to be viable at that point; and

the proposed transfer, probably in 2013-14, of a significant proportion of casework from face-to-face advice to the telephone service will, in our view, herald the end of face-to-face local provision of legal aid in social welfare law in many areas of England and Wales.

Impact of other public sector cuts on the advice sector

3.5 It is not realistic to consider the impact of the proposed legal aid changes in isolation from developments elsewhere in the sector.

3.6 Historically, the advice sector has been funded from a number of sources. We have regarded this as a strength—an indication that the work of the advice sector was valued across government and by many charitable institutions.

3.7 This diversity of funding has enabled the sector, and individual agencies within the sector, to offer integrated services to members of the public—from basic information and support provided by a volunteer to specialist legal advice and representation, where necessary.

3.8 This diverse funding base is now under threat.

3.9 Taken together, local authorities are the largest funder of advice services. As the Committee will be aware, local authorities have been reviewing their budgets in the light of the changing public spending environment. At the time of writing, only a few local authorities have made public statements about their spending intentions for 2011-12.

3.10 However, it is already becoming clear that a number of local authorities will be making significant cuts to their funding of advice agencies. In most cases, they are under no statutory duty to fund advice services.

3.11 It is important to emphasise that these cuts are not only affecting organisations, such as CABx and Law Centres, whose main focus is the provision of advice. The cuts are affecting organisations, such as community groups, Age Concerns, disabled people's groups and youth agencies, for whom advice provision is one part of their service. For example,

London Councils' funding of £684.000 p.a. to eighteen Black and Minority Ethnic organisations in the capital will end in June 2011, 18 months early;

Somerset County Council is planning a 75% cut to its youth services;

the Connexions services, an important source of information and support to young people, is currently being dismantled; and

an inner-city Age Concern has been informed that its grant will be cut by 50%.

These cuts will lead to increased demand on the mainstream advice sector.

3.12 There is uncertainty about other important funding streams. On 19 January 2011, the Financial Secretary to the Treasury announced in the House of Commons that the "Financial Inclusion Fund will close at the end of March this year". This funding supported the provision of debt advice to 77,000[108] people a year.

3.13 It seems clear that the advice sector is being disproportionately affected by the current financial situation. Unless action is taken, the advice sector will be significantly diminished in two to three years' time.

Quality

3.14 We fear that the changes, including the 10% cut in fees, will exert a downward pressure on quality, as more legal aid work is passed to the lowest paid members of staff who are unlikely to have the skills and knowledge to deal with more complex cases. It will also create a greater incentive to take on only straightforward cases and more capable clients.

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 We consider that the figure of 500,000 is an underestimate, as it fails to take into account the loss of telephone advice in areas of law that will be taken out of scope. In some areas of social welfare law, notably welfare benefits, education and employment, this has a significant impact on the overall picture.

4.2 Figures provided by the LSC[109] for the year 08/09 give the following figures for the main social welfare law areas of law:

welfare benefits	137,557 (of which 22,615 provided by phone)
debt	132,936 (of which 28,026 provided by phone)
housing	139,771 (of which 26,450 provided by phone)
employment	28,218 (of which 12,942 provided by phone)
education	7,102 (of which 4,947 provided by phone)

4.3 The consultation suggests that the cases removed from the scope of Legal Help can be resolved elsewhere. We suggest that this is very unlikely. Our response will focus on those areas of law where the proposed scope changes will have the greatest financial impact on the advice sector. However, we have similar concerns about other areas of law, including employment and education.

Welfare benefits

4.4 Based on the LSC figures above, we estimate that nearly 140,000 welfare benefit cases will be taken out of scope of legal aid. The most recent figures available to us suggest that about half of these cases will involve appeals or reviews.[110]

4.5 The Green Paper suggests that people should be able to seek advice from Job Centre Plus or the Benefits Enquiry Line - the organisations whose decisions they are challenging. The paper also suggests that other agencies will be available to provide advice, namely Age UK, CPAG, Disability Rights Alliance and Free Representation Unit.

4.6 The following quotations make it clear that this is not the case:

Our concern is that while it is true that both Age UK nationally and our partners in local Age UKs and Age Concerns do provide some help and advice with welfare benefits it is most often not at a level comparative to that provided through legal aid. Primarily local Age UK and Age Concern organisations offer welfare benefits advice limited to improving the take up of benefits amongst those of retirement age.[111]

Unfortunately we do not have the resources to provide direct advice to people who are claiming benefits.[112]

We are particularly concerned that Ministers are made immediately aware that potential changes to Legal Aid and reductions in support simply cannot be met by small charities like Disability Alliance.[113]

It [MoJ] wrongly uses the role of FRU to support one of its conclusions. It points out correctly that FRU represents clients in tribunals. . . . .[however] . . FRU does not provide initial advice to clients.[114]

4.7 The availability of Legal Help in welfare benefits cases is often important because it enables people without means to secure the medical and other expert evidence that they need in order to pursue their case. Voluntary advice agencies are extremely unlikely to be able to pay for such evidence from their own resources.

4.8 The lack of specialist advice in cases involving appeals and reviews is likely to have three main impacts:

people will pursue their appeals when they should have been advised that their case has no merit;

people whose case has merit will pursue their case but, without advice, will not present it effectively or will be unable to provide the evidence needed; and

people who should be appealing and whose entitlements have been denied will not do so.

4.9 The first two impacts are likely to increase the Tribunal Service's workload. However, the Green Paper suggests that there will be no cost implications on the Tribunal service.[115]

4.10 Finally, whilst we welcome the proposal to retain in scope debt and housing work that is aimed at preventing homelessness, it is difficult to see how this can be effective without welfare benefit expertise. Welfare benefit problems, particularly with housing benefits, are often the root cause of potential homelessness.

Debt

4.11 The removal of most debt problems from the scope of legal aid and the end of the Financial Inclusion Fund means the loss of capacity to provide specialist debt advice to over 150,000 people every year. This is at a time when there is evidence that unemployment is increasing and the demand for debt advice will increase.

4.12 The Green Paper suggests that National Debtline and Money Advice Trust (MAT) will provide an alternative source of help. National Debtline is part of MAT and we understand that MAT are making their own submission to the Committee indicating that they would not have the capacity to meet this additional demand.

4.13 There is a risk that removing non-homelessness debt cases from the scope of legal aid will force people to wait until they are facing homelessness before getting the advice they need. Leaving problems until the last minute can make them very difficult, and therefore more expensive, to resolve.

Housing

4.14 In relation to housing, the Green Paper suggests that Shelter would provide alternative routes to resolution.

4.15 We are aware that our member, Shelter, is submitting evidence to the Committee which will deal with this assertion.

4.16 We do not intend to repeat the expert evidence that Shelter will be providing in relation to housing law other than to emphasise again that the proposals will make it more difficult for people to obtain early advice.

Immigration

4.17 According to the impact assessment, 43,700 immigration cases will be removed from scope. The Green Paper suggests that following this, people will either be able to get help from other sources or will be able to represent themselves.

4.18 We have already set out our fears about the vulnerability of the voluntary sector to other funding cuts. This will severely restrict agencies' ability to continue to deliver existing services, let alone take on high volumes of new clients. Moreover, it is a criminal offence for an organisation to give advice on immigration matters unless it is regulated by the Office of the Immigration Services Commissioner (OISC). Becoming regulated is a time-consuming process that would require the development of expertise or recruitment of new staff. This will be far beyond the reach of most voluntary sector organisations.

4.19 We do not agree that people will be able to represent themselves effectively. Immigration cases are frequently legally complex and involve in-depth factual investigation and collection of evidence such as witness statements and medical reports. They may involve issues of crucial importance to those involved such as the separation of children from their parents. Those involved are unlikely to speak good English and they may have suffered trauma. It is neither reasonable nor in the interests of justice to expect such individuals to navigate their way through complex UKBA and Tribunal procedures and get to grips with the complicated immigration and human rights law involved.

4.20 Furthermore, given the gravity of the issues at stake in immigration cases people are likely to try to represent themselves. This will mean that tribunal judges will find themselves having to deal with more unrepresented appellants. We anticipate that this will have the unwanted and costly effects of taking up more tribunal time and generating more appeals and applications to the High Court.

4.21 We are aware that Immigration Law Practitioners' Association (ILPA) has set out these issues in considerable detail and with illustrative case studies in its interim response to the Green Paper and its submission to this Committee. We urge the Committee to pay close attention to ILPA's comments.

SUMMARY

4.22 We conclude that, for many people, there will be no realistic alternative sources of legal advice. Research[116] published in 2006 found that adverse physical and mental health consequences follow 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 9 visits each to a general practitioner.

4.23 There is therefore a risk that more people with unresolved problems will suffer from stress and other ill health and will seek help from their General Practitioner and other health professionals.

5. What action could the Government be taking on legal aid that is not included in the proposals?

5.1 We do not intend to answer this question.

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 We do not intend to answer this question.

7. What are the implications of the Government's proposals?

7.1 The focus of the Green Paper is on what the Government wants to take away. There is very little clarity about what the Government actually wants to have in place, and how the Government will secure the desired outcome.

Will there be a viable face-to-face service?

7.2 There is serious doubt about whether there will be sufficient viable providers left to provide the face-to-face advice that the government appears to want for emergencies and for those who need face-to-face advice. Further, it is unclear which organisations with sufficient expertise will be left to deliver advice at county court housing duty schemes.

7.3 In order to illustrate this point, we have looked at the potential impact of the proposed reforms on one procurement area: Northumberland.

7.4 In 2010, the LSC sought to procure the following face-to-face cases in Northumberland: 980 debt, 570 housing and 680 welfare benefits. After the scope changes (based on the MoJ impact assessment), this would leave approximately 245 debt and 364 housing cases.

7.5 However, the impact assessments suggests that face-to-face providers will see an overall reduction of 76% in their legal help income as a result of the shift to telephone advice.[117] We estimate that would leave 61 debt and 91 housing face-to-face cases in Northumberland—a contract with an approximate total value of £27,000.

7.6 It is very unlikely that such a small contract for face-to-face advice in two areas of law would be financially viable.

Telephone advice

7.7 Finally, we would briefly highlight our concern about the proposal that, in future, the "vast majority" of clients will receive telephone advice rather than face-to-face advice.

7.8 We will be responding in detail to the Ministry of Justice on this proposal. However, the impact assessment itself outlines many of our concerns: "Delivering a greater proportion of advice by telephone may cause access problems for some clients, for example due to literacy issues, language barriers, problems acting on advice given, or an inability to pick up on non-verbal clues. In addition, telephone providers are likely to have diminished local knowledge. The requirement to access services through the CLS Operator Service also adds an additional layer of complexity for the client in cases where face-to-face help is ultimately required or in an emergency situation, and also represents a reduction in client choice."[118]

7.9 In our view, this proposal itself requires serious investigation.

January 2011

102 p31 Legal Aid Reform: Cumulative Impact, Equalities Impact Assessment
http://www.justice.gov.uk/consultations/docs/eia-cumulative.pdf Back

103 p27, see above note 1 Back

104 see above note 1 Back

105 see above note 2 Back

106 see Introduction to the service 2010:
http://www.citizensadvice.org.uk/index/aboutus/publications/introduction_citizens_advice.htm Back

107 Information given to us by the Law Centres Federation. Back

108 This figure is based on information provided in National Audit Office report Helping over-indebted customers. Page 5 of the report states that 270,000 people were helped in the three and a half years until September 2009. See: http://www.nao.org.uk/publications/0910/over-indebtedness_report.aspx Back

109 http://www.legalservices.gov.uk/docs/archive/StatsPa2008-09.pdf Back

110 Case lengths, case costs and fixed fees, ASA, 2007
http://www.asauk.org.uk/fileLibrary/pdf/CaseLCFF.pdf Back

111 Extract from e-mail from Age UK to the Ministry of Justice, dated 29th November 2010 Back