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


Written evidence from Citizens Advice (AJ 18)

INTRODUCTION

1.  Citizens Advice is the national body for Citizens Advice Bureaux in England, Wales and Northern Ireland. The CAB service is the largest independent network of free advice centres in Europe, with 430 main bureaux in England, Wales and Northern Ireland. Bureaux provide advice from over 3,300 outlets, including bureaux in the high street, community centres, health settings, courts and prisons.

2.  The Citizens Advice service provides free, independent, confidential and impartial advice to everyone on their rights and responsibilities. It values diversity, promotes equality and challenges discrimination. The service aims:

  • To provide the advice people need for the problems they face; and
  • To improve the policies and practices that affect people's lives.

3.  In 2009-10 Citizens Advice Bureaux in England and Wales advised 2.1 million people with seven million problems in total.

4.  We welcome the opportunity to inform this session with the Lord Chancellor, against a backdrop of proposed major reforms to the justice system and changes to the scope of legal aid funding. The Ministry of Justice, through the Legal Services Commission (LSC), is the most significant funder of Citizens Advice specialist services from its civil legal aid budget. In 2009-10, it provided £27 million for specialist advice delivered by the Citizens Advice service. This has enabled over 300 CAB specialist advisers to deal with 43,234 welfare benefit problems, 56,990 debt problems, 9,129 housing and 2,954 employment problems under contracts with the LSC. It accounts for over 20% of all publicly funded cases in these topic areas. Around 80% of social welfare legal aid cases record positive outcomes for clients, with additional savings for other public services.

5.  Citizens Advice Bureaux also work across different settings in the justice system in providing information, advice and advocacy. Approximately 90 % of bureaux are involved in providing advice and representation for tribunal hearings for up to 150,000 clients per year in the tribunal system. Fifty-six bureaux provide advice/duty desks in county courts. Bureaux provide services in 57 prisons, equating to 40% of all prisons. In addition the Royal Courts of Justice CAB has supported clients in 70 different prisons through its work to support victims of miscarriages of justice. Fourteen bureaux operate in 20 regular and 14 irregular probation offices. The CAB service therefore has a significant footprint in the justice system, and is well placed to comment on the Ministry of Justice's business and structural reform plans.

6.  In this submission, we cover our views on the following issues:

  • The Government's proposals for reforming legal aid, following the recent Green Paper;
  • Other reforms to the civil justice system, including the proposed merger between HMCS and the Tribunals Service, and Lord Justice Jackson's recommendation on civil costs; and
  • The Government's proposals for criminal justice including the "rehabilitation revolution" and sentencing review as outlined in this week's Green Paper.

Overview and General comment on justice reform

7.  The context for this session is the Government's proposals to reform the justice system as set out in the Ministry of Justice's business plan and to reduce the Ministry's budget by £2 billion over the next four years, including a reduction in legal aid expenditure by £350 million per year, and transferring the LSC's statutory responsibilities to the Lord Chancellor as proposed in the recent Green Paper on legal aid. Citizens Advice acknowledges the need to make significant savings in the justice system, however, as the Justice Select Committee's previous report shows, the route to achieving savings is to reduce demand for using the justice system i.e. courts and prisons.[2] Our evidence suggests that the surest way of achieving these outcomes is early intervention and advice in dealing with people problems.

8.  We are therefore disappointed in the proposals contained in the Green Paper on legal aid reform which seeks to remove legal aid funding for advice on "social welfare law" matters, as in our experience, these services are vitally important in order to stop peoples' legal problems spiralling out of control. As evidenced by LSRC's civil justice surveys, those seeking legal aid tend to have multiple social welfare and legal problems.[3] Timely intervention by debt and welfare benefit advisers - currently funded through the legal aid system - can help prevent the consequences of vulnerability family breakdown and homelessness, or even avoid consequences in the criminal justice system. For example:

Mr M is 80 years of age and has dementia and heart problems. He lives in a probation hostel. His probation officer asked a Staffordshire CAB to advise on his benefit entitlements prior to him moving to a supported living unit. The bureau helped Mr M apply for attendance allowance, and contacted the Pension Service with evidence of his release to reinstate his state pension. They also helped him apply for housing and council tax benefits, so that he could pay his rent and council tax at his new home. The bureau also found that he was entitled to an occupational pension with the local authority,. Later Mr M's probation officer told the bureau that he had moved into supported housing, a positive transition to living back in the community, was awarded attendance allowance, and has a support worker, to assist him with any further help he may need.

9.  We welcome that the Government is now addressing the cost drivers, such as re-offending rates, within the criminal justice system, through the sentencing review and other reforms. They should take the same approach towards people facing injustice in social welfare and family matters. Instead of simply limiting the amount of help available, the Government should work across all departments to decrease the need for civil legal aid by:

  • addressing poor decision making by public bodies - to avoid the need for lengthy and costly appeals, for example, in the welfare benefit system.
  • taking lawyers out of tribunals - to allow the withdrawal of legal aid for representation without putting the poorest at an unfair disadvantage
  • making legal processes simpler - to empower people to resolve more of their legal problems themselves, eg: a simple procedure for uncontested divorces
  • Tackling rogue traders, including fee-charging debt management and claims management companies who make people's debt problems worse rather than better;
  • improving public legal education - so people know their rights and responsibilities and how to avoid problems, or quickly resolve them.

10.  However, there will still need to be good information and face to face early advice to ensure that issues can be resolved out of court - whether or not these services are funded from the legal aid budget. This provision needs to be organised around the real needs of clients rather than administratively convenient categories of scope. So whilst reform is necessary, the test of success is whether the Government's proposals can introduce new ways to deliver more for less. If the proposals simply reduce the number of people being helped, then reform will have failed. Limiting the scope of issues which legal aid funded advisers can help with means they will not be able to solve people's problems fully. For example, legal aid may help prevent a client losing their home because of debt, but not address the causes of housing debt such as unfair dismissal or refusal of sickness benefits.

11.  Instead of looking to the frontline for savings, the Government should look to reduce spending on wasteful systems and bureaucracies in the justice sector. For example, overall administrative and procurement costs of the legal aid system have continued to rise disproportionately in recent years to the amount of funding available for delivering frontline legal advice and representation services. In 2008-09 the figure for the LSC's administrative costs was £124.4 million.

12.  There is also a significant role for the voluntary sector in delivering "added value" and complementary services. Indeed the 1995 Green Paper which first recommended that not-for-profit agencies be "franchised" to provide legal aid, explicitly recognised that the Citizens Advice service's less legalistic approach to advice provision on civil matters would help deal with clients problems in the round and reduce costs. Subsequently the Citizens Advice service has become integral to the civil system, and we are disappointed that, under proposed arrangements, funding for the specialist work of advice agencies will largely be withdrawn.

THE GOVERNMENT'S PROPOSALS ON LEGAL AID

13.  The Government's approach to reforms is based on prioritising legal aid funds to "the most serious cases" and "those most in need", whilst at the same time moving towards a simpler justice system to encourage people to resolve their issues out of court without recourse to public funds.. Based on current case volumes, proposals to exclude most social welfare law issues from scope will mean over half a million fewer people getting help every year from the legal aid system according the Ministry of Justice's own impact assessment.

14.  The Green Paper suggests that other forms of legal advice and redress might exist, for example support from trade unions, legal expenses insurance, self-representation before tribunals, and self-navigation of complex complaints and review mechanisms. However our client group overwhelmingly have no such options, and therefore the reality is that withdrawal of legal aid will simply mean no service and no advice. Citizens Advice would willingly engage in discussions about alternative systems - for example, a levy on the finance industry to fund debt advice. We would also welcome discussions with the LSC on strengthening triage arrangements as recommended in the Green Paper (paragraph 4.270). However, if the Green Paper's proposals on scope are implemented without amendment then all clients with benefits, employment, and housing or debt cases short of homelessness could only be directed to navigate the system themselves and argue their own case (as "unassisted claimants").

15.  There is a significant risk that restricting legal aid for social welfare matters could fill the court and tribunal system with unprepared cases, adding public cost, delay and difficulty in decision making. Many clients will be completely unable to pursue their case and will have no access to justice. Some may revert to other public services, such as health or adult services, or arrive at the surgeries of local politicians. Indeed there is a significant body of evidence on the types of problems which the Government intends to take out of scope, demonstrating that early intervention by effective legal help, can save public services money. A recent research paper by Citizens Advice analysing the LSC's survey, costs and outcomes data has found that for key categories of social welfare law, the state saves between £2 and £8 for every pound invested, owing to the avoidance of adverse consequences which engage other public services.[4]

16.  Consequently we consider that there is a very poor business case for pursuing the proposals to take social welfare law out of scope. Using data from the Civil and Social Justice Survey on the adverse consequence costs of legal problems, and the Legal Services Commission's outcomes data from legal aid work, Citizens Advice have developed a cost benefit analysis which sets off legal aid expenditure against the savings from early advice (Legal Help) interventions. This estimates that[5]:

  • For every £1 of legal aid expenditure on housing advice, the state potentially saves £2.34.
  • For every £1 of legal aid expenditure on debt advice, the state potentially saves £2.98.
  • For every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80.
  • For every £1 of legal aid expenditure on employment advice, the state potentially saves £7.13.

17.  In light of the proposals to reform the Legal Services Commission, we also hope that Ministers will look at different and preventative approaches to commissioning services, "working alongside other justice agencies to improve access and to allow a more holistic approach." (Green Paper para 10.2). We welcome the Green Paper's recognition that there is a need to "improve efficiency and reduce bureaucracy in the administration of legal aid." (paragraph 10.5). The proposals to establish a "leaner" agency with lower head count and administrative overheads is an opportunity to pursue lighter touch procurement and auditing methods, as well as application processes, and payment mechanisms. Better solutions could be found using online portals which integrate with providers' case management software and devolve more responsibility for case decisions on merits, means and progression of cases to providers. In undertaking major organisational change, it will also be important that good relationship management with providers is maintained at local level. The trend in recent years for operational decisions to be centralised in London, has caused significant delays to getting services to those who need them the most.

PROPOSALS ON COURTS, TRIBUNALS AND COSTS

18.  We welcome the Government's proposals that greater use should be made of shared services and that management efficiencies might be achieved through a single Courts and Tribunals service. However, we note that this merger between HMCS and the Tribunal Service is taking place within the context of a programme to significantly reduce the number of available court and tribunal venues - including the closure of 54 county courts and 107 magistrates courts. For court users in some areas this will mean significantly longer journeys, and in some areas it will be pretty much impossible to get to a court by public transport for a 9.00 or 10.00 am hearing. Whilst there is a clear business case for closing court houses that are under-utilised, poorly designed or inaccessible, many courts have been earmarked for closure which are currently operating at full capacity, serving their communities well and joining up with other local services. Closing these courts and moving cases elsewhere could be hugely disruptive and costly, at the expense of local peoples' access to justice. Although these proposals have been subject to consultation, we are concerned at the number inaccuracies in the data used. For example, Abergavenny and Llangefni County Courts are still fully utilised although the consultation papers claimed they are not. Another example is the absence of consideration of alternative co-location options. Barnsley's local authority and justice community proposed that the county court could be co-located with the magistrates court rather than seeing all civil cases moved to Sheffield, as was proposed in the consultation on the closure of county courts in Yorkshire.

19.   There is also a risk in the Courts and Tribunals service merger that Tribunals will lose their distinctive character, as the Government seeks to merge judicial functions and tribunal hearings are increasingly taking place in court buildings which can be inappropriate for some types of cases. For example:-

A CAB in Wales reported two cases where clients had to have their appeals about refusal of employment and support allowance in the local magistrates court with the chair sitting where the judge usually dof. One client found it was very intimidating for someone already suffering anxiety and stress through mental health illness. For example, they had to go through the security checks, have their pockets emptied and bags searched. The other client was vulnerable, having Asperger's Syndrome, was very concerned and intimidated by the venue.

20.  In particular we are concerned that the adoption of HMCS's full costs recovery model in Tribunals could see the adoption of fee regimes, would significantly restrict access to redress for people with limited means. The increasing "legalisation" of tribunal jurisdictions appears to run counter to the Government's intention in the Legal Aid Green Paper that tribunals should be informal and accessible for non legally aided and unrepresented claimants.

21.  We welcome that the Government is looking to address the problem of high and disproportionate costs in the civil courts, taking the recommendations of Lord Justice Jackson as a starting point. To the extent that these proposals, including a ten per cent uplift in general damages, might reduce the costs of after the event insurance and lawyers success fees (CFAs), they are welcome, although the proposals also mean claimants accepting more risk of unrecoverable costs. However the Government needs to consider the many low value claims that never get to court, and will continue to incur disproportionate costs. Indeed as Lord Jackson's report notes, costs are increasingly "frontloaded" at this stage, and pre-action protocols are frequently ignored leading to unnecessary litigation. Bureaux often see evidence of this, especially in housing possession claims. For example:

A West Midland CAB's client reported his social landlord had issued pocession proceedings even when he had an agreement to pay £26 per week towards the rent and the arrears. He was liable to pay court fees of £100 for these proceedings, and was concerned that additional legal costs would be added to his rent account even though it was clearly the landlords who were in breach of the preaction protocol as they entered in a payment plan with the client and the client kept to the payment arrangement.

22.  Lord Jackson's report specifically recommended that there needs to a new pre-action costs regime including sanctions and enforcement for the protocols, and he also recommended that legal aid should be retained at current levels, and that court fees should be pushed up. We would urge that the Governments should study these aspects of the Jackson report more closely.

PROPOSALS ON CRIMINAL JUSTICE POLICY

23.  We welcome the recent Green Paper, Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders, and the renewed urgency that it places on tackling re-offending behaviour and rehabilitating offenders within the community. The social and economic costs of reoffending by those released from short sentences alone are between £7-10 billion a year according to NAO figures. In our 2007 report, Locked Out: CAB evidence on prisoners and ex-offenders, we noted that prisoners and ex-offenders often have complex needs and may struggle to avoid re-offending without appropriate advice and support to deal with their problems.

24.  In tacking re-offending it is important to recognise the issues that offenders face on release from custody, so that offender support services can be designed according to their needs. The Green Paper notes, for example, that 37 per cent of prisoners need help finding a place to live when they are released from prison. However there are other factors also that the Green Paper does not highlight; one pressing issue is that many offenders have only their discharge grants to live on until income can be secured from benefits or employment, and there is a significant issue around ex-offenders' financial capability in accessing even basic services such as insurance, bank accounts and dealing with debts that may have accrued whilst imprisoned. For example

A CAB in Somerset reported that a 48 year old man had come out of prison in mid June 2010 after a three year sentence was commuted to 13 months. He was now living with his partner and their three year old child and claiming jobseekers allowance and tax credits. While he was in prison, the local authority wrote to him at the home he had lived in before his arrest, despite being aware he was in prison. Housing benefit had been overpaid to his landlord until a week after his conviction. The landlord, a housing association, continued to charge full rent until the end of 2009 when the tenancy was formally ended. A debt of over £800 unpaid rent had been passed to a debt collector and as soon as the client had left prison, the debt collectors wrote to the client at his new address to ask for payment. In the meantime the local authority were threatening court action to recover overpaid housing benefit. Whilst in prison he was not made aware of the relevant prison service forms to inform benefits offices and social landlords of his sentence and circumstances, and despite being tagged he had no support from a probation officer on release.

25.  Offenders therefore need a whole package of holistic services both pre and post release in order to deal with multiple problems; for example help with opening a bank account and claiming benefits as well as finding sustainable accommodation prior to release. We welcome the Green Paper's emphasis on innovation in the ways in which the voluntary and community sectors can provide offender support services, but it is not at all clear how payment by results and the integrated offender management model proposed will help deliver the interventions most relevant to ex-offenders needs. And whilst the suggested approach for local planning of services could support innovation, it is also important for there to be strategic oversight of what services are being provided, so for example that all prisons have the same basic level of re-release advice services. It should also be noted that many prison based advice services are currently funded through the Financial Inclusion Fund and the Legal Services Commission, and these valuable services may not be able to continue under Government proposals.

26.  Finally, we welcome the proposed reforms to the sentencing framework, such increasing the use of out of court disposals and diversion schemes, decreasing the use of remand, and using community penalties as alternative to short sentences. In our experience of working with clients with multiple needs and chaotic lifestyles, short sentences can be extremely disruptive to any stability such as work, settled accommodation and family relationships. For example:

A Hampshire CAB reported that a 39 year old man was released from a two month prison sentence in September with very little support. He had debts amounting to £4,500, and had lost his job and separated from his partner following the sentence. This resulted in loss of income, and in loss of his home which belonged to his partner. On release he received a travel warrant but no further help. The client tried to register as homeless with the local authority, but was told that he would not be offered anything but a night shelter out of his home area. He also had no source of income as his claim for jobseekers allowance was taking over six weeks to process. When he came to the bureau, he was staying in an overcrowded situation at his brother's home, and was seeking help for further training in the use of building site machinery to help him get back to work.

December 2010


2   Justice Re-investment: Justice Select Committee Report 2009 Back

3   Causes of Action: Civil Law and Social Exclusion, LSRC, 2008 Back

4   Towards a Business Case for Legal Aid, Citizens Advice 2010  Back

5   ibid Back


 
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