Friday, 30 May 2008

In a fix

Jon Robins, LAG’s director of campaigns, on the impact of fixed fees on mental health work. The cracks are already beginning to show...

Is publicly-funded mental health law heading for a collective breakdown? This is an issue we look at in the forthcoming June issue of Legal Action. That seems to be the view of leading practitioners convinced that, ironically, it is in the area of legal representation for the most vulnerable that Lord Carter’s radical reforms are going to have the most catastrophic impact.

The cracks apparently are already beginning to show. Last month, 11 solicitors’ firms around Bristol wrote to the Legal Services Commission anticipating an ‘impending crisis’ as a direct result of the introduction of fixed fees in January. Disturbingly, the firms reported the ‘first signs of patients being left unrepresented’ as remaining firms were ‘heavily overloaded’. A patient detained under the Mental Health Act, Section 2, was not able to find a lawyer despite 15 telephone calls being made and the hearing had to be delayed to find a lawyer. A tribunal for a patient detained in a regional secure unit was adjourned, again, because there were no lawyers. ‘We would be the first to grieve over the necessity of turning away needy and vulnerable clients,’ they said. ‘This will become the routine unless drastic action is taken to stem the tide of those leaving the work and fund it in such a way that firms are able to recruit replacements.’

Richard Charlton, of the Mental Health Lawyers Association, has predicted that the new regime will ‘rapidly accelerate the departure of experienced practitioners from the field to the point where there will be a complete collapse of representation in some, if not large, parts of the country’. The Legal Services Commission (LSC) dismisses such views predicting, instead, that three-quarters of the 300-odd firms left doing mental health work will be better off. It also dismisses fears of a legal aid ‘exodus’ pointing to a massively oversubscribed bid round that the LSC ran at the end of last year.

But it’s a big risk on the part of Government. Once specialist firms and acknowledged experts leave the field, it's difficult (if not impossible) to replace them. As part of the Law Society deal, the newly formed Civil Consultative Group will review the provision of mental health advice. ‘We are talking about people’s liberty,’ Patrick Reeve, head of civil strategy at the LSC, told LAG. ‘In other areas of work like debt or welfare benefits where we have a fixed budget, it is a question of how we split that budget. In mental health it’s about making sure that everybody that needs access to justice has access.’ Reeve also said that if any changes are to be made they would be made under the new contract in 2010. ‘We have no intention of brushing it under the carpet,’ he adds. Let’s hope not.

Tuesday, 20 May 2008

Watch out for footloose predators

David Harker, chief executive of Citizens Advice, responds to last week’s posting by Crispin Passmore, director of the Community Legal Service

Whilst I admire the passion with which Crispin pursues a strategy of improving access to advice by means of a winner takes all bidding exercise, I think it’s misconceived and, combined with the impact of the new LSC contract, may wreak havoc across the advice sector in England and Wales. The possible closure of Hull CAB, with its 70-year history of serving its community, and the financial instability of some law centres following the introduction of the fixed fee regime, may be the start of the destruction of much valuable social infrastructure.

Frustration with the failures of Community Legal Service Partnerships, combined with an unquestioning belief in the power of contestable markets, has led to an error of judgement. Wishing to see ‘three, four five or more top quality bids’ in each area, favours footloose predators with the resources to bid and to take the occasional loss without damage not evolving cash strapped community agencies for whom failure may spell disaster.

The solutions which Crispin and the LSC have adopted may be wrong but the underlying analysis is correct. What he describes as ‘fragmented services presenting an un-navigable advice maze to clients faced with domestic violence, illegal eviction and poverty’ does need to change. That’s recognised by Citizens Advice and our bureaux across the country. To make his point, he exaggerates the degree of fragmentation in Hull, where the CAB had developed new specialist quality marked services in employment and immigration, to fill the gap left by the withdrawal of solicitors from LSC contracts.

Across the country here is an immense amount of fantastic work being done by some amazingly committed and dedicated people, many of them volunteers. The question is how to build on that to achieve improved access for more people. The answer is not to do what may well happen in Hull and to destroy existing institutions in pursuit of an unproven contention that new providers to the area can do it better.

That’s why there’s been such a fierce reaction by local people, community leaders and the media to the announcement that the partnership between a private sector company, A4E, and a regional firm of solicitors Howells is the preferred bidder. It’s not that the CAB is a bad loser but it’s the genuine reaction of a community that fears it might lose a valued and trusted service.

The two principle funders of local Citizens Advice Bureaux in England and Wales are local authorities, which last year provided £66 million (46%), and the Legal Services Commission which provided £30 million (20%). These are very different institutions with differing objectives. The LSC’s objectives are narrow, whilst those of local authorities are wider and embrace the concept of community well being. Pooling these two sources of funding and devising a tender specification which adequately captured both sets of objectives is a major challenge which hasn’t been done successfully. The result is that insufficient value is placed on the role of CAB and others in creating viable and cohesive communities, using volunteers (some of whom may have previously been clients) acting as a centre for the development of new national and local initiatives like financial education, credit unions, and using client evidence locally, regionally and nationally to change policies. Destroying these institutions impoverishes the lives of the communities they serve. I suspect that this dawning realisation is leading councillors in Hull to think again and causing many local authorities to think long and hard before joining the world of CLACs and CLANs. Perhaps it will also lead national government to reflect upon the contradiction between its policies for strengthening communities and the marketisation of legal aid.

Thursday, 8 May 2008

No apologies

Crispin Passmore head of the Community Legal Service at the LSC argues that joint tenders with local authorities are the future for social welfare law services.

In the last month new Community Legal Advice services [the new name for Community Legal Advice Centres or CLACs] opened in Leicester, Derby and Portsmouth. In each of these we have jointly commissioned with the local authority a comprehensive legal and advice service covering general help and advice, specialist advice and legal representation across five social welfare law categories and family. In each of them the local community will get more help and more joined up help. They will better focus services on local priorities and reach out to people who do not access the advice they should.

There is no doubt that this is a period of significant change for providers involved in delivering general advice and legal aid for social welfare law. Having delivered the best service they can for many years, their funders are now saying that they want a different service. I do not apologise for that. In recent years we have learnt more about how current legal and advice services too often fail to meet the needs of the communities that need them – fragmented services presenting an un-navigable advice maze to clients faced with domestic violence, illegal eviction and poverty. It would be a failure of public service delivery to not respond to those criticisms.

If we track back to 2004 the LSC was criticised for poor leadership to the Community Legal Service, for falling numbers of people being helped and for gaps in services – so called ‘advice deserts’. A clear direction has been identified after careful consideration of internationally renowned academic research. It was consulted upon in 2005 and has been reconsidered by Lord Carter. Our focus now needs to be on making change happen. We are beginning to see real evidence of positive change in terms of more people helped, better access and joined up services.

Yet, understandably, there is real discomfort that a CAB faces the loss of its contract to deliver debt and benefits advice in Hull as they have not been successful in the tender for a new Community Legal Advice service to open there. However, under previous arrangements clients needing representation under a legal aid certificate had to be referred elsewhere, as did those whose debt and benefits problems were combined with relationship breakdown, homelessness or discrimination at work.

It is disappointing that so many commentators wish to defend services that clients cannot access or that cannot provide the joined up service that clients need. Across Hull four firms or agencies have been delivering social welfare law advice. None have community care contracts, one does only housing and one does only employment. The people of Hull will now get a much improved service.

So what about the future? I do not want the tender process for future Community Legal Advice services to be about finding the one good provider – it is not about weeding out poor quality. I want three, four, five or more top quality bids for each Community Legal Advice service. I doubt they will ever be just each of the current local providers looking to expand to cover the full range of services. More likely is that bids will come from mergers or partnerships of local agencies, regional suppliers such as A4E/Howells, national providers such as Shelter or Citizens Advice and other local providers interested in providing social welfare law services only if they are on an economically viable scale. We are already seeing this pattern emerge with better and better bids in each tender exercise and interesting new relationships forming amongst providers. Good bids will inevitably not succeed where competition is strong – I hope that providers continue to respond to not winning one tender by innovating to deliver better services in their next bid. We know that recent bidders have already been doing this and those that resist change risk being left behind.

In the future competition will come from these regional and national and nearby local providers – all having expertise in delivering joined up services, understanding local needs and, importantly, all committed to delivering the services that Government and Local Government want to procure for their citizens.

Crispin Passmore, Community Legal Service