Advice fund opens today

The Cabinet Office has advised LAG that the advice fund will be open for applications from 12 noon today. Applications can be made on the Big Lottery Fund website at: http://www.biglotteryfund.org.uk/prog_advice_services_fund

LAG understands that the application process should take no longer than one hour to complete. Detailed notes on how to apply and the eligibility criteria will be available on the website later today. Grants of between £40,000-70,000 will be made to frontline advice providers in England.

The previously announced criteria for the fund are that those applying:

• are from the not-for-profit sector;
• provide advice in at least one of the following areas: debt, welfare benefits, housing and employment;
• are able to evidence funding cuts of at least ten per cent for the eligible advice service areas from central and local government sources in 2011/12.

And that:

• priority will be given to organisations with high levels of cuts and those that have not received grants from the Transition Fund;
• account will also be taken of how applicants plan to use their grants, their plans for the future (including ways to improve efficiency) and how the quality of their advice services help meet local needs.

Legal Aid Bill concession?

The Daily Mirror ran a story yesterday (24 November) saying that Secretary of State for Justice Kenneth Clarke had decided to allow legal aid in clinical negligence cases. LAG checked with the Ministry of Justice (MoJ) and it confirmed that no statement on this has been made by the department and that the 'measures in the bill still stand'. LAG understands that the Mirror story is based on a source at the MoJ. Maybe a minister or an official has spoken out of turn?

It does seem likely to LAG that a concession on clinical negligence and legal aid will be made at some point. Even before the bill was finalised there had been talk of an exception being made for clinical negligence cases. When Labour introduced the Access to Justice Act (AJA) 1999, the then Lord Chancellor, Derry Irvine, looked at doing away with legal aid for clinical negligence cases, but decided that this would lead to the more difficult cases not being pursued, as lawyers would not want to act for claimants in such cases on conditional fee agreements. LAG believes that Derry Irvine was right.

Since the AJA came into force over ten years ago, it has been the more difficult cases that have stayed in the legal aid scheme. This has worked in the interests of justice and the public. Legal aid funding is the only way in which many victims of medical accidents or negligence can obtain justice. At the very least the government ought to look at legal aid funding for investigation and gathering of medical evidence in clinical negligence cases. Much of the cost of such work could be recouped by the legal aid fund in successful cases. It would also ensure that large drug corporations and medical professionals who have been negligent are held to account. It is in the public interest that this happens, so mistakes are not repeated.

It is in no doubt that the government took a pasting in the House of Lords' debate on Monday this week. Lord McNally, the MoJ minister, looked rather hapless as he took a barrage of criticism from all sides over the government’s legal aid proposals. To get the Legal Aid Bill through, the government is up against a tight deadline. The parliamentary session ends in April 2012 so the House of Lords does have the option of trying to talk the bill out if it wishes to. This makes it more likely that concessions will be made in the committee stage in the House of Lords which is due to start sometime next month.

The government will not be pleased that news of the concession on clinical negligence has leaked out. LAG suspects that it would have wanted to time the announcement for later in the process, in order to maximise its impact to shore up support for the rest of the bill among its own backbenchers. It is now stuck with a difficult dilemma - of either sticking to the line that the bill is not going to be changed, and looking foolish when it does so, or admitting there was a leak and announcing the concession. The problem then is that attention shifts to who leaked the information?

Image: LAG

Details of advice fund announced

LAG has been advised by the Cabinet Office that the £20m fund to assist not for profit (NFP) agencies hit by spending cuts will be officially launched today (Monday 21 November).

The fund will be aimed at frontline NFP advice providers in England, which give advice on one or more of the following areas of law - debt, welfare benefits, housing and employment. To qualify for a grant of between £40,000-70,000, organisations must have suffered a ten per cent cut in funding for advice services from either central or local government in the current year (2011/12). According to the Cabinet Office, priority will be given to those organisations with a high level of cuts which have not received cash from the Transition Fund. A review of NFP advice services has also been announced.

'This is a serious commitment to help free advice services carry on delivering much needed help to people struggling with debt, welfare benefits, employment and housing problems in these difficult economic times. The Cabinet Office will also be carrying out a review of free advice services to ensure that we do all we can to help the sector,' said Nick Hurd, Minister for Civil Society.

England will receive £16.8m of the £20m fund, with the balance being split between the devolved administrations in Scotland, Wales and Northern Ireland. The fund will be administered by the Big Lottery Fund and details of how to apply to the fund will be posted on its website by the end of November.

LAG welcomes this announcement. NFP organisations have been hard hit by cuts in legal aid and other funding. We have also argued that the government needs to consider developing a strategy to better fund and co-ordinate the provision of NFP services. LAG hopes this review will be the starting point for this. However, we would warn that if no cash is made available on an ongoing basis, the fund announced today will be seen as providing nothing more than a transition from the frying pan into the fire for advice services facing big cuts in legal aid funding next year.

Both NFP and private practice legal aid providers were hit by a ten per cent reduction in fees last month (October). Next year the government plans to remove employment, debt and welfare benefits law completely from the legal aid scheme, as well as large parts of housing and immigration law. In total, £80.5m funding for this work will be lost if the Legal Aid, Sentencing and Punishment of Offenders Bill, which is receiving its second reading in the House of Lords today, is approved without amendment. LAG estimates that around £50m of this money is currently paid to NFP organisations and the government plans to cut this from October next year.

Particularly in these difficult economic times, LAG believes the government is wrong to abandon members of the public who need advice with what are everyday legal problems. We are urging the House of Lords to amend the bill and the government to rethink its plans.

Constitution Committee critical of Legal Aid Bill

An influential committee in the House of Lords has highlighted three sections of the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill') which it believes should be redrafted.

The House of Lords Constitution Committee reviews bills being considered by the Lords 'to examine the constitutional implications' of public bills. As the UK does not have a written constitution this is an important role as otherwise changes to the law could be made in breach of constitutional principles which have evolved over time through the common law, statute or convention.

The committee states: 'There is no doubt that access to justice is a constitutional principle' and suggests the bill should be amended to give the Lord Chancellor a duty to 'secure that legal aid is made available in order to ensure effective access to justice'. LAG believes that this would have important implications as much would hinge on the courts' interpretation of the word 'effective' if the bill was amended in this way.

LAG is also pleased that the Constitution Committee has addressed our concern over the independence of decision-making and the Director of Legal Aid Casework role which is proposed in the bill. It suggests that the House of Lords will need to consider if the post is sufficiently independent from government and if an appeals system 'must' be established for decisions on entitlement to legal aid.

The committee questions if clause 12 of the bill conflicts with the right, contained in the Police and Criminal Evidence Act 1984, to advice for a person held in custody at a police station. The committee suggests that clause 12 should be amended so that the right to advice in the police station cannot be undermined in practice.

In the House of Commons, LAG, the Law Society and other organisations suggested amendments which dealt with these issues, but they were rejected by the bill committee with its inbuilt government majority. LAG believes that the Constitution Committee’s report will add considerable credibility to the argument that the Legal Aid Bill needs to be amended by the Lords to deal with the role of the Lord Chancellor in ensuring effective access to justice; independence in decision-making on entitlement to legal aid; and the right to free legal advice for suspects detained in a police station.

A copy of the Constitution Committee’s report is available at:

http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/222/22202.htm.

Legal Aid Bill second reading

To coincide with the second reading of the Legal Aid, Sentencing and Punishment of Offenders Bill ('the Legal Aid Bill') in the House of Lords on Monday 21 November LAG is publishing revised figures on the impact of the cuts.

The government has updated the impact assessments which had accompanied the original consultation paper published in November 2010: Proposals for the reform of legal aid in England and Wales (Ministry of Justice (MoJ)). LAG had criticised the impact assessments as they were based on figures for cases which were a year out of date and also counted completed cases when estimating the number of cases which would be cut, rather than taking the figure for cases opened (see: The real impact of legal aid advice cuts).

Using up to date figures the government now estimates that around 600,000 people will lose out on help with everyday civil legal problems (its original estimate was just over 500,000): Proposals for the reform of legal aid in England and Wales - consultation response. Impact assessment Annex A: scope (MoJ, June 2011). LAG still argues that the correct amount should be 650,000 as the count should be based on the cases opened in the year as opposed to those closed, but at least the government has corrected its error in the original research.

A total of £280m in funding will be cut from civil legal aid: £130m from Legal Help (advice only) and £150m from legal representation. In the government’s original impact assessment around £64m was to be cut from social welfare law (SWL) legal advice. The total estimate of the cuts for SWL advice has now increased to £80.5m (see Revised figures for cuts in social welfare law for the full breakdown).

An extra £16m is now going to be cut from non-family Legal Help than was originally estimated. This is money spent on advice only in cases. £15m more is being spent on legal representation (£8m on family and £7m on other categories of civil law).

LAG has also updated its figures on the costs to other arms of government of the cuts in legal aid for SWL cases. In total, £60m in expenditure on legal aid advice in SWL saves the state £338.65m in expenditure on other services. Put another way, £1 expenditure on civil legal aid saves the state around £6 in other spending.

Currently, there are around 2,000 firms undertaking civil legal aid work mainly in family law and just under 300 not for profit organisations with legal aid contracts almost entirely in SWL (Annual report and accounts 2010-11, Legal Services Commission, p7). About half of the civil legal aid firms will cease to undertake legal aid work if the Legal Aid Bill becomes law with no major amendments. Much of the work which the not for profit organisations undertake, apart from housing cases in which repossession is threatened, is to be cut. LAG believes that over 80 per cent of the not for profit providers might be forced to leave the legal aid system.

It is the public which will be the biggest loser if these cuts go ahead. We hope the House of Lords uses its power to make the government think again about the worse aspects of this bill.


Image: LAG

New report on impact of legal aid cuts on disabled people

LAG commissioned the disability charity Scope to research the impact of the proposed cuts in legal aid on benefits advice for disabled people. The report, Legal aid in welfare: the tool we can’t afford to lose, which is published today, demonstrates the serious consequences of the government’s proposals on disabled people and argues that taking benefits advice out of scope will undermine the government’s welfare reform programme.

In the report, Scope followed five typical claimants with disabilities as they negotiated red tape and bureaucracy to claim benefits, with and without legal aid. The final report, which is to be launched at an event in the House of Lords this afternoon, makes the following key points:

• Various reports in recent years show that the government has to make a quantum leap in order to improve the quality of decision-making in benefits cases.



• The government inaccurately portrays the benefits appeals system as easy to navigate.
  


• Removing benefits advice from the scope of legal aid at a time when major reforms are being implemented will have a 'knock-on impact on a tribunal system already stretched beyond breaking point'.



• The removal of legal aid 'will delay or even deny justice for many disabled people, and undermine the government’s ambitions to have a fairer benefit system that incentivises work'.

In his introduction to the report Richard Hawkes, chief executive of Scope, says that for the government’s welfare reforms to succeed and to make sure disabled people get the right support, legal aid for welfare benefits appeals is vital. The report highlights the government’s inconsistency in seemingly making the judgment that benefits are not sufficiently complex to merit legal aid while Iain Duncan Smith MP, the Secretary of State for Work and Pensions, is justifying his planned reforms by arguing for the need to 'cut a swath through the massive complexity of the existing benefit system'.

According to the Department for Work and Pensions (DWP), the introduction of universal credit is intended to lift 250,000 households with a disabled person out of poverty, but the report argues that many of these people will miss out due to a lack of awareness over what they are entitled to. Also, the move to transfer more people on to employment and support allowance (ESA) from the fit to work group is undermined by the DWP's tendency to get these decisions wrong: out of 122,500 appeals heard between October 2008 and February 2010 from people turned down for ESA, 48,000 were successful.

In LAG’s view a major goal of all government departments should be to try and get the vast majority of their decisions right first time. Withdrawing legal aid at a time of massive change in the benefits system will exclude many disabled people from claiming what they are entitled to. This report makes the case eloquently, through the experience of disabled people, as to why the government needs to think again. LAG and the other organisations supporting the Justice for All campaign will be working to persuade the House of Lords to amend the Legal Aid, Sentencing and Punishment of Offenders Bill to bring advice in welfare benefits appeals back into scope.

A copy of the report is available on LAG's website at: http://www.lag.org.uk/Templates/Internal.asp?NodeID=88856

Legal Aid Bill mini rebellion

Stephen Lloyd, one of the Liberal Democrat MPs who voted against the government this week on the Legal Aid Bill

It was very much a case of one cheer only this week for the mini rebellion which was staged by Liberal Democrat backbenchers against the Legal Aid, Sentencing and Punishment of Offenders Bill (the 'Legal Aid Bill'). However, the fact that amendments hostile to provisions in the bill were tabled by government backbenchers is to be applauded and gives some hope that the bill will be amended in the House of Lords.

Helen Grant, the Conservative MP for Maidstone and The Weald, was most critical of the government’s proposals on domestic violence, arguing that the definition of domestic abuse needed to be more precise and expressing concern about the proposed 12-month time limit on the qualifying criteria to claim legal aid linked to domestic abuse. She also raised concerns about the exclusion of undertakings as a criterion to qualify for legal aid: 'An undertaking is a legally binding document … it is specific and clear, and eminently acceptable in my opinion to be part of the criteria.'

Unfortunately, it must be assumed that Grant was got at by her party whips as she did not vote for the amendments which would have improved the provisions in the bill on domestic violence cases. She was absent from the chamber when the votes were taken, so at least this could be taken as a sign that she could not bring herself to go through the government lobby. LAG believes her comments and those of others in the debate on the controversial domestic violence provisions are sure to be highlighted to peers when they come to consider the bill.

A few Liberal Democrat MPs can be added to the, albeit small at the moment, honours board which LAG is establishing for members of the governing parties who wrestle with their consciences over the Legal Aid Bill and end up losing. Ten made the board for rebelling against the government over an amendment on complex benefits cases: Tom Brake, Mike Crockart, Andrew George, Mike Hancock, Martin Horwood, Simon Hughes, Stephen Lloyd, Greg Mulholland, Ian Swales, and David Ward. Three also voted against the government on domestic violence amendments.

The amendment on complex benefit cases was proposed by Yvonne Fovargue, the Labour MP for Makerfield. In her speech she said: 'It is well known that many problems in social welfare law are interconnected and that clients invariably approach agencies with clusters of problems, which is why the social welfare law cluster of housing, benefits, debt and employment was introduced in the first place.' In her constituency she argued that the number of specialists dealing with social welfare law cases would drop from ten to only two if the changes to legal aid were approved by parliament.

In the debate on the amendment, Tom Brake argued that the proposal on complex cases was suggested by Citizens Advice which 'has calculated the cost impact of its proposal. It says that the current welfare benefits advice spend is £25 million on just under 140,000 cases, and that restricting it to complex welfare benefit cases covering only reviews and appeals, which applies to two-thirds of the current welfare benefit cases, would cost £16.5 million and help around 100,000 people'.

As with the amendments on domestic violence, LAG anticipates that amendments on social welfare law are likely to be hotly debated when the Legal Aid Bill reaches the House of Lords. LAG’s director, Steve Hynes, spoke at a cross-party seminar on social welfare law in the House of Lords on Monday this week. The event was well attended by peers concerned about the Legal Aid Bill. December’s edition of Legal Action magazine will carry a full report on the event along with a feature article on the research which LAG is publishing to coincide with the Legal Aid Bill.

Picture: LAG