Massive support from Londoners for advice services

Research published today by LAG has found that 88 per cent of Londoners believe advice services should be free to everyone, or to people on or below the national average income of £25,000. The London Advice Watch (LAW) report also finds that 77,000 Londoners will lose out on help with civil legal problems and that £9.33 million will be cut from advice services, if the reductions in legal aid proposed by the government go ahead.

The LAW report used data from an opinion poll survey carried out by polling company GfK NOP for LAG, as well as interviews with providers of advice services and their representatives in London. GfK NOP interviewed 1,603 people across 32 London boroughs.

In addition to overwhelming support for the availability of free services the opinion poll found that:

• 94% of people who got advice received a free service.
• 81% of people were satisfied with the service they received.
• 65% of people said their situation improved due to the advice they had received.

London’s population of 7.6m is served by 900 legal aid suppliers including 80 charities. Many of these will be forced to close or severely curtail their services if the government goes ahead with its plans to cut back on civil legal aid. For example, Law Centres in London will lose 43 per cent of their funding and some may be forced to close. Other advice agencies will also be badly hit. Brent Citizens Advice Bureau holds legal aid contracts in housing, benefits, debt and immigration law. Under the government's plans, detailed in the Legal Aid, Sentencing and Punishment of Offenders Bill currently going through parliament, it will lose £275,000 a year in funding and will be forced to close its specialist casework services in these areas of law.

LAG anticipates that amendments to the Legal Aid Bill, which would put back into scope the areas of work being cut in housing, employment, benefits, debt and immigration law, will be debated next week in the House of Lords. LAG is urging peers and the government to think again, before cutting legal aid to thousands of Londoners and the hundreds of thousands of ordinary people across the country who will lose out on help with civil legal problems if the bill is not amended.

LAG is launching the LAW report this afternoon at a special meeting of the All Party Parliamentary Group on Legal Aid in the House of Commons. The meeting will be hosted by Yvonne Fovargue MP and speakers will include Tom Brake MP, the Liberal Democrat MP for Carshalton and Wallington in south London, Liberal Democrat peer Lord Carlile and Andy Slaughter MP, Labour MP and Shadow Justice Minister.

Read the full report on: LAG's website

Pic: LAG

The true cost of the legal aid cuts?

Each government department tends to work on its own budgets in isolation. This can be a problem, especially when cuts are being considered. The order has been handed down from the Treasury to make cash savings and officials in the Ministry of Justice (MoJ) are scrambling around to find these, with little regard to their knock-on impact.

Citizens Advice argues that the state has to pick up the cost of homelessness, poor health and the other consequences of people not receiving advice on civil justice problems. It has published research to back this up which shows the savings other government departments make when people get early advice. LAG has taken the figures which Citizens Advice produced and combined these with the government’s proposed cuts in legal aid for housing, benefits, debt and employment, to arrive at figures which give the true cost of the legal aid cuts (see below).

Our research shows that £49m of expenditure on legal advice saves the government £286.2 million in other expenditure. In other words - £1 of spending on civil legal help saves the government around £5 in other public expenditure.

Category of Law	Reduction in legal aid (08/09 figures)[i]	Savings per £1 spent on legal aid [ii]	Total savings to the state from expenditure on legal aid
Housing	£7m	£2.34	£16.4m
Welfare benefits	£22m	£8.8	£193.6m
Debt	£16m	£2.98	£47.7m
Employment	£4m	£7.13	£28.5m
	£49m		£286.2m

Earlier this year the House of Commons Justice Committee stressed in its report on the proposals for legal aid that it was surprised that the government was introducing changes to civil legal aid for cases such as these, 'without assessing their likely impact on spending from the public purse'. The Committee, which is chaired by the well regarded Liberal Democrat MP, Alan Beith, suggested the government needs to take this into account 'before taking a final decision on implementation'. [iii]

Last week, apart from a few minor changes, the bill committee in the House of Commons considering the legislation which will introduce the legal aid cuts rejected proposals to reverse them. A third reading of the bill is expected to take place late next month. This will be an opportunity for the House of Commons to get the government to think again about these cuts which are penny wise, but pound foolish to the public purse.

[i] Legal aid reform: scope changes, MoJ, 028, page 17.

[ii] Towards a business case for legal aid, Citizens Advice, July 2010.

[iii] Justice Committee Report, page 54.

Legal aid bill row

Last week, the Legal Aid, Sentencing and Punishment of Offenders Bill was published. In LAG's view, the bill as drafted attempts to completely recast the legal aid system as a much reduced rump mainly concerned with criminal justice, child protection and the minimal provision of access to justice around human rights in order to comply with the European Convention on Human Rights. To this end, the rights of ordinary citizens, especially the poor and vulnerable, have been cast aside.

Practitioners and parliamentarians got an early opportunity to see the minister responsible for legal aid, Jonathan Djanogly, defend the government's plans when he was the guest speaker at the All Party Parliamentary Group on Legal Aid (APPGLA) meeting on Wednesday 22 June, the day after the bill was published. The minister was subjected to detailed questioning from the large audience of parliamentarians, practitioners and others concerned about the cuts announced in the bill.

Opening the meeting, Yvonne Fovargue MP, the chairperson of APPGLA, made the point that while provisions on sentencing reforms had made the headlines, it was the cutbacks in legal aid that would have the most significant impact on her constituents. Djanogly reiterated much of what had already been stated by his boss, Kenneth Clarke, the day before while introducing the bill in the House of Commons. He stated that while the government was making cuts, the legal aid scheme would continue to be 'one of the most generous in the world' and that it was 'retaining funding for a wide range of rights' but that 'the overall effect of the bill will be to achieve significant savings'.

Law Society president, Linda Lee, led the comments from the audience: 'I am disappointed and heartbroken; this attack on civil legal aid is an attack on the most vulnerable.' Lord Carlile, a former Liberal Democrat MP, asked the minister how he would advise someone who suspected his/her child had suffered damage during birth: 'Would they fall into the exceptional funding criteria?' Djanogly answered that it was not his role to give advice - s/he would have to go to a lawyer for that. He said that the majority of such cases would be able to use a conditional fee arrangement, but that 'litigation must be a risk and the question I have to ask is whether the taxpayer has to pay'.

To a question raised by Linda Lee about the government's failure to look at the alternative funding put forward by the Law Society, Djanogly said: 'Much of what was suggested by the Law Society was to get others to pay for legal aid. When you go to the Treasury, it is not so keen about creating new taxes.'

The minister left the meeting with an audience disgruntled about his defence of the bill and angry with the government for its complete dismissal of the 5,000 responses to the consultation. Even the widely expected concession on the definition of domestic violence amounts to a highly restrictive one, which will exclude many victims from claiming legal aid.

The parliamentarians at the meeting promised the bill a rocky passage through both Houses. In defiance of convention, the government is moving to a second reading of the bill next Wednesday, instead of leaving the customary two weekends between publication and the first debate in the House of Commons. LAG hopes that some significant concessions will be made by the government to improve access to justice before the bill becomes law.

A full report on the APPGLA meeting will appear in the July issue of Legal Action magazine.

Image: LAG

LSC: no appeal on family contracts

The Legal Services Commission (LSC) has confirmed yesterday that it will not be appealing against the judgment made on the Law Society’s judicial review of the family law tender process. The LSC had 14 days from 14 October 2010, when the transcript of the judicial review was published, to decide whether or not to pursue an appeal.

The LSC had extended the current family contracts until 14 December, pending a decision on whether or not to appeal the High Court’s judgment. The judgment quashed the result of the tender round for family and family with housing matters, after finding that the process was illegal (see 1st Oct blog Civil Contracts-what now?). LAG understands that the LSC is now in negotiations with practitioner groups to thrash out a way forward in managing the family legal aid contracts. It says that it is keen to encourage dialogue with the practitioner groups in order to minimise disruption of services to clients. It is likely that it will be forced to extend the current contracts and has the option of doing this until April 2012. The LSC also wants to push through already planned changes in family fees to ensure that the same fees are paid to both barristers and solicitors.

LAG welcomes the LSC’s decision not to appeal against the judgment in the Law Society’s judicial review. An appeal would have led to fresh uncertainty. We believe the LSC is not ruling out a further bid round in family to allocate matter starts. Much still remains unresolved. The way is now open for firms which were successful in the bid round to bring claims for damages. The most pressing problem is that the government is going to consult on planned changes to scope, which is likely to include areas of family law such as divorce and ancillary relief, in the next few weeks. It would seem pointless to run a tender round for contracts which might not be viable in a year or two when these expected changes are introduced.

Non-family legal aid contracts and family mediation contracts will start on 15 November. These contracts had been delayed for a month due to the Law Society’s judicial review. The LSC had initially argued in the judicial review that the non-family contracts were interlinked with the family contracts, but had not pursued this line of argument further at the full hearing. LAG understands that at least four judicial review hearings relating to these contracts are pending, but we believe these could be settled before hearing in circumstances similar to the successful challenge brought by the Community Law Partnership, which withdrew its case after the LSC reversed its decision not to offer it a contract.

LSC clamps down on claims

In October 2009, the National Audit Office published a critical report on the Legal Services Commission's (LSC's) overpayment of solicitors and other legal aid providers. According to the report, £24.7 million was overclaimed in 2008/09. The auditors found that providers had failed to give sufficient evidence on the case file to support the level of claim or demonstrate that the client was eligible for legal aid.

Immigration cases were highlighted in the report. The auditors reported that there were a number of incidents in which practitioners charged the higher asylum case rate when the lower immigration one should have been claimed. The largest amount of overpayments, £10.5 million, was in immigration and family cases.

Speaking at the first meeting of the All Party Parliamentary Group on Legal Aid on 3 November, the LSC's chief executive Carolyn Regan blamed problems with the LSC's manual system of case file administration for the overpayments. She said that it is due to be replaced with a computerised system. She also pointed out that the figure for the overpayments was only 1.2 per cent of the total fund.

In a move which LAG believes is related to the National Audit Office report, the LSC has announced a clamp down on legal aid providers opening case files for 'recurring clients'. It is asking 100 legal aid providers to look at ten per cent of their cases in which a client has had more than one file opened in the last six months. It is threatening to recoup any money it believes has been wrongly claimed for such cases.

In LAG's view, many of the problems which the LSC has experienced with overclaiming can be resolved with a computerised system. Similarly, claims for the same client, but with different problems, can be tracked more effectively with such a system. Let us hope that the LSC gets the computer system right this time - its record so far has not been good. The LSC Online system failed in November 2007 and had to be suspended, meaning that providers had wasted many hours completing electronic returns.

But we would argue that verifying clients' income will continue to cause problems regardless of any improvements to the administration of the system. The reality is that dealing with clients who often have chaotic lives inevitably leads to difficulties in getting them to produce the relevant pieces of paper to prove their entitlement to legal aid.

As regards multiple cases, while there might be some overclaiming, the vast majority of such claims are justified as everyone involved in legal aid policy agrees that many civil legal aid clients face clusters of problems. We would argue that claims for the same clients in multiple areas of law are a sign that legal aid providers are giving the joined-up service which clients need.

Criminal BVT despair

On 15 July, the All Party Parliamentary Group on Legal Aid heard evidence from legal aid practitioners near despair at the government’s plans for best value tendering (BVT) for police station and magistrates' court work. The committee, which is chaired by London MP Karen Buck, plans to push for an adjournment debate in the autumn, but this will probably be too late for Greater Manchester and Avon and Somerset which have been selected as pilot areas due to start in April next year.

Tony Edwards (TV Edwards LLP, London) won the outstanding achievement award at the Legal Aid Lawyer of the Year awards in December 2008 in recognition of his distinguished career in criminal legal aid. He also sat on the Legal Services Commission board for seven years and drove the quality agenda on criminal legal aid. His criticism of the potential impact of BVT on quality is therefore particularly compelling. In his view BVT as it is proposed is 'all about price competition and this will drive down quality'. Edwards pointed out that in his firm he has a supervisors to junior staff ratio of 2:1 whereas the proposal under BVT would allow up to 1:4. 'To compete on these terms my firm would have to change this by a factor of eight.' He went on to describe how most practitioners build their businesses on own client work which in itself is a method of quality control as clients return to or recommend a solicitor only if s/he does a good job. As the BVT proposals are currently drafted clients would be only able to choose a solicitor in the police station area in which they are arrested.

Another heavyweight of the criminal practitioner’s world, Rodney Warren, also gave evidence. Warren talked about 'the different world' of undertaking criminal legal aid work in the early 1980s before the introduction of the Police and Criminal Evidence Act (PACE) 1984. He fears that for firms to compete in a BVT system they will have to cut corners leading to miscarriages of justice. Edwards said: ' … it troubles me the amount of police officers younger than I and the even younger Ministry of Justice civil servants who try to argue that times have changed from the pre-PACE days'. He went on to tell the group about a recent experience when he attended a police station. 'A detective sergeant was attempting to bully a 16 year old into confessing to a robbery he was not guilty of. This had to be challenged and I doubt if it was not for my age and experience the sergeant would have backed down.'

Some informed opinion believes that the general roll-out of BVT will not happen as it straddles the general election and any incoming government will want to take stock before proceeding. Edwards believes a market mechanism might control the price of the work but what is proposed could 'destroy the very best firms'. A re-evaluation of BVT then would seem to be the best way forward.