Reductions in legal aid cases

Figures released today by the Legal Services Commission show reductions in the number of cases funded by legal aid in the past year. A total of £35.3m less was spent in non-family civil cases and £30m less in criminal cases, but a big rise in child protection cases has soaked up these reductions.

In non-family civil legal aid the main contributor to the reduction in spending has been just under £20m less being spent on asylum and immigration cases. LAG is surprised that around £12m less was spent on asylum cases in the year ending 31 March 2012 as figures from the Home Office show an 11 per cent increase in asylum applications in 2011. We believe that the reduction in expenditure on such cases has been caused by clients being unable to find a lawyer willing to take on their cases.

In the last two years, two of the largest suppliers of advice in immigration and asylum cases, the charities Refugee and Migrant Justice and the Immigration Advisory Service, have folded because of financial problems. Between them these charities undertook around 35,000 cases a year, which is at least a third of the annual total of immigration and asylum cases. LAG believes that the demise of these charities is a large part of the reason for the reduction in cases and fears that clients in need of advice on immigration matters are not getting the help they need.

There are also reductions in spending on housing, welfare benefits, debt and other civil cases. Although not on the same scale as the reduction in spending on immigration advice, these reductions in advice spending, which concern areas of law in which people commonly experience problems in a recession, are again surprising. The numbers of contracts in these non-family areas of law is down by around 200 to 2,640, and so it might be that the public are experiencing greater difficulties in accessing advice.

Police station and magistrates' court cases are down by £30m in expenditure, representing around 100,000 cases. Due to the wider use of cautions, the numbers of such cases have been falling in recent years, but anecdotal evidence from both defence lawyers and the police suggests that the police are increasingly not charging suspects due to budget cuts.

Expenditure on child protection cases has risen again, this year by £65m. The continuing impact of the baby Peter case is a likely factor, but costs per case also rose by approximately £500 to £5,495. This suggests that lawyers are taking more time on these cases. Other costs, such as expert reports, have also increased. These figures indicate that the government needs to do more work on understanding the costs of protecting children, as this remains a priority for the legal aid system. LAG believes that the reduction in expenditure for the rest of the civil legal aid system demonstrates that there is a direct relationship between availability of advice and access to justice.

See the LSC statistics and the Home Office asylum statistics.

Legal aid boss fears political bias in decisions

Chairman of the Legal Services Commission (LSC), Sir Bill Callaghan, has warned of the potential for political interference from ministers in decisions on whether to grant legal aid in controversial cases.

Speaking at the Legal Aid Practitioners Group conference in Birmingham on Friday (7 October) he said that one of the disadvantages of the plan for the Ministry of Justice to take direct control of the administration of legal aid would be the lack of independence in the decisions on whether or not to grant legal aid to groups such as 'Travellers and terrorists' who can be politically controversial: 'It is very important there is some protection from political interference in decisions on granting legal aid.'

Questioned by LAG on what he believed would be the right way to do this, he replied that the LSC has advised ministers that an 'independent tribunal to appeal decisions on granting legal aid would be the best system'. He expressed concern that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently before parliament, did not have any provisions to protect the civil servants who would be making decisions on entitlement to legal aid from political interference from ministers. Implying there had been problems in the past he told the meeting of around 200 legal aid lawyers that as chairman of the LSC, 'I've seen ministers with arms of very different lengths when it comes to decision-making on entitlement to legal aid.'

Sir Bill argued that the special review system which currently looks at decisions in complex cases using independent experts could be examined as a possible alternative to the tribunal system which he suggests. He said that he would be looking carefully at the legislation to ensure that there was an element of independence in the decision-making process to stop interference from ministers.

LAG has spoken to other senior sources at the LSC who share Sir Bill's fears about ministers exercising improper influence in cases. Interestingly they have no concerns about their current political master, Kenneth Clarke, doing so, but say that there were incidents under the previous Labour administration in which ministers might have done so. Sir Bill is the first official from the LSC to go on the record to voice his fears. His comments will be embarrassing to the government which has so far rejected calls to amend the bill to include an independent tribunal system to hear appeals against a refusal to grant legal aid.

In the case of Evans, which was widely reported earlier this year, evidence emerged of Lord Bach, the then legal aid minister, being lobbied in secret by the Defence Secretary Bob Ainsworth to prevent legal aid being granted in such cases. The rules were subsequently changed to prevent third parties from claiming legal aid to bring human rights challenges in similar cases.

In LAG's view, whether officials believe an individual secretary of state might or might not decide to try and prevent legal aid in a politically sensitive or otherwise controversial case is not the point. LAG believes Sir Bill is right - an independent tribunal system to appeal decisions on entitlement to legal aid will be essential if the government goes ahead with its plan to take direct control of the administration of legal aid. What matters is that both in practice and appearance there is no suggestion of political interference in granting legal aid as the credibility of the justice system is at stake.

Image: Legal Services Commission

Do the Scots beat the English and Welsh at providing legal aid?

The Scots seem content with retaining the old picnic table brand for legal aid, while the English and Welsh have dropped this and replaced it with three logos!

Over the last few months the government has grown fond of making comparisons with other countries to try and justify its planned legal aid cuts. Comparisons are difficult to make as the British adversarial system is very different to the inquisitorial systems that predominate in the rest of Europe. However, somewhat nearer to home a legal aid system can provide some pointers to where the system in England and Wales might be going wrong. In Scotland, while its legal aid system shares the same origins, it seems to have worked out how to provide a system that costs less, but is more extensive, than the one south of the border.

A big difference between the two systems is that personal injury cases are still covered in Scotland. In England and Wales the Access to Justice Act 1999 ended this and introduced changes to the law on recovery of costs in damages cases. The Scottish legal system does not allow costs for insurance and success fees to be charged to the losing side. There are other differences in the scope of legal aid, for example, representation in employment tribunal cases is covered by legal aid in Scotland.

Colin Lancaster, director of policy and development at the Scottish Legal Aid Board (SLAB) said: 'SLAB and the Scottish government see the use of legal aid in personal injury and other damages-based cases as a worthwhile social investment.' He pointed out that over 80 per cent of the fees paid out in such cases are recovered. This is the same as what used to happen in England and Wales.

By not going for radical change and adopting a more gradual approach to legal aid reform and by having stable management at the top of the SLAB, the Scots seem to have been more successful in delivering their legal aid system than England and Wales. Perhaps the government needs to learn from this rather than rushing to slash entitlement to legal aid as it plans to?

An article on the Scottish legal aid system will appear in the September issue of Legal Action journal.

Legal aid cuts discriminate

A substantial stack of impact assessments were released with the consultation paper on legal aid in November 2010. The papers starkly set out the full horror of how the government’s proposals for the legal aid system will affect clients. As detailed in the equality impact assessments, women, people with disabilities and black, Asian and minority ethnic (BAME) groups will be especially badly hit if the planned changes to the scope of legal aid go ahead.

A total of £350m of the current legal aid budget has been earmarked for cuts, the bulk of which fall on civil legal aid. Family legal aid bears the brunt of these. Divorce, custody disputes over children and financial matters to do with relationship breakdown are all planned to be cut from the scope of legal aid. A large majority, 65 per cent, of family legal aid clients are women and the government admits in its impact assessment that this means they will be disproportionately hit by the planned cuts. BAME clients will also be disproportionately affected, though due to problems with the data the result of the impact assessment on this group is less reliable.

Women also form over 70 per cent of the client group for education law, which is set to be taken out of the scheme. The high proportion could be partly explained by the solicitor recording the sex of the parent instructing him/her to represent a child - perhaps men are less likely to attend appointments with solicitors to discuss their children’s education? The figure could also reflect a higher number of women single parents seeking advice on education matters. Thirty-one per cent of people who obtained advice on education law are BAME clients as opposed to eight per cent in the general population, indicating that the withdrawal of legal aid for education law would have a disproportionately greater impact on this group as well.

People suffering from an illness or disability will be hit hardest by the proposed cuts to advice on debt and benefits. Currently, 30 per cent of clients who have received advice on debt and a staggering 63 per cent of those needing advice on benefits have an illness or disability. Again, there is also a disproportionate impact on women and BAME clients. The proposal to withdraw legal aid from clinical negligence cases also has a disproportionate impact on sick and disabled clients with 30 per cent of cases currently being brought by people from this group.

Overall the government acknowledges that high proportions of the population seeking help from the legal aid system are women, from BAME groups or suffer from an illness or disability. Further impact assessments are promised with the final proposals, but LAG believes the government will struggle to justify the very high difference in impacts on the groups described above. The inescapable conclusion is that if these cuts go ahead they will discriminate against the most disadvantaged and the government will be to blame.

The impact assessment documents are available on the Ministry of Justice website. The consultation on the proposals ends on 14 February.

Law Centre fights back against the LSC

South Manchester Law Centre was claiming victory this week in the first round of its legal battle against the Legal Services Commission (LSC) to stay open.

The Law Centre, which is under threat of closure after having cash withdrawn from it by the LSC and Manchester City Council, brought a judicial review claim against the LSC to challenge its decision to withdraw the bulk of the Law Centre’s funding for immigration work. The judge in the case, after a day of legal argument on Monday, ruled that two key elements in the tendering process under which the LSC awarded the contracts for the work could be illegal and that the case should proceed to a full hearing. The Law Centre expects the case to be heard early next month.

Paul Morris from the Law Centre told LAG, 'The ruling throws into doubt the LSC’s entire national immigration and asylum legal aid contract. The judge said that he believed the winner takes all approach to the contracts in Manchester was irrational.'

The case will turn on the criteria adopted by the LSC to select between the different organisations applying for contracts. The LSC adopted criteria which, according to Morris, were unfair: 'The successful bidder scored a crucial single point more than the other providers just for putting in an application for level three accreditation. This accreditation has no practical value as it is of no help to clients.'

The LSC brought up a QC from London to present its case while the Law Centre had to rely on barristers from Manchester chambers Kenworthy's, working for no fee, to present its case. The Law Centre has had other support in its campaign to stay open. Actress Julie Hesmondhalgh, who plays Hayley Cropper in Coronation Street, turned out to join a demonstration outside the court to support the Law Centre. They were joined by supporters of Greater Manchester Immigration Aid Unit, which is facing similar cuts after losing out in the tender bid round.

'We are delighted with this result especially given the LSC, at public expense, sent one of the country’s leading QCs from London to argue its case. For a small community-based organisation such as ours to win in the High Court is a substantial achievement,' said Morris.

All of the immigration law providers who lost out in the tender round will be following what happens in Manchester closely. Like the Law Centre, many are not convinced that the level three criterion adds anything to client services and argue it penalises smaller organisations, which provide good quality services, but which do not have the resources to invest in acquiring the accreditation.

Image: South Manchester Law Centre

Decision made on non-family contracts

A decision has at last been made by the Legal Services Commission (LSC) on the non-family law contracts. It has just announced that all non-family legal aid contracts and family mediation contracts will start on 15 November. The start of the contracts had been delayed by a month due to the Law Society's judicial review.

The LSC had argued that these contracts were linked with the family contracts as the intention behind the civil bid round was to provide 'joined up' services across both family and social welfare law (housing, benefits, debt, employment and community care law). Providers could bid for standalone contracts in employment and community care law, but in many areas they had been expected to bid either in a consortium, or as a single supplier, for housing, benefits and debt work, together with family work.

Family law providers could also bid for family and housing contracts but these contracts, along with the other family law contracts, have been quashed by the High Court, after it ruled that the tendering process to award the contracts was illegal. The oral judgment was given in the case on 30 September, but the transcript of the decision has yet to be released. The LSC is waiting for the transcript, as it has indicated that it may wish to consider an appeal against the High Court's decision. It has 14 days from the issue of the written judgment to lodge an appeal.

The LSC's chief executive, Carolyn Downs, said: 'Our overwhelming priority is to give providers and, above all, legal aid clients, certainty that access to justice will be maintained. We also want to continue to encourage dialogue with representative bodies to minimise any disruption.'

LAG welcomes the LSC's decision. It would have made no sense to continue the uncertainty over the non-family contracts. However, we do not believe that it was sensible only to extend the family contracts to 15 December 2010. Whether the LSC chooses to appeal or not, another extension of these contracts seems inevitable.

Civil contracts - what now?

Yesterday the Legal Services Commission (LSC) lost the judicial review which the Law Society had brought against it over the result of the family tender. It is important to note that the court only quashed the family contracts, ie, family, family and housing, children only and child abduction. The LSC now has to extend the existing family contracts and decide if it wishes to re-tender the contracts. It will make an announcement on 6 October about what it intends to do.

The judgment turned on the selection criteria for family contracts. Practitioners were not informed until the tender documentation was published in February this year that they would score more points if they held membership of both the child protection and domestic violence panels. Membership of these panels proved crucial in deciding whether to award firms contracts. In his oral judgment yesterday, Lord Justice Moses said that the LSC could '… provide no rational basis for denying a case-worker the opportunity to apply to both panels'. In his view the effect of the late notice of the criteria was to 'unfairly and arbitrarily reduce the number of family law suppliers'.

Linda Lee, Law Society president, deserves praise for the leadership she has offered on this issue. She and senior officials at the Law Society were under considerable pressure due to the differing opinions on whether the outcome of the tender round should be challenged. In LAG’s view they called it right, by fighting the case on access to justice grounds. While the judgment of the High Court centred on the unfairness of the tender process and not access to justice, reinstating many practitioners, especially the child protection specialists, to the legal aid system can only benefit many vulnerable families and children.

Hovering over the proceedings was the spectre of the comprehensive spending review. Indeed Lord Justice Moses referred to this in an aside, observing that 'there might be no legal aid next month', while the parties were debating what order the court should make. In LAG’s view what the LSC and the government (which now calls all the shots on legal aid policy) should do is extend the family contracts for two years. Within a year they should make a decision on what they want after these two years and tell practitioners so that they have time to adapt. What has to be learnt from this debacle is to give fair notice of processes and selection criteria when designing tenders.

At least ten other judicial reviews are pending around the civil bid round and so it will be some time before there can be absolute certainty on the way forward. However, LAG does not believe anything can be gained from delaying the rest of the non-family civil contracts. Legal aid providers need the security of having new contracts for at least two, if not the full three, years and the public need the certainty of knowing that legal services are going to be there for them in the difficult times ahead.

Social welfare law success

Birmingham-based social welfare law (SWL) firm, Community Law Partnership (CLP), has today heard that it has been granted a contract by the Legal Services Commission (LSC), after originally being turned down for one last month. The LSC has also confirmed that all civil contracts will now be extended to Sunday 14 November (see yesterday's blog). Providers will receive an additional twelfth of their new matter starts allocation to cover this.

CLP had appealed against the decision not to award a contract, but the LSC still refused to grant it one. CLP then brought judicial review proceedings against the LSC arguing that one of the selection criteria for the contracts was unfair. At an initial hearing the judge, Mr Justice Collins, said, 'I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational'. He hinted that at the full hearing, which was listed for 8 September, he would be likely to find against the LSC as he believed it was unfair to use a selection criterion linked to experience in appeals to the higher tribunal in benefits cases. CLP had argued that it did not need to take many of these cases as it generally wins its clients' cases at the lower tribunal.

LAG understands that some legal aid providers in Birmingham might have overbid for work and have now agreed to accept smaller contracts. This released cash to grant a contract to CLP. It would have been a travesty if CLP, with its excellent track record, had not continued to provide legal aid. This demonstrates that seemingly fair selection criteria can throw up some perverse results.

Uncertainty over civil legal aid contracts

Last Friday (3 September), the High Court decided that the start of the new family legal aid contracts should be delayed for a month in order for the Law Society's judicial review application to be heard. The delay will give the Legal Services Commission (LSC) time to collate evidence on the geographical areas covered by the new contracts, as a key part of the Law Society's case against the LSC is that the cut in the number of firms has left areas of the country not covered by family law solicitors. The full judicial review hearing is due to go ahead on 21 September.

LAG understands that the LSC has met with representatives from legal aid providers to discuss its interpretation of the High Court's decision on Friday. An important point yet to be clarified is whether the decision also means that contracts in social welfare law (SWL), also due to start on 14 October, should be delayed as well. The LSC had decided to run the SWL bid round with the family law one as it wanted better co-ordination of services at a local level. SWL, which consists of housing, benefits and debt work, fits well with the provision of family law services as clients often face a combination of these problems. Firms might be reluctant to go ahead with SWL contracts while there is still uncertainty over the family contracts.

It seems unlikely that the issue of SWL contracts and whether they should be delayed will be resolved before the hearing on 21 September. The Law Society appears to be taking the view that the High Court ordered a delay on all of the civil contracts including SWL, while LAG understands that the LSC believes the delay only applies to family contracts. Legal aid providers are therefore facing at least two weeks of uncertainty pending the judicial review hearing before this issue can be resolved.

At the hearing, the LSC will try to convince the judge that there is sufficient cover in each area of the country and that the bidding process was legal, but all options appear open to the court regarding its final decision, including declaring the process illegal. If this happens, the whole contract round for family law will have to be scrapped and a more open system adopted in which any firm that meets the quality threshold can undertake family law work. The middle way might be for the court to order a further delay while the appeals which many firms have lodged against decisions not to award contracts are decided. Things could look very different on the access to justice ground which the Law Society has raised in its judicial review application, if by early October a few hundred more firms have been awarded contracts on appeal.

Image: Legal Action Group

Law Society takes action on family contracts

The Law Society has today (20 August) announced that it has commenced judicial review proceedings against the Legal Services Commission (LSC) over its handling of the tender process for the family law contracts.

Both practitioners and the LSC were surprised by the outcome of the tender process which was announced last mouth. 1,100 firms failed to secure new contracts, leaving only 1,300 to cover the country. In contrast, in the criminal law bid round involving a similar number of firms, all except a small minority were successful in their applications for contracts which commenced last month.

LAG understands that the Law Society has been under pressure from firms which successfully bid for contracts not to challenge the tender process, but Law Society president Linda Lee argues that it has a public duty to act as it fears 'access to justice is in peril' due to the reduction in the number of firms. Lee, who took up her post only last month, said: 'In some areas of the country, vulnerable clients will now be forced to travel long distances to find a solicitor and in some areas, there will be too few firms to represent clients, causing conflicts of interest where several parties to a dispute need and are entitled to independent representation.'

LAG believes that the Law Society is right to put access to justice for the public above the interests of the large number of its members who have gained from the tender process. The essential fact remains that an overnight reduction in the number of outlets providing family legal aid services risks members of the public not being able to find a lawyer when they need one. We are particularly concerned about the availability of legal aid in domestic violence and child protection cases.

However, it is only once the results of the appeals are known (lodged by many unsuccessful bidders) that the true pattern of provision will be revealed. LAG also suggests that firms which have overbid could negotiate reduced contracts with the LSC. This move would allow more firms back into the system. We would argue that a delay in the commencement of the contracts would give more time for all concerned to gain a better understanding of the availability of legal aid locally. We are suggesting that the government and the LSC need to agree with practitioners (both winners and losers in the contract process) on a three-month hiatus for this to happen.

Image: Legal Action Group

'Carnage' as family solicitors lose legal aid contracts

LAG has just advised by the Legal Services Commission (LSC) that 1,300 out of 2,400 firms have been awarded contracts in family law. The new contracts are due to commence in October and firms were invited to tender for them by 21 April this year.

LAG has heard from areas in which the number of firms providing legal aid in family law from October will drop dramatically. For example, in Leeds, only ten firms will remain in the system, down from 35. In Stoke, six firms remain, with ten disappearing, leaving those six to cover a city with a population of just under a quarter of a million.

'From where I am sitting, it looks like carnage out there,' said Carol Storer, director of the Legal Aid Practitioners Group. She is advising those firms which have not secured a contract to appeal against the decision. If many firms follow this advice, it could be some weeks before it is known which firms will be providing legal aid under the new contracts.

To select between firms, the LSC scored them against criteria such as quality of work and having a permanent office in the area in which they want to provide services. One of the key criteria was employing experienced staff to supervise and undertake the work. For example, points were awarded for having a member of staff accredited by the Law Society's Children's Panel. LAG understands that many firms have applied without having the necessary staff in place and are relying on recruiting them before the new contracts commence. This has led to accusations by some losers of underhand tactics by successful firms.

The Law Society believes that the level of refusals for family contracts is far higher than either the LSC or the Ministry of Justice envisaged and has today written to the legal aid minister, Jonathan Djanogly. It is asking him to consider whether the market can cope with 'this degree of restructuring' without compromising the availability of family legal aid services for members of the public.

Social welfare law
The LSC has advised LAG that it believes around 70 per cent of existing social welfare law providers will be allocated new matter starts (NMS). It is undertaking 'due diligence checks' in five areas and will confirm the numbers of providers which have been successful in obtaining NMS once these are complete. LAG has spoken to a number of providers, including Simon Harris, chief executive of Stoke-on-Trent Citizens Advice Bureau: 'The bureau was allocated virtually everything we asked for. Overall, we feel quite relieved.' The bureau has contracts in housing, welfare benefits, debt, immigration and employment.

Image: Legal Action Group

Citizens Advice seeks divine intervention?

Fear stalked the campus of York University, along with Church of England clergy, at the Citizens Advice Bureaux northern conference last week. Bureaux from northern England were meeting for their annual get together, under the cloud of impending cuts.

A potentially cataclysmic funding storm is brewing for the bureaux as they await the results of their tenders for civil legal aid contracts from the Legal Services Commission (LSC). Many of the bureaux currently undertake advice work in debt and welfare benefits under contracts with the LSC. Some of the larger ones also have contracts in other areas of work, for example, Gateshead Citizens Advice Bureau works in immigration, employment, benefits, debt and is looking to expand into family law. The results of the new tenders for the contracts, which commence in October, were due to be announced on the second day of the conference last Friday (9 July). However, the LSC seems to be in the midst of administrative meltdown and has had to delay advising bureaux whether they have a contract or not. This has left many on tenterhooks, fearing they will have to make staff redundant in the coming months and reduce their opening hours to the public.

Some managers and trustee board members gathering in York believe that up to 80 per cent of their funding could go in the next few months. One manger from a bureau in Lancashire told LAG that it could lose nearly £800,000 in contract cash by April next year, leaving it with less than £100,000 in funding. Like many, this bureau potentially faces losing its legal aid contracts as well as central government funding. Money given to Citizens Advice by the last government to help it cope with the extra work caused by the recession is due to run out by March 2011, as is cash from the Financial Inclusion Fund (FIF).

The FIF was established in 2006 by the previous government. The total fund allocated was £120m and it was intended to tackle debt and money problems through a combination of educating the public and advice. £45m of the fund has gone on frontline advice services paying for over 300 debt advisers in Citizens Advice Bureaux and other advice agencies. According to Citizens Advice, over 70,000 people facing money problems have been helped by these FIF services. The new government, though, is staying tight-lipped on whether it will renew the grants.

The delegates might have been tempted to enlist the support of their fellow temporary residents at the University of York, as the Church of England Synod was meeting at the same time on campus. This made for an interesting juxtaposition of discussions on seemingly intractable problems.

Rowan Williams, the Archbishop of Canterbury, cut a careworn figure in a corner of the refectory at breakfast time last Friday. Around the refectory his bishops and other clergy were discussing a compromise deal over women bishops. Meanwhile, the Citizens Advice delegates, often sharing the same tables as the clergy, discussed legal aid contracts and the FIF. Perhaps they could at least draw comfort from the fact that one person in the room was facing seemingly greater problems than their own?

Despite the bleak outlook last week Rowan Williams managed to put together a compromise on women bishops earlier this week. Perhaps his success at crafting an agreement can give hope to his temporary cohabitees from last week? Hopefully, the funding problems which Citizens Advice Bureaux and other advice providers face will be resolved with government rather than divine intervention, although at times like this I am sure they are willing to accept any help they can get.



Steve Hynes

Image: York University Conference hall- Legal Action Group

Aspiring lawyers disappointed

LAG was disappointed to learn this afternoon that the Legal Services Commission (LSC) has decided not to go ahead with plans to sponsor training contracts for young legal aid lawyers. We believe this is a real kick in the teeth for many newly qualified or aspiring lawyers who want to pursue a career in legal aid work. The decision on the training grants had been delayed for over a year.

Over the years, the LSC has sponsored the training of 750 lawyers in legal aid firms and some Law Centres. The scheme gave them a chance of getting a foot on the career ladder and more importantly ensured the legal aid system recruited talented lawyers at the start of their careers, rather than letting them go off to pursue more lucrative careers in commercial law.

Laura Janes, chairperson of Young Legal Aid Lawyers, told LAG, 'This was promised by the last government. The minister even showed me the paperwork and said it was going to go ahead. It will be a bitter disappointment to many law students and newly qualified lawyers, as this was their last hope of a career in legal aid work.'

LAG appreciates times are hard in the world of legal aid. Cuts are looming. But surely £2 million could have been found out of the total budget of over £2 billion for the scheme? The sponsorship of training contracts by the LSC was widely supported by practitioners and was seen as one of the most positive things it did. A good quality legal aid system is dependent on recruiting and retaining the most able lawyers. LAG fears that firms will increasingly be reluctant to pay the wages of trainee lawyers and instead opt for unqualified staff to carry out legal aid work.

Very High Cost Cases u-turn

After a short consultation the Legal Services Commission (LSC) announced at the end of last month that the system for accrediting firms to undertake Very High Cost Criminal Cases (VHCCs) is to be abandoned.

VHCCs number only a few hundred each year. They usually concern complex fraud or other serious crimes such as terrorism-related offences in which the trial is scheduled to last 25-40 days or more. Two years ago the LSC established a panel system in which firms experienced in such cases had to apply to be included if they wanted to take on VHCCs. This was to ensure quality but the Law Society argued that the system led to the exclusion of many firms capable of working on VHCCs. The rumour is that some firms were not being honest about their breadth of experience in VHCCs at the expense of others who were.

Though it seems a combination of accepting the criticisms of the panel system and insufficient resources to run a new bidding process, the LSC has now decided to revert to individual contracting arrangements for VHCCs from 14 July. The Law Society has welcomed the move, but solicitors have rightly protested at the wasted time and money which both they and the LSC have lost in running the panel system. LAG has learnt that the LSC is secretly consulting with practitioners over revised arrangements for allocating VHCCs. The results of this consultation will be made public next month.

The total costs of the abandoned panel system could run into millions. Lawyers are annoyed at what they see as another unnecessary LSC initiative taken-up and then abandoned, but these are lucrative cases for them. With fees of up to £1000 a day, there will be plenty of firms keen to join the new system. Last year just under 400 VHCCs cost £125m, or 25 per cent of the entire budget for Crown and other higher court work. The remaining budget of £700m went on just under 125,000 cases. Much of the cost of VHCCs is caused by factors external to the legal aid system such as court delays,but with government budgets under such pressure and the fees paid to lawyers in VHCCs being disproportionately higher than the bulk of legal aid work, this is likely to come under scrutiny in the coming months.

Government moves to take direct control of the LSC

The government has announced that it intends to abolish the Legal Services Commission (LSC) and change it to an executive agency under the direct control of ministers. The LSC's chief executive Carolyn Regan has resigned from today and an interim chief executive, Carolyn Downs, has taken her place. LAG understands that the LSC commissioners will continue in post until the Access to Justice Act (AJA) 1999 can be amended.

The LSC is currently a non-departmental public body with its own governance which is separate from ministerial control. As an executive agency it will be under the direct control of ministers. This could lead to political interference in decisions on entitlement to legal aid. LAG believes that there will have to be an independent appeals mechanism for the government to comply with article 6 of the European Convention on Human Rights. In our view it is not enough for the government to give assurances about internal procedures to prevent ministers from interfering in decisions. With the direct control of the department making the decision they could give the appearance of involvement. Procedures for granting legal aid need to be above such a suspicion or the justice system risks being undermined.

LAG understands that the details of the new administrative arrangements need to be worked out and the AJA amended to change the governance of the LSC. This will have to happen after the general election, but by ousting Carolyn Regan and replacing her with Carolyn Downs, who is Deputy Permanent Secretary at the Ministry of Justice, the government appears to have asserted control of the LSC, thus making the commissioners chaired by Sir Bill Callaghan lame ducks.

Civil tenders open

The delayed tender process for the new standard civil contracts opened on 26 February. Firms and not for profit agencies wanting contracts in family and social welfare law have to submit their tenders by 12 noon on 21 April. The contracts will commence on 14 October and will be for three years, with a possibility of a two-year extension.

Legal aid providers will be expected to submit their bids using an electronic application process, which is accessed through the Legal Services Commission (LSC) website. Tenders for immigration and asylum work had to be submitted by the end of January and used a similar e-tendering mechanism. LAG is not aware of any significant problems which occurred with this process, but the LSC did tweak the bid documents in the run-up to the deadline. The same has happened with the bid round for the standard criminal contracts which closes on 12 March. Therefore, legal aid providers should regularly check the LSC website for updates and to follow the questions and answers about the tendering process which will be published there until the end of March.

It is social welfare law work, defined by the LSC as debt, housing, welfare benefits, community care and employment, which has the most potential for difficulties. The civil tenders are complex - they cover 135 procurement areas and providers can apply in consortia to undertake housing, welfare benefits and debt work. Family law providers can also apply for tenders to undertake housing and family law.

Providers are not able to tender on a standalone basis for debt and welfare benefits work. One option is to expand into the area of law not covered, but LAG understands that the scoring system is weighted against bidders with no track record in an area of law. For housing law especially, the fear is also whether there will be enough new matter starts to make services viable. Consortia applications from existing suppliers are not without potential pitfalls. Organisations applying in consortia will be well advised to co-ordinate their bids carefully as a mistake on one bid could jeopardise the others.

The LSC has had to tread carefully to ensure that it does not fall foul of procurement law and to design a system which discourages overbidding. What happens in the coming months will determine if it has been successful or not.

LSC under attack

The Legal Services Commission (LSC) has been hit by another damning attack on its performance. In a report released this week, the Public Accounts Committee (PAC) is scathing about the LSC's performance in managing criminal legal aid. The PAC report follows hot on the heels of the National Audit Office report published in October 2009, which slammed the LSC for making overpayments of £24.7m to solicitors and other legal aid providers.

Not surprisingly, the latest report was critical about the LSC's abandoned plans for best value tendering (BVT), as this 'leaves the Commission not able to assess if it is paying a reasonable price for legal aid'. The report also highlighted the LSC's 'poor financial management and internal controls and deficient management information'. It cites the constant and expensive changes at senior management level as the reason why the LSC has not been able to implement the Carter reforms.

Chairman of the PAC Edward Leigh, the Conservative MP for Gainsborough, believes the LSC does not possess the 'basic information' on the costs and profitability of law firms which is necessary to set a fair price for legal aid services. This echoes criticisms which have been made by the Law Society and other organisations representing lawyers.

In a nod to the Magee Review of legal aid delivery, the PAC report was highly critical of the LSC's lack of a clear strategic direction, which the committee believes is added to by the 'confusion and uncertainty' surrounding its relationship with the Ministry of Justice (MoJ). LAG takes this to mean the row which has been going on behind the scenes between the LSC and the MoJ over control of policy.

One important point which the report makes is the need for the LSC to gather feedback from the users of legal aid. With reference to police station work, the report's authors believe such feedback would be useful in investigating why only half of people take up their right to legal aid. The report also suggests a cap on the earnings which individual lawyers can draw from legal aid. Could this spell the end of the £1m legal aid QC?

Over the past two years, criminal legal aid has been in turmoil with the threat of BVT and the continuing arguments over cuts in fee levels. The PAC report reflects this, but offers few solutions.

Civil tenders answers

Following an exchange of letters between the chief executive of the Law Society Des Hudson and Carolyn Regan, the chief executive of the Legal Services Commission (LSC), there is now more certainty around the LSC’s plans for the civil legal aid tenders. The LSC, though, is keeping social welfare law (SWL) practitioners guessing on how it will decide between them in areas where there are more bidders than it requires.

Procurement plans for social welfare law will now be published this week. The plans will set out the number of cases starts the LSC requires in each category of law for each procurement area. The details of how cases will be split between each category will also be revealed in these plans. Bid rounds for SWL and family law will now open in the week beginning 22 February and the bid round for mental health work will open in the week beginning 8 February.

It would appear that the LSC is struggling to devise fair criteria to differentiate between bidders if too many bid for SWL work in one area. The situation is complicated because it is conceivable that single providers might bid for combinations of SWL against consortia with a number of providers. Also, what happens if a single bidder is perceived to be weak in one or more categories, and is up against consortia bidders which also have weaknesses, but in a different combination of categories?

LAG understands that discussions to try and untangle these difficulties are ongoing between representatives of legal aid providers and the LSC. However, the idea of combining these categories of law has been in the air since at least October 2008 when the draft consultation on the civil bid rounds was originally published. Surely, then, someone at the LSC should have thought around the practical problems of making this work before now?

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 delay

On 11 September, the Legal Services Commission (LSC) announced that it will defer the start of tenders for the new criminal contract for at least two months. Included in this is the best value tendering process for the two pilot areas in Greater Manchester and Avon and Somerset. Good move we say. However, the Ministry of Justice (MoJ) announced its consultation on the proposed cuts for criminal work on 20 August. Why then did it take the LSC three weeks to decide to delay the bidding process?

Surely it had worked out that you cannot invite firms to bid for work if they don’t know how much they will be paid? Perhaps not. It seems more likely that LAG, the Law Society and others pointing out to the LSC the unfairness of what it was proposing, combined with mutterings about a possible judicial review, made it change its mind. Any strategy the MoJ and LSC had for criminal legal aid appears to be in tatters.

The MoJ’s paper on the proposed cuts is inadequate. It fails to state how much it is seeking to save or outline in detail the Crown Prosecution Service fees it is arguing that defence counsel should have parity with. The government also wants to shave five per cent off the budget for very high cost criminal cases (VHCC), but the options to do this have not been announced yet. They will only be outlined in a further consultation paper. A cross-subsidy operates between Crown Court work, VHCCs and the less profitable police station and magistrates' court work. Surely it should be obvious to the LSC that without all the proposed prices on the table firms cannot make any decisions about their future bids?