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?
Monday, 25 January 2010
Monday, 11 January 2010
A bill of rights election
Last week saw the opening shots of what is likely to be a four-month general election campaign, assuming Gordon Brown goes for the predicted 6 May polling day. The Human Rights Act (HRA) 1998 will feature in this campaign as Conservative leader David Cameron has pledged to repeal it and replace it with a 'British Bill of Rights'. It is unclear, though, what he means by this.
The promised bill of rights could be a codification of existing rights which can be portrayed as being British in character, such as habeas corpus and trial by jury, as well as the rights under the European Convention on Human Rights (the convention) enshrined in the HRA. This would be welcome as better defining the rights that British or UK citizens enjoy (a 'United Kingdom Bill of Rights' would seem a much better title as it would fit the devolved constitutional settlement in Scotland and and Northern Ireland). It could also be seen as an opportunity to engage the public in a discussion on what they want from a bill of rights, hopefully allaying some of the misconceptions that seem to abound about the HRA.
However, in the worst-case scenario, the Conservatives, if elected, would repeal the HRA and turn the legislative clock back to 1998. Their bill of rights could be no more than legislative smoke and mirrors to provide the cover to rescind the rights enshrined in the HRA, forcing people to enforce their convention rights in the European Court of Human Rights instead of the UK courts.
In LAG's view, the rights covered in the HRA are fundamental to a civilised society and their impact should not be diluted by any replacement legislation. The Conservatives do say that they support the convention. It is important in the coming weeks that they make clear their intentions regarding the bill of rights and the HRA as the current position is ambiguous.
LAG would also urge all the political parties to come to a consensus on what should be included in a bill of rights. Labour, unfortunately, has failed so far to build a consensus around the HRA. There were some useful discussions between the parties initiated by the publication last year of a government green paper suggesting a 'Bill of Rights and Responsibilities' which should be built on. Such an important constitutional bill needs to be above party politics or we risk each new government tinkering with what should be seen as our nation's constitutional bedrock.
The promised bill of rights could be a codification of existing rights which can be portrayed as being British in character, such as habeas corpus and trial by jury, as well as the rights under the European Convention on Human Rights (the convention) enshrined in the HRA. This would be welcome as better defining the rights that British or UK citizens enjoy (a 'United Kingdom Bill of Rights' would seem a much better title as it would fit the devolved constitutional settlement in Scotland and and Northern Ireland). It could also be seen as an opportunity to engage the public in a discussion on what they want from a bill of rights, hopefully allaying some of the misconceptions that seem to abound about the HRA.
However, in the worst-case scenario, the Conservatives, if elected, would repeal the HRA and turn the legislative clock back to 1998. Their bill of rights could be no more than legislative smoke and mirrors to provide the cover to rescind the rights enshrined in the HRA, forcing people to enforce their convention rights in the European Court of Human Rights instead of the UK courts.
In LAG's view, the rights covered in the HRA are fundamental to a civilised society and their impact should not be diluted by any replacement legislation. The Conservatives do say that they support the convention. It is important in the coming weeks that they make clear their intentions regarding the bill of rights and the HRA as the current position is ambiguous.
LAG would also urge all the political parties to come to a consensus on what should be included in a bill of rights. Labour, unfortunately, has failed so far to build a consensus around the HRA. There were some useful discussions between the parties initiated by the publication last year of a government green paper suggesting a 'Bill of Rights and Responsibilities' which should be built on. Such an important constitutional bill needs to be above party politics or we risk each new government tinkering with what should be seen as our nation's constitutional bedrock.
Thursday, 17 December 2009
Criminal BVT pilots abandoned
It looks like the final nail in the coffin of best value tendering (BVT) has now been hammered in - for now at least. The government has announced that it is abandoning plans for the pilots. The tendering process had been due to start in the New Year for Avon and Somerset, and Greater Manchester. This climb down will come as a considerable relief to the practitioners in these areas.
It seems to LAG that the government was swayed by the argument that it was unfair to expect firms to tender for the work when the consultations on Crown Court and Very High Cost Cases fees were still pending. Firms need to know what fees they can expect across the board in criminal work before they tender for police station work.
The government and the Legal Services Commission (LSC) say that they are going to work up alternative plans. The legal aid minister Lord Bach told LAG this afternoon that he expects 'by March next year to have some outline improved proposals'. Any implementation will be down to the next government. Both the LSC and government still seem convinced that some form of competitive tendering can provide the magic bullet to control legal aid costs. We at LAG remain sceptical.
It seems to LAG that the government was swayed by the argument that it was unfair to expect firms to tender for the work when the consultations on Crown Court and Very High Cost Cases fees were still pending. Firms need to know what fees they can expect across the board in criminal work before they tender for police station work.
The government and the Legal Services Commission (LSC) say that they are going to work up alternative plans. The legal aid minister Lord Bach told LAG this afternoon that he expects 'by March next year to have some outline improved proposals'. Any implementation will be down to the next government. Both the LSC and government still seem convinced that some form of competitive tendering can provide the magic bullet to control legal aid costs. We at LAG remain sceptical.
Wednesday, 16 December 2009
Criminal fee cuts announced
Cuts in fees for criminal legal aid have been announced by the government. Details of the cuts were given by legal aid minister Lord Bach in a written ministerial statement to parliament at 12 noon today. The cuts follow the proposals outlined in the August 2009 paper, Legal aid: funding reforms. The main proposals are:
- Fees for police station work will be cut back in the areas the government describes as 'the most expensive and over-subscribed'. LAG understands that this could hit up to 160 areas.
- One fixed fee will be paid for committal hearings.
- The fee for file reviews in criminal cases will end.
An announcement on the reduction in experts' fees, which had also been proposed, will be made in January. The government will also launch a second consultation on reducing Crown Court fees. The government estimates that £23m will be made in savings from the cuts announced today over the next year.
LAG knows that these cuts will hit some hard-pressed firms, especially in London, where the cost of undertaking police station cover can be higher due to delays and the diverse range of clients who need advice. In some respects, though, this could be seen as the least worst option if the cash saved can be used to prop up the civil legal aid budget which is creaking under the strain of increased demand caused by the recession.
LAG is being told by legal aid lawyers that the Legal Services Commission has run out of money for civil cases. For £23m, 115,000 more clients in debt or 132,000 more clients with housing problems could be seen. LAG will be seeking assurances that this money will not disappear back into the Treasury's coffers, but will be used to help people cope with the effects of the recession.
- Fees for police station work will be cut back in the areas the government describes as 'the most expensive and over-subscribed'. LAG understands that this could hit up to 160 areas.
- One fixed fee will be paid for committal hearings.
- The fee for file reviews in criminal cases will end.
An announcement on the reduction in experts' fees, which had also been proposed, will be made in January. The government will also launch a second consultation on reducing Crown Court fees. The government estimates that £23m will be made in savings from the cuts announced today over the next year.
LAG knows that these cuts will hit some hard-pressed firms, especially in London, where the cost of undertaking police station cover can be higher due to delays and the diverse range of clients who need advice. In some respects, though, this could be seen as the least worst option if the cash saved can be used to prop up the civil legal aid budget which is creaking under the strain of increased demand caused by the recession.
LAG is being told by legal aid lawyers that the Legal Services Commission has run out of money for civil cases. For £23m, 115,000 more clients in debt or 132,000 more clients with housing problems could be seen. LAG will be seeking assurances that this money will not disappear back into the Treasury's coffers, but will be used to help people cope with the effects of the recession.
Thursday, 3 December 2009
Don't back down Bach!
In a meeting yesterday, the legal aid minister Lord Bach told leaders from groups representing legal aid lawyers that there would be no new cash for civil legal aid. This is despite growing evidence of the increasing numbers of people who need help with civil law problems.
LAG is hearing from practitioners that they are being refused permission to start new cases once they have reached the limit set by the Legal Services Commission. According to the Ministry of Justice (MoJ) there have been 20,000 more cases between April and August 2009 than in the same period last year. With four or five months being the likely wait for permission to take on new cases, the fear is that many clients needing help with problems caused by the recession will be cut off from getting legal advice.
Lord Bach told the meeting that the Treasury would 'laugh' if he approached it for more cash to fund the extra work needed. While LAG appreciates the difficult financial position the government is in, we do not believe that the MoJ should cower away from making its case for more money. It is an unfortunate, but wholly predictable, effect of the recession that the demand for civil legal aid has increased.
Civil legal aid should be seen as part of the welfare state's safety net to help people in these difficult times. Like other state benefits the government should meet the cost of these extra cases as as essential part of its response to helping people through the recession. The relatively paltry sum in government terms of £10 million could buy an extra 30,000 or more cases and bring justice to victims of this bank-inspired recession.
LAG is hearing from practitioners that they are being refused permission to start new cases once they have reached the limit set by the Legal Services Commission. According to the Ministry of Justice (MoJ) there have been 20,000 more cases between April and August 2009 than in the same period last year. With four or five months being the likely wait for permission to take on new cases, the fear is that many clients needing help with problems caused by the recession will be cut off from getting legal advice.
Lord Bach told the meeting that the Treasury would 'laugh' if he approached it for more cash to fund the extra work needed. While LAG appreciates the difficult financial position the government is in, we do not believe that the MoJ should cower away from making its case for more money. It is an unfortunate, but wholly predictable, effect of the recession that the demand for civil legal aid has increased.
Civil legal aid should be seen as part of the welfare state's safety net to help people in these difficult times. Like other state benefits the government should meet the cost of these extra cases as as essential part of its response to helping people through the recession. The relatively paltry sum in government terms of £10 million could buy an extra 30,000 or more cases and bring justice to victims of this bank-inspired recession.
Monday, 23 November 2009
Bar moves with the times
Historic reforms on the regulation of barristers were approved by the Bar Standards Board (BSB) last week. In response to mounting pressure the BSB (see previous blog 'Bar behind the times') has agreed that barristers should be allowed to establish partnerships with solicitors and with other barristers. The rule change ends 800 years of tradition.
Barristers were in danger of losing out to solicitors as without the change they would not have been permitted to join the new legal disciplinary practices (LDPs). LDPs allow legal and other professionals to form partnerships and permit 25 per cent ownership by non-lawyers. In LAG’s view it makes sense that barristers can now bring their advocacy expertise to such partnerships as this will enhance the service to clients and hopefully reduce costs.
LAG believes that some chambers might move to form LDPs or other legal entities to enable them to compete for blocks of work from the Legal Services Commission and other organisations. The rule changes also alter the role of self-employed barristers as they will now be able to take witness statements, correspond with clients and provide advice in police stations (although this would rule them out of representing the client in court).
There will inevitably be some blurring of the distinction between solicitors and barristers with these rule changes. They could be a major stepping stone on the road to a unified legal profession. The Bar will only survive by maintaining its reputation for providing independent specialist advocacy services.
Barristers were in danger of losing out to solicitors as without the change they would not have been permitted to join the new legal disciplinary practices (LDPs). LDPs allow legal and other professionals to form partnerships and permit 25 per cent ownership by non-lawyers. In LAG’s view it makes sense that barristers can now bring their advocacy expertise to such partnerships as this will enhance the service to clients and hopefully reduce costs.
LAG believes that some chambers might move to form LDPs or other legal entities to enable them to compete for blocks of work from the Legal Services Commission and other organisations. The rule changes also alter the role of self-employed barristers as they will now be able to take witness statements, correspond with clients and provide advice in police stations (although this would rule them out of representing the client in court).
There will inevitably be some blurring of the distinction between solicitors and barristers with these rule changes. They could be a major stepping stone on the road to a unified legal profession. The Bar will only survive by maintaining its reputation for providing independent specialist advocacy services.
Monday, 9 November 2009
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.
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.
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