Low Commission consults on SWL strategy
This column documents evidence of the effect of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Readers are invited to send in relevant information for publication. Please see below for further details.
In this article Steve Hynes, LAG’s director, discusses the work of the Low Commission on the Future of Advice and Legal Support, of which he is a member, and asks readers to contribute to its consultation on a draft strategy for social welfare law (SWL) services.
It was in the aftermath of the government’s decision to cut much of SWL from the scope of legal aid that LAG decided to establish a commission to report on the need for state support of SWL services. The primary aim in establishing the commission was to try to influence the political parties’ policies in the run-up to the general election in 2015.
At its inaugural meeting in October last year, the commission took the decision to name itself after its chairperson, Lord Colin Low, the crossbench peer and disability rights campaigner. In addition to Lord Low, there are nine other commissioners who have been selected for their expertise in various fields relevant to SWL. It is serviced by a secretariat comprising Richard Gutch, secretary, and Sara Ogilvie, research assistant, who are based at LAG.
The commission is primarily concerned with how the public can get help with the sort of everyday civil legal problems which life can throw at them. It was decided at an early stage of planning that in order to maximise the commission’s impact on policy-makers it would have to be independent of providers and others with an interest in the legal aid system. So, while it was initiated by LAG, the commission is independent of its host and its six funders.1The Baring Foundation, the Barrow Cadbury Trust, the Esmée Fairbairn Foundation, the LankellyChase Foundation, Trust for London and Freshfields Bruckhaus Deringer LLP.
Evidence to the commission
So far, the commission has heard from over 230 people and organisations with an interest in SWL. Witnesses at its formal meetings have included Campbell Robb, chief executive of Shelter, who spoke, at the first full meeting of the commission in December last year, of the ‘extraordinarily bleak picture’ in the sector and the ‘loss of talent and expertise’ in SWL which would be caused by the then pending legal aid cuts.
Carol Storer, director of the Legal Aid Practitioners Group, gave evidence at the April meeting of the commission. She highlighted the combination of ‘low fees, increased bureaucracy, less time for casework due to dealing with constant changes and really long hours’ that legal aid practitioners have been facing in recent years. She also said that practitioners were concerned that the ‘Ministry of Justice and Legal Aid Agency don’t have people who understand business or litigation’ and that while insurance-based products and other innovations might replace some services, these would have a minimal impact on what the commission was concerned with, ‘because SWL clients tend not to have money that they can afford to spend on legal services’.
In her evidence, Carol Storer explained how legal aid had moved from just another way in which practitioners got paid for work, to be replaced by franchising, and then contracting, with a ‘constant downward pressure on fees’. She suggested that it was time to have an independent commission to set rates for legal work, as the ‘conflict between government intent on cutting costs and the professional duties that legal practitioners must meet has become too much’.
In his evidence before the commission in June, after the cuts to SWL had been implemented in April, Justice Minister Lord McNally said that he ‘didn’t come into government to dismantle the legal aid system’, which he said he had ‘always thought of as a great triumph of the postwar period’, but added that the government had to make hard economic and financial decisions which ‘will have to continue for some time to come’.
In response to questions from the commissioners on how best the commission could influence the government, the minister said that the commission had a role in helping the administration understand the impact of the cuts. He explained that post-legislative scrutiny should take place within three to five years of a piece of legislation coming into force and so, sometime between 2016 and 2017, the government would be reviewing the impact of the LASPO Act. However, the minister assured the commission that this ‘does not mean that we do not look at what is happening in the meantime’ and that the government was open to listening to ‘well-founded research’ as, if the legislation causes ‘unforeseen consequences then we will look at it, as we did with domestic violence’.
Summary of Low Commission’s strategy
This is a summary of the main components of the commission’s strategy taken from the consultation report:
•Legal aid should be viewed as part of a continuum including information, general advice, specialist advice, legal help and legal representation, rather than as a standalone funding mechanism; the more we can do at the beginning of this spectrum, the less we should have to do at the end.
•By reducing demand, taking early action and simplifying the legal system, it will be possible to reduce some of the need for advice and legal support.
•For those who can afford to pay, affordable advice and legal support should be more accessible and the routes into it much better communicated and understood.
•People with pressing problems need a simple and effective way of accessing good advice, without hurdles or confusion. Much basic provision can be developed using a combination of public legal education, national telephone helplines and websites, local advice networks and specialist support for frontline advice agencies.
•More in-depth and intense support should be targeted at those most in need.
•Ensuring the quality of all levels of service provision must be a high priority.
•The commission would like to see a more open and collaborative advice sector. There is considerable scope for local advice agencies to work more closely together and in some cases even to merge. It would also like to see the national advice services umbrella bodies work more closely together and share their resources and experience more widely.
•The importance of advice and legal support on SWL to people’s lives, coupled with challenges to its continued provision and additional costs to government that are likely to result if no action is taken, makes it imperative that the next UK government develops a National Strategy for Advice and Legal Support in England for 2015–20 and that the Welsh government develops a similar strategy for Wales.
•Local authorities should co-produce or commission local advice and legal support plans in conjunction with local not-for-profit and commercial advice agencies; these plans should review the services available, including helplines and websites, while targeting face-to-face provision to ensure that it reaches the most vulnerable and ensuring some resources are available for legal representation where it is most needed, to supplement the reduced scope of legal aid.
•The commission estimates that currently, post implementation of the LASPO Act, there is about £400m per year available to fund advice and legal support services – mainly coming from local authorities, the Money Advice Service and the legal aid that remains for SWL.
•The commission estimates at least a further £100m per year is required in order to ensure a basic level of provision.
•The commission is calling on the next UK government to provide half this extra funding by establishing a ten-year National Advice and Legal Support Fund of £50m per year, to be administered by the Big Lottery Fund (BIG), to help develop provision.
•The commission proposes this fund should be financed by the Ministry of Justice, the Cabinet Office and the Department for Work and Pensions, as the main creators of the need for advice and legal support (on the ‘polluter pays’ principle).
•90 per cent of the fund should be used to fund local provision, with ten per cent for national initiatives.
•BIG should allocate the 90 per cent share of the national fund to local authorities, based on indicators of need, to help implement local advice and legal support plans, which should be prepared in conjunction with the local advice sector.
•The commission is also calling on other national and local statutory, voluntary and commercial funders to contribute a further £50m per year to help develop provision. These should include NHS clinical commissioning groups, housing associations, additional Money Advice Service funding, charities, trusts and foundations and lawyer fund generation schemes, such as the interest on money held for clients and dormant accounts.
•Most of the commission’s recommendations apply equally to Wales, but it will be important to build on the momentum resulting from the Welsh Government’s Advice Services Review published in May 2013. The Welsh Government will also need to decide on the most appropriate management arrangements for the National Advice and Legal Support Fund in Wales, and some of the recommendations will also need to take account of the different arrangements for local government and the local NHS in Wales.
The commission believes that by investing in a wider range of information and advice, with some legal help and representation, many of the undesirable consequences of the LASPO Act can be avoided and this will end up saving money.
The commission welcomes comments on its draft outline report by 30 September 2013, and then will publish its final report, including supporting annexes, in December 2013. The consultation paper is available at: www.lowcommission.org.uk/Can-you-help.
At the same meeting in June, Sue Wigley, director of network operations at Citizens Advice, spoke about the gateway system that Citizens Advice Bureaux had introduced to try to deal with the queues for face-to-face advice services. She believed that this method of triage had worked, but said that Citizens Advice was increasingly asking the question: ‘Gateway to where?’ as the ‘feedback from users shows that clients don’t just want diagnosis, but want help with their problem’. She also acknowledged the difficulties that many bureaux face delivering the ‘more complex end of casework’ with only volunteers, because of the loss of legal aid and other funding for specialist services.
The commission has received many written submissions that have been considered at its meetings. It has also held extra consultation meetings, for example, with the pro bono community and with groups interested in technological innovation in advice services.
LAG is grateful to the commissioners and their staff, Richard Gutch and Sara Ogilvie, who have had to work quickly to consider the evidence they have received so far and to develop a suggested strategy for the next government to implement after the election in May 2015. A consultation paper was published last month and the deadline for responses is 30 September 2013 (see box opposite).
The commission held regional meetings in Cardiff and London earlier this month, and will hold a final meeting in Manchester on 19 September.
The commission hopes to publish its final report and recommendations in December. At that point, the work of the commission will change gear as Lord Low and the other commissioners embark on a dissemination and influencing strategy to persuade the political parties to take up the final report’s recommendations.