Legal aid: facing the future
Carol Storer, director of the Legal Aid Practitioners Group (LAPG), summarises the main themes and discussions from LAPG’s annual conference, which took place in the Palace Hotel, Manchester, in October.
I started the day by tweeting about what mood practitioners would be in: despairing or doggedly determined? The conference opened with LAPG co-chairperson, Nicola Mackintosh, reading from the Magna Carta. She stressed that while clients are at the heart of what practitioners care about, a viable number of practitioners is needed to deliver the service.
Panel discussion: facing the future in legal aid
Julie Bishop, director of the Law Centres Network, outlined some of the issues that Law Centres® are facing: clients who are just outside financial eligibility; management of new matter starts; and the importance of choice of solicitor and how that is being eroded. She painted a picture of problems that are festering – we do not yet know how they will play out. She elucidated four thoughts:
•Once, Law Centres could welcome clients, but now many will now be turned away. This will affect their popularity.
•Reception staff are struggling to get clients help in urgent cases.
•People’s patience is breathtaking.
•New ways of helping are needed because the poor are facing unrelenting attacks from the government cuts agenda.
Franklin Sinclair, senior partner at Tuckers Solicitors, ran through the cuts already evident in crime numbers. He said that the Crown Prosecution Service and the police are facing cuts, so an increase in cautions and a drop in the number of prosecutions are inevitable. He added that the cuts in fees are not manageable. He agreed that there is a need for consolidation in some cities, but could not see any argument for changing the arrangements in rural areas. He stressed that firms must not dumb down. They are already close to being public defenders, but they have to balance the books. He wanted to see a reward for hard work, not a disincentive for it.
There was a need properly to assess the 17.5 per cent fee cuts, continued Franklin Sinclair. The first cut of 8.75 per cent, proposed for early 2014, could not come in before consolidation or firms will go out of business. He would argue for consolidation before any cut, but any such cut must be smaller than that currently proposed. He went on to say that there was about £800m in the pot, including VAT and disbursements: assuming fees are about £650m and taking out rural areas, there would be about 250–300 firms able to survive with that model. He could not see more than 300 firms surviving and flourishing under the current proposals.
Ann Harrison, chairperson of Stephensons Solicitors LLP, described how the firm had started the planning process last December. It looked at unbundling, fixed fees and dropped some work. Some income was allocated to pro bono welfare benefits advice. It had put a lot of effort into training staff and into communications. Some fee earners are bringing in more money under the new structure than they had been with legal aid rates.
Pete Weatherby QC, from Garden Court North Chambers, expressed concern about how firms would survive. He highlighted that the cuts were not solely because of austerity measures, but represented a fundamental and ideological assault on welfare through legal aid provision. Looking at the prison law cuts, he predicted that they would lead to a failure in rehabilitation and said that the process was dismantling vital legal advice for prisoners.
Constructive engagement would not win these battles, Pete Weatherby stressed. There needs to be a public campaign to get the message that legal aid is important across. He argued that the judicial review proposals go to the heart of the responsibility of public bodies, adding that practitioners must not rearrange deckchairs but publicise what is going on and what it means.
LAA and MoJ panel
Dr Elizabeth Gibby, deputy director legal aid and legal services policy, Law and Access to Justice Group, from the Ministry of Justice (MoJ) stepped in when Lord McNally pulled out of the conference. A few days before, the legal aid brief had been given to a new minister, Shailesh Vara. Dr Gibby stated that the MoJ’s budget was to be reduced by one-third from 2010 to 2015. She said that every tender for legal aid work has been oversubscribed, so the government thinks that there are practitioners willing to deliver legal aid services. The government is aware that firms are struggling from information held by the Solicitors Regulation Authority.
The government continues to steer people towards mediation, and when the Children and Families Bill becomes law, there will be a requirement to see a mediator first, said Dr Gibby. The MoJ welcomed evidence of what is happening: it is not complacent. If there are negative, unforeseen consequences it will take corrective action, she said. These are a ‘tough set of proposals’, she said, but legal aid cannot be exempted from the government cuts. She added that there will be scrutiny of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 in 2016–17.
The Legal Aid Agency (LAA) panel (Owen Mapley, Shaun McNally and Hugh Barrett – all directors at the LAA) covered numerous areas of concern to practitioners. There was a lighter moment (at least for the audience) when a practitioner asked if the shredder could be moved away from incoming post and DX deliveries at the LAA’s office, which was highlighting the amount of mail from practitioners that appears to go missing. It took a few seconds for delegates to catch up with the question.
There were several workshop sessions, including the following:
LAA top tips
Vicky Ling, legal aid consultant, writes: Contract managers from the North West presented this very popular workshop. They explained LAA audit priorities and the key areas for compliance in relation to civil applications and bills. They emphasised that this is a two-way process and the LAA does not get it right all the time; it welcomes feedback where it does get it wrong.
The main issues that practitioners need to be vigilant about are the following:
•family – level 2 fees/settlement fees, the enhanced petitioner divorce fee, evidence of domestic abuse or where children are at risk of harm; and
•immigration – evidence of work done, correct claiming of VAT, whether cases are asylum or non-asylum, article 8 cases, and whether fixed fees or hourly rates should apply.
General issues include evidence of financial eligibility, whether cases are within the scope of the LASPO Act and the use of correct reporting codes. The contract managers pointed us in the direction of some very useful resources on their website:
Despairing or doggedly determined at the start of LAPG’s conference?
Increasing private client work: fixed fees/client care/unbundling
Jenny Beck, solicitor, director of family law and head of professional practice, The Co-operative Legal Services, writes:
The fixed fees and unbundling session was both encouraging and worrying in equal measure. Many practitioners were aware of the Law Society’s practice note and some of the pitfalls of unbundling services entirely. Most sought to avoid the ‘drop in, drop out’ model, but many were keen to move towards fixed fees. However, during discussions it became apparent that many were running significant risks with their usual practices, particularly around the provision of free initial advice. Many were careful to think through the issues when developing new services, but were oblivious to the risks of their current model of advice giving.
Social welfare law: where do we go from here?
Chris Minnoch, manager, Greenwich Housing Rights, writes:
Jacky White, Shelter’s National Legal Services Manager, gave attendees an insight into how Shelter has met the challenge of moving from a model based on a high volume of matter starts to a greater emphasis on certificated work. She voiced concerns about the potential for further cuts to matter start allocations if the LAA considers the current low take-up to be indicative of demand. She therefore urged colleagues to spread the word about the availability of legal aid. Jacky White stressed the need to focus on regularly submitting bills and pointed attendees to Vicky Ling’s recently circulated guidance on the LAA’s current approach to means assessment and compliance.4Available at: www.lapg.co.uk/news.
Ben McCormack, from Garden Court North Chambers, then took attendees through a list of ten thought-provoking issues, challenging us all to test the boundaries of the scope limitations. His list included ideas on using public law challenges to tackle benefit and debt disputes; proactively identifying, and then challenging, poor practice by public authorities; and making links with other agencies to ensure that clients get swift access to those specialising in public law, the exceptional funding regime or niche areas of practice.
LAG’s director Steve Hynes provided a summary of the wider political and funding environment facing agencies engaged in social welfare law. He explained the Low Commission’s current thinking about future government support for social welfare law and noted some of the opportunities and challenges presented by charging for services, the use of conditional fee agreements and insurance-backed claims. Steve Hynes reminded attendees of the importance of keeping social welfare law on the political agenda and of obtaining evidence on the impact of the cuts to put before the ‘court of public opinion’. Other points discussed included the relevance and availability of insurance-based funding, the emergence of fee-charging services and whether pro bono advice can help to fill the void in provision.
Exceptional cases funding
Ravi Low-Beer, solicitor at the Public Law Project (PLP), writes:
Since the coming into force of the LASPO Act on 1 April 2013, the PLP has been running a project dedicated to helping people apply for exceptional funding and monitoring associated LAA decision-making. Cases can be referred to PLP by solicitors, advice agencies or individual clients. PLP will assist, on a pro bono basis, in drafting or reviewing applications and challenging refusals. Martha Spurrier, a barrister employed by PLP, updated the workshop on its experience of the exceptional funding process. That experience is bleak.
The figures given in the workshop have been revised by statistics received since the conference in response to a Freedom of Information Act 2000 request by LAPG. These figures reveal that up to 15 October 2013, only 547 applications for exceptional funding were made in non-inquest cases; that 176 of these applications were rejected by the LAA because they were incomplete or the area of law was in fact in scope and therefore eligible for legal aid in the usual way; and that only four grants of exceptional funding in non-inquest cases have been made: two in family cases, one in an immigration case and one in a housing/land law case.
The success rate (broadly representing solicitors’ chances of being paid for work in making the exceptional funding application) was therefore 0.73 per cent. The clear financial disincentive for solicitors to make exceptional funding applications highlights an obvious flaw in the system. Others include the lack of an emergency procedure and the lack of any exemption for those who lack capacity to litigate. However, there are opportunities to improve the system: PLP has submitted evidence about the failings in the system to the Joint Committee on Human Rights, and cases are now being brought to the Administrative Court on applications for judicial review. Martha Spurrier reiterated the need for all concerned with the system to keep applying and to use PLP’s pro bono service to seek to improve it for the vulnerable clients it is now so patently failing to serve.
Marketing and social media
David Gilmore, director of DG Legal, writes:
Inzar Haq, a consultant at DG Legal, delivered an interesting presentation about social media. He explained that unlike regular media, which is a one-way street, social media gives the audience the chance to respond. Inzar Haq stressed that the success of any social media strategy must be measured, and explained how this could be done using Google Analytics, Social Mention, Facebook Insights and LinkedIn.
The workshop was followed by a question and answer session. David Nicholson, director, DNA Worldwide took to the floor to evangelise about the benefits of social media to the audience. There was also quite a debate about whether or not to outsource the writing of blogs. If outsourced, the importance of checking the work before publication was emphasised. One law firm that outsourced a blog about the case of Bradley Manning was embarrassed because the agency made a mistake with the name and kept referring to a ‘Bernard Manning’!
End of conference round-up
At the end of the day, Richard Miller, head of legal aid at the Law Society, summarised its work. As director of LAPG, I then summarised the day, stressed the need to respond to outstanding consultations and lauded the hard work and humanity of legal aid practitioners. Delegates’ feedback about the day was very positive. (Indeed, they also liked the hotel, with the only dissenting voice calling it a cross between a Victorian prison and a public urinal. There were a lot of tiles!)
So, the day ended with a drink, a bit of lost property quickly reunited with owners, and the realisation yet again that legal aid practitioners are warm-hearted, feisty, professional and, although at times despairing, doggedly determined to challenge the effect that the government’s plans are having on the clients they serve.
A delegate questions members of the panel
© OMAR KHAN