Early thoughts of the Low Commission
The Low Commission on the Future of Advice and Legal Support was launched in December 2012 (see December 2012 Legal Action 8). The commission is due to consult on its emerging recommendations in September 2013 and publish its report in December 2013. In this article, Lord Low and Richard Gutch, the commission’s chairperson and secretary respectively, give some pointers to its current thinking.
Aims and objectives
The commission has now had four commission meetings, including a 24-hour away day and three consultation meetings, with one in Wales. It has also met with a wide range of interested parties, as well as with leading politicians in the government and in the Opposition. Although there are many more meetings to come, including one with Lord McNally in June, the commission is beginning to develop a direction of travel.
A good starting point is often to describe where you would like to get to however idealistic that may seem in the current context. We would like:
•a recognition that people often experience problems in clusters;
•an approach that sees advice as an integral part of tackling different forms of disadvantage and which addresses the needs of the whole person in a seamless way;
•an approach that involves taking early action before problems get worse;
•a recognition that the potential of new technology in this field has not yet been fully developed, while also recognising that face-to-face provision will always be necessary for some people;
•the general public to be confident that they will have access to advice and legal support, one way or another, when things go wrong; and
•an approach to provision which recognises the role the market can play, while ensuring that services are available to those who need them in cases of market failure.
Inadequate legal aid provision
What we currently have is far from this ideal. From April 2013, we will be left with the rump of a legal aid system that had become excessively complex and bureaucratic and whose main aim now is not to provide a good social welfare law (SWL) service to those in need, but simply to avoid contravening human rights legislation and judicial review. In funding terms, we are left with a legal aid budget of £157m for SWL – a reduction of £105m – and an, as yet unknown, reduction in local authority funding. In many areas, those parts of the network of provision still remaining are in danger of no longer being viable. As a result, most people will no longer have access to advice or legal support on SWL issues, just when major changes to welfare benefits are taking place.
So, what is to be done? We are not going to be arguing for a simple return to the status quo. Most people we have spoken to acknowledge that legal aid has become over-bureaucratic and complex. Instead, we want to go back to the drawing board and take a fresh look at how we can reduce the need for advice in the first place, and then at how best to develop a model for advice provision that is both fit for purpose and achievable in the current financial climate.
Reducing the need for advice
We must find ways of reducing the need for advice and legal support by taking action earlier and by getting things right first time. Too often, advice workers are simply helping the public to deal with preventable demand, resulting from poor communication and avoidable delays. Could we develop more early action programmes, intervening at the right time, delivering advice differently and having better feedback and learning processes? Are there ways that we could embed information and advice about SWL in a wider range of community-based organisations and in trusted intermediaries? AdviceUK’s work in Portsmouth and Nottingham certainly seems to demonstrate that there is considerable scope for advice workers and government officials to work better together and so to design problems out of the system.
When, despite all these endeavours, problems cannot be resolved without recourse to the formal machinery of justice, whether a court or a tribunal, there are three issues to consider.
•The first is the extent to which the court or tribunal can reduce the complexity of its operation, so that the need for expert and legal advice is reduced.
•The second is the extent to which the court or tribunal can take steps of its own volition to overcome the disadvantages that an unaided person experiences in an adversarial setting. This might well draw from the experience of the small claims court and might go as far as exploring whether a more inquisitorial approach is required to ensure that the judge has all the law, facts and necessary evidence available to reach a decision, rather than just those which the parties have put forward.
•The third is to look at alternative and possibly more appropriate methods of dispute resolution, such as arbitration, mediation or ombudsman-style approaches.
Are there also steps that government departments could be taking to reduce demand? For example, should the Department for Work and Pensions (DWP) and other government departments include penalties in their contracts with Atos and Capita for disability assessments found to be wrong on appeal? Could the Ministry of Justice charge DWP and other government departments more for the costs of the tribunal hearings that result from their contractors’ faulty assessments? Taken together, measures such as these could reduce demand and/or generate income to pay for satisfying the demand for advice that results from system failure.
Legal aid for SWL
It is important to think about the needs of all those who may require help with the problems of everyday life, whether or not they are still eligible for legal aid. Some of those who have never been eligible will in future be able to access help in new ways, whether they use affordable, fixed-price, pay-as-you-go services, legal services insurance, use do it yourself or access paid help through unbundling, as well as benefiting from the more strategic approach to problems set out above. These are new approaches to old problems, but build on innovation that is already happening.
For those people whose problems will still be within scope, there will continue to be a budget of £114m for legal help for SWL. Innovation and a new approach to the use of this money should be considered to make sure that it is focused increasingly on the most critical problems and on the most vulnerable people, that it is not squandered on problems which arise from poor state decision-making or over-complex administrative or legal procedures, and that lessons are learned and applied from these cases, especially in housing, for those areas which will be out of scope in future.
SWL outside the scope of legal aid
The hardest hit group of people are those whose SWL problems are now outside the scope of legal aid. To help them, we will need to develop the capacity of local advice agencies to provide generalist and specialist advice in local areas. We will explore the possibility of establishing a new fund, drawing on a number of different sources of income. One option will be to argue the case for the coalition government providing initial investment for this fund – to be supplemented by a continuation of current levels of Cabinet Office funding, as well as with income from penalties from failing DWP contractors, fund generation schemes (such as dormant client and company funds held by solicitors and Interest on Lawyers’ Trusts Accounts and Big Lottery Fund income). There could then be a real prospect of developing a national network of advice and legal help for those unable to access private provision or legal aid.
The remaining legal aid funds for representation (£42m from April 2013) would be available for buying in specialist legal help when needed to enable access to legal remedies, such as taking cases to court. Over time, there may be a need to increase this budget if the scope of legal aid is expanded using section 10 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Provision of local advice and legal support
How can we ensure a coherent and co-ordinated approach to the provision of local advice and legal support? Commissioning arrangements will be the key to getting this right. We need to ensure that existing commissioners, like government departments, the Money Advice Service and local authorities, as well as the new commissioners like health and wellbeing boards, clinical commissioning groups and housing associations use their contracts with providers to ensure that they:
•focus on those in greatest need;
•take early action, rather than just dealing with crises;
•address clusters of problems, rather than treating them in silos;
•recognise that advice is integral to tackling different forms of disadvantage (such as ill health, poverty, unemployment, homelessness, drug and alcohol addiction) and seek to work with the agencies working in these fields;
•deliver advice in the settings where people go (such as the workplace, GP surgeries and hospitals, schools and local communities);
•deliver independent advice; and
•give feedback and learning which help to reduce the need for advice.
Call for evidence
These are some of our early thoughts. The commission invites readers’ views on these and any further suggestions about what they would like to see the commission recommending. The commission welcomes evidence at any time, but, in particular, would like to receive evidence on the actual impact of the cuts by 31 May 2013. For more information or to submit evidence, please visit: www.lowcommission.org.uk