Authors:Chris Minnoch
Last updated:2023-10-23
Early Legal Advice Pilot: missing the point?
Marc Bloomfield
Description: Legal aid
Chris Minnoch expresses serious reservations about the Early Legal Advice Pilot, which began in April 2022.
In a month or two, an important new Ministry of Justice (MoJ) initiative will begin in earnest under the banner of the Early Legal Advice Pilot (ELAP). My view of why this is important differs significantly from that of civil servants. ELAP has been designed to test the hypothesis that ‘early legal advice relating to housing, debt and welfare matters minimises negative housing-related outcomes (eg loss of home) and results in measurable downstream savings across government’ (Early Legal Advice Pilot evaluation note: update for the Legal Support Evaluation Advisory Group – February 2022, MoJ, page 2).
The truth of this hypothesis is blindingly obvious to anyone in the advice world. However, the MoJ has decided it needs to spend £5m and two years gathering data to make the case to Treasury and justice ministers that if you give lawyers better tools to help clients, they will achieve better outcomes. Given the history of legal aid policy over the past 10 years, this is quite progressive thinking, but there are some serious design flaws that mean this pilot does not give better tools to lawyers. Its importance, therefore, might be derived from what it fails to demonstrate, and how far things slide for client access in the meantime.
An arbitrary but absolute limit on help
Assistance under the pilot is limited to three hours (as set out in para 1 of the Schedule to the Early Legal Advice Pilot Scheme Order 2022 SI No 397, which enables the pilot by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and related secondary legislation from 24 March 2022). Why? The MoJ has explained to me that this is to ensure that sufficient cases are funded to have enough data to make a persuasive case to Treasury.
That makes some sense, but why is ‘early legal advice’ being conflated with ‘limited, initial legal advice’? An absolute limit of three hours will distort the service provided and completely ignores what clients are likely to actually require. Clients currently presenting to a housing lawyer often take two or three hours to interview, to go through their documents, to formulate a plan and make some initial enquiries with their landlord. How are advisers expected to provide any meaningful assistance when they are expected to consider housing, debt and benefit issues in detail, and to take some sort of action to assist the client to deal with those issues? For some providers who do not have in-house debt and benefits expertise, agents will have to be instructed to help. So, two or more agencies are supposed to work collectively to advise and assist a client with linked legal issues, all within a three-hour time limit? And all taking some sort of apportioned share of a fixed fee of £200.70?
And why no escape fee? A fixed fee has been introduced that reflects current (lower and non-London) legal help hourly rates, with a 25 per cent uplift to recognise that providers will need to collect additional (as yet undetermined) data and interact with the external evaluators. For those who need to instruct agents, they will be responsible for collecting this data from them.
An information sheet sent out to potential providers stated that the MoJ ‘intend[s] for the pilot scheme to reflect real-world conditions including remuneration fees currently offered for similar legal aid work’. But current real-world conditions accept that some cases are more complicated, and take more time, and providers should not be penalised as a result. Absolute fixed fees also run the risk that advisers work strictly to rule and cease to assist when the money runs out, or cherry-pick cases that can be resolved within the limits.
Of course, what has actually happened in many areas of legal aid since the introduction of fixed fees is that providers have just stopped doing the work as the fees bear no relationship to the actual costs of delivering the services. Even when escape thresholds are factored in, 10 hours’ work at a ridiculously low hourly rate is no more commercially viable than three hours’ work. Why create a pilot that reflects real-world conditions when those conditions have systematically strangled the life out of providers for over a decade, and then not even allow them to claim for the work they actually need to do to help their clients?
The pilot is limited to current housing and debt contract holders. These providers are experts in housing law (in-scope debt is negligible). But they are also overworked, underfunded and need to manage their caseloads very, very carefully to maintain any semblance of sanity in their working days. If a particular funding stream has an absolute cap of three hours, what do you think they are going to do when they reach that limit? The pilot allows advisers to provide ongoing assistance, but only if the client is financially eligible and only for the aspects of the case that are in scope. Essentially, this means possession claims for eligible clients, but there will be an artificial bar placed on providing ongoing help with debt and benefit issues.
I can just see how that would go down with the local district judge: ‘Yes Madam, I did draft this defence to the possession claim after initiating the challenge of the Department for Work and Pensions’ decision. But the Legal Aid Agency will only pay me for three hours’ work on the benefit issues, so I couldn’t help my client after lodging the review. I have no idea what happened next. Maybe my highly vulnerable client can explain it to you?’ Of course, this won’t happen, will it? The advisers will just do the work for free because they have made a commitment to the client. The artificial cap will just lead to yet more unpaid work, and will make evaluation of the scheme almost impossible.
Does the expertise exist to provide a joined-up service?
Ten years ago, almost all debt and benefit matters were taken out of scope by LASPO. Social welfare law providers left legal aid (or collapsed) in their droves. Capacity and expertise were instantly sucked out of the sector at the very time that advice organisations were also facing austerity-driven cuts to funding from local authorities. While some not-for-profit providers have maintained services across these three specialisms, the sector is a shadow of its pre-austerity self.
Crucially, with a pilot centred on housing issues, experienced housing lawyers have lost the expertise to assist with benefit and debt matters, and newer housing lawyers were never incentivised to obtain it. The welfare benefits system is mind-bogglingly complex and debt advice is highly regulated. It is very likely that housing and debt providers will need to retrain to deliver the pilot service, or instruct agents to assist with aspects of the cases, and when they have reached their three-hour limit, they are required by the new ELAP contract specification to refer their clients to alternative sources of help.
But do these alternative sources actually exist, either to contribute as agents or accept referrals? The MoJ did not assess the wider advice sector’s capacity to support this pilot before choosing Manchester and Middlesbrough as the pilot areas. Nor has it provided any financial incentives for housing and debt providers to develop this capacity, either for retaining or taking on additional staff. In that sense, I suppose, the pilot is replicating real-world conditions, as it will take place within a fractured, disjointed and underfunded advice ecosystem.
Design cart before evaluation horse?
One potentially positive aspect of the pilot is that the evaluation process is being outsourced to an independent body – the MoJ will not be marking its own homework here. However, the MoJ made key decisions about how the pilot would operate before attempting to commission external evaluators. Fee and time limits were already in place. The location of the pilot and the services on offer had already been chosen. But given that this is essentially a research project, wouldn’t it have made more sense to appoint the evaluators during the design stage, to ensure that the structure of the pilot actually supported the research methodology and evaluation process?
The first thing that the external evaluators are being asked to do is a short feasibility study to determine the best method for assessing the effectiveness of the pilot. However, this study will take place after the Early Legal Advice Pilot Scheme Order 2022 has come into force, and after the Legal Aid Agency (LAA) has developed the new contract specification. It is entirely possible that the first question that the evaluators will ask is: ‘Why have you designed the pilot this way if you are trying to test this hypothesis?’
More than 90 per cent of the funding set aside for this project is for data collection and evaluation. This leaves a tiny proportion for actual service delivery. This could be a positive, as in theory the MoJ will have plenty of resources to collect and analyse data, and therefore make a strong case for developing more effective services. But when the model being evaluated is so flawed, what exactly will the evaluators have to work with?
One of the key weaknesses of this pilot is, again, the arbitrary three-hour limit. In the context of the evaluation, it is a significant problem because the evaluators are looking at two primary issues:
Does the early advice on linked problems resolve issues at an earlier stage (better outcomes for clients)?
Does the service result in downstream savings for public services (better outcomes for the public purse)?
However, advisers are expected to stop providing legal assistance at a (very early) point prescribed by para 1 of the Schedule to the Early Legal Advice Pilot Scheme Order 2022, rather than stopping because they have resolved the issues (or those aspects of the client’s problem capable of resolution). The client’s problems may take months to resolve or, more likely, they may spiral out of control once the adviser withdraws. Some clients may be able to act on limited initial advice, but many will not, and they may get ongoing assistance from another agency. Outcomes, however they are defined, may not materialise for some time after the service ends, making it methodologically unsound to conclude that they are linked to or result from the pilot intervention. From a research perspective, it will be extremely difficult to draw firm conclusions about the efficacy of this service when it is artificially hamstrung from the outset.
What the MoJ should have done is test different levels of intervention. A pilot in one area could have a three-hour limit; in another it could work on a higher fee; in another with an escape mechanism; and in another with no limit at all. Comparisons between these different models would provide rich data about which model produces the best outcomes for clients and minimises downstream costs for public services. Fund fewer cases but ensure that clients get ongoing assistance and the evaluators can be certain that the services delivered are a significant factor in the outcomes achieved. The driving principle behind an advice pilot should be finding out what clients need, not how many bits of data the MoJ requires.
Will the non-means, non-merits approach actually undermine the research?
Social welfare legal aid is currently restricted by means and merits requirements. The pilot is not. On the face of it, this is a good thing because it removes barriers for accessing legal assistance. In practice, I think these concessions will not materially affect who receives assistance as providers can only assist clients under this scheme when they are referred to them because of a trigger such as council tax arrears.
However, there is a risk that this approach will actually undermine the ability to extrapolate the findings into any viable post-pilot model. A non-means, non-merits model opens the pilot up to a cohort of clients who may never be eligible for legal aid. It masks the fact that much of the time taken up within the current legal aid system is spent establishing financial eligibility and gathering together the documents required to comply with application or audit requirements.
If the MoJ intends to drop merits and means requirements from all future legal help services, then that would be a result. But I doubt it will. Merits, such as they are defined within the regulations and guidance, are generally easy to determine for specialist social welfare advisers, but means can be a practical and bureaucratic nightmare. And if clients who are not eligible for legal aid, or whose cases do not have merits, are referred to scheme providers, then advisers are even less likely to be able to provide meaningful assistance under the pilot. It limits who can be referred for external help, or who can be provided with ongoing assistance with a possession claim under legal aid. How does that help the evaluators to test the hypothesis in ‘real-world conditions’?
What happens in the meantime?
The pilot period commenced on 1 April 2022 and is set to run until 31 March 2024. The MoJ hopes that advisers will assist in around 1,600 cases as it has decided that a data set of this size will enable robust outcomes. Within that period, the LAA will run a full-scale civil tender process as current contracts will end on 31 August 2023. It is possible that, as a result of the tender, the number of civil legal aid providers increases slightly. However, during the pilot period, what we are likely to see is a continuation of the contraction of the provider base because the MoJ has no plans in place to arrest the reduction in supply. In April 2012, the year before LASPO came into force, there were 2,134 civil providers. By February 2022m that number had dropped to 1,369, a 36 per cent reduction.1Hansard HC Written Question UIN 121917, 9 February 2022; answered 21 February 2022. In the period April 2013 to September 2021, the number of housing and debt offices declined from 710 to 397,2Hansard HC Written Question UIN 51685, 20 September 2021; answered 23 September 2021. a drop of 44 per cent. Meanwhile, housing legal help matter starts plummeted by a staggering 39 per cent between 2013/14 and 2019/20.3Legal aid statistics tables – October to December 2021, MoJ/LAA, 31 March 2022, table 5.1.
By the end of the pilot, when ministers will be trying to decide whether to develop new services based on the pilot’s findings, it is possible that there will be as few as 1,200 civil providers, and perhaps 300 housing providers, across the whole of England and Wales. The situation is particularly acute in relation to housing advice as official government data (see above) points to an absolute collapse in the sector’s capacity to assist clients with housing issues (and their underlying causes). The spectre of fixed recoverable costs risks an even more significant attrition rate for housing providers. So, who will be left to deliver whatever comes next as a result of this pilot? Where are the MoJ initiatives to increase supply, to encourage providers to return to housing legal aid, or to incentivise providers to expand and develop their expertise to deliver more holistic services?
The providers involved in this pilot will do their best. They will work tirelessly for their clients and they will appreciate a new weapon in their diminished arsenal to tackle poverty and homelessness. But everything I have seen about the pilot points to a model that will produce incomplete and unhelpful data. It points to a model that will undermine the evaluation of the pilot when you consider the hypothesis being tested. The design of the pilot did not start by considering what clients need, nor did it consider the significant fragility and limitations of the wider advice sector. And, crucially, the pilot is not being delivered as part of a broader MoJ plan to develop a strong, resilient and viable sector equipped with the tools to produce better outcomes for clients and for public services. It’s time for a rethink, time for a genuine attempt by the MoJ to fix the broken legal aid system.