Government's proposed reform of legal aid - Justice Committee Contents


Written evidence from AdviceUK (AJ 32)

1.  EXECUTIVE SUMMARY

1.1  The combination of proposed legal aid reforms with other local and national funding cuts could create the perfect storm in which local, face-to-face advice provision is wiped out in many areas.

1.2  89.5% of respondents to an AdviceUK survey of independent advice services were facing funding cuts, leading to reduced capacity, service changes and closures, insolvency and redundancies.

1.3  Appropriate alternative sources of help for cases taken out of scope do not exist. Conditional fees are not appropriate for most social welfare cases. Self representation is not a viable option that ensures equality in access to justice. Failing to provide advice for housing, debt, welfare benefit, immigration, education and employment cases taken out of scope could lead to costs for other Government departments and services, such as the NHS.

1.4  The Government should take action to reduce bureaucracy within legal aid and related justice systems and to free up advice services to intervene earlier and tackle systemic failings in public services and administration. AdviceUK studies have shown that nearly a third of demand for legal advice is the result of preventable failure in public administration. Other studies have also shown the cost benefits of early intervention by specialist advisers.

1.5  The Government should also conduct a review of advice provision in the areas of law ear-marked for legal aid cuts. This review should look at current funding sources, access and quality, infrastructure support and recommend a strategic way forward. It should be conducted before reforms to legal aid are considered.

2.  ABOUT ADVICEUK

2.1   AdviceUK is a membership organisation for not for profit (NFP) organisations that provide advice services. AdviceUK has 860 member organisations throughout the UK, 777 of which work in England and Wales—most of which are community-based and many are volunteer-led. Our members work in some of the poorest areas, helping people to solve social welfare problems, providing advice and legal support to over 2 million people a year. Around 60 AdviceUK member organisations currently deliver legal aid services (55 have confirmed legal aid contracts. A further 8 are awaiting the outcome of tenders).

2.2  AdviceUK supports members to improve the quality and effectiveness of their services and provides a national voice.

2.3  We have consulted member organisations regarding the issues on which the Committee seeks evidence. However the views expressed in this submission are not necessarily representative of the views of all AdviceUK members.

2.4  AdviceUK is a member of the Advice Services Alliance and has contributed to its evidence. We do not repeat the evidence submitted by ASA.

3.  IMPACT OF PROPOSED CHANGES ON THE NUMBER AND QUALITY OF PRACTITIONERS

3.1  We have evidence that the overall impact of the proposed changes to civil legal aid scope, fees, eligibility and delivery channels, coupled with reductions in local government funding and the loss of other central government funding streams such as the Financial inclusion fund will create the "perfect storm" in which independent face-to-face legal aid in many localities will be wiped out.

Lcal, community based, face to face advice no longer viable

3.2  As evidence submitted by the Advice Services Alliance shows, NFP advice providers will be particularly hard-hit by the legal aid proposals. AdviceUK member organisations deliver legal aid funded advice primarily on social welfare law matters and immigration and asylum, with some focusing on education. The impact alone of cuts to scope, transfer of cases to the telephone advice channel and a 10% reduction in fees would mean that what they would have left by way of matters starts during the lifespan of current contracts would not be viable. The income from the small number of matter starts that would remain in scope would not be sufficient to employ suitably qualifies staff to deliver them. The only way that face to face legal aid services in the housing, debt, discrimination and immigration matters that remain in scope would be viable if scope cuts are implemented would be on a regional or national delivery basis, due to the low volumes involved. This would present real problems in providing localised access to legal aid advice on these topics. Cuts in other (local) funding streams could spell the end of local, community based advice provision.

Reduced quality

3.3  AdviceUK members with legal aid contracts predict that even without changes to scope, coping with a reduction of 10% in civil fees will be very difficult. Most are already struggling to deliver legal aid services on current fixed fees and have indicated to us that they feel the quality of service they are able to provide has reduced. Several of our members did not bid for new legal aid contracts in 2010. One member (Refugee and Migrant Justice), closed due to financial problems associated with their legal aid contract. An additional 10% cut in income will at least mean that quality will deteriorate further and more agencies may well become insolvent. Some will decide to pull out of legal aid provision, leaving gaps in provision. This will be the case particularly in areas where local authority funding is being reduced. Local authority funding has supplemented legal aid funding for many providers, enabling them to continue to provide a holistic service as legal aid funding has reduced in recent years.

Cmbined impact of legal aid, local authority and other funding cuts

3.4   A survey of AdviceUK members commenced in summer 2010 found that 41% have had funding cuts already and 58% expected cuts to be made to 2011-12 years funding. 71% were subject to a review of voluntary sector or advice funding.

3.5   A follow-on survey commenced in December, which is on-going, has so far found that 89.5% of respondent organisations are experiencing major funding cuts to their advice services. The total funding cut for these organisations is £2.17million—£64k per agency—an average 64% cut in advice funding per agency. 55% of organisations had seen already implemented, planned or proposed cuts to local authority funding.

3.6  What such cuts mean for advice services, according to our survey is reduced services and redundancies and in some cases, closure:

Anti-localism

3.7  Flying in the face of the current Government emphasis on localism, we are seeing smaller local agencies close due to funding cuts and approaches to commissioning by local authorities. Sheffield, Birmingham and Gloucester City Council, for example are moving to the commissioning of single advice services for their areas. Such commissioning tends to favour larger, regional and national bidders. Gloucester advice agency GL Communities, for instance, which was formed by the merger of three smaller agencies, looks set to close its advice service in March. Such patterns are being repeated throughout England and Wales.

3.8  In London, the decision of London Councils to cut funding for advice services and repatriate funding to London Boroughs will have a dramatic impact. The Black and Minority Ethnic Advice Network (BAN), coordinated by AdviceUK, will lose £684,000 in funding, which enabled its 18 member agencies to advise nearly 11,000 BAME clients in 2009-10. The network also delivered public legal information workshops and advice seminars for 1,245 people.

Government cuts other debt advice funding

3.9  The proposed cuts in legal aid and local advice funding will also be compounded by the loss of other vital funding streams, such as the Financial Inclusion Fund face-to-face debt advice scheme. The scheme has funded over 300 debt advisers to assist 77,000 people per year since 2006. According to a statement by Treasury Minister Mark Hoban in the House on 19 January, this scheme appears due to end in March 2011. To date there have been no announcements regarding an alternative scheme.

4.  CASES AFFECTED

Aternatives do not exist or inappropriate

4.1  The evidence of widespread cuts in funding for advice services indicates that the suggestion in the Green Paper that there are alternative sources of advice to pursue cases affected is erroneous.

4.2  Some suggested sources of alternative advice, such as Job Centre Plus and the Benefits Enquiry Line are inappropriate. They are not independent agencies.

4.3  It is certainly not the case that capacity exists to soak up demand spilled by reducing legal aid scope. In the half-million cases cut loose, people may well find no alternative source of legal advice. The knock-on effect of this will be felt by other Government funded services, like the Health Service. Research published in 2006 found that adverse physical and mental health consequences follow over a third of civil justice problems and that 27% of civil justice problems led to stress-related illness. Nearly a quarter of the people affected by stress sought medical treatment, with an average of nine visits each to a general practitioner. (Causes of Action: Civil Law and Social Justice (2nd edition) Pleasence P, 2006, page 60, TSO). Indeed, a range of professionals including GPs, Social Workers and Advocates, plus Members of Parliament, are likely to feel the impact of the reduced availability of free face to face legal advice.

4.4  Courts and Tribunals are also likely to see more traffic. The legal help services provided under legal aid (and other funding) by AdviceUK members frequently provide early intervention before recourse to Courts and Tribunals. For instance, housing advice services assist tenants to negotiate with landlords on rent arrears and disrepair matters at early stages, preventing later Court action.

4.5  Pro bono services from larger law firms are equally, no substitute. Though pro bono legal advice makes a valuable contribution to the advice sector, lawyers from larger city firms do not normally carry out casework and representation as part of the service and often do not have expertise in social welfare law and the justiciable issues presented by clients of legal aid providers. Pro bono advice also takes considerable resources to organise and administer.

4.6  We have deep concerns regarding the Government's belief that in employment and welfare benefits cases the appellant/claimant would be able to represent themselves when making an appeal or legal challenge at court or tribunals. This misrepresents the reality of social security appeal tribunals and ignores the fact that social security law is ever changing and highly complex with many Acts, regulations, guidance and case law. Without specialist legal advice many claimants would not be able to make their case at tribunal, even more so at Upper Tribunal on a point of law. The same applies to employment tribunals - without help to prepare their cases appellants will be placed at a huge disadvantage. Legal help is not currently available for the actual tribunal hearing, yet the DWP and most employers have legal representation. Taking away help for preparing for these hearings will leave appellants even more disadvantaged.

4.7  The Green Paper contained suggestions that conditional fee arrangements could be used more widely. Such arrangements are not suitable for the majority of social welfare law cases.

Unequal impact

4.8   Legal aid services in the areas of law ear-marked are cuts are disproportionately used by people with disabilities, mental health difficulties, carers and from Black, Asian minority ethnic and refugee communities. Typical client breakdowns at AdviceUK member advice centres show, for example:

Agency A
Mental Health Difficulties 48% of clients
Physical Health Difficulties50% of clients
BME37% of clients
English Language and Literacy30% of clients
Carers25% of clients
Families with Children under 415% of clients

Agency B

70% of our welfare benefits clients are BME, also 70% are disabled.

95% of our immigration clients are BME, 20% are disabled.

50% of our housing clients are BME, 52% are disabled.

5.  WHAT ACTION COULD THE GOVERNMENT BE TAKING ON LEGAL AID?

Cut red tape and tackle preventable, systemic failure and waste

5.1  We believe that there is action that the Government could take to both reduce bureaucracy and red tape within the legal aid scheme and justice system and free up advice services to tackle systemic failings in other public services and administration.

5.2  AdviceUK's RADICAL and BOLD work has highlighted:

The bureaucracy that permeates legal aid funding conditions and leads to agencies doing things that are not in the interests of clients.

The systemic failings that legal advice tackles, particularly in some of the areas to be taken out of scope. Work in Nottingham has found that nearly a third of demand for advice is the result of preventable failure in public services/administration.

(It's the System, Stupid! Radically Rethinking Advice, AdviceUK, 2008, Radically Re-thinking Advice Services in Nottingham, AdviceUK, 2009)

5.3  Not being able to deal with this failure does not mean that the failings go away—the failing public service and potentially other services will have to deal with a customer they have failed and the consequences of this failure. What's more, removing sources of independent advice means that the failure may not be spotted and challenged. It will be repeated. Rather than paying for a fleet of ambulances at the bottom of the cliff, better to fund a strong fence at the top and plenty of warning signs on the approach. Advice could actually do more to prevent problems associated with systemic failure if freed up to do more to improve the design and delivery of public services. The current funding focus on legal advice "after the event" does not permit/fund proactive work. Allowing legal advice services to address systemic failings must make economic sense.

5.4  There is a strong case for reforming legal aid. But rather than reducing scope and eligibility we should be looking at how publicly funded legal advice work in all currently funded areas can be freed in order to proactively tackle system failings. Intelligently funded advice work could save £millions and improve public services.

5.5  Furthermore, on the subject of systemic failings in public services and administration, the Government should be looking to tackle poor design and bad behaviour within Government departments and agencies which adds to legal costs rather than the advice and support for the "victims" of this failure. Costs associated with the complexity of law and judicial process should also be examined. Many commentators have noted problems in particular areas of law and administration in their responses to the Green Paper. The Immigration Law Practitioners Association (ILPA) for instance has highlighted, in its draft response to the Green Paper, the failings of the UK Borders Agency and legal complexity which add to legal aid costs (http://www.ilpa.org.uk/).

5.6  Indeed, the Solihull Early Legal Advice Pilot, in which the UK Borders Agency and Legal Services Commission were involved, showed the benefits of early intervention on behalf of clients by specialist asylum advisers. This led to far better decision-making and the potential for cost savings in the asylum process. (Evaluation of the Solihull Pilot for the United Kingdom Border Agency and the Legal Services Commission Independent Evaluator Jane Aspden, October 2008.)

5.7  We strongly urge the Government to tackle such "pollution" rather than deciding that whole swathes of legal action that tackles it are "undeserving" of state support. This will disproportionately affect the most vulnerable and disadvantaged members of society and leave the maladministration, cost and waste in place.

Conduct a full and proper review

5.8  As we have outlined in sections 3 and 4 above, the proposals in the Green Paper will have widespread, unintended but very serious and costly implications. While the Green Paper sets out a rationale for the cuts, we believe they are rash and not fully thought through. They do not consider the combined impact of the proposals with other advice funding cuts. They are made on the back of many years of turmoil in legal aid that has seen providers jumping to new tunes every few years: The Making Legal Rights a Reality Strategy saw the now aborted project of joint commissioning of Community Legal Advice Centres and Networks: Fixed fees were introduced in 2007: A new procurement approach was introduced just last year in which the combined delivery of social welfare law was deemed essential.

5.9  The time has surely come for the Government to take stock and embark on a carefully considered strategy that ensures adequate access to legal advice. We suggest that the Government should therefore establish a review to examine how advice on social welfare, immigration, education and employment matters is currently funded and delivered. It should look at access to and the quality of this provision and how it is supported by infrastructure bodies. This review should be completed and publicly scrutinized before any further reforms to civil legal aid and other government funding schemes for advice are considered.

January 2011



 
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