In the last issue of Frontline, Nony Ardill, Policy Director at Legal Action Group, outlined the framework for legal aid in England and Wales developed by the Access to Justice Act 1999. This issue critically analyses the new system and its shortcomings.

The new system: areas of difficulty

At present, there is a common perception that the legal aid system in England and Wales is approaching a state of crisis. Even if this is an overstatement, there are no doubt a number of serious problems.

Funding

The funding crisis in legal aid to a large extent underpins other problems. The Legal Services Commission (LSC) is working to a fixed budget and, as noted in Part 1, expenditure on civil work has had to give way to pressures from the Criminal Defence Service. There are also pressures from expenditure on asylum work, which totalled £171 million last year, having doubled over three years. Another factor is that the average cost for civil cases is increasing; the reasons for this are not clear.

The Department for Constitutional Affairs (DCA) now appears desperate to show the Treasury that it can control costs. It is imposing controversial limits on legal aid for asylum and immigration cases and, as noted above, is cutting back the scope of criminal legal aid. The department is also undertaking a major review of supply, demand and purchasing arrangements for legal aid, which many fear could lead to radical changes such as competitive tendering, or advice delivered by phone through call centres (already being provided in some areas, such as rural Wales). There could be fixed fees for some areas of legal help work.

Quality assurance

The LSC’s Quality Mark system of quality assurance is often criticised because the ‘tick box’ approach does not get behind the systems and processes operated by the legal aid contractor to examine and assess the quality of advice given. A good example of this problem is the number of ‘cowboy’ solicitors’ firms that are doing immigration and asylum work, all of which have been audited and found to comply with the Specialist Quality Mark.

There is now a view that peer review is perhaps the only effective method of measuring real quality of advice. The LSC has been forced to turn to peer review to run checks on the quality of work delivered by the suspected ‘cowboy’ firms in the immigration field; in addition, it has said that peer review will now be used as an audit tool on a sample of suppliers, to provide ‘benchmarks’.
It is also important to mention the hugely unpopular ‘contract compliance’ audits. These are in fact designed to check costs rather than quality; LSC staff audit a selection of files in a firm to make sure there is no evidence of ‘overclaiming’. If they find evidence, they tax off the same amount of time from all files across the board. There have been many complaints from solicitors’ firms that auditors often get things wrong, misunderstand the work, or fail to appreciate the underlying obligation of the solicitor to act in the best interests of clients.

Contract compliance audits are not yet fully in place in the not for profit (NfP) sector; so far, agencies have been tested out with ‘educational’ audits. However, these have exposed potential problems for many agencies, especially those that aim to work holistically with their clients. Some of their work strictly speaking is outside the scope of the legal aid contract, or fails the ‘sufficient benefit’ test. Essentially, these problems expose a different culture within much of the NfP sector.

Access

There were arguably problems with access from the moment that the Community Legal Service was established – so called ‘advice deserts’ where there was under-supply of contracted work. But now things are getting worse. Many private practice firms are reportedly on the point of pulling out of legal aid, or have already done so. The main reasons they cite are low levels of remuneration that make the work unprofitable and the administrative burdens of contracting. It seems that the viability of the ‘judicare’ system is in doubt. There is now serious discussion about other models of payment, such as block grants, GP or dentist style contracts, and even salaried services.

Problems of access are also caused by the contract system allocating fixed numbers of case starts to solicitors’ firms. When these case starts run out, clients are turned away, effectively rationing the work. (Most NfP organisations have contracts based on blocks of 1,100 hours of work – within this total, the number of cases remains flexible.)

Linked to the problem of low remuneration are problems of recruitment that many firms are now experiencing. Similar difficulties are occurring in the NfP sector. There is justifiable concern about where the next generation of legal aid practitioners is coming from. Young lawyers often start their legal careers saddled with enormous debts; £20,000 is not uncommon. The LSC has set up a grant scheme to support young legal aid lawyers through their training. Although this is a welcome initiative, it is not large enough to properly address the problem.

Combating social exclusion?

There used to be a concern that the LSC and the DCA were ignoring the wider government social exclusion agenda, and making insufficient play of the role of legal and advice services in combating deprivation. Now it seems as though they are referring to social exclusion in every other statement, and moving towards an assumption that legal aid should be targeted on the socially excluded. Targeting, of course, is closely linked to rationing. The implication is that if you fall outside the definition of ‘socially excluded’, you should not expect to benefit from legal aid.

There is a concern here that the DCA, along with the rest of the government, actually misdefines social exclusion by suggesting it is shorthand for a state of affairs (eg worklessness, poor housing). Unlike in France, for example, the British government avoids equating social exclusion to lack of rights. The language of the DCA and the LSC carries few references to the need for people to feel confident in asserting their rights and plays down the need for litigation (as opposed to advice and guidance). They also have paid little attention to the fact that problem clusters, embedded in someone’s complex personal and social circumstances, are often best addressed by holistic approaches to clients, including non-legal support. Sadly, the contract regime that we now have does not lend itself to that approach.