The Joy of Housing Law
And we thought the sound and fury over whether bench, bar and solicitor-advocates wear or don’t wear wigs was bad. From the land of more relaxed court-wear comes a debate over whether a cravat (or an Ascot, depending) is appropriate for an advocate or rather ‘borders on contemptuous’. Shockingly, bowties are apparently thoroughly respectful.
Thanks to WAC for the link.
The Guardian reports on a survey by the Association of Lawyers for Children. The results are not surprising to anyone facing a legal aid future (although the survey was done before the LSC decision to terminate the unified contract).
One-third of individual solicitors and 40% of law firms planned to reduce their 
reliance on legal aid work. 17 solicitors had or were just about to give up family legal aid (what proportion was this?). One solicitor reported that a prospective client looking for an urgent domestic violence injunction had called 22 other solicitors without finding a taker. Anecdotally, this doesn’t surprise me. Some of our callers for housing have tried 10 or 11 other firms, and if we can’t take them on, no doubt the other callers will go on to do so. (This is discounting those with no case at all).
[Edit. The survey is here [word doc]. It is a survey taken at the ALC conference in November 2007. 101 survey forms were (mostly) completed. One might have questions about the representativeness of the sample. However, the sample is undoubtedly of experienced and specialised individuals.]
It is the most experienced, often in child care cases, who are looking to pull out, the article suggests. They would be the ones hit hardest in the new fee structure, so this shouldn’t startle anyone.
In Criminal legal aid, the shrinkage continues apace. Fisher Meredith are reportedly pulling out of criminal legal aid work from March. Fisher Meredith are a large specialist legal aid firm. This is a big step.
Naturally, the LSC points out that the very large majority of firms signed up to the unified contrat or the new criminal contract. Of course. The LSC said there wouldn’t be any legacy funding. Why stop dead when you have the opportunity to wind down and make plans for your alternative route?
Following their usual line, the LSC added “Where individual providers have made that decision [to leave], others have been willing to increase their legal aid work accordingly so there has been no impact on access to services.”So far that has been largely true, although it varies by area to area, but while firms are willing to go to their perceived maximum capacity, few are expanding afresh. Once large firms like Fisher Meredith start pulling out, in this case from Criminal, that capacity to absorb will disappear like spring morning mist.
The truth is that the crunch point has arrived. The next 12 months or so will see trend take shape. Up till now, given the sheer chaos of the implementation, everyone was content to wait and see. Now, for Criminal at least, the economics are clear and people will leave, in increasing numbers.
One imagines that about 3 years time, a frantic attempt will be made to rescue the situation by the MoJ/LSC. Any bets on a spin off of the CPS to be the CDS?
Good heavens. In an announcement carefully made at 5 pm on 21 December 2007, the Legal Services Commission states that intends to terminate the unified contract. Yes, that civil legal aid unified contract that we mostly signed up to in March/April 2007 and that was to run the next few years.
Granted, the unilateral powers of amendment the LSC reserved to itself were found illegal by the Court of Appeal, but the LSC and Law Society were apparently in talks about revisions and the LSC seemed determined to steam ahead anyway.
In a remarkably bad tempered statement, the LSC blames the prospect of further legal action by the Law Society and, astonishingly, claims the need for certainty. Given the utter lack of consistency and stability that the LSC has provided, with changes from week to week, it is a surprise to know that the darlings are unsettled by uncertainty.
The LSC insist the fixed rates introduced under the Unified Contract will continue in the meantime. The Law Society suggests they fell with the amendment clause. This will rumble on.
The LSC aims to terminate the contract and re-tender, presumably for a new contract (although of course no-one, even the LSC, has any idea what this might look like).
Lest one mistake this for an outbreak of realism by the LSC, their letter claims
Given the applicability of the EU Procurement Regulations, confirmed by the courts in the recent litigation, the procurement process leading to the award of new contracts will be open to new providers and to existing contract holders and will include processes for bidding for the allocation of New Matter Starts which are already a feature of the controlled budget for Legal Help.
Given the levels of response in the recent Civil Bid Round, this is likely to lead to competition for contracts and work.
There are two ways of reading this. Hopeless optimisim, with a bit of threat rolled in, or a statement of intent that the next tender round WILL be competitive, because the LSC will restrict contract numbers to ensure it is. I tend to the latter view.
For the Law Society’s slightly gob-smacked response, see here, which also links to the Law Society/LSC correspondence on this issue.
So what is the time scale for terminating the contract, introducing a new contract with so far unknown terms, and re-tendering? Nobody knows, but presumably soon. So, plenty of time for a considered and revised approach then, and of course, in the hurry there is no room for un-thought-through and potentially catastrophic errors like, err, the Unified Contract.
Oh frabjious day. After many months ploughing a lonely furrow as the internet`s finest but only housing law blog, I am delighted to welcome another into the world. William Flack of Flack & co, who both comments on and features in posts hereabouts, has begun his own blog. I will be reading with enthusiasm. But William, nobody else can add comments at the moment…
[Edit. No disrespect intended to Tessa at Landlord Law, but, as the title suggests, she focuses on Landlord & Tenant rather than broader housing law issues.]
This story rumbles on, with several features in today’s Guardian, here, here, and here. The paper sees fit to pitch it as something of a moral dilemma, before finally plumping for one side.
The terms of the ‘dilemma’ go something like this.
Very large numbers of women, working for local authorities and schools, usually at the low paid end of the scale, turn out to have been unlawfully paid less than male comparators for many years. Quite how many is still not known because only 47% of Councils have completed pay reviews, despite a deadline of March 2007. However, the Local Government Employers organisation estimate that the underpaid could be in the area of 40% of all Council staff.
Unions have made deals with some Councils for back pay and forward adjustment and are negotiating with others. The Local Government Employers organisation estimates the costs of this at £2.8 billion. The Councils are saying that this, because it is not being funded by the government, will hit services.
Even worse, thousands of women are making independent claims for pay discrimination, some against Councils that have settled with the unions. Both the Councils and the unions are up in arms about quote ‘no win, no fee’ unquote lawyers taking these cases, because:
The real basis of the objections is, of course, money. The settlements reached so far are usually below, sometimes grossly below the value of claims going on awards already made by the Tribunals. An example in the Guardian is a settlement of £5,000 that was rejected and a claim brought. The Tribunal awarded £32,000. The Councils say that inevitably there will be severe cuts in services and redundancies if they have to fund the ‘increased’ level of back payment.
The ‘no win, no fee’ lawyers figurehead is Stefan Cross, who apparently has about 30,000 claims underway and who is preparing a High Court claim against the GMB for sex discrimination for failing to represent its female members properly.
Let me pause to note a couple of issues that struck me in the Guardian reports. First, the GMB itself has issued 25,000 equal pay claims in the Tribunals, which one imagines might go some way to ‘clogging up’ the system.
Secondly, in the case mentioned above, with the award of £32,000, it is reported that after tax and lawyer’s fees the woman received £18,000, which by my rough and ready reckoning means costs and disbursements in the region of £7000. Tribunals, as far as I recall, do not generally make costs awards. If the client is paying the costs of the case, then this is not a CFA. As contingency fees are illegal, this can only be a form of deferred fee arrangement, a conclusion supported by reported costs of £500 per 6 months charged to claimants who pull out. This is not a no win, no fee set up. I’ll come back to this later.
In response to the charges from the Councils and unions, the independent lawyers point to the slowness of the Councils and unions in dealing with the issue, with the low level of settlements, and the inactivity of many Councils altogether. The women involved were illegally and discriminatorily underpaid. They are entitled to back payment for the last 6 years in full.
So where is the moral dilemma? There has been discrimination on pay which is both illegal and immoral. The only morality lies in full restitution, or at least as full as the law allows. If the women choose, as realistically their best option to get close to this, to sign up for a deferred fee arrangment, it is hard to see a moral objection - particularly on the part of Councils that have effectively enforced the subsidization of their services by these women.
The Councils and unions try to cast this as self-interest in ‘getting as much as they can’ which will damage services and ongoing employment. This is, of course, nonsense, although there may be well be a significant financial blow to the Councils. The women are entitled to the full amount. The Councils are effectively insisting that the women continue to subsidise them.
What it is, of course, is real politik. Rather than actually attempting to sort out the mess - remember over half of Councils still haven’t carried out an equal pay review - or present a coherent face to central government on the situation, both the Councils and the unions prefer to blame self-interest and ‘no win, no fee’ lawyers, raising the spectre of public money disappearing into lawyers’ pockets (as with the miners compensation scheme).
Assuming that I am right about the deferred fee arrangments, this is simply inaccurate. But it is notable that ‘no win, no fee’ is now a synonym for grubby ambulance chasing, opportunistic lawyers and is being used in spin for that effect.
The Guardian editorial, unsurprisingly, plumped for the side of the Councils, (after raising the miners compensation scheme as a precedent to be avoided!)
Crucially, the courts are better at resolving absolute rights and obligations than trading off competing priorities. But balancing objectives is what sound decision-making is all about when significant public expenditure is involved.
says the Guardian, gloriously managing to confuse Councils’ limited decision-making ability under statute with the ability to, well, actually change the law and, just to muddy matters further, suggesting the Courts could make lower awards if they wanted and if they took the Councils’ situation into account. The editorial adds
‘No move to make the settlement more generous [sic] should be made without taking into account the effect on pupils and patients… The imperfect compensation on offer can help atone for the wrongs of the past’.
Unfortunately for the Guardian, it is not a question of ‘generosity’ but of legal entitlement. The imperfect compensation is not only not (yet) on offer to a majority of the underpaid, but also means that the lowest paid women are told to continue to subsidise Councils, (in the example above, it would have been to the tune of £27,000). I wonder what Polly Toynbee would make of that?
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