Tag Archive for 'public funding'

Legal Aid enters its Bến Tre period

Published
by
NL
on 06/02/2010
in Various (non-housing)
. 4 Comments

The Ministry of Justice response to the ‘Legal Aid: Refocusing on Priority Cases’ consultation is now out, with the MoJ’s final proposals [link to pdf]. Although the responses to the consultation appear to have been pretty universally negative, the MoJ is going ahead anyway.

The report announces that ‘We share the view of Lord Justice Jackson that legal aid should remain in important areas like housing and judicial review.’ However, it appears that in order to save legal aid it has now become necessary to destroy it, bit by bit. The headline changes are:

Improve the way that cases involving human rights or public interest are handled by transferring cases that depend on these issues to receive funding to a new committee for advice on their merits. This will help to ensure that legal aid is awarded to meritorious cases.

Ensure that cases granted legal aid on the basis that the proceedings will bring benefits to others have a realistic prospect of delivering such wider benefits.

Detect fraudulent legal aid applications earlier, by checking with the unfunded opponent to ensure that the applicant is financially eligible for legal aid, with safeguards for domestic violence or urgent cases.

Tighten the funding rules for granting legal aid for judicial review cases to ensure that funding is directed towards meritorious cases.

Restrict funding for low-value damages claims brought as part of a multi-party action. This will help to ensure that limited resources are available for higher-value cases, or cases brought by individuals.

Tighten access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, with safeguards for important human rights cases.

Ensure that where legal aid funds a community action, the legal aid contribution mirrors the proportion of the affected population who are actually eligible for legal aid.

Thankfully, some of the loopier proposals have been dropped. These included:

(a) balance disadvantages and benefits in assessing public interest; (b) invite members of the public and/or public sector body representatives on to the funding committee; (c) appoint the SCU director as the Chair of the new funding committee; (d) restrict legal aid for individual low value damages claims; (e) require additional reconsideration of merits in judicial review; and (f) withdraw solicitors’ delegated powers to self-grant judicial review funding in urgent cases.

But what is left is not going to make for happy reading. Family solicitors are already quaking at the idea that there will be a two week period where the opponent gets to make representations about whether the party applying is actually eligible for legal aid (although not domestic violence or child protection/abduction cases). Cue bitter battles over financial disclosure before funding is even granted. But this is just a pilot, with the aim of a roll out to all areas. It will not apply where the client is at imminent risk of losing their home.

On funding public interest cases, the test will now be:

(i) the case has the potential to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question);
and
(ii) the case is considered on its particular facts to be an appropriate case to realise those benefits.

On public interest and special cases:

We intend to proceed to establish a ‘special controls’ regime for individual cases or types of cases which differ from the mainstream of civil legal aid cases. These cases are: (a) Multi-Party Actions; (b) appeals to the Supreme Court; (c) cases with only ‘borderline’ prospects of success which rely on significant wider public interest or significant human rights issues in order to receive funding; and (d) cases where the costs might exceed £250,000 if they proceeded to a contested trial or final hearing (or for Court of Appeal cases, to the conclusion of that appeal stage).

There will be a new Special Controls Review Panel, with one or more members from consumer groups “The panel will not make the final decision about whether funding should or should not be granted. The panel will not have the power to make the final determination of any issues, other than the legal assessment of prospects of success.” – the final arbiter being the Director of the Special Cases Unit. What this appears to mean is that Which? will be assessing the prospects of success of that Supreme Court appeal you want to bring.

Multi Party Claims where for damages only will have to be above a threshold of £5,000 damages per client, rather than the current approach of aggregating the individual claims into a lump amount.

On judicial review, the presumption of funding where permission had been granted is to be removed, apparently because the LSC was upset about not being able to assess the merits of the case for themselves, where a High Court judge had already done it. The same test will now apply pre and post permission, although the LSC will ‘give weight’ to the grant of permission in carrying out the assessment.

The Funding Code will be ‘clarified’ so that funding for judicial review will only be granted where the client is seeking a material benefit for themselves or their family. Funding will not necessarily be withdrawn ‘in a case where the client secures a satisfactory outcome, but the general issue remains unresolved’, though.

The proposal to end use of delegated powers to fund urgent judicial review claims has been dropped, partly because the LSC eventually dug up some figures showing the success rate was the same for delegated powers and non-delegated powers cases, the clear implication being that the powers weren’t being abused.

All this is intended to on the statute books by April 2010…

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On the Naughty Step- allegedly

Published
by
NL
on 16/04/2009
in Various (non-housing)
. 0 Comments

The CAB in Wales appears to have branched out into inadvertent wealth re-distribution, allegedly by way and end of Dale and Sally Foster now on trial at Swansea County Court.

The Fosters ran the CAB office at Ammanford, Carmarthenshire, together. In fact, they were the main paid employees of the branch. What isn’t clear from reports is quite how much the Fosters were paid, although Mr Foster was on £9000 for a 30 hour week as an assistant when he started in 1997 and Mrs Foster was the manager of the branch. However, the police, the CPS and, one presumes, the CAB were fairly sure that their wages didn’t account for an alleged spend of £650,000 up to Easter 2006. In fact the CAB is pretty sure that they hadn’t contracted for the additional £150,000 salary over 5 years ‘over that to which they were entitled’. Oh and a £76,000 expenses claim which belatedly ‘flabbergasted’ the chair of the trustees. Prosecutorial eyebrows were further raised at a spend of £57,000 between October 2003 and January 2004.

Of that 57K, the prosecution state that £17,000 went on preparations for and going on a ski trip to the Whistler resort in Canada, including stayovers at the Ritz and the hotel Carnaby Tower (which as far as google can see, doesn’t exist anymore) on shopping trips.

But the true horror of the Foster’s alleged offences lies in the detail of the rest of the spend of £40,000. £8,000 on designer furniture may be fair enough but £1300 on vinyl wallpaper is inexcusable by either criminal or aesthetic standards.

The prosecution claims that in that four month period, the Fosters spent £2000 on champagne and fine wine. But two years later, their alleged reign of terroir was at an end when, at Easter 2006, they posted the keys to the CAB office through the door of Mr Bell, a local solicitor who was acting as bureau chair, and quit their work – initially one presumes to spend more time with their wallpaper, and then shortly afterwards to head for France. According to Mr Bell, they left behind an office which ‘appeared to have been emptied of most of its records and even its computer system had been wiped clean’. But he found some of the expense claims in a box, at which point his flabber was gasted.

Allegedly, the temptation became all too much when the Ammanford office won a contract to provide phone advice for the whole of Wales, worth £1.2 million, plus sundry other grants. (Any imputation on the wider provision of telephone only advice contracts is to be avoided.) The prosecution suggested that the contract meant the CAB Office was ‘awash with cash’, which is not, I suspect, a description most CABs would recognise at all.

One trusts that the truth will out in the course of what is apparently to be a six week trial. The Fosters are, of course, innocent of any criminal wrongdoing until proven otherwise, but there are no reports that they have denied their choice of wallpaper, and for that alone – until a verdict is given – they go on the Naughty Step.(1)

(1) I have the qualifications that officially allow me to make this kind of aesthetic value judgement. It is a bit like being admitted to the roll, but takes longer and pays less. The only benefit is being able to point at some things in the Wallace collection and say loudly ‘this is third rate rubbish’ without shame or uncertainty.

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A Weaver v L&Q interlude.

Published
by
NL
on 25/03/2009
in FLW case note, Housing law - All and assured-tenancy
. 2 Comments

While we wait for the Court of Appeal judgment in Weaver v London & Quadrant – the case was heard in the last week of February, I believe – we have a judgment along the way, specifically on Weaver’s application for a protected costs order (PCO). It is tempting to see this as something of a parable or synecdoche of the practical frustrations of bringing housing cases, and perhaps of the approach of certain large RSLs.

So, Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235.

As all will recall, L&Q were declared to be a public body for the purposes of the Human Rights Act (and also judicial review) in the JR hearing, while Ms Weaver’s challenge to the Notice seeking Possession under Ground 8 and consequent possession order was dismissed. L&Q specifically requested that the finding that it was a public body be in the form of a declaration so that it could appeal, and appeal it did. The Equality and Human Rights Commission are seeking to intervene in the appeal, and had, at this point only permission to make written representations.

Ms Weaver was legally aided. On the appeal, the Legal Services Commission, in its infinite wisdom, decided that it would only fund Ms Weaver on condition that it would not be liable for L&Qs costs, of L&Q won the appeal. (Why on earth the LSC reached this conclusion when this would appear to be the very archetype of a case that has broader public interest and relevance is beyond me, but then much of the LSC’s decision making is beyond me).

If Ms Weaver was to proceed, she had to apply for a PCO to the effect that she (and the LSC) would not be liable for L&Q’s costs if they won. L&Q, for reasons best known to themselves, opposed the application.

It should be noted – particularly for future use – that it is open to the court when granting leave to appeal to set costs conditions, including, for example, that the costs of the appeal be wholly borne by the appellant, CPR 52.37. That did not happen in this case. No costs conditions were set, apparently because everyone assumed that the LSC would fund such a major case.

Now, we enter a strange parallel world [wobbly screen effect] of L&Qs grounds of opposition, a stance described by Elias LJ as possessed of ‘a considerable air of unreality’ [para 7] and by Toulson LJ as causing him to be ‘puzzled by what the Trust has hoped to achieve’ [para 17].

L&Q maintained that the application did not meet the criterea for a PCO as set out in R(Corner House Research) v SSTI [2005] 1 WLR 2600 at para 74.

To begin with, those rules applied to applicant (or appellants), whereas Ms Weaver was the respondent in this appeal. The Court of Appeal noted that this was an unusual case, where the Corner House principles would not precisely apply, but this was common law jurisdiction and open to development. There was no doubt that in principle an application for a PCO was open to a respondent.

In his skeleton, but not at the hearing, Christopher Baker for L&Q argued that if one had regard to the financial resources of the applicant and respondent, it was not necessarily fair and just to make the PCO, because L&Q was a charitable and non-profit making body. The Court noted that it was ’sensible’ that L&Q chose not to pursue that argument, give the evident disparity in financial resources.

L&Q then contended that Ms Weaver had a private interest in the outcome of the case, while Corner House restricts a PCO to those with no private interest. Pressed on what the private interest was, L&Q asserted that Ms Weaver would have the benefit of public law protection as an assured tenant. The Court of Appeal was not prepared to accept that this qualified as a private interest. In Goodson v HM Coroner for Beds & Luton [2005] EWCA Civ 1172, the Court accepted that a private interest that will apply to the population or a section of the population as a whole would qualify, and that was the case here. The appeal was being conducted in the public interest at the behest of the trust, not to assert the respondent’s private interest. The possession order would stand anyway.

In response to the Court’s concern that not making a PCO would result in the respondent have to take no further part in the case, and be acting reasonably in doing so, L&Q submitted that it was ‘not crucial that the applicant [Ms Weaver] be represented’ [para 14] as the divisional Court judgment set out the contending arguments in some detail. The Court of Appeal kindly avoided the obvious rejoinder – that in that case L&Q didn’t require representation either – and instead dismissed this out of hand. It was ‘important that this case be properly argued before the court’ and it is not an answer to say it could get by with the lower judgment [para 14]. In addition per Elias LJ:

There can be no doubt that this case is raising an issue of some public importance — of great importance, in particular, to the Trust. It is vital that there is proper representation for both sides before the court. If the claimant does not obtain the PCO that they seek, with the result that they are not represented before the court, then either the Equality and Human Rights Commission would have to take the burden of providing the necessary representation or the court would have to appoint an amicus. I have little doubt that if it had been appreciated when leave was granted that the court might have to appoint an amicus, permission would not have been granted on that basis. In any event it would now involve a delay to take the step. Perhaps the most important point is that, if either of those two bodies, the amicus or the intervenor, were to be running the arguments against the Trust in the appeal, then the Trust would, in any event, not be able to recover any costs against either of them [para 7]

Toulson LJ adds that:

The Trust might consider itself fortunate that it was not made subject to a condition requiring it to pay both sides’ costs of the appeal, since the appeal was being brought in order to establish a point of law of general importance to registered social landlords. [para 16]

Application for a PCO granted in terms that L&Q shall not recover any costs in the appeal against either the respondent or the LSC.

Is it just me, or is this not madness multiplied? – on the part of the LSC in the condition of its funding, certainly, and in then the extraordinary attempts by L&Q to oppose the application when, as the Court of Appeal points out, it was not going to gain anything, let alone the costs, in doing so. In fact, had L&Q been successful, thus requiring an amicus to be appointed, one imagines L&Q might well have faced a rather hostile court from the get go in the appeal hearing.

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Hey, you asked…

Published
by
NL
on 28/09/2008
in Disrepair, Homeless, Housing law - All and Possession
. 8 Comments

Another in Nearly Legal’s sporadic attempts at being helpful to passing internet searchers. All the questions are genuine searches from the logs, including the rather puzzling ‘crinoline flint’, which perhaps gives more insight into the searcher than one might want. As ever, none of what follows constitutes legal advice and you should always consult a specialist solicitor before taking any steps.

So, by theme:
1. Disrepair
disrepair protocol costs
…are part of a claim. May I direct you to our post on Birmingham v Lee on recoverability of protocol costs where works are done pre-issue.

living in unihabitable property and the consequences for landlords
I would imagine a pretty substantial disrepair claim against them, depending on why the property is supposedly uninhabitable.

appeal housing flood
Appeal? Why appeal?  Was there a claim? Floods are tricky things, though. Liability depends on the source and the cause. Landlords will usually be liable for the water supply and fittings in the property, but not where another tenant has caused the flood. The other tenant is then liable. But it is worth considering that even if the flood was caused by an upstairs tenant, if it has done damage to the structure of your property, the landlord is liable for that disrepair.

mice infestation qualifies as disrepair
By and large, no. An infestation of mice may count as nuisance, if they can be shown to be accessing the property from an area under the landlord’s control (common areas, service ducts etc.), which effectively rules out houses, or ground floor flats. An infestation might be part of a disrepair claim as a consequence of disrepair – if entry is gained through disrepair. Otherwise, nuisance is the best bet.

can i withhold rent disrepair
Only in very limited circumstances: where the landlord has been notified of the works required for which the landlord is responsible; failed to do them in a reasonable time; has been notified by the tenant that unless the works are done by a specified date, the tenant will do them, the landlord has been provided with an estimate of the costs and the tenant has notified the landlord that the costs will be deducted from the rent. The tenant can then deduct those costs and only those costs from the rent. Was that what you had in mind? I thought not. Otherwise, you cannot withhold rent and may face possession proceedings if you do. Compensation for disrepair is virtually always less than the rent in any event.

bed bugs tenancy agreement london
One of many, many searches on bed bugs. The trouble is that it is very unlikely that the landlord will be liable, or responsible for stopping the infestation. It is hard to claim nuisance, as it is very difficult to establish that the source of the infestation is an area under the landlord’s control. It will be a very rare tenancy agreement that would make the landlord responsible for stopping an infestation. For these reasons, it is also not a justification for breaking a tenancy agreement.

2. Possession
can the council in ealing evict me from my secured tenancy 3 bedroom house if my last son moves out
Probably not. Possession claims for under occupation can only be brought in very limited circumstances, where the tenant is a successor (but not to their spouse or civil partner) and notice was served between 6 and 12 months after the succession. Suitable alternative accommodation has to be available and it has to be reasonable for the Court to make the order. Note that this applies to secure tenancies only. Those with assured tenancies (eg, most housing association tenancies) can face possession proceedings if they refuse suitable alternative accommodation and suitable accommodation is available at the possession hearing.

staying a warrant mandatory ground
No. Can’t do it.

what happens when a tolerated trespasser clears arrears and court cost
At the moment, nothing, except , by and large, they lose the ability to apply to the court to revive the tenancy [Edit Feb 09 - the House of Lords Judgment in White v Knowsley has now changed this. A tolerated trespasser who has paid off all the arrears can apply to Court to revive their tenancy, or rarely and depending on the wording of the original order, may already have their tenancy automatically revive]. Equally, the landlord can’t enforce the possession order. There is no new tenancy unless the landlord decides to give one. These are what has become known as entrenched trespassers. This should change when some sections of the Housing & Regeneration Act 2008 come into force. Trespassers should get a ‘replacement’ tenancy automatically. Much more on this when it happens, which should be in April 2009. The whole thing remains messy – get specialist advice and bring your possession order with you (see the comments below).

3. Homelessness issues
caselaw ending interim accommodation with reasonable notice
You’ll be wanting Conville v London Borough of Richmond-Upon-Thames [2006] EWCA Civ 718.

legal rights when 1 party wants out of a mortgage leaving 1 person homeless
A joint mortgage? The other person can’t just get out of the mortgage. They can stop paying, which, although it would leave a claim against them, obviously makes the situation practically difficult. In a joint mortgage you are each liable for any and all of the mortgage payments. Can you end up losing the property? Yes – so you should get advice on your position as soon as possible, as it can be complex.

powerpoint on homelessness law uk
A bit lazy, no?

4. Funding
small claims defence southwark public funding
Very doubtful. Public funding is not available for small claims, with very limited exceptions.

how much legal aid is released to solicitors dealing with housing issues
Err. Do you mean for a case – then it depends. Or do you mean what part of the civil legal aid budget this year goes to housing matters? That I don’t know, off hand. In any case, legal aid is not ‘released’ to solicitors – they don’t get the money ahead of doing the work (in fact usually not for quite some time afterwards), and the LSC sets strict limits on the amount of work that can be done. The solicitor has to apply for and justify each increase in the limit. Then their bill is assessed at the end.

public funding cost of works disrepair
In order to be a potential fast track matter and so get public funding, the rule is that where there are works required either the cost of works or the likely damages must be over £1000. So if the damages are over £1000, the only requirement is that there are works outstanding, the works do not have to be over £1000 in cost.

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The value of disinterest

Published
by
NL
on 07/05/2008
in Various (non-housing)
. 0 Comments

That’s disinterestedness, not uninterestedness, should anybody who went to school after about 1990 be reading this. Does nobody really read Kant any more? But, in a rather dismal demonstration of the trope of irony, this is likely to be an outright rant on the virtues of disinterest.

While most of us were focussed on the immediate effects of the Civil Legal Aid reforms on the financial viability of the private legal aid firms and the not-for-profit sector, there is another aspect which threatens not so much the viability as the foundational values of practice in the area. It has certainly not gone unnoticed, but perhaps had fewer headlines and caused fewer concerns. What is worrying is that the evidence that this will be a bad thing is not projective, but already with us.

I’m not talking about the evidence that the fixed fee legal helps have already pushed people into cherry picking simple matters, worrying though that is. It is rather a question of the current and future funding of advice work.

The LSC’s reforms are supposedly focussed on increasing access to advice. To that end, CLACS and CLANS are proposed – centres or networks that have a virtual monopoly on legal aid  funded advice provision in the area. The idea being that clients who usually have a plurality of problems can have the full range addressed – or at least receive advice on them – in one place. This, in itself, is not a bad idea.

But CLACS and, to some extent, CLANS are supposed to receive funding from a range of sources, not least (not at all least) local authorities. For example the (as yet failed to be established) Leicester CLAC or the (on hold for years at best) Cornwall CLAN. Why is this a bad idea? Why should a decently funded ‘holistic’ advice provision be objectionable?

The answer can be found in part in a simple swap of near synonyms. In place of ‘advice’ try ‘assistance’. (In fact, this should be adopted by the LSC – in place of acts of advice, record acts of assistance). Assistance means aid in resolving or mitigating the problems. Advice merely means being told what the problems are and, at best, what the advisee might do about it themselves. It is a question of action over information.

In a few recent posts on his blog, Housed has expressed his frustrations with being a CLS funded housing advisor in a CAB. The specific source of the frustration has been that the management of the CAB, which receives local authority funding, has been reluctant to support litigation against the local authority as landlord or housing provider. (See here, and comments here, for example).

As far as I can tell, there is no suggestion that the LA has ever leant on or threatened the CAB in terms of funding in any way. There is no suggestion that the funding was given conditions or limitations. But, but, but…

Where a local authority is a major funder, it is inescapably the case that an advice provider, at least at its management level, will have relations with the local authority in mind; they will always be concerned with the attitude of the local authority to them. This will inevitably filter down, in one form or another, to the frontline. It will shape the actions the body will support or encourage, although not necessarily consciously or as a matter of policy at all.

I should be clear that some LA funded bodies can and do avoid or mitigate this pressure, but that does not mean that it will not always be there. For this reason, I don’t think that Housed’s experience is in any way an isolated or extreme example.

The principle of legal aid funding used to be to enable people to obtain independent legal advice and assistance. Note the independent. I want to be clear – advice without the will to back it up with wholehearted assistance where it is needed is next to meaningless. For those in the greatest need, improved access to advice is often a nonsense unless they can also access legal assistance that is unaffected by any other consideration. After all, very often where legal action is needed, it will be against the local authority in one manifestation or another.

The great and saving merit of private legal aid solicitors (and non-LA funded not-for-profits) is that we are disinterested. We have no interest in bringing or not bringing an action against a local authority beyond the merits of the case itself. We also have no fear or concern in bringing such a case. We are in principle, and to date in fact, beholden to nobody. We are in principle, and to date in fact, free to consider a case on its merits without any back of the mind niggles about pissing off a local authority funder or losing the favour of the local bigwigs. Our greatest virtue (apart from being bloody good lawyers) is that we genuinely don’t give a toss what the landlord/benefit provider/housing authority/local councillor thinks of us, or what financial levers they might otherwise bring to bear.

To anybody wishing to raise an objection at this point, of course this does not mean we are disinterested in any specific case we are engaged in. Our job is to represent the client’s interest. And, of course, if it is a case where costs may be obtained against the opponent, we have a direct financial interest ourselves – albeit one that the CPR (and LSC merits based funding) ensures is pretty closely tied to the merits of the client’s case.

The truly terrifying prospect, which is already with us, is that ‘advice’ replaces, rather than augments, ‘assistance’. That LA funding, whilst apparently arms-length, weighs on the mind of the advice provider and shapes, however unconsciously, what they will do for the client.

If this funding format is extended to whole regions, supplanting and replacing the independent sector, then frankly, God help any clients with a difficult case against the local authority.

We in the private/independent sector do, of course, have one huge interest; one which is not ours alone. That interest is that the LSC does not continue on the path of abandoning the principle of independent legal advice and assistance regardless of government policy – which is to say that access to the law to defend one’s legal rights should remain the prime aim of public funding.

[Edit 10/05/08] William Flack, in a response piece to this post on his blog, has suggested that my view of independent solicitors is somewhat rose-tinted. That could well be the case, but what I was concerned with in this post were the structural pressures of funding.

No doubt there are dodgy practices concerned with, shall we say, maximising the return from the Legal Services Commission. In most instances, these practices will not actually affect the client – in civil matters at least – although the pressure to string things out may. (There may also be an issue when bringing cases against private individuals or bodies – will there be the money for a costs award when the claimant wins?).

However, this is different to funding issues which impact on not only what type of matter can be handled but, most importantly, against whom a case will be taken. In that respect, the independent solicitor is in a more disinterested position.

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Law Society v LSC settlement

Published
by
NL
on 02/04/2008
in Various (non-housing)
. 0 Comments

My grateful thanks to Free Movement for finding this, posting about it and passing it on. A Law Society letter of 2 April 2008 setting out the terms of the settlement of the Law Society’s litigation against the Legal Services Commission has been leaked. A PDF of the letter is here. Apparently, a ministerial statement has been laid before parliament.

[Edit 3 April 08: official Law Society press reports are now released and available here. Only a brief scoop then.]

The main terms follow below, but I have to agree with Free Movement that it doesn’t look like a lot.

There are some minor increases in some fixed fees and some hourly rates, although not the main civil litigation rate. There are a set of joint reviews to take place. The bigger points seem to be under ‘certainty’. The Unified Contract to continue to April 2010 (despite the LSC threats to terminate it). No competitive tendering for civil until 2013 and a 6 month delay in introducing best value tendering for criminal.

However, particularly of interest to housing litigators, there is no mention of whether the transition to set fee scale from hourly rates in certificated work is going ahead or whether it is caught by the LSC’s ‘acceptance’ that its right to amend contracts is significantly curtailed. I presume it is going ahead.

Also of interest are the CLAC and CLAN provisions. Apparently the LSC will announce ‘after the local elections’ where the next swathe will be, with no more till April 2010.

Hmmm. As the letter acknowledges

Whilst we are pleased at the benefits achieved by the litigation, we do not consider this settlement to be the answer to all the problems facing legal aid providers.  We know that many aspects of the Standard Fee Schemes continue to give serious cause for concern.

That seems like understatement. The Law Society’s justification for the settlement is as follows:

It is important to understand the limits of what could have been achieved from success in the litigation. A hearing date for our case had been fixed for late June 2008. Had we not reached a settlement, the LSC would have terminated contracts with a view to introducing new contracts in the autumn in which the graduated fee schemes were unchallengeable. This means that there would have been no prospect of returning to hourly rates. The profession would have been left with a historic dispute over whether they should have been paid on a different basis during this one year, and a prolonged period of disruption and uncertainty.

There is truth in that. But I don’t see how there is currently any prospect of returning to hourly rates either, save for a complete volte face by the LSC. I guess the Law Society considers itself to have bought time for the unworkableness of the whole shebang to become apparent prior to actually being introduced.

——————-

From the letter:

Terms of settlement

Financial benefits

A revised approach to unrecouped payments on account from more than six years ago – subject to cases involving dishonesty and / or greater than £20,000 on an individual case.
An increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08
An increase of 2% in the hourly rates only for Level 2 Family Help lower
Care level 2 fee increased from £347 to £405
5% increase in CLR fees and rates for mental health (whether paid as standard fee cases or exceptional claims), plus 2% for remote travel payments
5% increase in CLR fees and rates for asylum and immigration cases covered by the standard fee scheme (whether paid as standard fee cases or exceptional claims)
New rules on Standard Monthly Payments so that changes will not happen so often, so unpredictably and with such large variations

Stability measures

A commitment by the LSC (subject to certain caveats, particularly relating to CLACs and CLANs) not to terminate the Unified Contract before it expires through effluxion of time in April 2010
Deferment of the further changes to family fee schemes (including standard fees for private law family litigation, adjustments to the escape threshold for care standard fees, and a new advocacy fee scheme) which had been due this year, until April 2010
Acceptance by the LSC that their right to amend contracts is significantly curtailed, and that therefore the historic approach of making significant structural changes during the life of a contract cannot continue
The rule on remainder work will be changed so that firms are entitled to undertake it for two years after termination of their contract, so long as it has not been terminated for fault.

Certainty

The LSC is publishing a route map for civil and family legal aid showing the way forward until 2013, in which it commits not to introduce price competitive tendering for civil and family cases before 2013
The LSC is announcing a delay of six months to the earliest possible date for the introduction of best value tendering for crime, and will publish a full route map in its response to the BVT consultation
The LSC is publishing (once purdah for the local elections is out of the way) a list of the areas in which CLACs or CLANs may be introduced before April 2010. No CLACs or CLANs will be launched outside these areas before that date.

Reviews

The following reviews are being set up, with terms of reference settled in the course of negotiations all reviews to be published.:

The setting up of a Consultative Group equivalent to the Criminal Contracts Consultative Group. An early task for this group will be a full review of the new fee structures
A joint review of peer review accreditation, the specialist quality mark and other quality assurance issues.
A joint working group to address concerns about the contract compliance audit processes.
A joint review of the immigration stage billing problem, with a report to be published by 30th June 2008.
Law Society involvement in the evaluation of CLACs and CLANs, including our Head of Research to be on the advisory board

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Through the Looking Glass

Published
by
NL
on 16/10/2007
in Various (non-housing)
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‘It seems very pretty,’ she said when she had finished it, `but it’s RATHER hard to understand!’ (You see she didn’t like to confess, ever to herself, that she couldn’t make it out at all.) `Somehow it seems to fill my head with ideas — only I don’t exactly know what they are! However, SOMEBODY killed SOMETHING: that’s clear, at any rate — ‘

There was a good, if unsurprisingly doom-laden article in the current Gazette on the post first of October introduction of fixed fees in some areas of Civil Legal Aid. What is confirmed is the strange looking glass world we are entering in pursuit of the new order and, as also reported in the same issue, savings of {L-} 300 million in the Legal Aid budget by 2010. I don’t want to rehearse the contents of article, but some things bearing further musing on.

The Demise of the Specialist

‘Crawling at your feet,’ said the Gnat (Alice drew her feet back in some alarm), ‘you may observe a Bread-and-Butterfly. Its wings are thin slices of Bread-and-butter, its body is a crust, and its head is a lump of sugar’.
‘And what does IT live on?’
‘Weak tea with cream in it.’
A new difficulty came into Alice’s head. `Supposing it couldn’t find any?’ she suggested.
‘Then it would die, of course.’

It has long been clear that the LSC’s vision is of large ‘all-in’ suppliers, covering the range of advice areas, so that clients with multiple issues – as many have – can have them addressed all at once. This is not a bad idea, although quite how it fits with the promised open competition is deeply unclear, as that is one hell of an entry threshold. But the implementation of the transition is strange.

For instance, my firm largely although far from exclusively operates on a specialist level, with referrals from local advice agencies on difficult matters or cases in which heading to court is the only option. We also have an informal referral procedure back to those agencies. We are far from alone in doing this. It makes sense, where there are capable advice agencies, to work in this way. There is way more than enough specialist work to keep us overworked. And we are, though I say it myself, a highly skilled team.

However, for housing, the new provisions require every provider to take on ‘a range’ of matter starts under the fixed fee Legal help (£171), with only a small proportion heading on to Certificate (where fixed fees don’t _yet_ apply). This means that we will have to spend a considerably increased amount of time on ’simple’ matters. This costs us for two reasons: because £171 is ludicrously unrealistic for dealing with anything that isn’t instantly dealt with at initial interview, and given that the usual client has little or no documentation, it rarely is; and because the additional time spent on dealing with funding documents and client care for even a matter finished in half an hour.

Presumably, for the LSC, it means that we are in ‘competition’ with the advice centres, and other firms, for the unproblematic, in-and-out, advice work that we currently don’t do much of. Except that we aren’t, because there is absolutely no shortage of people needing that kind of advice, at least in our area.

So, the effect is to trade a moderate increase in capacity for minor or relatively straightforward advice matters for a reduced capacity for complex, specialist cases. As the LSC’s claimed desire is for an increase in both the acts of advice and the effectiveness of advice, this seems beyond odd. Many people will be denied the specialist representation that they need, not because of a lack of specialist advisors (although that may well come to pass) but because the specialists are restricted in the deployment of their ability.

One Contract per area

‘Not you!’ Tweedledee retorted contemptuously. ‘You’d be nowhere. Why, you’re only a sort of thing in his dream!’

‘If that there King was to wake,’ added Tweedledum, ‘you’d go out — bang! — just like a candle!’

Now we are up to eight canvassed CLACs, Hull being the latest. It is interesting, to say the least, that we don’t know whether independent providers will still receive a franchise in areas where a CLAC is in operation. It seems doubtful, as one contract per area seems to be the aim. Again, how this plays into a competitive future is unclear. A monopoly provider, whether dubiously funded by and at the mercy of the local authority or not, can hardly face a creditable challenge from a newcomer. Who would be mad enough to attempt to undercut a local authority subsidised, paralegal staffed basic advice factory in any case? It is, I think, fairly clear that the desired future is not competition but a sole local provider which is, in effect, a creature of the LSC.

Diversification

The shop seemed to be full of all manner of curious things — but the oddest part of it all was, that whenever she looked hard at any shelf, to make out exactly what it had on it, that particular shelf was always quite empty: though the others round it were crowded as full as they could hold.

Looking for other income streams? Training – AKA poacher turned gamekeeper – comes to mind. But get in quick, this is likely to be a crowded market before long. Maybe act for a Social landlord or two or three – but at what point does this cut too much of your public client base off through conflict of interest? As a first step to going wholly private client? Why not. So the LSC’s approach to building a strong legal aid provision is to get the specialist skilled providers to act for the opposition.

Triage

However, this was anything but a regular bee: in fact it was an elephant — as Alice soon found out, though the idea quite took her breath away at first.

If you want to expand, and maybe be a contender for the sole regional/area provider, there is one clear route. Yes, you need to take over other firms to give the ‘all-round’ provision, but you also need to develop a large frontline staff to do a quick turnover of the ’simple acts of advice’. In a glorious euphemism, this is referred to as ‘generalist advice’ by Howells in Sheffield. It actually means basically trained, cheap paralegals. The trouble with basically trained, cheap paralegals is that they don’t spot when a real issue or potential case presents itself if it is at all out of the ordinary. (No offence to basically trained, cheap paralegals – it is a training and supervision issue). It is a little like having Accident and Emergency triage done by the porters and receptionists, not trained paramedics and nurses.

The economics of a paralegal based Legal Help factory do still, just about, make sense. But this is not the quality provision the LSC is allegedly pledged to sustain.

Efficiency, we keep being told, doesn’t mean a drop in quality. The trouble is that the project here isn’t about efficiency per se, but about a centrally driven model of practice, imposed regardless of carefully nurtured local arrangements of distribution of effort, access to advice, whether general or specialist, and efficiencies of delivery.

`A slow sort of country!’ said the Queen. `Now, HERE, you see, it takes all the running YOU can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!’

The Advice Centres, our current referrers, will be amongst the first ones to go under. One local advice centre has been informed that under the new funding arrangement, they will need to take on twelve times as many cases. Yes, twelve. Ironically, it was Advice Centres’ ‘cheap’ rate of advice that enabled the LSC to say the the new fixed rate is higher than ‘half’ of service deliverers charge. Advice Centres, in my experience, had never properly figured out what their costs were. They didn’t have to and it simply wasn’t in their culture. The imagined charge rate of those who didn’t carefully tot up billable hours is being used as a measure of efficiency for the rest of us, while the supposed models of efficiency are facing absolute crisis.

As the last looking glass moment, my firm, which tended to cost the LSC relatively little (being as we tended to do Claims/Counterclaims, Judicial Reviews, County Court Appeals etc. where costs can be and usually are successfully pursued against the opponent), is now likely to cost the LSC significantly more, despite the significant slash in our fixed fee Legal Help rates. Quite how this is an efficient use of those precious Legal Aid funds is beyond me. But…

One thing was certain, that the WHITE kitten had had nothing to do with it: — it was the black kitten’s fault entirely.

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