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18/11/2006

Legal Aid. Not funny. At all.

Now we know that the Lord Chancellor’s vow to the Law Society that changes in non-criminal legal aid were postponed for a year only apply, post ‘clarification’, to Family, it is time for a serious look at the new contract for civil legal aid.

First of all, remember that the tailored fixed fee for Legal Help, based on each firm’s ‘average’ Legal Help costs over previous years, is to be replaced by a ‘national’ or ‘regional’ fixed fee for Legal Help. Every survey has suggested that the (large) majority of firms will lose on the proposed figures.

The good news from the new contract is that Certificated work will not be (for now) subject to fixed fee levels. Certificates will not be changed significantly.

Before everyone whoops with joy, check the small print. The contract states that the LSC can set the maximum legal aid work – meaning cap certificated work – and set a minimum of Legal Help cases to be taken on. This means effective control over the proportion of Legal Help cases that go on to certificate.

I point any new readers to previous posts on the referral rate to solicitors from CLS Direct (13%) and the contractual percentage of Help to Certificate of the trial CLACS in Leicester and Coventry (10%). I was dubious about those rates being sustainable even within those contexts, but, if I may doff my tinfoil cap for a moment, it doesn’t take a hugely conspiratorial leap to see an LSC preferred ratio here.

The LSC has graciously said that it would not use these powers for a year at least. But they are in the contract. It is hard to believe that they will not be used and soon.

Why are these powers in the contract? Because the existing Legal Help fees are too low and the new fixed fees will make Legal Help all but impossible for anyone apart from the suicidally altruistic. Obviously, the market will turn (even more) to only taking on matters that will go to certificate and, even better, with inter parte costs, so, for the LSC’s ‘holistic’ vision, this must be stopped. Firms must accept low Legal Help rates because, ta da, they have to do X proportion of Legal Help to get Y certificates (where the suspicion is that X:Y tends to 10:1).

If this is implemented, one, two or three years down the line, we need to be clear that it would be an unmitigated disaster. The firms that are doing a fair amount of Legal Help only work are currently clinging on by their finger nails, if at all. They will go under. The firms that are doing OK from legal aid have a small proportion of Legal Help cases that don’t go to certificate (and the cerificate work often has inter parte costs chances), but if a proportion is enforced, they will simply pull out of legal aid work. Small firms are the most unlikely to survive, which will have a disproportionate impact on solicitors from minority backgrounds.

We are not talking about massive profits (and where inter parte costs are concerned, little or no cost to the public purse), just profitability full stop. No matter how personally and ideologically committed, no firm can run at a significant loss for long.

Whether the LSC actually implement ratios, and if so what ratio, is not yet certain, of course, but given that the power is there in the contract, the implication is that it will be used. No ‘transitional period’ or efficiency savings will stop the inevitable effects.

Any survivors will be using trainees or paralegals exclusively to do the Legal Help as cheaply as possible, and get them as rapidly processed as possible, so the standard of help will drop where it remains available.

Faced with this, we can only hope that the Law Society lobbying campaign bears fruit. Beseige your MP and lobby like you’ve never lobbied before (which is entirely possible).

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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