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16/10/2007

Through the Looking Glass

‘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.

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.

2 Comments

  1. Recovering Lawyer

    “It seems a shame,” the Walrus said,
    To play them such a trick,
    After we’ve brought them out so far
    and made them trot so quick!”

    Reply
  2. contact

    Bastard (as in I wish I’d spotted that).

    Reply

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