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07/05/2008

The value of disinterest

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.

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.

5 Comments

  1. Housinganger

    Disinterest sadly sums it up for me.

    I think this needs to be shouted from every roof top on behalf of every person who can’t afford to defend their legal rights. That sounds really sanctimonious I know but sod it.

    The people that come to me for advice don’t know what pressures I face not to help them to the best of my ability. The people who go to these part LA funded CLAC’s and CLAN’s don’t know that they would often be better off at an actual independent advice provider. Why should they know? It’s hardly something that the media has much interest in. I can’t see the SUN running a front page on the lines of ‘some independent advice providers aren’t so independent afterall’ or the Page 3 model giving her views on it. (Not that I ever read or er look at the Sun)!

    Does this mean that those that have concerns are morally obliged to try and do something about it no matter how hopeless it seems or is that sactimonious to?

    How can CLAC’s and CLAN’s doing CLS work ever be independent if they are receiving funding from Local Authorities. Politics plays a huge part of such funding and politics needs to stay a long long way away from independent legal advice provision in my humble opinion.

    Sadly the lack of Independent Legal Aid is hardly numero uno on any Political Party’s manifesto so why should any MP care when the change in Legal Aid suits their purpose. Obviously respect for the rule of Law seems to go out the window when it suits MP’s.

    As it’s 1.08am and I’ve been watching the poker I hope some of this comment makes some sense.

    Reply
  2. lawminx

    I’m rather of the( unfortunate and totally off topic) opinion that, having been forced to pay more than passing attention to Kant’s ‘Metaphysics of Morals’ for a jurisprudence paper related to to Kelsen as an undergraduate, not even Kant reads Kant, anymore……

    Reply
  3. Nearly Legal

    Minx, I can safely say that your opinion is in fact a fact.

    Reply
  4. Richard

    I’ve had similar experiences to HousingAnger while working as a housing paralegal for a high profile Not For Profit organisation. I was disheartened when managers implied caseworkers should be careful not to upset local authority staff when we were simply doing our job in challenging unlawful practice.

    My manager, whilst having a broad understanding of the policy issues and implications for clients, was not a qualified solicitor. He had very limited experience of conducting litigation. This lack of training and experience, together with his concern with maintaining relationships with his counterparts at the LA seemed to colour his approach. More often than not he would approach an unlawful policy or practice with a “maybe if we talk to them, they’ll realise what they’re doing is unlawful and they might change” suggestion.

    Its probably also worth mentioning that the manager had not worked for a local authority. He underestimated the extent to which many housing officers shall often only perform their legal duties if threatened with a claim by a practitioner with a willingness to litigate, and then sometimes only at the eleventh hour or once a claim has been issued.

    Nearly Legal I agree with your analysis of the dangers of replacing assistance with advice. Housing law is complex. I know from personal experience that the vast majority of those with an arguable case shall need more than a mere pointing in the right direction to obtain redress. Many of those who seek advice under legal aid are simply not able to advance the arguments themselves, and even if they are, they’re likely to be fobbed off without the backing of a tenacious representative. Any large scale shift to telephone advice at the expense of traditional advocacy would be detrimental for many poorly housed and homeless persons.

    But accessing an advisor in person does not always guarantee you get an adequate service. I would disagree with any suggestion that LA funding of NfPs is the primary reason for any lack of ‘bite’ by such agencies.

    One of the things that most struck me when working as a paralegal was the wide disparity in experitise and litigation experience across different providers of social welfare advice, all of whom nevertheless had the LSC quality mark. Some advisers, whilst very knowledgeable, were not sufficiently trained or experienced to conduct legal challenges, even with the supervision of a solicitor.

    I must admit that if I ever required publicly funded housing advice I would go to a private legal aid solicitor over a Not for Profit such as a CAB or Shelter every time. I’d also want to make sure I was seen by a qualified solicitor or at least a trainee with extensive litigation experience. I have no axe to grind against paralegals. I was one. Its just that I know from personal experience that some aren’t up to the job once its time to issue. And I don’t for one second think that the blame always lies with individual advisors. Many NfP’s are simply not geared to developing paralegals’ expertise. The charity I worked for did not see it as central to their role to assist caseworkers in obtaining legal qualifications, despite them having difficulty recruiting good housing solicitors.

    Reply
  5. Nearly Legal

    Thanks Richard – and sorry for the slow reply, I’ve been all over the place lately.

    That is a dispiriting account. Naturally, I’m an enthusiast for private and law centre solicitors, but I’d have to say that I know of some very good local advice centres in my geographical area, with skilled and experienced staff. But their situation is becoming more and more perilous and the informal division of labour that worked through an ad hoc local referral scheme is becoming less effective. Such a referral scheme relied on advice centre staff experienced and knowledgeable enough to recognise where a problem potentially contained an issue that went beyond what they could provide, and passing it on to us. We could rely on being able to refer to competent people to take on less complex or non-litigation matters. Both sides of that equation are under threat.

    This strikes me as plain daft. A functioning cross-referral scheme between competent, knowledgeable advice centres and specialist, skilled solicitors looks to me to be the best model to deliver the full range of ‘holistic’ provision that the LSC apparently seeks – but no. It is one size fits all for NfPs and private firms, each is supposed to offer the full range and do X many legal helps per certificate – which works against specialism.

    Agreed that NfPs are under immense funding pressure and so training falls by the wayside. Private firms will shortly face similar pressures and an expand or die approach.

    Also sorry to hear that the ‘don’t upset the LA’ approach is fairly widespread.

    Reply

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