So there we are – the Legal Aid bill, helpfully called the Legal Aid, Sentencing and Punishment of Offenders Bill, lurched into the light today, accompanied at the same time by the Consultation response [at the bottom of the page]. Some of us saw the bill this morning after it went up on the Parliament site, only to be hastily (but not hastily enough) taken down again (Well done iLegal).
And what does it mean? Pretty much exactly what the initial proposals set out. Oh and the LSC is to be abolished. The MoJ will take legal aid funding decisions in house, with no prospect of possible conflicts of interest at all. Honest.
Welfare benefits and debt to be out of scope (save for debt threatening homelessness), education out of scope save for SEN children, clinical negligence out of scope. Family did see an amendment on the definition of domestic violence but otherwise remains much the same in scope as the proposals, but I’ll leave the detail on that to the Family specialists. Ditto Immigration, much of which falls out of scope.
For housing, there is some small relief. Unlawful eviction is to be within scope (but not claims for trespass to goods, land or person, so ruling out the alternative heads of claim for aggravated unlawful eviction).
Homelessness appears to be fully within scope from the stage of being ‘threatened with homelessness’. However, there is no legal aid for trespassers facing possession and although not in the bill, the criminalisation of trespass was announced by Cameron.
Added back into scope are defending orders for sale against the client’s home (but not charging orders) or bankruptcy proceedings where the bankrupt’s estate includes a home.
Where benefit issues lead to arrears and a threat of possession or homelessness, representation will be available for the possession or homelessness matter, but not for any benefit tribunal proceedings even if those are directly concerned with the arrears problem. This is because benefit tribunals are a complete walk in the park that any person facing possession proceedings can negotiate with their eyes closed.
Possession proceedings generally against non-trespassers remain in scope. Judicial review remains within scope (apart from public interest/third party claims – which is what happens when you embarrass the Ministry of Defence).
Disrepair remains in scope for those facing a risk of “serious harm to the health and safety of an individual”. Interestingly, the harm may be temporary and health includes physical and mental health. Futher (at para 75 of the consultation response), it is acknowledged that some investigation of a case may be required to establish risk:
legal aid will be granted where there is a credible allegation that there is a serious risk to the safety or health of the individual or their family. This will mean that legal aid will be available for the early stages of such cases to enable the merits of the claim to be investigated. Where a disrepair is found not to pose a serious risk, further funding will not be available.
However, many disrepair claims will be out of scope. For those looking to Conditional Fee Agreements to bridge that funding gap, recoverability of success fees and after the event insurance premiums from the losing defendant is to be ended. Success fees are to be set out as a percentage of damages received and subject to a maximum of 25%. But nothing in the one way costs shifting is proposed (yet) for disrepair claims, unlike Judicial Review. So prospective claimants face either their solicitor taking a cut of their damages if they win or the risk of costs liability to the defendant landlord should they lose.
Damages-only disrepair claims are likely to become a thing of the past shortly in any event in view of the dramatic increase in the small claims limit to £15,000 or £25,000 proposed in the County court reform consultation, on which more another time.
It is worth noting that any legal aid funded claims will face a 25% deduction from damages for the legal aid fund, despite all legal aid costs being repaid to the fund in these circumstances. This appears to encompass disrepair, unlawful eviction or any other funded claim attracting damages.
A new addition to scope are claims ‘relating to a contravention of the Equality Act 2010’ in relation to housing.
Out of scope are claims for nuisance, negligence and breach of statutory duty and all other matters not mentioned as being in scope above (TOLATA claims, harassment claims, breach of quiet enjoyment etc. etc.)
The housing related clauses on scope are at Schedule 1 s.27 onwards but must be read with the exclusions in Schedules 2 & 3.
The consultation response also makes for interesting reading, not least because it reveals the immediate plans for the telephone gateway, proposed as the sole point of access to legal advice in legal aid matters. Before we get there, we should note that the MoJ acknowledges that it had a very large volume of responses and that ‘the large majority’ of the responses opposed some or all of the proposals. Their response – a prolonged raspberry.
For example, Legal Action Group have done a breakdown of what will be lost in matter starts and funding by Borough and County, which can be found on the Guardian here. It makes for grim reading (my Borough takes a 62% percent hit, others are worse). However, the Impact Assessment [pdf] attached to the consultation response states, at 31:
there might be a loss of business for some legal services providers which are contracted with the LSC to provide legally aided services. [Really? What an unexpected surprise! NL]
there might be an increase in business for other service providers, including perhaps alternative resolution service providers or services which support self-resolution, which are funded by people who previously received legal aid.
And if this air of hopeful, nay positively wilful self-delusion was not enough, it adds at 33:
The overall impact on providers would also depend upon individual providers’ reliance on income from legally aided clients and how they adjust to changing patterns of demand. For example, if providers are able to cut costs and identify other efficiencies, or if providers are able to move into other business areas, the impact on them would be lessened. As identified above, we lack clear evidence on how current providers are likely to respond to the cuts in legal aid.
Well, I think one can have an educated guess at some of the likely responses. Providers folding up their tents, substantial numbers of redundancies, etc. etc.
Anyway, on to the telephone gateway and a further example of the casual imbecility that pervades the bill and the consultation response.
The MoJ intend to press on with the telephone gateway as the sole means of accessing legal aided advice or representation, but initially trialling it by way of the CLA phone line becoming the sole means of access to advice and assistance for the following:
- debt (insofar as it remains in scope);
- Special Educational Needs cases;
- discrimination cases (claims relating to a contravention of the Equality Act 2010);
- community care.
Let us pause there for a moment. If you recall, the only debt matters that remain within scope are where someone is facing the loss of their home. In fact, where there are imminent or actual proceedings. Where, one might think, there was a crying need for urgent advice and, well, representation in the case. But no – off to the phone line to work their way through two layers of ‘phone advice’ these people must go, with no guarantee that they will ever actually be referred to local representation and assuming their debt is adjudged to be suitably threatening to their home.
And it remains the plan to extend this nonsense to all civil areas remaining in scope, after this ‘trial’.
(Don’t even get me started on the quality of CLA phone advice. A colleague has just had a case referred by the CLA where possession proceedings had started. Turned out the CLA had been ‘assisting’ the client with massive disrepair – she couldn’t even live in the property, hence the rent arrears – by pursuing the Council’s complaints process, not just for weeks but for months without effect. The CLA hadn’t even advised the client that there was such a thing as a disrepair claim, let alone tried to refer on. Words, for once, failed me. Not just really bad advice but it actively made the client’s position worse. I blame lack of training and qualified supervision, obviously. A situation that can only improve with large scale expansion on tightened funding.)
But it is clear for whom the bill tolls most loudly. As the impact assessment notes, 600,000 people will lose advice, assistance and representation, (there will apparently be a 10,000 increase in mediation clients, which makes it all better). That is 600,000 of the most vulnerable, marginalised, desperate individuals, without the financial resources or often the personal skills to deal with the problems facing them by themselves.
The impact assessment, at 26, says:
As a result of this reduction in resource transfers, clients who no longer receive legal aid may choose address their disputes in different ways. They may seek alternative resolution services, may represent themselves in court, may seek to resolve issues by themselves without reference to the courts, may pay for services which support self-resolution, or may decide not to tackle the issue at all.
There is evidence that all these different approaches are sometimes undertaken currently by people facing disputes. Although the evidence is inconclusive, there is a risk that outcomes may be worse for some people who no longer receive legal aid as a result of these proposals.
And that is pretty much it on the extent of the impact on clients, apart from noting that there is very limited evidence on the relative improvement in the position of legally aided people over those without representation or litigants in person.
The impact of this bill and the associated proposals on civil legal aid providers will be varied. Some will be OK, others – and probably the majority – will not be OK at all.
But we should be absolutely clear that this bill is a knowing, deliberate removal of assistance and representation from some of the least well off – both financially and socially – in the country and those least able to fight back politically. As any provider can attest, it is massively – if indirectly – discriminatory against women, ethnic minorities, the disabled and those on low income or subsistence benefits. (Tellingly, the Equality Impact Assessment [pdf] takes the approach of setting out the ‘justification of potential adverse impacts’, presumably laying the ground of defence to any challenge).
It is also, of course, going to cost every taxpayer considerably more than it is going to save them in the short term in the costs of unresolved problems. But those won’t come out of the MoJ budget, so let the damage fall where it may.
So, does the bill go through in its current form?
Our office does Community Care and Housing so wondering if I would have to tell a client with both CC and Housing problems that I could do the Housing part but they would have to then phone the gateway in the hope that I would then be allowed to do the CC part!
As one would think the name implies Community Care involves assisting the most vulnerable people in society who would I think be most unlikely to successfully navigate the cretinous bureaucracy that is a ‘gateway’.
Whilst I think that effective telephone advice has it’s places, in my experience trying to get effective telephone advice is nigh on impossible as advice is provided by people who seem to be ruled by what their computer tells them and lack any sort of initiative / free thought and quite often any sort of basic knowledge.
shit shit shit. the government of the privileged attacks those most in need. the passage you quoted with the ‘alternatives’ for those who would otherwise have used free at the point of use (ring a bell?) legal services is more chilling than anything orwell and kafka could have come up with after a long night with burroughs:
‘They may seek alternative resolution services, may represent themselves in court, may seek to resolve issues by themselves without reference to the courts, may pay for services which support self-resolution, or may decide not to tackle the issue at all.’
that last option looks a surefire winner, doesn’t it?
it fails unaccountably to mention that they may also like to boil their heads.
not all doom and gloom for the profession, though: ‘if providers are able to move into other business areas’ – cue law centres re-branding as pizza delivery outfits.
seriously, i just don’t know where we go from here. it has been remarked elsewhere that there is precious little outcry because the need for the service is poorly understood. and this is at a time when criminal legal aid ‘efficiency savings’ have caused a pile-up of forms alleged to be around 6000 high meaning that system too is on the point of disintegration. i often see defendants unrepresented in criminal matters being told by the judge that it’s not a reason to adjourn their case. i also know that some solicitors are simply refusing to attend criminal hearings when legal aid has yet to be granted. unfortunately that isn’t an option for those in the civil sphere. having dutifully made our views known in the ‘consultation’ we knew would be ignored [and even knowing that, i believe it was wholly proper to have made those views known], it now falls to the law society and the bsb to act and the whole profession to take on the job of protecting legal aid. easy to say (even if those 2 bodies wish to do so) but hard to do. but surely it is of such fundamental importance to the rule of law that the profession must act. you’d think…
anyone???
*tumbleweed*
I have several thoughts here.
1. Campaigning Strategy.
I think it is an error to be always focusing on “the vulnerable in society” as those who’ll get it in the shorts. This is because the people who would be convinced by this argument are already convinced and on our side. No, we need to focus on how, if I may use a sickly Blairite phrase, “hardworking families who play by the rules” will be the ones to lose out. We need to win over the tabloid readers if we are to have any chance of success here and they do not care about “the vulnerable in society.” They care about themselves and people like them. We need to go to them and explain to them how they, personally, are going to lose out as a result of this.
2. Illegal Eviction
Once again, what cretinous civil servant came up with this distinction. You can claim for an injunction to get back in, and for damages for being evicted illegally, but not for losing all your possessions and being beaten. This will drop a large portion of claims below the small claims limit and thus effectively deny funding by the back door. Furthermore, if I may use a sickly Daily Mail phrase, what sort of message is this sending to people?
3. Disrepair
This may be survivable, esp. if the use of CFAs like in Sibthorpe v. Southwark LBC gets into more widespread use. In any event, though, is it not arguable that any actionable disrepair is prejudicial to health – damp and mould lead to respiratory problems, structural movement means the house could collapse on them, a non functioning toilet is a risk of cholera, etc.
4. 25% off the damages.
I don’t suppose a Judge would accept that the legally aided client should be awarded 25% more damages to cover this loss that the claimant will undergo as a result of the Defendant’s actions?
5. Telephone Gateway.
This is right honest to goodness high octane nightmare fuel right here. “I Have No Mouth And I Must Scream” grade nightmare fuel. I don’t trust call centre operators to sell me a plane ticket without sending me to Azerbaijan by accident so how can I trust them to give legal advice?!
While I have the same concerns about the legal aid bill as anyone else …. the poor research and anecdotal ‘CLA do X’ comments really don’t do anyone any favours.
The disrepair case example above sounds very bad (and I hope it wasn’t anyone I work with who did that)
but then if I said ‘face to face is abysmal as a service: just last week I spoke to a solicitor who still has a contract – who didnt realise pregnancy grants priority need’ (a true anecdote – although it wasnt last week)
Or
‘face to face is terrible – its impossible to get an appointment with anyone for weeks in advance – which is completely useless when someone has a possession hearing in 4 days / is currently homeless’
(very true – and very common – I phoned one highly rated solicitors in London recently and was told ‘we do not take referrals’ too grand to take referrals? great access to justice there)
You would rightly say that such anecdotes wouldnt justify closing all face to face providers down.
Furthermore, please dont assume (with no evidence) that all the providers working for CLA (not the OPERATORS) are ‘unqualified and / or unsupervised’
I could reel off the qualifications (and time working in housing) of the team I work in as a rebuttal – or I could alternatively point to face to face providers that are primarily staffed by paralegals (aka people waiting in hope for a training contract)
There are some appalling things being done to legal aid – and there are definite faults with some service provision models (although I would personally say that there are different strengths and weaknesses attached to each of the different models – Im not so blinkered as to suggest that the one I work in is perfect while the ‘other’ is unremittingly awful)
But in the light of these changes – wouldn’t it be better to be focussing on challenging them rather than solely pointscoring (with very poor evidence) against a ‘different’ provider.
PS – in terms of the phone access point … there is one glaring factual problem with the chosen areas of law …
CLA currently doesnt HAVE any specialist teams in those areas … so that to me suggests that they would be the worse subjects to be accessed via CLA.
Cait
Cait (and Danny)
I do apologise for the sideswipe at CLA in the post. That particular example had just come in that day, so was, shall we say, fresh in my mind.
But the problem is that all we have is anecdotal evidence. There has been no large scale research into the operation and ‘success’ of CLA – or if there has been, it hasn’t been published. All I know of are a couple of very limited ‘mystery shopper’ exercises, and the results of those were, well, very mixed. So, all the rest of us have to go on is what comes through our door.
Obviously, there are some very good people involved, yourself amongst them, as I know.
Equally obviously, there are mistakes in advice being made that if a solicitor had made them would leave them facing potential professional negligence claims.
And yes, of course there are some poor face to face advisors too, and yes we slag them off in private, but they are not about to become the sole gateway to legal aid. That makes the performance of CLA a hugely significant issue for all of us and most of all for the clients.
In the absence of any proper research reports on CLA’s success or otherwise, when I see the sort of advice I mentioned in the post being handed out – and sustained over a period of 8 months! – then it scares me. The decision as to whether someone actually gets to see a solicitor face to face will be in the hands of the CLA.
As I noted, poor advice has to be either a training or supervision issue (and the same would be tru for face to face advisors equally). But can one expect training or supervision issues to be resolved when expansion but on a lower cost per advice basis is imminent?
Cait, thanks for pointing out that CLA doesn’t (yet) have specialist advisors in the areas flagged as being the ‘gateway’ pilots via CLA. This makes about as much sense as the rest of the proposals.
Reading between the lines of Mr Clarke’s reported comments, though, I have a sneaking suspicion that the CABx will be handed the telephone gateway…
“effective telephone advice is nigh on impossible as advice is provided by people who seem to be ruled by what their computer tells them and lack any sort of initiative / free thought and quite often any sort of basic knowledge.”
I would like to know what evidence you have to support that statement.
We at CLA provide quality legal advice and casework. Some people live in the most remote parts of the UK or areas where F2F assistance is not available. Here CLA, its lawyers and the casework we do provide a lifeline to the most vulnerable people who would not otherwise get much needed assistance.
I quite find the articles comments of CLA disgusting. Especially when Ive come across some astonishingly poor quality work done by F2F solicitors. I suppose they too “lack any sort of initiative.
There is little merit of point scoring espcially when large areas of law are going to be taken out of scope. Shall we concentrate on that instead?
Hi
I agree with Danny, I work on a CLA contract and can honestly and truly say I have never ever ever worked as hard at a job in my life. Myself and all the advisors I work with are committed to giving the best possible service to our clients, so please DO NOT assume that a few bad experiences are endemic.
Before I get lynched by hordes of irate telephone advisors, I apologise for smearing you all, willy nilly.
But, as I said to Cait, the issue of telephone advice is more important than just ‘whether it is as good as face to face’. As it is to become the sole and only point of access to legal aid, and where callers will have to get through not one but two layers of advisors before maybe, just maybe, being referred on to face to face advice (and even then, not necessarily to an advisor of the client’s own choosing), it is crucial to both the client and to the rest of us that the telephone advisors get it right – because everything will depend on that.
There is no evidence as to the success or otherwise of CLA advice overall. There has been no proper survey or research done. This doesn’t mean that there aren’t lots of good people doing it. It means we just don’t know how well it works or not. In particular, we don’t know whether it is successful in the sense that people in need actually call and access the advice, which is a rather vital point. Obviously the people that call, call. But what proportion of people who need advice or assistance do actually call? Or would be likely to call? We don’t know. Nobody does. We are looking at evidence-free policy making here.
So, for us face to face people, now looking at a future where even if someone comes in with an eviction the next day we have to tell them to go away and call the advice line, what we have anecdotally experienced of the current set up is all we have to go on. And bad experiences therefore make us very nervous indeed about the future. Particularly as that future is likely to involve more for less.
That said, I note that the CLA is NOT taking a 10% fee cut in October, unlike the rest of us, at least according to the soon to be deceased LSC. CLA fees continue at the same rate.
I think CLA are taking the 10% cut too –
I completely agree with your concerns about it being the *only* source of access, and your concerns about clients having to go through multiple levels before actually getting to a caseworker (when I started in CLS it was straight through to a caseworker!)
Im not sure that’s particularly specific to phone services though – rather that it’s symptomatic of the ever tightening means testing, SBT, and scope narrowing.
That manifests in face to face by people having to go through reception, paralegal etc etc before getting to the solicitor, in the difficulties actually getting an appointment (in time), the difficulties getting a law centre or CAB appointment as they rely on ‘drop ins’
where people have to take pot luck whether they will actually be seen, or phone numbers that never answer.
I intensely dislike all these manifestations of rationing of legal aid. We’re under such siege at the moment that we never get the opportunity to actually tackle these fundamentals – that its actually REALLY DIFFICULT to get access to legal representation. (Particularly in London – things were somewhat better in some of the provincial cities – although I think even they may be getting more inaccessible now).
That even if you get it your representative will be hide bound by bureaucratic procedures and limitations on what they can actually do, and that in many cases practically speaking the law isnt going to be much help at all (the non-priority homeless, the tenants with AST’s and a valid S21 notice, the people with minor disrepair that won’t justify legal action, etc etc etc)
You’re right there isnt enough evidential justification for the policies that we have inflicted on us.
Nothing new about that :)I’ve lived through 20 years of working in housing (although I was involved in research into the housing needs of vulnerable homeless clients 15 years ago)
My only possible idealistic glimmer of hope is that some of the most humane developments in housing practice (as opposed to housing law) came out during the 80s and 90’s at the height of thatcherism… before you faint I am referring to things like
– no housing families in multi stories policies
– provision of resettlement and support services to people moving on from hostels
– domestic violence policies that placed the victims first
– provision of direct access, temporary accommodation for single non priority homeless people
– the establishment of housing advice centres
They were all things that local authorities (especially but not exclusively northern ones) were doing in the late 80’s and early 90s.
In Leeds, Liverpool and Manchester the councils were inspired by developments in Scotland … fingers crossed that happens again.
Cait
Cait
On the 10%, the LSC says
“Implement the proposed 10% reduction in all fees paid under the civil legal aid scheme (with the exception of telephone advice) including CLAC/Ns and other specialist services “. See here http://www.legalservices.gov.uk/civil/legal_aid_reform.asp
I agree with everything else you say, but of course the ‘telephone gateway’ will be an additional layer or two to get through…
Fingers crossed on the LA response. No sign of it yet down here in the south.
We got told yesterday that there was a 10% cut
(im not involved in contracty stuff myself)
but as I work for a firm that has CLA work, CLAC work, and ‘ordinary’ face to face contracts then we may have just got included in that generally.
and no no sign of the holy grail ‘up north’ yet either – well not until you get to scotland ;) But I can dream.
(and actually – Norf Larndarn…. in the shape of islington have broken cover and said no to ‘affordable rents’ so its the teeniest glimmer there)
Cait
Thanks NL :)
For the record – quite a few of the CLA service providers are solicitors firms – and are covered by the exact same negligence rules as you (that certainly applies to my place of work). Negligence is negligence whether its you, us or a voluntary organisation like Shelter or CAB.
That doesn’t mean there are not valid criticisms of phone delivery as a method – ESPECIALLY if it is the only method.
On some levels I think a telephone service as a ‘triage’ service isnt necessarily a bad idea … (ie identifying whether there is a relevant housing law issue, looking at appropriate referring etc)The fundamental problem is that with the level of swinging cuts that are predicted and the culling that happened at the last contract round BEFORE these cuts, means that there may be no one TO refer to.
That terrifies me.
CAB or CLA dealing with Legal Help is all well and good – but if the vast majority of legal help is hived off to them then what happens if there is no one to do the certificated work.
By narrowing the scope to fit on the end of a pinprick – there will be fewer solicitors, fewer specialists and no one there to do the necessary JRs, substantive defences on possession when they have been correctly identified by someone who is providing legal help only etc etc
Thats already happening following the last bidding round – there are areas where there used to be a range of housing solicitors – and now there are none.
These cuts are likely to make that even worse.
(sorry folks rant off ;))
Cait
Buried in the details of the Bill are proposals that we estimate will mean that 75% of the cases we advise on for our Gypsy and Traveller clients will be out of scope if the Bill is passed as it is.Trespass is specifically put in as an exception under ‘loss of home’. Trespass is also an exception re judicial review. High Court Planning (e.g. injunction actions) doesn’t make it into Sch 1 Part 1 so is also out Combining this with current proposed changes to law and policy (the Localism Bill and the draft planning guidance ‘Planning for traveller sites’), this makes the impact of the Criminal Justice and Public Order Act in 1994 look like a walk in the park! There is already a campaign afoot under the provisional heading of ‘No Mad Laws’ (I’ll leave you all to work that one at and thanks to Angus Murdoch for the phrase taken from a thesis he wrote). We have a briefing paper that I am happy to supply to anyone who is interested – just e-mail me at chrisjohnson@communitylawpartnership.co.uk
The government set up a nice smokescreen about targeting squatters who (how often does this happen for heaven sake!!) squat posh houses, whilst actually deliberately targeting Gypsies and Travellers.
The Equality Impact Assessment doesn’t mention Gypsies or Irish Travellers. There’s a surprise. Yes there is a legal challenge afoot.
Please also sign the online petition (and thanks to Cathay Birch, independent campaigner, and Gill Brown of London and Gypsy Traveller Unit for setting that up). Please note that you do need to respond to the validation e-mail you will be sent for your signature to count (and watch our for validation e-mails going into spam boxes!!):
http://www.petitiononline.co.uk/petition/no-mad-laws/3062
The petition has been going one week and has, at the time I type this, reached 213 which is excellent but please do pass around as widely as possible. There is also a paper petition (
I foolishly watched breakfast TV this morning – and they were doing a report about ‘squatters’ and squatting being made illegal.
Before the redmist made me turn over they had wheeled on this poooor couple who had inherited a HMO in brighton from their mum … and it took them a whole EIGHTEEN …. days … to get the squatters out of ‘our family home’ ….
At which point I turned over to avoid throwing heavy implements at the TV.
As usual the BBC let this guff appear as news
So yep it seems highly likely the media will do the work of misinformation while the government brings in some nefarious piece of law.
And the couple with the ‘family home’ were selling it, so the emotional trauma of someone else being in the property must have been immense.
I’m thinking about a post on the trespasser proposals – watch this space,