Two Legal Aid Agency-related issues dominated debate among delegates at the Legal Aid Practitioners Group’s 2016 conference: the Legal Aid Agency’s controversial ’embarrassment clause’; and continuing problems with its digital billing system. Fiona Bawdon reports
The mood at LAPG’s event in Leeds, attended by around 150 practitioners, was notably upbeat, although delegates repeatedly voiced intense frustration about their dealings with the LAA. A lawyer with 10 years’ experience complained about being second-guessed by LAA staff when applying for funding through to trial; another was amazed that, despite having moved to an online client and cost management system (CCMS), the LAA still managed to regularly lose applications. ‘I don’t understand how that is even possible,’ she said.
By contrast, LAA chief executive Shaun McNally, who took up his post in April this year, having worked at the agency in different roles since 2012, maintained the organisation was performing well. The bad old days of its predecessor, the Legal Services Commission, when practitioners had to ‘wait 30 minutes to get through on the phone and considerably longer for bills and applications to be processed,’ were long gone. He accepted there were still ‘issues’ with CCMS, but insisted that the LAA’s customer service team were equipped to sort them out.
‘I feel proud of how the agency has been transformed over recent years,’ he said. ‘I lead an organisation where people who work within it are committed, supportive and care for each other and are absolutely passionate about the service they provide. They are proud to work for an agency which has a key role to play in the justice system.’
The LAA’s performance had improved, despite its budget being reduced by 34 per cent since 2010, he added, but warned it still had to find further savings of £11m during the current spending period. He suggested this could be achieved by envisaging a ‘different future’ for the LAA and practitioners. ‘What if we challenge ourselves to work in a different way? What if we had a different relationship that was akin to adult to adult? What if we understood and appreciated each others’ perspectives and were prepared to make a real difference?’
In her opening speech, LAPG co-chair Nicola Mackintosh QC (hon) had warned that, with so much pressure on its budget, the LAA should sort out CCMS as a matter of urgency. ‘It costs more and wastes money that would be better spent on clients. The taxpayer should not be paying for a system which is so clearly inefficient,’ she said. Alex Offer, a public law barrister at Garden Court North, told McNally that, while the legal aid bar was keen to work with the LAA, ‘we do not feel you are interested in working with us.’
‘My experience of Legal Aid Agency decision making is overwhelmingly that you exist not to promote access to justice but act as financial gatekeepers to reduce access to justice whenever you can.’ Offer cited the example of a Romany Gypsy who was ‘vulnerable and could not read’, who was denied exceptional case funding for a planning hearing, for which he would need to read ‘600 pages of planning guidance’. ‘The LAA seems to be willing to throw resources at preventing access to justice,’ said Offer.
McNally rejected the suggestion that LAA staff make decisions to save money. ‘The conversations I have with the teams do not lead me to believe that they are driven by cost but by the regulations.’ However, Nicola Mackintosh, a sole practitioner, specialising in community care and mental capacity work, suggested to McNally: ‘The experience with staff on the ground may not necessarily be in accordance with your aims.’
Delegates were equally trenchant in their criticism of the LAA’s insistence on including an ’embarrassment clause’ into its crime contract, a provision which is now subject to judicial review. The clause gives the agency to right to strip firms of their contracts if they bring it into disrepute and critics fear it will be used to muzzle practitioners.
Cris McCurley, partner at Ben Hoare Bell warned that if the clause is introduced into crime contracts, it will inevitably also be imposed on firms doing civil legal aid. ‘The LAA has told us they think it’s a fair clause and if we don’t want to sign it, we don’t have to – and we can just stop doing legal aid.’
LAPG director Carol Storer rejected LAA assurances that it was a standard term for government contracts. ‘What legal aid lawyers do is more important than an average contractor who is supplying services which are non-controversial. Our work we is all about challenging the state. We cannot accept this as reasonable.’
Richard Miller, Law Society head of legal aid, added that there are occasions when legal aid lawyers are under a professional duty to embarrass the LAA. ‘If they have cocked up your client’s claim and their case has been endangered, that would be a source of embarrassment to the LAA, or would be if they had any shame. It is wholly inappropriate for this clause to be in the contract. Unlike legal aid lawyers, other government contractors are not in the business of holding government to account.’
For those with longer memories, McNally’s call for an ‘adult to adult’ relationship with legal aid lawyers was reminiscent of similar attempts by one of his predecessors a decade earlier. Clare Dodgson, appointed as LSC chief executive in 2003, insisted she wanted to end the ‘Punch and Judy show’, and move to a ‘preferred supplier’ scheme for firms. Dodgson (who went on long term sick leave, never to return) lasted only two years in the post, and left with relations between firms and the commission no less fractious than they had been at the start of her brief tenure.
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