What’s eating legal aid lawyers?

Legal aid lawyers are an inquisitive bunch making a career out of asking questions on behalf of their clients. But recently, as Chris Minnoch considers, they’ve had cause to ask questions on their own behalf

Where is the civil tender?
Most civil legal aid contracts expire at the end of March 2018 and the government was due to tender for new contracts earlier this year. The Ministry of Justice (MoJ) announced that it would do away with the usual two stage tender process, with eligibility and award criteria rolled into one. But the tender was put on hold following the general election announcement.

There is still no announcement on when this process will begin, which is, understandably, creating a great deal of anxiety for practitioners (including those looking to secure their first contract). Firms and not-for-profits are now working under additional pressure due to staff absences during the school holidays.

The lack of clarity about the tender process makes forward planning extremely difficult as current and new suppliers have to think about recruitment, supervision, training, reorganising staff teams, opening or closing offices — with concerns about leases and supplier contracts — and a thousand other management issues.

There are also complications with tendering for Housing Possession Court Duty Schemes (HPCDS). The government proposed to consolidate the 117 existing schemes into 48 multiple court contracts and introduce an element of price competitive tendering. Representative bodies we consulted all expressed deep concerns about the impact of these proposals on clients and noted the additional impact of the court closure programme.

The outcome of that consultation is yet to be published, with the MoJ suggesting to us that it wishes to carry out more discussion with the profession. As those wanting to run a HPCDS will also have to successfully tender for a mainstream Housing & Debt Contract the lack of clarity around HPCDSs is another cause for concern.

So when will the tender take place? The MoJ needs to give itself time to run the tender (usually a 6-8 week window), collate and assess bids, carry out additional assessment of price-competitive bids, complete a verification process and deal with any potential challenges or appeals. It’s possible in the time remaining, but it will be tight.

And let’s not forget that providers need time to prepare and submit tenders and get everything in place to operate the new contract (which contains new terms). It’s not just a case of filling in a web-form and getting on with the day job. We’ll be running courses around the country to help providers prepare for the tender process and ensure that supervisors meet the requirements of the new contract.

Where is the LASPO review?
There is still no announcement about the timing and scope of the post-legislative review of LASPO. Prior to the general election we met the MoJ analyst leading the review and were encouraged by what we heard. The MoJ planned to consider a broad range of issues, including the compounding impact of non-LASPO issues such as court closures and tribunal fees. They intended to consult widely with interested parties and they had already begun to review existing evidence and independent reports about the impact of LASPO.

It was always tempting to be pessimistic about the review given any government’s disinclination to criticise itself and bear the costs of rectifying the damage caused by its own reform programme. However, the officials leading the process showed genuine commitment to understanding and measuring the impact of the reforms.

But much has changed in the intervening period and given the need to report by the end of March 2018 one would question how extensive the review can now be? Don’t forget though that the MoJ must also respond to the justice committee and answer the criticism that LASPO has failed to meet its stated objectives.

Will the government be cutting the fees in crime?
Government consultations proposing changes to the Advocates’ Graduated Fee Scheme and Litigators’ Graduated Fees Scheme closed on 2 and 24 March 2017 respectively. They proposed, amongst other things, cuts to fees that we and many other representative bodies felt would undermine the already fragile supplier base. And between announcing the proposed changes and concluding the consultation crime providers, were entering into new contracts without knowing whether fees would be cut. At the recent APPG on legal aid Greg Powell, president of the London Criminal Courts Solicitors’ Association, noted that criminal defence fees haven’t increased since the 1990s and that the politics of austerity has trumped the politics of access to justice.

Is there anybody out there?
The recently released legal aid statistics show a number of worrying trends. The number of agencies providing legal aid continues to fall. Since 2011-12 there has been an 18% reduction in those providing criminal defence and a 25% reduction in civil legal aid providers. A staggering 52% of not-for-profits have stopped providing legal help services. The Law Society has reported on widening advice deserts, indicating that some regions now have no or only one legal aid provider. Clients across the country are struggling to get legal advice and representation even if their legal problem is still in scope.

Office closures also means that talented and committed legal aid lawyers are leaving the sector.   Can the sector survive such a loss of talent? We’re pushing for areas of law such as welfare benefits to be brought back into scope, but if the government agrees to do so, will there be specialists out there able to do the work?

And what of case volumes? In 2012-13 (the year before LASPO came into force) 573,744 legal help cases were opened. This fell to 146,618 last year. That’s and eye-watering reduction of 427,126 cases (74%). Certificated case volumes are also down significantly. Despite a slight increase from 2015-16, the number of certificates granted in 2016-17 was still down by almost 30% on pre-LASPO levels.

Does the government honestly expect us to believe that those clients no longer need legal advice? Or, as the LASPO impact assessment suggested, has the third sector picked up the slack? The answer to the latter is almost certainly no, as the third sector was also adversely affected by the legal aid reforms, and cuts to local authority local and other forms of grant funding.

Can we please simplify the system?
The legal aid system is notoriously complex, and even legal aid lawyers spend much time and energy keeping up to date on the ins and outs of the system. Introducing CCMS was an opportunity to simply the system but unfortunately it replicated the complexity and added another layer of problems, such as issues with system stability. We and others are working with the LAA to try to improve CCMS and other aspects of the system.

The LAA is trying to reduce errors and rejects by producing guidance notes and checklists. They also hold meetings with practitioner groups to discuss ways of simplifying the system. Those meetings can lead to pilots, such as the one underway in Bristol to test the delegation of proceeding limitations and cost limits in some family cases. But the system remains complex and the administrative hurdles continue to add cost and risk for providers and barriers to those seeking advice.

This is just a snapshot of the questions legal aid lawyers and representative bodies are asking. There are so many other issues such as ‘what will be the impact of my local court closing?’ and ‘what will the Bach Commission recommend?’. Rest assured, through the uncertainty, LAPG will continue to press for answers.


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