Lawyers are just like physicians: what one says, the other contradicts,” according to Yiddish writer Sholom Aleichem. This may well have been the case in the courtroom when the author of Fiddler on the Roof made this assertion, but it is not the case now.
Rather than contradicting each other, the legal profession has united against the government’s reform of criminal and civil legal aid in England and Wales. Solicitors and barristers claim that the government’s plans for legal aid will affect the very people who need the protection of the law the most: vulnerable children and adults.
The proposed changes to legal aid were detailed in Lord Carter’s long-awaited review into legal aid procurement, published in July 2006 exactly a year after it began. The report made 62 recommendations, with the ones most criticised by the legal profession concerning changing the way solicitors are contracted and paid for legal aid work (see New payment levels).
The Carter review recommended moving away from the current system of paying solicitors’ fees for criminal legal aid work, including fixed or graduated fees and hourly rates of pay depending on the type of work carried out. It proposed instead that solicitors bid for block contracts to provide criminal legal aid at competitive rates. This new system of legal aid financing is due to come into effect in April 2009.
At the same time as the review was published, the Legal Services Commission (LSC) – which administers the Ministry of Justice’s legal aid budget – and the government announced plans to introduce graduated fees for solicitors doing civil legal aid work.
Put simply, the proposals mean almost all types of legal aid work will be remunerated when each case is completed, rather than for how many hours a solicitor spends working on the case. The new system is based on the national average of all legal aid claims within each category of law (see Legal aid proposals).
These changes are supposed to address the £130m legal aid overspend facing the LSC. While this figure is a substantial deficit, the current spend on legal aid is around £2bn. Of this, nearly £900m is spent on civil legal aid, including family legal aid. Defending the plans, a LSC spokesperson says fixed and graduated fees are “vital to stop the unsustainable rise in spending” which, if left unchecked, threatens to put pressure on civil and family legal aid services.
While Nicola Mackintosh, solicitor for London-based firm Mackintosh Duncan Solicitors, acknowledges the need to do something to reduce the increasing legal aid overspend on high-cost criminal cases, she warns that the government’s approach will adversely affect legal aid funding for civil law – and in particular social welfare law.
“I simply do not understand how a community care client can be seen, probably in their own home, instructions taken from them or interested parties on their behalf, documents obtained and read, advice given, letters written to the local authority, and the case either resolved or progressed to a position where court action may have to be taken – all within five hours,” says Mackintosh. “It’s just not possible.”
Not enough time
Luke Clements, a solicitor at Birmingham firm Scott-Moncrieff Harbour & Sinclair and a reader in law at Cardiff Law School, agrees with Macintosh. He says that solicitors will simply not have the time to devote to clients whose cases are more complicated because of their level of need, such as disabled people.
“In some areas of law, there are similarities in cases, such as mental health tribunals, and these standard problems are easier for solicitors to cope with. But it is impossible to make the system work for disabled people because it requires them to have standardised problems.”
Clements qualified as a solicitor in 1981 and has spent 25 years practising in civil legal aid. He says the government’s legal aid reforms mean solicitors are turning away from legal aid cases because they are financially unviable. He says he receives daily e-mails and calls from potential clients asking him to take on their legal aid cases, which he is unable to do. After giving them some brief free advice, he has to signpost them on to other law firms, knowing that they too may be unable to help.
The major difficulty is there are fewer solicitors able to take on such legal aid cases because they do not want to accept the government’s procurement contracts, which pay them poorly and do not acknowledge the time needed to work on complex cases. Clements likens the situation to that of NHS dentists five years ago, who had to stop working in the public sector in order to remain financially viable.
These changes to legal aid reforms will, then, effectively limit vulnerable people’s access to justice if they need a solicitor to take up their case. Clements says this is especially problematic as it is also becoming increasingly difficult for people to pass the eligibility criteria for adult social services, resulting in more people needing legal representation to challenge local authorities’ decisions.
And it is not just adults’ access to justice that is affected by the legal aid reforms. Children who are the subject of care proceedings may end up without the appropriate legal representation as fewer specialist child care solicitors and barristers will be available to take on their cases.
This is the fear of Alistair MacDonald, co-chair of the Association of Lawyers for Children and a barrister in Philips chambers in Birmingham. He says the financial squeeze resulting from the legal aid reforms may result in children’s cases being allocated to newly qualified solicitors or those without specific expertise in child care because their fees are lower.
He warns: “There is a real risk of cases going to court without a child having proper representation, either because there are not enough solicitors to do the work or because the case has been delegated to a solicitor with the least experience.”
MacDonald adds that the government’s reform programme for legal aid runs counter to its other initiatives to improve outcomes for children, and particularly for those in the care system. “It is not an exaggeration to say these legal aid reforms constitute the greatest present threat to access to justice for children,” he says.
Not only solicitors and barristers have reacted negatively to the government’s plans. A report published in May by the House of Commons Constitutional Affairs Select Committee is equally scathing. Having collected evidence during its inquiry into the impact of the reforms, the MPs warn in their report that the new fee schemes reward solicitors for handling “primarily simple cases”.
Committee member David Howarth MP says this could lead to “cherry picking” of simpler cases to the detriment of vulnerable clients. “Solicitors may weed out expensive cases which take more resources to deal with,” Howarth says.
When the committee asked Lord Carter about the risk of this, he was adamant the issue had been addressed in the contracting arrangements with solicitors. This stance was also adopted by the LSC when the committee challenged the body on the likelihood of cherry-picking once its procurement contracts were introduced with solicitors.
Howarth remains unconvinced. He argues that having such large, block contracts with solicitors providing legal aid services may limit the choice for clients about who represents them legally because smaller solicitor firms will not have the resources to bid for the work.
This means that a client living in a village or town without one of the preferred legal aid suppliers will either have to travel some distance to the nearest solicitor with a contract with LCS or stop pursuing their case altogether.
With the legal profession convinced the legal aid reforms will do more harm than good for vulnerable clients, what should the government be doing instead? For Howarth and MPs on the select committee, the correct thing for the government to do is conduct detailed research into the costing problems of legal aid, rather than speculate on what the difficulties are. “The government has got to go back to the bones and do its research, and come up with the specific problems around legal aid. They can’t have anecdotes on what they think it is.”
Clements believes those in power have got to learn to trust solicitors and their expertise, while MacDonald says the answer lies in properly investing in legal aid in terms of human, structural and financial resources.
MacDonald urges the government to protect civil and family legal aid as it is currently not ring-fenced. Making such an investment now, he says, will have a beneficial effect on other services the government funds: “If you ensure children have a good outcome in their care proceedings or while they are in care, they are less likely to have mental health issues or go through the youth justice system,” he says. “Invest in the legal aid system now and save later.”
LEGAL AID PROPOSALS (back)
Key recommendations of the Carter review:
● From 2009 best value tendering for legal aid contracts based on quality, capacity and price.
● Standard fees for civil and family legal help, and new graduated fees for solicitors in private law family and child care proceedings.
● Tighter control of very high cost criminal legal aid cases.
● Fixed fees for solicitors carrying out legal aid work in police stations to encourage more efficient practices, including cutting costs related to waiting and travelling times.
● New responsibilities for the Law Society and Bar Council to enhance quality of legal aid solicitors.
● Revised graduated fees for crown court advocates and a new graduated fee scheme for crown court litigators to reward earlier preparation and resolution of cases.
NEW PAYMENT LEVELS (back)
Proposed legal aid payments to solicitors for working on cases in particular areas of law:
● Community care: £290 (five hours worth of solicitors work).
● Housing: £171 (about three hours).
● Public law: £282 (less than five hours).
● Employment: £225 (about four hours).
● Mental health and mental capacity (rates due to be introduced in October).
● Lord Carter’s review: Legal Aid – A marketbased Approach to Reform
● The Constitutional Affairs Committee report, Implementation of the Carter Review of Legal Aid
Legal services for young people in Essex: Lawyers for Young People
Contact the author
Anabel Unity Sale
This article appeared in the 28 June issue under the headline “Where’s the justice?”