More bonkers Legal Services Commission rules

I had a conversation recently with a worker at a legal 'not for profit' organisation (who wishes to remain anonymous) who is in despair about their Housing Court Desk Duty Scheme. She had been using student volunteers in addition to the qualified helpers. The student volunteers were all law students from a local college. They were really enthusiastic, worked hard, and the scheme was going well. However she has now been told that, for schemes funded by the LSC, all advisors must either be qualified solicitors or be doing 12 hours per week housing law case work. So she can’t use the students any more.

I assume that the LSC have made this stipulation so that they can assure 'quality'. However the effect of this is to make the scheme very difficult to run. Although they are generally willing to help, in the present financial climate local solicitors will need to spend most of their time on fee earning work, to enable their firm to stay solvent. They are not going to have a lot of free time available for voluntary work, bearing in mind that there are very few solicitors nowadays who specialise in this area of work anyway.

It is ridiculous to say that only solicitors and those carrying heavy housing law caseloads can give advice to people facing repossession. With proper training, anyone sensible who understand the legal system can do it. I would have thought that law students were eminently suitable for this work, plus it will enable them to gain experience which will help them in their careers, and may even encourage them to specialise in the area of housing and welfare work in the future.

It reminds me of when I used to do volunteer work for a local legal charity. I was donating my time entirely free of charge but the Legal Services Commission's expectations were wholly unreasonable. For example they demanded that I physically attend the office for a certain amount of time each week (which would take up more time that I was able to give, bearing in mind that I also needed to earn a living) whether this was actually needed or not. This is one of the main reasons why I resigned.

It seems that not only have the LSC virtually destroyed the network of legal aid solicitors that previously existed, they are also (still) making life difficult for volunteer services.

Legal Services Commission is arrogant and devious says former supervising solicitor

Although it is not directly related to housing law, I feel I ought to draw readers attention to an excellent comment in the Law Society Gazette from Michael Burdett who previously helped the Legal Services Commission (LSC) to set up the CDS (i.e. Criminal Defence Service) direct scheme.

As someone who has worked with the LSC he ought to know something about them. His view is that the savings claimed for the expanded CDS Direct scheme are misrepresented and that the LSC have failed to answer his request for a breakdown of how they have been calculated. He goes on to say that the expanded CDS is probably of questionable legality, that the ‘hypocritical and bureaucratic attitude’ shown by the LSC in this is being replicated elsewhere, and that their ‘arrogant and devious approach’ towards reform of both civil and criminal legal aid has destroyed the goodwill of the profession.

This is all so sad. In the 1940s when legal aid was first set up, it was conceived as a twin service to the National Health Service. So people of modest means would have access to both medical and legal help. When I first started work as a lawyer all firms did legal aid, even the very large ones. Now hardly anyone does. When tenants on benefit ring me up asking for representation, it is very difficult to think of anywhere I can refer them other than our local Shelter office.

As Michael Burdett says in his article, it is worrying that people’s right to legal help is being circumscribed at a time when the police and the state are being given unprecedented powers over the citizen.

We are told that all this is in the interests of the taxpayer as it will cost less. But this just reflects my blog item below – things being valued solely on the basis of how much they cost. And is a miniscule reduction in our tax really an adequate compensation for being unable to receive independent legal help if we are unjustly detained by the police? As others have pointed out, compared to the National Health Service budget and defence costs, the Legal Aid Budget is miniscule.

It is all very worrying.

Justice, what justice?

I was very concerned to read in the Law Society Gazette today that if the proposed reforms to legal aid go ahead, it will lead to the 'immediate dismantlement' of specialist civil liberty legal teams in some firms. This is because cases dealt with by specialist providers tend to be more complex and time-consuming and are likely to be unprofitable under the reformed 'fixed fee' system. Government cannot expect solicitors to maintain a service if it is going to be run at a loss or at no profit.

Michael Schwarz, partner and Bindman & Partners said "Clients will not have access to specialist lawyers and their human rights will be at risk. It will be an encouragement for negligence or abuse by state officials, and is a recipe for injustice."

A LSC spokesman trotted out the usual statement saying that the numbers of people helped has increased. But we all know that statistics can be very misleading. Maybe more people wanting to know what to do about their grazed knees after tripping on a paving stone in the High Street have been advised via a telephone helpline, but what about those with serious human rights problems who need more specialised help? Does giving basic legal telephone help to ten people really equate to a better service than helping one person with a serious but expensive human rights problem? It is certainly cheaper, so maybe in government-speak it is.

It is ironic that the government which introduced the Human Rights Act is now going to be responsible for taking away the ability of people to use it.

Or what?

Of course it could all be part of a plan. "Getting a bit expensive to pay all those solicitors. Why not make it really difficult for them. Death of a thousand cuts. No-one will believe them when they complain, no voters will anyway. They are just whinging solicitors wanting more gravy.

Then when there are no firms left prepared to do the work, let the supermarkets and big companies take over. They will be able to automate it, do it at a bargain basement price. The clients, sorry customers, won’t know the difference. They don’t understand what its all about anyway. Give them a free digital clock with their first appointment and they’ll be happy.

We don’t want all those small firms anyway, so untidy, much better have one big one like Tesco. Get into a working agreement with them, so they won’t start criticizing and arguing and encouraging their customers to be difficult about government decisions. Things will be much easier. Lawyers will have to behave themselves in future and the exchequer won’t have to hand out all that cash."

Paranoia or what?

Lawyers (not) in the news

There was a big lawyers demo against the legal aid 'reforms' at Parliament today, but so far as the early evening news was concerned it might just as well not have happened...

As we work from home we are able to watch the news at lunch time. I was encouraged to see a rather good report of the demo on Channel 4 news which I felt presented the problems perhaps as well as we can expect. However it seemed to have vanished off the airwaves by the evening.

I made a point of watching BBC1, ITV and the 7.00pm Channel 4, and it was not mentioned on any of them. Indeed I have not been able to find much on the internet, other than a few blog entries and this on Channel 4 (not nearly as good as their lunchtime effort).

Of course it might be reported on Newsnight later on, but I am not sure if I can face another news program. I suppose the fact that the most needy in our country are shortly going to find it difficult to enforce their rights is not considered to be a newsworthy topic by those who select the stories to cover.

Housing law in crisis

The Law Society Gazette was rather a worrying read this week. Amid tales of criminal legal aid solicitors going on strike, and DCA leadership not being fit for purpose, was this news item on plummeting legal aid housing contracts which have fallen from 840 to 587 – a drop of some 30%. A bet that there are quite a few housing law deserts out there – 587 firms cannot cover the whole country, particularly as I suspect quite a few of those are in London.

I attended a housing conference last week. The speaker on unlawful eviction confirmed that in his experience the police simply refuse to take any action when someone is illegally evicted - despite that fact that it is a criminal offence. And yet being unlawfully evicted from your home must be the most traumatic experience.

So if the poor old illegally evicted tenant can’t get any help from the police and there are hardly any legal aid housing solicitors for him to consult – how is he going to be able to enforce his rights to re-instatement (if he wants it) and compensation? Drafting a decent court claim for compensation for unlawful eviction is not easy as there are so many different causes of action – it would be a difficult job for most litigation solicitors, let alone a litigant in person.

Its not fair is it? And what is the point of making something a criminal offence if the police refuse to deal with it?

Unbelievable arrogance

I have just had the dubious pleasure of watching Vera Baird QC, our legal aid minister, being questioned on Channel 4 lunchtime news about the legal aid reforms. When asked how vulnerable clients were going to manage if they have to travel up to 50 miles to get essential legal advice, she just shook her head in a patronizing manner and said that that this was simply not going to happen.

Actually, she told us, it is going to be better for everyone after the reforms come in, because (she implied) solicitors will be forced to manage their practices properly which will mean more money and work for all. In fact, those silly old solicitors are just making a fuss about nothing and will soon be grateful to the government for making them carry out these essential changes which will make their working lives so much better.

How stupid is she? Does she not know that all legal aid practices have had years of efficiency measures being imposed on them, auditing, five year plans, cost cutting exercises and the like. Does she really think that she, a government minister and barrister, knows better than the partners how to run a legal aid firm? And does she really think that solicitors are going to carry on doing legal aid work if these reforms come in, when there is other much more profitable work to be done? It is not solicitors, remember, who are going to suffer for all this, it is the clients.

So far as I can see there are two possible reasons for the governments attitude. One is that they want to kill the legal profession dead because an active legal profession is an embarrassment to them as they keep pointing out problems in their legislative program etc. The other is that they don’t have the cash and the Health Service is a more popular destination for any cash that they do have. I really hope it is the second, but sometimes I get paranoid and wonder if it is the first.

But if I had not given up legal aid work a long time ago, I would be very much tempted to give it up now and to write to Ms Baird and tell her that it was her smug patronizing attitude which had been the last straw.

If you feel as annoyed about all this as I do, support the Law Societies "What price Justice?" campagn.

Legal aid? Problem sorted.

Thinking about the decline of legal aid while in the bath this morning (as you do), I thought "If I were in charge, what would I do?". Well here is my ‘from the bath’ solution, gratis, from someone who used to do legal aid but does it no longer.

Well, I think to start with, I would like to separate civil and criminal legal aid. From all I hear, it is the terribly expensive criminal trials which drain the legal aid funds. So if the civil stuff were separated out, it would show itself to be the inexpensive beast that it is.

Probably the best thing would be to have a fund. This could be used to underwrite legal costs, so solicitors could be certain of getting paid. Government could pay into the fund a specified amount, to cover those cases where the costs are not recovered from the other side. The fund could ‘earn money’ by taking on, once again, personal injury actions. The majority of these are successful so the insurers pay all the costs. However if the fund was the organization taking the risk, the ‘success fee’ currently paid to solicitors could be paid to the fund. No doubt insurance cover could be arranged, as now, to cover the risk of the claimant having to pay the other sides legal costs and experts fees.

So the fund could get income from the government (about the same as it pays now for civil stuff), interest from money held, success fees from civil claims which are successful, and would probably take a loss on most family cases. Housing cases – well some would be a cost but others, for example disrepair claims, could well bring in cash via the success fee. There would also have to be a statutory charge type arrangement to cover situations where a benefit is obtained but no costs are paid.

I have to say that I would prefer to see the fund administered by someone other than the Legal Services Commission – I think they are a horrendous organization (although with some very nice people working for them), realistically though I suppose we would probably get stuck with them. However as this is all imaginary anyway, let us say that the civil fund would be managed by a new organization – called something like the Civil Legal Costs Fund. Perhaps to be headed up by someone sensible from business, with a proven track record of running things efficiently.

The fund would have to be very carefully managed so its potential liability for costs (bearing in mind the proportion, statistically, of current cases which will not be a cost) did not exceed the amount of the fund. All cases would have to be assessed before being approved by the fund and strict limits applied, as with legal aid certificates.

Hopefully this system would be supported by solicitors. Although they would lose their success fee on PI cases, they would hopefully gain other work which would balance this out. And if they just did PI cases, then no doubt the option would remain to ignore the fund and carry on doing their own no win no fee agreements as now.

On reflection, and in an ideal world, I think I would prefer to see the scheme operate free of government altogether, i.e. be a private legal aid funding system. It would need a friendly multimillionaire to seed it by coughing up a few million, but it could be self funding thereafter. The advantage of being a private scheme is that it would be more likely to avoid the stultifying form filling and bureaucracy which inevitably accompanies any state funded system, and which makes them such a nightmare for all who work in them. Maybe it could start from a few firms and then gradually expand.

"But what about criminal legal aid?" I hear you ask, "You haven’t mentioned that!" Well I have never been a criminal practitioner so they will have to think up their own solution. Forcing government to think through the legal aid implications of new legislation would of course help.

However talking to a friend recently, he pointed out that government really needs the criminal practitioners because they are far, far cheaper than a state funded system would be. In a state funded system, the working time regulations would have to be followed strictly, whereas self employed solicitors can ignore them and just get on with the work. So they have the government over a barrel really. All they need to do is push this point home, which hopefully they are doing with their current go slows and strikes. Good luck to them.

So there you are. Problem sorted. What do you think?

But of course it is not really as easy as that.

Luckless landlord meets Nearly Legal in court

There is interesting post on the Nearly Legal web-site recently on how a tenant (with the help of Nearly Legal) fought back against a nightmare landlord. None of my landlords of course would dream of behaving like that, but there is always one. Or three. Or more.

Its nice to see that at least some tenants are able to get decent legal aid help and do something about injustice. I think Nearly Legal ought to go for damages for unlawful eviction, if only to punish the landlord and replenish the legal aid fund. But we need to be told how much they get ...

Legal aid in crisis - the Observer

As I have been banging on about legal aid a bit recently, feeling rather as if I were banging my head against a brick wall, I was delighted to see a report in the Observer today on Legal Aid in Crisis. Only in the business supplement of course where no-one will see it, but at least they have recognised the problem.

The trouble is, when most people think about legal aid funding cuts they tend to think this is good as it will mean less bloated fat cat lawyers getting too much money, whereas in fact what it actually means is ordinary people not being able to get help at a time when they desperately need it. No aspiring fat cat lawyer will go anywhere near legal aid work anyway - not enough money in it!

One lawyer for the rich …

Following on from my post yesterday, it occurs to me that if the current trend continues, there will eventually be no legal aid solicitors left in private practice. Those unable to afford private legal fees will then have no alternative but to use the Law Centres and legal charities such as the Citizens Advice Bureau and Shelter. In many parts of the country, the ‘legal aid deserts’, this is already a reality,

Although I have the greatest admiration for Law Centres and the legal charities, the fact is that there will be different lawyers acting for the rich and for the poor. Inevitably the solicitors and caseworkers working for the law centres and legal charities will be paid less than those in private practice, and this will mean that most of the highflyers will be snapped up by the city firms and other large private practices.

With all its faults, under the old system, at least those eligible for legal aid could chose almost any solicitors firm, and the same solicitor could have a private fee paying and a legal aid caseload (and many did). Now a two tier system is developing. Although the solicitors in the ‘social’ sector may be (and probably will be) very good, I am unhappy about the idea of there being a divide in this way.

It is another symptom of the widening rift between those who can afford to pay for private services (schooling, health care, etc) and those who cannot. It is a very worrying trend.

It is ironic that this has come to pass under a labour government.

Legal aid again

I can remember, quite a long time ago, it could have been as much as 10 years, I went to a presentation by the Legal Aid Board (as it was then). I can’t remember why or what it was about, but what I do remember is a tirade which one of the speakers suddenly got up and gave against solicitors. “You have all had it soft” he said (or words to that effect), waving his finger at us, "there are going to be changes and you lot are going to have to get used to it." Well we didn’t actually, what happened was that we all stopped doing legal aid.

But that is just typical of the attitude that we all get from the (as it now is) Legal Services Commission. With a few honourable exceptions. they seem to think that we are a useless overqualified mercenary lot who need teaching a lesson.

This attitude has been prevalent for years, during which pay has been frozen, administration has been hiked up to frightening proportions, and most sensible lawyers have left for more remunerative work elsewhere. The only ones still doing legal aid are those with a strong pubic service ethic who believe in working for the community. But maybe even they won’t be around for long.

A new independent report shows that hundreds of legal aid firms are likely to be forced out of business as if the new reforms come in, legal aid work is not only going to be unprofitable, it will be loss making. So effectively solicitors will have to pay to do it! Even the most public spirited solicitor is likely to baulk at that one.

So the losers will be, not the solicitors – they are educated and have a good qualification, they are not going to suffer for long - but those who need their services. Where will they go for legal help when the last legal aid firm has gone bankrupt and its partners have taken jobs elsewhere? Who will fight for their rights? Only the law centres and the charities will be left. I wish them well.

New CLS ploy to reduce legal aid budget

A report in the Observer indicates that the Community Legal Service's telephone advice service may have a more sinister objective than just to help people solve their legal problems on the phone.

The service is one whereby callers who qualify for legal aid can call a national helpline for up to half an hours free telephone advice. Sounds good. But the Ob article reports that some people, among them Roger Smith, director of the human rights group Justice, who took part in a 'mystery shopper' exercise for a recent issue of Independent Lawyer magazine, are concerned that the CLS advisers seem reluctant to refer callers on for face-to-face help.

Over the last 12 months, 73,500 problems were dealt with by the helpline, but there was a referral rate of only 13%. This seems suspiciously low. Although the CLS report customer 'satisfaction ratings' of 93 per cent of callers happy with the telephone service, callers whose reason for ringing is that they don't know the answer to their problem are not really the best people to judge whether they have been properly advised or not.

'It isn't possible to give issue-specific advice to tenants without reviewing paperwork,' the Observer quotes from Pierce Glynn partner Steven Pierce, another solicitor who took part in the mystery shopper exercise. 'OK, you can give accurate general advice, but you can't determine whether or not somebody has a defence by talking on a phone.' Well I would certainly agree with that.

Telephone advice can be great, but it can also be dangerous. For example the caller may only have a vague idea of the paperwork involved and may give a wholly incorrect description of it, resulting in incorrect advice being given. In a situation where someone is at risk of losing their home, I would always recommend getting advice on the paperwork as this is an area where paperwork is critical. Lawyers who know what they are doing can usually see at a glance what the true situation is from the papers, whereas the client, who knows nothing of these matters, in a telephone call may not even mention the most critical items, and instead concentrate on telling you something which is actually irrelevant.

Notwithstanding this, the CLS expects to increase spending on the service from £15m to £25m next year and £28m in 2008. However Russell Conway, a member of the Law Society's access to justice committee, who also took part in the test, and who described the referral rate of 13 per cent as 'bizarre' commented 'There are only so many issues that can be resolved over the phone. If consumers are being put off taking proper legal steps, it does more harm than good.' But giving advice by telephone is much cheaper than paying for the client to consult a solicitor for face to face advice.

John Sirodcar, the head of direct services at the Legal Services Commission, denied (says the Observer)that advisers were reluctant to refer clients on to face-to-face services where appropriate. He also said that he had not received any client details. 'Give me the evidence and I will check it out,' he added.

But how will the clients know that they should have been referred on? As mentioned above the whole reason for their call in the first place is that they are ignorant of the law. They may never find out that the advice was wrong or misconceived, in which case they will never complain. Of course this could be said about all legal services, however given the full information most lawyers will come to the correct conclusion. The problem with the telephone advice service is that the lawyers advice may be based on an incomplete picture.

Failure to refer on (and thus save money) and the trumpeting of meaningless 'satisfaction surveys' are some of the problems of a system driven by cost cutting and statistics.

The legal aid disaster

I can remember, back in the early to mid 1990s when legal aid 'franchising' first came in, we were all told by 'them' that the changes were just to make things better for the firms who got the franchises. It was not going to result in lower fees, and we were certainly never going to have firms actually bidding against each other to bring the price down, oh no, no, no, no, no. It would all be better for the profession, better for the client.

Well I now read in the legal press that lawyers who do criminal defence work will be unable to get work at all if they continue to work as an independent 'sole practitioner', they will have to join up with one of a limited number of large firms who will be able to work more efficiently with 'economies of scale'. So not a lot of choice for the client there then.

In fact, dear reader, most lawyers have been leaving the legal aid scheme in droves because they simply don't see the point in such low paid time consuming work. A few public spirited solicitors struggle on, but they probably pay for this with stress related illnesses and the spectre of bankruptcy always before them.

We saw the writing on the wall in 1999 and pulled out. In the extra time gained by being released from all that form filling, I was able to set up and launch my online service Landlord-Law.

The real losers from all this are the public, though they little realise it until they try to find a legal aid firm. There is not much point in having legal rights, unless you can enforce them. And with the ever increasing complexity of the legal system, who can do this without the assistance of a trained lawyer?