First, apologies for the length of this message, but there are so many inequities behind the proposals. I have tried to put down the ones that I have picked up from 8 years as a social welafre law solicitor in private practise. I now work in the CAB so I have seen both sides. The proposed fees are the biggest threat to our work EVER:

1 The fixed fees are a straightforward cut in funding for the NfP sector. Based on the current contract NfP agencies pay about £20-£25K for a supervising caseworker and around £30K for a solicitor, plus often a pension contribution The private solicitors tend to pay around £15K, no pension, for a trainee/paralegal who does the work under supervision in return for an expectation of career progression to other departments within the solicitor’s firm after a year or two. NfP suppliers cannot offer that and would have to cut current staff wages by up to 50% if the same case number outputs are maintained, or alternatively ask staff to increase workload by 40 – 50%. The DCA’s own impact assessment (see above) concedes that the proposals will mean a 50% funding cut to NfPs on present caseload. There is not even the incentive of losing the bureacratic chore of time recording as we understand that case times will still have to be monitored to try and prevent cherry-picking of short cases.

2 The NfP sector cannot subsidise the work as the remaining solicitors still do. The majority of social welfare work is now done in NfP agencies precisely because most high street solicitors withdrew as the work was uneconomic, whether on hourly rates or fixed fees. The few that continue on fixed fees do so to attract clients who then instruct their other departments on more lucrative matters. NfP’s have no such incentive to take this work at loss-leader rates. They are not structured to have PI, conveyancing and other departments who can subsidise legal help work in return for marketing benefits.

3 Other voluntary sector funders will not step in to subsidise the cuts. Even if other funders were available for these categories they will not subsidise a contraction of government funding. NfP funders currently insist on funding work outside the LSC scheme. It is usually a breach of their service level agreements if a case is “double counted” against LSC targets and their own – this would be misrepresentation by any agency which attempted it.

4 The work is not the same in both sectors. Average case times are far shorter in solicitors firms because they do tend to cherry-pick easier cases and refer complex but non-certificated cases on to the NfP sector (eg. homelessness review cases in housing can average around 6-7 hours and are often referred to specialist providers such as Shelter). They only keep more lucrative certificated cases for themselves. In particular they start most certificated cases with 2 hours of Legal Help to cover the application for the certificate. This greatly reduces their average. The NfP agencies therefore have longer hours per case because they rightly do more work per case and are doing a very different case-mix within each category. Multiple debt cases are a good example where averages are correctly around 6-7 hours as these cannot be moved on to certificates. It is a myth that the NfP sector is inefficient on these cases. It tends to deal with the most challenging clients with special needs, mental health problems etc, all of which increase the time required to provide advice services.

5 The NfP sector often provides additional value, for example by accompanying clients to employment and welfare tribunals even though this is not booked as LSC time. The previous contract arrangements gave some flexibility to allow for this whilst solicitor’s firms rarely do so. It also allows for the social policy work which is particularly important in feeding back to local government to identify and stop bad practice, saving unnecessary casework in the longer term.

6 There is less admin support available in NfP agencies - self-supporting is the norm. This means that on paper NfP cases can look as if they take longer. File audit guidance for the NfP sector has acknowledged this and allowed more preparation time for writing-up files. Caseworkers in solicitor’s firms tend to have access to typing pools, etc. set up for other depts – another example of the hidden subsidy of fixed fees by solicitor’s firms which cannot be extended into most NfP agencies.

7 Established mutual referral networks will break down. At the moment the NfP sector refers certificated cases (eg housing and family) into solicitor’s firms. In return, they refer in complex debt and welfares benefits work that is uneconomic for them. If the NfP sector contracts, the whole idea of Community Legal Area Networks is undermined before it even starts.

8 Flexible initiatives to address local priorities cannot be funded. In Cumbria there is a particular issue over the lack of affordable housing and this leads to a high level of need for housing advice and representation. The North West LSC region has adopted a policy that, to enable clients to access to a full range of representation, in housing law contractors should employ solicitors rather than caseworkers as they provide duty court representation and can quickly progress cases under certificates. (eg emergency injunctions for the unlawfully evicted, court appeals for the homeless). A co-ordinating group currently meets to monitor provision. Moving to fixed fees based on rates that are unsustainable on even a caseworker’s salary will certainly lead to the loss of all of the region’s NfP housing solicitors (currently 5 posts in Cumbria alone, many of which have already proved very difficult to fill).

9 Access to justice will continue to suffer. Our consortium is the only provider of LSC debt and benefits advice in the South Cumbria area and until recently also in housing and employment. The economies of scale which a fixed fee regime assumes do not work in rural areas. No other NfP agencies exist locally to take over this work. Our local solicitors have stated emphatically they will not expand to do work they got out of years ago. If our services disappear there will be an advice desert here which cannot be filled by CLS Direct (a telephone-only service). The most vulnerable will continue to need a face-to-face casework service as they cannot easily access internet services and often do not have the skills to act on telephone advice. The abolition of level 1 work (the ability to give short but often effective pieces of advice of less than ½ hour) will lead to many less clients being helped.

10 It is inconsistent with other initiatives and with maintaining quality of supplier. The LSC unselfconsciously state that an efficient case is a short case and equate that with quality work. But the purpose of their Preferred Supplier initiative due to start in 2007 is to require higher quality work for every client. It directly conflicts with the incentive to spend less time with each client which the fixed fee regime dictates. Quality of work will inevitably suffer and suppliers who take up fixed fees may later drop out as they fail peer review audits. Others will conceal poor service such as premature closure of files, cherry-picking of simpler cases, avoidance of the most challenged clients. Worse, the old fraudulent practises such as doing unnecessary benefit checks will be encouraged. As illustrated above, it becomes impossible to employ solicitors to do any Legal Help work and the expertise of housing and other social welfare solicitors in particular will be lost across the country.

11 The regional levels of fixed fees are irrational. They are wildly variable and unrelated to local or national priorities or real average case times. They are apparently based on the average case payment in 2004 for the few solicitor suppliers in each region so they bear no relation to what any NfP supplier has been doing up to now. They are completely different from the tailored fixed fee deals that were negotiated with individual solicitors firms in 2005; indeed if that exercise was done now with each NfP agency fixed fees might be workable. Instead, if your agency happens to be in a region where the solicitors do less thorough work and low averages, (eg. short basic advice by trainees) then you will be expected to do the same; if not, (eg. in London where the LSC pay for better quality, longer cases by solicitors firms), you will benefit.

12 The regional proposals throw up crazy geographical incentives to move practice to other areas and leave behind advice deserts: A welfare benefits provider in the South region gets £185 per case. A few miles along the coast in South East that almost halves to £96. Doing an employment case in Wrexham (Wales) gets you £113. Doing the same case up the road in Chester gets £223. It is important to realise that this lottery has nothing to do with the overheads costs of providing advice. In fact, the huge differences in the London fees mean that region actually gets rewarded for having higher average case times, contrary to the incentive to cut case times for the rest of us.

13 The national fee proposals just share out the cuts more evenly, but still irrationally. The LSC admitted that these assume that it costs the same to deliver advice everywhere. For example, our CAB consortium delivers across a large rural area and we have negotiated some allowances for outreach travel time against our target plus reimbursement of travel expenses. No such flexibility is offered on the proposed model. In London agencies will lose their high figures and will be unable to absorb higher overheads.

Conclusion - the safety-net removed

In summary, we currently have a transparent, sophisticated, tightly controlled and carefully constructed network of NfP social welfare contractors providing access to advice across the country. It is like that for a very good reason - it has evolved due to the flexibility of each LSC area to deploy funding based on local needs. It is part of civil legal provision that is already shrinking and represents only 2.5% of the current budget. Quite unnecessarily, Lord Carter and the LSC have decided to use the restructuring of the criminal procurement to move the NfP sector to a crude and irrational mechanism at rates that will be completely unsustainable for suppliers.

I too have a lenghty response, sorry


The reality

Possession on the increase

The ODPM report (“Housing, planning, local government and the regions committee affordability and the supply of housing – 3rd report of session 2005-2006”):

“that after a period of over a decade, the number of Court Possession actions for mortgage arrears was falling, possession actions are now rising alarmingly. Nationally, between the 3rd quarter of 2004 and the 3rd quarter of 2005, there was a 55% increase in possession actions” (page 25)

The figure is no better today. The numbers of high street firms taking on work under the Civil Legal Aid system has decreased by 14% in the last 2 years and as a result, the number of people who have been helped decreased by 28%.

The Law Society's survey of civil legal aid practitioners (date 9.8.06) with 436 having given their views. The key results were:

1. 95% of practitioners believe that the introduction of fixed fees to replace tailored fixed fees in civil controlled work would lead to the work not being viable.

2. 88% of practitioners believe that that their firm was less likely to undertake publicly-funded work in the future.

Given the evidence that Legal Aid firms have reduced given the introduction of TFF, it is clear that misgiving of the above practitioners are well-founded.

“Recommendation 6.1: The LSC should immediately move to set up dynamic management information systems by December 2006 so that they can effectively monitor and share key performance indicators relevant to the successful delivery of new procurement schemes… In civil and family, it could include the number of cases under legal help budget, or percentage of cases achieving significant benefit for the client or resolved without resort to court” (page 16)

Recommendation 6.1 should be in place before any decision is made on the reform of funding or setting the fixing of standard fees.

The guiding principle that should dictate the review is identified as follows:

“The aim of the review can be summed up as securing value for money without compromising quality and access to legal advice” (page 21 para 35)

Yet there is no assessment of the correlation between quality and average costs per case. The failure to so assess leads to the assumption that private practice gives better value for money than the NfP sector.

The absence of assessment of quality has shaped current figures. It is not known therefore what the figures would be if one assessed content, advise and outcome from the beginning. In the absence of a correlation between average costs per case and quality (cost/quality correlation) how can one determine that one firm as compared another or another NfP organisation is more or less efficient in the absence of the aforementioned correlation. Any decision to reform in the absence of such a correlation is premature.

The review goes on to state that there needs to be:

“an increase in the average size of firms through growth and mergers” (page 3 para 11)

There is no identification of how this will achieve quality and secure access. Clients want the provision of services locally. Clients on low income or who are vulnerable because of health cannot travel to access such services. The review at no stage addresses how to achieve access if this is the model it is trying to achieve.

Furthermore if the review is seeking advice under one roof it does not sit well with the following identified principle:

“This should enable clients to be confident in the quality of the service they receive and still offer a choice of legal representative” (page 4 para 14)

Efficiency or Advice on the cheap?

“The review endorses the LSC’s move away from payment by hourly rates and the current arrangements for tailored fixed fees towards standard fees..” (page 62 para 86)

This can only mean advice on the cheap because there is no

1. information on the impact on quality,
2. cost/quality correlation,
3. fee earner/caseworker saturation level (i.e the maximum number of cases and types of cases a fee earner/caseworker should conduct before which quality will fall)
4. any client centred approach must include an assessment of client perception (evaluated by end of case questionnaires) as against cost/quality of case; no such evidence has been collated even though this information exists.

“A move towards standard fees should give greater responsibility to suppliers as they would be required to organise their work within the fixed fee, whilst giving greater certainty over expenditure to the LSC. It should mean change for suppliers, as the most efficient organisations are rewarded” (page 62 para 87)

It appears that efficiency is again equated with number of hours and cases and not its correlation with quality.

Fixed pricing – the conclusion after a 12 months review!

The review having identified problems and not having provided any solution for the same (thereby leaving it up to the supplier to ensure that there is an integrated and seamless provision of advice in the region, in the absence of any further funding) goes on to state that:

“… the recommendations are justified by the need to control legal aid spending and to promote efficiency of service in the public interest “ (page 6 para 34)

It is not clear how the inefficiency has been identified.

I have not seen published figures to illustrate the number of cases a fee earner/caseworker can take before they reach a point of saturation, after which the quality of the cases dealt with by the fee earner/caseworker falls. If we did then we would be able to promote efficiency.

Matter Starts – When will Legal Aid start to matter?

“…the allocation of funding for civil and family legal help work – matter starts – provides a tool to encourage growth in efficient suppliers.” (page 62 para 83)

“The combination of cases and hours should therefore drive better performance…” (page 85 para 109)

No it does not, it encourages a culture of “get ‘em in and get ‘em out”. Furthermore there is no assessment on the impact of quality that the combination of cases and hours have.

“In particular, there has been an overall growth in the number of matter starts in the past year through the Commission re-focussing funding on direct services. Over 710,000 new acts of civil and family advice were started during 2005-06, an additional 20% compared with the previous year” (page 62 para 83)

Is this a good thing? What is the evidence as to quality?

“The not for profit funding model, since it pays the same regardless of the number of cases started, does not always incentivise effective working” (page 29 para 63)

If it does not always incentivise effective working, how often is it the case that is does not always do so? Where is the evidence?

The NfP sector are obliged to apply the sufficient benefit test to their cases, is it suggested that it is applied inappropriately

NfP agencies have been conducting cases under the assumption that in order to achieve a quality service the bench mark is not average case time but the application of the LSC’s “sufficient benefit test” to the circumstances of each case.

There is no evidence that the NfP agencies are not applying this test properly or at all.

“Nfp suppliers have higher average cost than solicitors in some categories of cases but not in others. This may reflect a different mix of cases or different degrees of efficiency at dealing with them.” (page 45 para 143)

Yet the review goes on to say that the reform to funding of private practice will equally apply to the NfP sector. No evidence adduced for this conclusion.

The fact that the average cost per case is higher than private practice alone cannot lead anyone to any conclusions whatsoever in the absence of the quality/cost correlation.

It also ignores whether or not the time put in was value for money. In the absence of the quality/cost correlation one cannot conclude that:

“there should be scope for greater efficiency in the way the NfP organisations deliver legal advice services” (para 145)

because the inefficiency has not been identified.

There are several reasons why the NfP average cost per case is higher than that of private practice, which have nothing whatsoever to do with efficiency:

1. The review has already identified that:

“This may reflect a different mix of cases” (page 45 para 143)

2. Private practice operate on the basis of profit.

“the differential between controlled and licensed rates can create an incentive to move to litigation” (page 30 para 69)

Private practice wants to move from controlled work to licensed work as quickly as possible to be paid hourly.

3. With regards Possession matters which include Housing Benefit issues, no work is usually done on the Housing Benefit issue (it would be interesting to see the outcomes in relation to how they have reduced the client arrears)

4. a private practitioner will not advocate at court unless the work is licensed, there will therefore be no claim for travel/waiting and advocacy

4. private practice cherry pick at the door of the firm and pick those that involve the least amount of work under the controlled scheme before the matter can turn into licensed work

There's no point in me repeating what's been said already, as it's all excellent and far more articulate than I could manage. However, whilst MPs are one avenue, our own organisations and National Associations need to be taking a lead. A couple of years back, there was a motion to the NACAB AGM for CABx withdraw from contracting due to the changing nature of the contract at that time. In the light of Carter, the old system looks infinitely preferable. IMO, there needs to be serious consideration given about continuing with this source of funding given the potential total compromise on aims and principles it will ential. It will do absolutely nothing for the most vulnerable clients, and I personally feel that I would going backwards in terms of helping people.

This is the thick end of the wedge now, and radical and unpalatable action is necessary to prevent the voluntary sector being retarded to the point of ridicule.

Perhaps the contracts should go elsewhere? The logic of the 'if we don't do it, someone else will' means we are stooping to their level for the money and little else.

As someone who currently does casework, another consideration which seems to go unmentioned is the effect on our working conditions. The thought of having to see 400+ client fills me with dread (we didn't even get 400 referrals between 2 f/t caseworkers last year). Also, the fact that the LSC can reduce payments according to the % you fall below the target puts advice agencies in a terrible financial position, and workers potentially facing redundancy every 12 weeks.

However, I do think that your point about the potential 'bounce back' to social services is important, and something we need to make Local Authorities as well as the LSC aware of ASAP.