4.1 The fixed fees section of the forum was the most widely accessed, with the pages within this section alone being read approximately 2000 times.
4.2 Additionally, the ‘proposals in brief’ part of this section of the forum, containing information and an objective explanation of the fixed fee proposals, was read in excess of 230 times.
4.3 We believe that this further demonstrates the value of an online forum for allowing individuals access to proposals contained within consultation exercises.
4.4 The consensus of the forum is that the fixed fees proposed, whether regional or national, are too low assuming the system was implemented in the way set out in the consultation.
Fixed fees and an iterative approach
4.5 Lord Carter himself notes, in the foreword to his review:
“The biggest challenge that I have faced is the inadequacy of the management information available. The complexity and the opaqueness of the numbers, their components, the inability to forecast change, and the lack of a comprehensive understanding of the whole system, all contributed greatly to the difficulties I have encountered.”
4.6 In order to conduct the review, to make sense of it, and then make recommendations Lord Carter admits to taking an iterative approach. The Wikipedia free online dictionary defines an iterative approach/method as:
“…attempts to solve a problem by finding successive approximations to the solution starting from an initial guess”.
4.7 We believe that both of these quotes, Lord Carter’s admission and the methodology behind the approach he took, are very telling. The recommendations in respect of fee structure and levels of payment as proposed within the consultation appear to be made in ignorance as to the reasons why there are massive variations in case times across categories regions suppliers and sectors. Nor do they acknowledge any differences in outcomes or regional variations in client groups and diversity.
4.8 Without any understanding of what the drivers behind average case costs are, and how they might relate to the quality of the service that is provided including outcomes and the mix of clients served, it appears the current proposals, and in particular the levels of fees suggested, will create more problems than they solve.
4.9 Currently, the Commission is able to respond, through its individual regional offices, to any issues or otherwise which may be affecting an organisation local to that regional office, including quality of work and performance against target. The advent of the Performance Management Framework and Peer Review has further bolstered this responsiveness; this allows a flexibility in meeting client need that would not exist under a ‘one size fits all’ approach.
4.10 Given the:
relatively small amount of legal aid budget that spend on social welfare law takes up, and
the extent to which this budget is controlled by capped NfP contracts and TFF for solicitors
the extent to which this budget is then managed through individual LSC Regional Offices, and
the fact that overall acts of assistance are continuing to increase significantly anyway,
we do not believe that there is any urgency for the Commission to move the proposed regime forward without first assessing the risks that it might pose, to the Commission to organisations who contract with the Commission to deliver legal services and, to the clients who are the ultimate arbiter of whether those services were adequate or not.
4.11 The casualties of an iterative approach may be more costly than the perceived problem(s) which it seeks to address.
Variations between the Solicitor and NfP sectors
4.12 We do not believe it is appropriate to set fixed fee rates on the basis of averages of solicitor contract holders working under a TFF system.
4.13 The premise that the Solicitor sector working under TFF is more efficient simply because their costs appear lower can not be verified one way or the other until the work and research already suggested in this document – e.g. into case types, mix and outcomes – has taken place.
4.14 The Commission does not really understand the reasons why average case times are lower for solicitors working under the TFF than for NfP providers working under the current NfP contract.
4.15 For the purposes of this consultation we have produced below some comments from the forum made by registered users as to why costs may be different between the two sectors:
“…private practice 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”
“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”
“In particular they [solicitor contractors] start most certificated cases with 2 hours of Legal Help to cover the application for the certificate. This greatly reduces their average”
“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”
“I was speaking to a person who used to do the debt and benefits work in the last solicitors practice who did this in this area and she freely admitted that they used to send what were perceived as the more awkward clients to us as they took too long to complete”
“In my experience it is accepted within the traditional legal profession (solicitor private practice) that where clients need more than 'support' or have additional needs or are challenging or more often when they have a number of legal problems that are interrelated and that need picking apart that they would be sent to voluntary advice agencies”
“Although, I have come across solicitors who will advise on single debts or give one-off advice about court proceedings. Perhaps this is throwing up skewed information? I think the LSC/Carter need to make sure they are comparing like with like”
“Let's face it, solicitors cherry pick cases and that's that, whatever the LSC say, and with the greatest of respect how would they ever know if we did? Quality Profiling and peer review, I don't think so. This isn't because we don't care about clients but because of the continuing tightening of the civil payment regime the LSC impose”
“I certainly cherry-picked cases whilst in private practice and ALL multiple debt cases were referred elsewhere as a matter of policy”
4.16 Ultimately, the majority view is that we see a logic to some form of fixed fee system – but not as currently set out in the consultation – providing work has been done to properly determine how the rates of payment within that system should dovetail into improvements in quality and service delivery; also, where this would allow some certainty for organisations in planning and developing their services, whilst being properly paid for the work that they do.
4.17 This might entail developing an NfP equivalent of TFF or perhaps more sophisticated categories or graduated fees depending on the level of work which had been done/stage reached in a case.
4.18 Despite the Commission’s assurances, we believe the current proposals will only encourage the type of suspicious attitude between the Commission and the sectors which Lord Carter himself observes in his foreword to the review:
“I was surprised to discover at the outset that the relationship between the various legal aid stakeholders was often adversarial and sometimes hostile.”
Question 6.2: “Which of the 2 options set out for a replacement of the TFF scheme do you prefer and why?”
4.19 Registered users of the forum were invited to take part in an online poll which asked them which of the two options they preferred but with two further options also available.
4.20 The results of this poll were:
1.6%: National fees as per the consultation
1.6%: Regional fees as per the consultation
86.6%: Some form of graduated fees e.g. based on endpoint
4.21 In terms of voting between ‘national’ or ‘fixed’ fees, only one person voted for each, therefore no conclusion at all can be drawn on which may or may not be preferable – it is likely that there would be winners and losers under either proposal, the consequences of which would mean that an arbitrary decision based on numbers who preferred either would not be appropriate.
4.22 In terms of voting between the two consultation options and some other option e.g. graduated fees, the results are more conclusive with 96.6% of respondents saying they preferred some other option than the two proposed within the consultation paper.
4.23 We take this to mean that the proposals on fixed fees, as set out in the consultation paper, are not acceptable in their present format for the reasons stated throughout this document.
Question 6.3: “Do you agree with the proposals for payment of tolerance work? If not please explain why.”
4.24 Registered users of the forum were invited to take part in an online poll which asked them if they agreed with the proposals to gradually phase out tolerance work, starting from next April with a reduction in payment of 15% for cases done as tolerance work.
4.25 The results of this poll were:
59.6%: Fair enough, I can see the LSC position
23.0%: Absolutely not, the LSC have got this wrong
17.3%: It won’t affect me as we don’t do tolerance work
4.26 Over half the respondents voted that they had no objection to the gradual phasing out of tolerance work. Conversely, approximately a quarter did object to it being phased out.
4.27 Registered users were also given the opportunity to comment on this particular proposal. One comment was left, which stated that the respondent would be unhappy to see tolerance work go as it is an access issue for clients.
4.28 We would add that this is a particular issue in areas where local provision may be stilted toward one or more categories in particular, with little or no specialist provision available for the remaining categories. The respondent also said that they did not believe that the existence of an alternative to face to face advice i.e. telephone advice through CLS Direct would address any iniquities here.
4.29 We disagree however that the reason for proposing a 15% reduction to the payment for any work done under tolerance is an incentive to encourage organisations who perform a large amount of tolerance work to apply for contracts in areas of work done under contract.
4.30 Given that organisations are only allowed to perform a small amount (up to 10%) of their work under tolerance we believe that any organisation which thought it was viable to apply for contracts in additional categories would have already done so irrespective of the amount of tolerance work it was doing. This is notwithstanding the question of whether the Commission would take a positive view to accepting those applications for new contracts/subjects if they were made, as seems to be suggested by the consultation paper.
4.31 We believe that advice providers already possess more sophisticated methods of analysing whether it is appropriate or necessary for them to develop or expand their services to meet demand than the simple indicator of tolerance work.
4.32 In view of this, we would see the initial 15% reduction in payment for tolerance work as actually a disincentive to assisting those clients with problems outside the main categories of work an organisation was contracted for; as such we see it as nothing more than a crude and punitive means of implementing change.
Question 6.4: “Do you agree that the scheme should apply to work done by NfP providers? Do you agree that there should be a transitional scheme and what are your views on our initial proposal?”
4.33 We think it is a laudable aim that the Commission seeks to simplify the way in which it contracts with advice providers to provide legal advice, and see nothing wrong in principle with developing a scheme which would apply to both Solicitor and NfP suppliers.
4.34 We would stress however, that this is on the assumption that the Commission develops a scheme which is both fair and reasonable and where organisations receive proper remuneration for work they perform. In addition, that the foundations of the contract are stable enough to allow organisations to plan and develop appropriately; we do not feel that the current proposals would achieve this.
4.35 We agree that some form of transitional scheme for NfP suppliers is a prerequisite to developing a workable scheme that would offer parity to all suppliers in any future market.