Post by Colin Henderson on Sept 8, 2013 11:42:32 GMT
Ms Social Welfare Law was a fit, feisty forty year old doing casework mainly in welfare rights, employment law, debt advice and housing cases. She ran marathons, won prizes from the judges and books were written about her.
Over the years millions were helped and inspired by her, often finding her in the not-for-profit advice sector (she worked in private practice in her youth but had to move on in the 90's when the Green Forms were replaced).
She suffered a serious setback in October 2011 - after 20 years of no increase in her wages she had a 10% pay cut. But she ran on, until March 2013 when she was forced to undergo a serious operation and had three of her limbs removed. In all practical respects she died that day.
Now she's in a sad state; confined to a back room in a few places and only able to occasionally kick out with her remaining housing law leg. In many ways she's like a zombie - she's dead but just refuses to lie down.
This is a blog about working in social welfare law in the post-LASPO world...
Post by Colin Henderson on Sept 8, 2013 12:55:23 GMT
You may have heard talk of zombie enterprises during our current Great Recession - they don't make a profit but they don't go bust; instead everyone takes a massive cut in pay and/or hours and stumbles on with their job and lurches from one mini-crisis to the next rather than throw in the towel, often because they have nowhere else to go. I'd guess most surviving legal aid lawyers and advisers are now in that place and will probably always remain there until they give up.
This zombie is a jobbing housing lawyer in the not-for-profit sector. Needless to say all my views are mine alone and not those of ilegal (we've never had lines anyway) or my employers. I'm going to start with a guide to the devastated casework landscape after LASPO, concentrating on what housing work is still in scope. This is not definitive, it's my personal take on what is still practicable under legal aid. If I've missed something or you disagree feel free to chip in - sharing knowledge is still what ilegal is for.
Micro - scope
Like all other areas of law, legal work on housing cases is by default OUT of scope unless LASPO says otherwise. And what is left is so small that many may not realise it's there at all. Now Housing Benefit queries are out, as are Discretionary Housing Payment issues, deposit disputes, advice on rent arrears before a threat of possession, general questions about squatting or tenancy status, boundary disputes, land ownership or rights of way cases, allocation of housing, etc etc etc. It's far easier to say what we are left with:
Rent possession cases, but only once there has been a clear written notice or threat of eviction. There are of course many thousands of these now thanks to the bedroom tax, but there is frankly little that can be done for the affected tenants and judges are getting to the point of disregarding whether or not there is some temporary respite available through discretionary housing payments.
Harassment and illegal eviction, usually by private, unadvised landlords. It is a criminal offence, and we can start proceedings immediately for an injunction ordering the landlord to let the client back into the premises and claim damages. However it is harder to get legal aid if the client is glad to be out and just wants damages.
Mortgage possession cases are now very tricky under legal aid. Help at court under the local Court Duty Scheme is still available irrespective of means. But prior to that stage possession cases are within scope but in the Debt category which means telephone help only. If the client is particularly vulnerable/has special needs and cannot cope in court then the client can phone the CLA Gateway to try and persuade them to refer back to the local housing specialist as a housing or debt case. If it's classed as debt we can only do four of these cases each year! If there is a technical defence to the possession – eg faulty/extortionate credit agreement, undue influence, etc, then solicitor representation is still available, but that is rare
Homelessness queries also stay within scope. Homelessness does not mean that a client must be sleeping rough; it can be enough not to own or rent or have a licence to use accommodation available to them. So it can be the sofa-surfing teenager, the woman fleeing domestic violence, the friend who has outstayed his welcome, anyone threatened with losing where they live. But to access accommodation a client must (amongst other criteria) be in a priority need category and not intentionally homeless and lots of disputes with local authorities arise around this. For others with issues about adequate housing scope is very restricted. If the client is officially homeless and in temporary accommodation then we can deal with the adequacy of that and their applications to be allocated a permanent home, but all other waiting list/choice-based lettings enquiries are now out of scope.
Disrepair cases are in real difficulties now. Most clients present with mild to moderate disrepairs and these are no longer in scope. It has to be a serious case where there is a real risk to the health or safety of the occupiers and it has to be ongoing. To give an idea how restricted legal aid is, the new guidance suggests that a broken heating system is not likely to qualify in summer, even if there is no hot water, but may do in winter! The most common complaint – dampness – would not be serious enough unless it was causing or aggravating asthma. And to cap it all we can only use legal aid to get an order for the repairs to be done, the compensation award is out of scope. In my view disrepair work, which usually occurs now in the private sector where retaliatory eviction is commonplace, is a dead duck. The only good news is that we are still allowed to run disrepair counterclaims to offset rent claims in possession proceedings.
Other possession and anti-social behaviour cases remain in scope. In fact, defending tenants accused of being a nuisance to their neighbours is now to become the bread and butter of housing lawyers - and that is often about doing low-level mitigation for the mentally ill and vulnerable on the very margins of society, because ever since the New Labour legislative programme public policy is to punish such people through enforcing homelessness rather than through the criminal courts.
So there we go. That's it. Don't ask a housing lawyer to do anything else - we'd have to do it for free, though frankly the new Legal Aid Agency's processes are designed to ensure we do most of the above pro bono anyway. But that is the subject of my next missive....
Post by Colin Henderson on Sept 15, 2013 17:18:16 GMT
Application Frustration part 1
This week’s blog from the undead is all about paperwork. Lawyers hate it as much as the rest of us, but we have to produce tons of it to satisfy the Agency.
And now so do our clients. Although these are often people who are only our clients at all because for all sorts of reasons, often very good ones such as illness and disabilities, they are not so hot with paperwork. Therefore if you were to devise a way of denying assistance to such people, the simplest method would be to ask them to exhaustively document their entitlement first. And so it is indeed thus.
Of course this approach has long been a familiar part of the state’s deterrence for all benefits. For example in the Housing Benefit world it was brought in by New Labour in 2007 (I think) and called the “verification framework” – every penny received had to be proved by wage slips, accounts statements, etc, etc, and no proof = no benefit. Which used to give people like me lots of work in sorting routine HB claims out after quite unnecessary possession proceedings had been issued (perhaps I should have been grateful for the extra work, but my clients certainly weren't) The need for help with this is still there of course, but my services aren't as its no longer in scope (see previous post)
Predictably the post-LASPO legal aid application process has become something Kafka would have been proud of. Because everyone, even those on “passporting” means-tested benefits, must now be assessed to see if they have hidden savings or other assets as the LAA obviously don’t trust the means assessments already carried out by those over-generous souls at the DWP. In the old days they did accept that assessment passported recipients to legal aid and the form took only five minutes. But now that passport has expired.
So now even these poorest of clients applying for a legal aid certificate must complete a 13 page form and supply this evidence:
“All financial assessment forms must be sent to the LAA with supporting evidence for the circumstances declared". - just note the "must" here. For controlled work there is flexibility - you can phone up the DWP and get receipt of benefit confirmed, you can start work urgent work without proof and get it later, you can even waive the requirement altogether for the homeless or very vulnerable, but documentary proof of income and capital and even the lack of it is mandatory for licensed work - even if your client is sleeping at the bus-stop that night *. But I digress: -
"If you receive money or support from a trust fund you must send a copy of the trust deed ... If this is not attached we will request it and your application for legal aid will be delayed.
Bank statements - please ensure you send three months statements for all bank/building society/ other financial accounts held in you or your partner's name. These need to be for the three consecutive months prior to the date of submission of the application. The statements must be originals, photocopies certified by a solicitor or internet banking printouts (for "paperless" e-accounts) that show the name and account number. If you or your partner have investments, please send copies of the certificates held for them.
Capital and other assets: Where you or your partner has answered 'yes' to any of questions 12 to 16, (i.e.- owed any money, likely to benefit from a will, transferred, sold or given any money property or possessions to anybody else since these proceedings appeared likely, purchased or paid out any sum over £2500 in the last year or have any other assets please ensure that full details are provided in the space available on page 6.
Where you and/or your partner have answered 'yes' to being subject to a bankruptcy order, please ensure that a copy of the order and latest schedule of assets and liabilities is attached to this form.
If you or your partner are self employed in a business partnership or as a company director please send: your latest trading accounts (including a balance sheet if you have one), your most recent HMRC self assessment return, bank statements for any account for which you and/or your partner are an authorised signatory
Form CIVMEANS2A must be completed for each trade, profession or vocation with which you or your partner are involved and must be attached. If you or your partner are a Partner in a business, a supplementary form CIVMEANS2A must be completed for each partnership you are involved in.
If you or your partner are a shareholder in a private limited company and/or company director, the company accountant needs to complete a supplementary form CIVMEANS1C for each directorship held."
For those who actually do any work the evidential hurdles become even greater. The financial eligibility form itself is now up to 21 pages not counting the supplementary forms and in addition to all the evidence required above the following is also necessary:
"Wage slips - if the client and/or their partner is employed send the following from each employer: If paid monthly - last three wage slips, if paid weekly or fortnightly - last six wage slips. The wage slips must be originals or photocopies certified by a solicitor. If they are unable to send wage slips each employer can fill out an L17 form for each job.
Child care costs - if the client and/or their partner are paying child care costs and these can't be highlighted clearly on a bank statement, please submit evidence to show payments eg.recent receipts.
If the client and/or their partner is in receipt of any benefits from work that are not money eg. company car, please provide tax form P11D (benefits in kind).
If the client and/or their partner is in receipt of tax credits or a state benefit, and these can't easily be highlighted on a bank statement, it may speed up processing of the application if evidence is provided of entitlement eg. recent notification letter (no more than 6 months old).
Maintenance payments - if the client and/or their partner is receiving maintenance payments and these can't be highlighted clearly on a bank statement, please submit other evidence in support eg. recent receipt.
If the client and/or their partner has answered 'yes' to any part of question 2 (any other income), and the details aren't evidenced within their bank statements, please submit evidence in support of the figures declared eg. copy of student grant award letter, receipts etc.
Maintenance payments - if the client and/or their partner is making maintenance payments and these can't be highlighted clearly on a bank statement, please submit other evidence in support eg. recent receipts.
Rent/mortgage payments - if the client and/or their partner are making payments for rent or mortgage and these can't be highlighted clearly on a bank statement, please submit other evidence in support eg. rent account statement, receipts, mortgage statement. If the client and/or their partner is in receipt of housing benefit, please submit a copy of their housing benefit award. If the client and/or their partner has a formal lodging agreement, please submit a copy"
But in my experience many of the above are also requested for those on passporting benefits. The LAA have often asked for award letters for benefits even when these are clear from bank statements so despite the duplication these also have to be obtained and attached. Consequently assembling the dossier of up-to-date documentation for clients has become a major exercise at the start of a case. Initial interviews don’t discuss the legal or factual issues in any detail – they turn into a long session in which we try to cajole, threaten or plead for financial documents from clients who don’t think they kept it, can’t find it, or might not recognise it if they do have it. If you’re lucky the client will arrive over the following days with papers they think will do and which are mostly out of date. More typically you’ll hear nothing at all.
So the only way round the madness is to seize the initiative, get Forms of Authority signed and write requesting the information on the client and their partner’s behalf. But for a typical low income family that could be 10 letters: - his wage slips – her wage slips - his current account – her current account – the (empty) savings account - the old overdrawn account - the rent/mortgage account - the housing benefit award – the Tax Credit award – the nursery fees, etc, etc.
Which might work if you had all the time in the world. But you don’t; the rules say you have 5 working days from seeing the client and starting the casework to submitting the application!
And in housing cases you certainly don't because your client is usually the defendant and they can only apply for a certificate of legal aid once possession proceedings have been issued against them. The cases are then usually heard with days of being served. Which means you are at the mercy of the judge to ask for time to get caught up with the evidence. No, not the evidence in the case – who cares about that yet? – the evidence of the client’s means.
And that is because until the whole application is assessed and approved the client is at risk that the provisional certificate will be revoked, they will get no more representation and they will get the bill for the emergency work done under your limited powers devolved by the Agency, unless every page of all that paperwork checks out...
Next week we look at the second part of the legal aid application process - the dark art of negotiating your way through the CIVAPP1 form.
Post-script: * I should say that for the so-called zero-income cases - those who are most vulnerable and barely surviving on the generosity of family or friends, the evidence of means inquiry becomes ludicrous, as if the applicant has failed to declare a Swiss trust fund somewhere. A good example has been posted in the latest installment of Nathaniel Matthew's excellent blog. You will note the law centre had to abandon trying to get legal aid and did the work unpaid.
Post by Colin Henderson on Sept 20, 2013 10:39:50 GMT
Q: When is available legal aid not available? A: When it's unaffordable.
This is a postscript to the financial eligibility stuff in the last post. I should have pointed out that a further and little-appreciated effect of LASPO was to increase the rates of contribution for those who are not on means-tested benefits. Advisers are familiar with the Legal Help calculation for controlled work which is available to anyone with a household "disposable income" of under £733 per month. But a "disposable income" is the monthly household gross income less various allowances: - tax andNI, - housing and childcare costs (capped), - £45 per worker for travel etc, - a fixed sum for each adult (£177) and child (£285) dependants, Which when you think of it only covers their monthly food and clothing. So it's not disposable at all - it has to pay for council tax and every other household and utility bill, transport costs, debts etc, etc. Every penny of what's left is spoken for in low-income households.
But out of that non-disposable disposable income the Legal Aid Agency will require a monthly "contribution" before certificated legal aid will be granted and it must be paid every month without fail for the duration of the case or the certificate will be revoked, work will stop and the applicant will become liable for all the cost of the work done to date. The calculation works out like this:
Those with monthly "disposable" income: - between £315 and £465 will pay a contribution of 35% of that part if their income. - between £466 and £616 they will pay a contribution of 45% of that part. - between £616 and £733 they will pay a contribution of 70% of that part.
So disposable income of £500 = 35% x £150 + 45% x £34 = £52.50 + £15.30 = £67.80 per month
Disposable income of £600 = 35% x £150 + 45% x £134 = £52.50 + £60.30 = £112.80 per month
Disposable income of £700 = 35% x £150 + 45% x £150 + 70% x £84 = £52.50 + £67.50 + £58.80 = £178.80 per month
Essentially it means on these income levels legal aid contributions are usually unaffordable. Consequently the client cannot afford to apply for a certificate and is limited to the work we can do for them under the Legal Help scheme.
In theory contributions are eventually repaid at the end of the case but only if there is no claim on the fund, i.e. we totally win the claim and get costs awarded and paid. That rarely happens in the type of cases which are left in scope - because damages claims are mostly out of scope now and so we now have to warn the clients not to expect their contributions back in cases such a possessions and homelessness where the normal order is for our costs to be assessed and paid by the Agency.
An example: yesterday I saw a low income family wishing to defend rent possession proceedings because of a disrepair counterclaim. That is still in scope and at first look the dampness disrepair seemed actionable, but to go on record we needed to apply for a certificate to investigate and to pay for expert evidence. At this early stage without a surveyors report and a look at the housing file I can't reassure them that there is sufficient proof of notice and actionable disrepair to a value to justify a costs order in their favour at court - experience tells me these issues are always uncertain - so the contributions are at the client's risk and would be over £100 per month for this family. Understandably, they declined, but not because of the risk (they were angry enough at the state of their place to accept that). No, they declined legal aid because they simply didn't have anything like that sort of money available in their monthly budget.
So in practical terms those financially eligible for legal aid certificates are those who can prove they are on "passporting" benefits or those very few others on "disposable" income of less than £300 per month. In scope or not, the rest can go whistle.
Post by Colin Henderson on Sept 29, 2013 12:59:32 GMT
Application Frustration part 2
Can you imagine a time when those of limited means could walk into just about any high street solicitor and get free advice and if necessary representation on almost any matter of English law? That was how it was when I became a trainee lawyer, and that was less than 20 years ago.
Oddly, the main application form for the little that is left in civil legal aid still reads like something from those days. It talks about funding investigative stages as a preliminary to clients bringing claims, about the steps taken to date to negotiate settlement, about the ratio of costs to damages and the opponent’s ability to pay them.
Usually in this blog I moan about how legal aid has been changed, banned and restricted out of all recognition. But the one exception to this is the old school 12 page APP1. It still reads like it is to be completed by a goodly but impecunious citizen who has suffered a civil wrong at the hands of a bounder and who requires the temporary assistance of the state to begin work on a claim for compensation due.
Hmm... exactly what civil damages claims are still in scope then? Am I missing something? - Personal Injury? – No, abolished 13 years ago - Contract claims – No, as above - Clinicial Negligence? – No, abolished this year (unless you are a birth-damaged baby) - Education claims? – No, abolished this year - Family, Probate or Trust law money claims? – No, abolished this year - Disrepair? – No, only specific performance of repairs stays in scope In fact the only one I can think of is unlawful eviction, and that usually has to be linked to a re-entry injunction claim.
Nowadays these forms have to be hurriedly completed with penniless and vulnerable clients who are being evicted, are homeless, fleeing domestic violence, or who are being deported. Most cases now are emergency applications for representation at court that day or that week, not leisurely civil claims with a limitation period of years. The questions asked simply do not deal with the reality of what’s left of the service.
But enough of style, on to the main premise of the APP1 challenge itself. The purpose of the form is to tease out pieces of information from the applicant which, when compared to the regulations in force, can then be used to justify refusal. Of course the unpracticed will not know the detailed regulations against which the form will be judged, so this is the dark art of the legal aid lawyer – to know the hidden rules behind the questions and evade the pitfalls of a fatally incorrect answer.
Before April there was a guide to this challenge called the Funding Code – a huge tome split into the various categories of law then in scope and which gave hints on where the boundaries lay. But that was too easy! So the Code is gone and we are now left with the bare regulations and no guide on interpretation. Now the game is strictly for serious players. Bring it on!
There are pages of questions trying to get the unwary to admit various facts, for example if there might exist third parties or insurers who might just be willing to fund the case, when the reality of the demographic of those on means-tested benefits (who as I explained above are in effect the only financially eligible group) means these are rarely relevant.
Some of these are so obvious as to waste the paper they sit on. For example the Chances of Success question has five possible answers: Very good (80%+) Good (60-80%) Moderate (50-60%) Borderline or Poor. I doubt I have ever ticked any other box than Good for the simple reasons that any civil litigator will tell you that almost no litigation has over 80% prospects of success and conversely if the chances are moderate or below you won’t get and arguably shouldn’t be applying for legal aid anyway.
Most of us have developed standard paragraphs for many of these answers, batting back the irrelevant, but a number were caught out recently by an ingenious new trap – the double negative question. Prior to April the APP1 asked: - “Do you believe the case is suitable for funding under a CFA (conditional fee agreement, aka no-win-no-fee) If No please explain why.” We duly ticked no and put a standard sentence about not being a money claim/no insurance etc.
After April they changed it to: - “Do you believe this case is unsuitable for a CFA. If yes please give your reasons” Counter-intuitive isn’t it? So many carried on ticking the No box and giving the standard explanation.
To be fair to the LAA, they didn’t use this nonsense as an excuse to reject masses of applications all of which plainly would never have been made if they had been suitable for CFA. Rather they just wasted their time and ours in late August by sending a mass mailing to all providers requiring them in each case to re-answer the question for every application where they had mis-ticked. Bizarrely in my case this was just one application which they had already granted AND which I had ticked correctly – so they couldn’t even get the correction exercise accurate!
The main show happens on just one page – the Statement of Case, which tells you to simply “Use this page and/or separate sheets for a statement of what has happened so far in this case” At the bottom you are asked to “include any additional information which will help the caseworker apply the Civil Legal Aid (Merits) Regulations 2012” Personally I welcome the admission that it is for the applicant to know and anticipate their unpublished approach to the merits and apply it to the facts in such a way that their own caseworkers can understand it. It correctly admits the often overlooked fact that it is the legal aid lawyers who are the trained and experienced professionals here and that whilst they hold all the power the LAA staff are untrained bureaucrats who have probably never assessed a client’s evidence and successfully run a real piece of litigation in their lives.
So in reality page 10 is just about the application of the Regulations specific to the type of case in question; the cost/benefit analysis, the proportionality test, the private-payer test, the chances of a claim on public funds and so on. The quickest way to give the LAA the factual background is just to send them copies of what you have to date and hide nothing – the court papers, the evidence against your client, your evidence in their favour, a note of their case or draft defence, etc. The more you give them the more they will have to read and the more likely they will be tempted to accept your analysis of it. And on the final page checklist they do ask for these papers anyway.
So when you are finished with all that, compiled the means forms and the evidence in support the application bundle to be posted in a bog-standard possession case will run to well over 100 pages and contain as a minimum: - The APP1 form - The court’s possession claim forms - The notice seeking possession - The tenancy agreement - The witness statements and other evidence alleging breach - Any court orders or expert reports - The client’s statement and/or defence - The client’s witness or medical/social evidence in response - The MEANS2 form - Certified copies of 3 months bank statements of the client - Certified copies of 3 months bank statements of the client’s partner - Certified copies of the rent statement and housing benefit awards - Certified copies of benefit and tax credit award letters Etc, etc
And even then your application may fail. And that is bad, very bad. No, not because the client will be left to fight for their roof without representation, who cares about that? No, because all applications for certificates are monitored and if more than one in twenty is rejected (i.e. the paperwork is deemed to be completed wrongly in some way) then you will have broken Key Performance Indicator 4. And if more than three in twenty is refused (i.e. either the client does not qualify financially or the case is deemed not to have merit) then you will have broken Key Performance Indicator 5.
And that’s bad because the Standard Contract at 11.3 says “If you fail to meet a KPI we will offer you the opportunity to discuss with us the reasons for your failure” Yeah, a “discussion” outside the back of the office with Lenny and Vince from Provider Assurance - we know the score.
So better get every page of that application bundle correct – or else...
Post by Colin Henderson on Oct 9, 2013 1:10:09 GMT
Hiding in plain sight
If you are a state bureaucracy making decisions which often deny people in serious difficulties the help they need it’s best not to show your face too much, for fear the desperate applicant might be encouraged in their quest by identifying a point of human contact rather than a faceless PO box or call centre.
It has long been so with the various “services” within the DWP, and so it is now with the Legal Aid Agency. In the days of its LSC predecessor it was slow but it was possible to have individual email addresses and conduct a dialogue with caseworkers who worked in your regional office, to which the majority of applications would go and with whom you could build up a rapport. But that was very dangerous – the bosses feared that human relationships had sprung up, leading to a co-operative way of working with providers. With the crackdown post-LASPO such things had to be stopped.
So in April the regional office relationship was broken. All casework post to the LAA must now be directed to one office on a business park in Jarrow, Tyneside, from where it is then distributed, seemingly at random, to any one of the various regional offices. They say the idea is to speed up decisions as the work goes to the office with most capacity, but decisions are taking longer than ever, because there are several days delay to each item in the mail transfer system, and of course inevitably things get lost. A member of LAA staff who recently left told me it was a shambles – it was supposed to be introduced in conjunction with the paperless application process currently being trialled in the North East (and which by all accounts is also a shambles).
The inevitable follow up letters requesting your client’s dog’s inside leg measurement now all come with the Jarrow business park address (but also with the regional office location in brackets as if geography itself has been scrambled). There are no emails addresses given and a stern warning to reply only to the given address, not the regional office assuming you remember it.
Oh, there is a phone number for enquiries of course, and I have used it. Only to wait for over an hour on each occasion to then be told they don’t have or can’t give any information because it’s not urgent enough/ the system is down/ they can’t find it. Classic stuff which means you give up and don’t waste your time and theirs by phoning ever again.
Which means there is no alternative but to write using snail mail for everything. And that means you are totally in the hands of the snail’s pace of their processes. Hearing coming up and needing cover? There is now simply no-one you can contact to get a decision. Sometimes a human breaks ranks and sends an email, but the last one I received actually stated “do not reply to this email”. I did anyway, twice, and sure enough I’m still waiting. However if you do know the name of the person you want the general format is now: email@example.com. Go on, give it a go.
But there are a couple of emails I have unearthed which might assist. I’d still send it by post as well (always recorded deliver of course) by why not try using them as well before they are taken down by the authorities:
- Means information can apparently be sent to firstname.lastname@example.org
- And we should be bombarding the bureaucrats with frequent complaints at their new address: email@example.com
I share a lot of your frustration with the way in which the Legal Aid Agency is run Colin but I think that you are going a bit far here and not giving them credit where they deserve it. I also don't think it helps to refer to them collectively as "the bureaucrats" or referring to the occasional human breaking ranks even it does make it easier to focus anger if we personalise it.
I have found that if I send an email to one of the designated addresses - legal.queries etc - I receive a very fast and helpful response within usually no more than 48 hours. I also get replies to follow up queries if I send my reply to the original address but make sure I forward the earlier message so it can be forwarded on to the right people. I also often receive telephone calls in response to my messages from people at the Legal Aid Agency who have looked into what I have raised and tried usually successfully to resolve the problem.
I think it is easy for us on this side of the fence to forget how unpleasant it must be for the Legal Aid Agency staff to have to deal with stressed out aggressive solicitors / caseworkers phoning up and ranting at them from the pulpit of righteous indignation about things which they are powerless to do anything about. In the circumstances I fully understand why they don't want named staff to take ownership of particular issues. It would just increase the personalisation of the disputes and increase abuse/bullying of staff by callers. Having said that I would have prefer it if they did take ownership but took a very tough line with solicitors who misbehave. That is perhaps at the heart of so much of the problem. The Legal Aid Agency and its predecessors have known that a lot of solicitors abuse the system in a lot of ways but have not felt able to take them to task. This has led to us all being treated as if we are trying to rip them off and abuse the staff.
I agree that the telephone service is still very bad but that is not a problem other than in mega urgent situations because I can get responses to emails.
I do strongly believe that the approach to means and merits testing at the moment appears over zealous. I assume that this because management are desperate not to be criticised by the Audit Commission again. Hopefully something more sensible that the current regime of not accepting copies of bank statements etc will replace the current situation once things have calmed down.
I should add that I make about one formal complaint a week to the Legal Aid Agency so I am not saying they are providing a good service. I do believe that apart form the over zealousness they are providing a better service now in terms of communication than they have done for a long time. I also get the impression that they are committed to improving their core functions now rather than messing about setting up CLACS and CLANS etc. I now firmly believe that on line forms may actually materialise during my lifetime.
Lastly I should say that I am still very very grateful to the Legal Aid Agency for replacing the truly hideous Legal Services Commission web site.
Post by Colin Henderson on Oct 12, 2013 19:51:52 GMT
Great to hear from you Will, and I know you know what you're talking about, so I'm heartened to hear you've had a better experience on the email front than I have. I will persevere.
I am going to come back strongly on a couple of points though. I do not intend to dehumanise LAA workers - I've always differentiated the caseworkers from the management and have recently had some really well-intentioned exchanges with individuals who, like you say, come up against their own rigid structure which I do believe has been deliberately reconfigured to obstruct rather than streamline the application process. It is a bureaucracy and those who have a degree of control within it are bureaucrats. Believe me, given some of the stunts I've seen pulled at management level, that's a very polite term.
I also think it is rather sweeping of you to say, without evidence, that "a lot of solicitors have abused the system in a lot of ways" How exactly? And when? In my experience the days of green-form abuse dated from 15 years ago and even then were isolated cases. Of course they have felt able to take us to task! Years of auditing, peer-reviewing and checking have driven all but the most committed to helping the vulnerable out of the game. I think the only "abuse" is of our goodwill by the policymakers in cutting our fees. I'm sure you'll agree it's not "abuse" of the legal aid fund to fail to get excessive proof of income before doing urgent work for desperate clients, but that is exactly how the NAO defined it.
I do hope you're right on the processes improving, but it will only happen when this ridiculous snail mail process is replaced with electronic. Just this week I had to stop vital work after getting a "show-cause" claiming we hadn't replied to their (second) request for proofs of income which had actually been sent two weeks previously. So we recopy and resend and threaten a complaint, only to get confirmation of the original letter two days later, and all because everything takes so long to get through their postal system!
And although certificated application processes have always been grim, there is no way I can agree with you that they are providing better channels of communication than before. Here is yet another horrendous example posted just yesterday on the "Secret Legal aid Lawyer" blog
We can certainly agree on the website though... at least we don't have to look at the frozen smiles on those actor's faces any more!
By the way - top tip for the new certified/original copies problem - do what I did and get a custom-made stamp:
I agree that the Legal Aid Agency is a bureaucracy. I think that the role of the housing/social welfare lawyer these days is primarily concerned with helping people who are getting their faces stamped on (as George Orwell put it) by such organisations. Others include the Courts Services, local councils, the DWP and the Home Office. These organisations all gravitate towards dehumanisation and cruelty which demonstrate the banality of evil. I am totally with you there. The problem for us on the left is that we recognise the need for such organisations but find it very hard to come up with constructive engagement and end up treating them all as if they were the South African government circa 1979. This makes us feel better about ourselves as fighting 'the system" but generates heat rather than light.
I did read the post you mentioned from the Secret Legal Aid Lawyer. I have had some bad experiences with the high costs unit or whatever they are called too. I do think though that if the writer had sent a complaint setting out the problems mentioned that they would have been likely to be addressed within 7-14 days. I don't think the article is fair to suggest that Matthew Coates' role is to finish off Legal Aid.
Sorry for making a sweeping statement about solicitors abusing the system without giving evidence. I was feeling very negative about solicitors when I wrote my comment as I have been reading Daniel Newman's excellent book Legal Aid Lawyers and The Quest For Justice which sets out details of terrible practices in a number of Legal Aid firms. I suspect that anyone who has worked in legal aid will be aware of routine abuses of the system. The provision of immigration as a service was just about destroyed (long before the latest round of cuts) by firms using case workers who were so bad that the Legal Aid Agency had to introduce basic proficiency tests. I worked as a peer reviewer for the Legal Aid Agency in housing for about three years and saw casework of such a poor quality that those responsible for allowing it to happen could only be described as abusing the system. Some of them might as well have got the office cat or even a cat who was unfamiliar with the office and its procedures to run the caseload. I worked in a firm where the boss's catchphrase was, "Its not our job to save the Legal Aid Board money". This was usually used to encourage staff to claim for work they had not carried out. I don't really want to go into much more detail than that here. I am sure that you have witnessed or heard about these sorts of things.
The problem with franchising, peer reviewing, auditing etc is that the process has shied away from identifying abuse. Instead the talk is always of non compliance with standards. This is not the same thing.
I appreciate that you and many others may work hard for the vulnerable but they are usually the victims of the abuse along with the Legal Aid Agency and its predecessors. Lawyers have been paid by the government to help the vulnerable. What has often happened is that the vulnerable get a very poor service and the government end up paying much more for it than it is worth. I don't know how we get round this. It is difficult to name names without getting sued or sacked. I am disappointed that groups like the Law Society and LAG have not been more vocal in calling out rubbish solicitors but I can't complaint too much about this I have not done so either. I think that this issue is the elephant in the living room of the Legal Aid debate. It is a significant contributory factor in the failure of legal aid lawyers to get any much backing from the public in defending Legal Aid and certainly explains a lot of the hostility of the Legal Aid Agency towards us on a day to day basis. I appreciate that there are lots of other factors too. It would be easier to get public support though if the public did not have so many bad experiences of dealing with (their) lawyers.
I hope that I hope I do not sound like I write for the Daily Mail or something here. I don't want to insult the many lawyers who provide an excellent service for low rates of pay. I apologise to anyone who thinks I have.
Following on from the more mundane issue of postal difficulties and the like, today there was the following announcement:
"Go-live dates for rollout of civil online working
Key dates for our switch to civil online working have now been set following a pilot with providers and counsel and consultation with representative bodies. The first wave of providers and counsel will be emailed an introductory pack about the Client and Cost Management System (CCMS) in the next few days. This pack includes key dates for communications: - 21 October 2013 – get ready for the online training by registering on the Provider Training website - 11 November 2013 – online training to be launched for providers and counsel - 18 November 2013 – start of three weeks of engagement events for providers and counsel across England and Wales.
A phased rollout starts in the new year for CCMS which covers new civil and family certificated work: - 20 January - Rollout to civil providers (with an organisational name starting with A-F) - 20 January - Rollout to all counsel instructed by civil providers using the system - 31 March - Rollout to civil providers (with an organisation name starting with G-Z or a number) A three-month transition period has been built into the timetable for each phase but providers will be expected and encouraged to use the system at the start.
CCMS enables: - providers and their counsel to make legal aid applications and submit bills electronically - allows them to scan and submit supporting documents electronically - clients to pay us in new ways, e.g. credit and debit cards, payment reference cards and via direct debit.
The system reduces duplication and errors and also means providers can benefit from: - limited postage costs and a single document scanning centre to send us information - more secure case and client information - direct DWP link for providers to check their clients’ benefits status
For once I'm going to ditch the cynicism and say this is A VERY GOOD THING. It's the biggest modernisation of processes in my time in civil legal aid and I really, really hope it works, but it only will if we are allowed reasonable access to real humans at the Agency to iron out the inevitable wrinkles, i.e. it is used as a way of rebuilding some degree of trust between those of us left on both sides of LAA-laa land.