In October 2009, the National Audit Office published a critical report on the Legal Services Commission's (LSC's) overpayment of solicitors and other legal aid providers. According to the report, £24.7 million was overclaimed in 2008/09. The auditors found that providers had failed to give sufficient evidence on the case file to support the level of claim or demonstrate that the client was eligible for legal aid.
Immigration cases were highlighted in the report. The auditors reported that there were a number of incidents in which practitioners charged the higher asylum case rate when the lower immigration one should have been claimed. The largest amount of overpayments, £10.5 million, was in immigration and family cases.
Speaking at the first meeting of the All Party Parliamentary Group on Legal Aid on 3 November, the LSC's chief executive Carolyn Regan blamed problems with the LSC's manual system of case file administration for the overpayments. She said that it is due to be replaced with a computerised system. She also pointed out that the figure for the overpayments was only 1.2 per cent of the total fund.
In a move which LAG believes is related to the National Audit Office report, the LSC has announced a clamp down on legal aid providers opening case files for 'recurring clients'. It is asking 100 legal aid providers to look at ten per cent of their cases in which a client has had more than one file opened in the last six months. It is threatening to recoup any money it believes has been wrongly claimed for such cases.
In LAG's view, many of the problems which the LSC has experienced with overclaiming can be resolved with a computerised system. Similarly, claims for the same client, but with different problems, can be tracked more effectively with such a system. Let us hope that the LSC gets the computer system right this time - its record so far has not been good. The LSC Online system failed in November 2007 and had to be suspended, meaning that providers had wasted many hours completing electronic returns.
But we would argue that verifying clients' income will continue to cause problems regardless of any improvements to the administration of the system. The reality is that dealing with clients who often have chaotic lives inevitably leads to difficulties in getting them to produce the relevant pieces of paper to prove their entitlement to legal aid.
As regards multiple cases, while there might be some overclaiming, the vast majority of such claims are justified as everyone involved in legal aid policy agrees that many civil legal aid clients face clusters of problems. We would argue that claims for the same clients in multiple areas of law are a sign that legal aid providers are giving the joined-up service which clients need.
Monday, 9 November 2009
Thursday, 22 October 2009
Contract rounds get green light
As expected the announcement of the civil family fee scheme yesterday (see below) has triggered the announcement of the delayed timetable for the civil bid rounds. The immigration bid round is intended to start at the end of November and the bid round for other civil work is planned for the week beginning 8 February 2010. The new civil contract will commence on 1 October 2010.
The Legal Services Commission has also made an announcement on the criminal contracts. The tender for the best value tendering police station and magistrates' courts pilots in Avon and Somerset and Greater Manchester is now scheduled to start in the week beginning 4 January 2010 and the auction stage will go ahead in March 2010. The new criminal contract will commence in July 2010.
LAG believes it is good that legal aid providers have got some certainty now about the bid rounds, but if the Bar takes action to delay the implementation of the family fees this could lead to a further postponement of the civil contracts. With a general election certain next spring the temptation might be to try and seek a delay, hoping that it can renegotiate with a new government. Criminal legal aid firms also need to know the results of the consultation on fee cuts, which is due to end on 12 November, before they can make any decisions on bidding for police station work (see 'Criminal delay' blog below).
The Legal Services Commission has also made an announcement on the criminal contracts. The tender for the best value tendering police station and magistrates' courts pilots in Avon and Somerset and Greater Manchester is now scheduled to start in the week beginning 4 January 2010 and the auction stage will go ahead in March 2010. The new criminal contract will commence in July 2010.
LAG believes it is good that legal aid providers have got some certainty now about the bid rounds, but if the Bar takes action to delay the implementation of the family fees this could lead to a further postponement of the civil contracts. With a general election certain next spring the temptation might be to try and seek a delay, hoping that it can renegotiate with a new government. Criminal legal aid firms also need to know the results of the consultation on fee cuts, which is due to end on 12 November, before they can make any decisions on bidding for police station work (see 'Criminal delay' blog below).
Wednesday, 21 October 2009
Family fees announced
The Legal Services Commission (LSC) has today announced the fees for family cases. These had been subject to intense negotiations with representatives from legal aid providers. If publication of the fees had been delayed the whole bid round process for civil legal aid might have been put in jeopardy. But the fees could still be subject to a legal challenge.
Family cases take up over half of all expenditure on civil legal aid. It would have been difficult for firms to bid for contracts in the other areas of civil law without knowing the fees for family work. Hourly rates for advocacy will be abolished under the scheme and a system of standard fees will be introduced.
Barristers stand to lose out on the fees as while the government claims that the overall budget for family cases will stay the same the amounts paid to barristers will go down. The intention, the government says, is to pay the same to solicitors and barristers for the work. LAG understands that there is much disagreement over the data on which the new fees are based and that the Bar had wanted further time for analysis of this.
Fees for private law family work (mainly divorce and custody matters) have been subject to bitter wrangling behind the scenes and some practitioners are questioning the viability of the proposed fees. The government will wait with bated breath to see if the Bar will move to bring a judicial review to challenge the scheme and risk derailing the civil contract bid rounds.
Family cases take up over half of all expenditure on civil legal aid. It would have been difficult for firms to bid for contracts in the other areas of civil law without knowing the fees for family work. Hourly rates for advocacy will be abolished under the scheme and a system of standard fees will be introduced.
Barristers stand to lose out on the fees as while the government claims that the overall budget for family cases will stay the same the amounts paid to barristers will go down. The intention, the government says, is to pay the same to solicitors and barristers for the work. LAG understands that there is much disagreement over the data on which the new fees are based and that the Bar had wanted further time for analysis of this.
Fees for private law family work (mainly divorce and custody matters) have been subject to bitter wrangling behind the scenes and some practitioners are questioning the viability of the proposed fees. The government will wait with bated breath to see if the Bar will move to bring a judicial review to challenge the scheme and risk derailing the civil contract bid rounds.
Tuesday, 20 October 2009
Reports from the audit trail … Number 5
By Jon Robins
I have visited the North Liverpool Community Justice Centre twice this year, as part of LAG’s Access to Justice Audit. You can see a film as part of the Guardian’s 'Justice gap' series.
The court is a radical experiment in the criminal justice system. It was launched in 2005 at huge cost - £5.2 million - and that was just to open the doors. The initiative takes its inspiration from a court on the other side of the Atlantic, the Red Hook Community Justice Center in Brooklyn.
There is now a proliferation of so-called ‘community justice centres’ but North Liverpool is the only court centre built on the Brooklyn model. The American court has been credited with contributing to the regeneration of a part of Brooklyn that Life magazine once labelled as one of America’s most ‘crack-infested’ areas.
In 2002, the then Lord Chief Justice, Lord Woolf, visited Red Hook and was suitably impressed. A trip by the then Home Secretary, David Blunkett, followed and he returned a convert. Sadly, it seems that one of the boldest examples of judicial thinking has been quietly buried. Tucked away in the recent green paper, Engaging communities in criminal justice, published earlier this year, policy-makers ruled out future centres ‘in light of the costs involved’.
North Liverpool Community Justice Centre, based in a former secondary school on Boundary Street in Kirkdale, is close to the heart of the community that it seeks to serve. It is a bright, shiny, hi-tech court complex – a million miles away from the Victorian gloom of Salford Magistrates’ Court (which houses the Salford Community Justice Initiative). There are 60 court staff in North Liverpool including all the main support services (probation officers, Citizens Advice, drug treatment officers etc) on site. Offenders’ cases are dealt with without delay and their other needs, from addiction treatments to housing benefit claims, can be dealt with promptly.
One judge – Mr Justice David Fletcher – presides over all cases enabling consistency of sentencing and help with the rehabilitation of offenders who are called back before the court under special sentencing review powers contained in the Criminal Justice Act 2003. His court sits as magistrates’ court, youth court, Crown Court and county court.
Frances Crook, director of the Howard League for Penal Reform, has been to both Liverpool and New York. A sceptic at first, she is now a convert. Crook calls the approach ‘completely radical’. ‘We’ve tried whipping, branding, executing, transporting, prison and now we have orange flak jackets. We have to see these things in a more holistic way and try and solve the problem, that is the best way to protect victims.’
According to the government, North Liverpool ‘continues to be an extremely valuable and successful test-bed for the community justice approach as a whole, but we do not believe that the costs involved in building new centres can be justified at present’.
There are some 2,500 such courts now in the US. Many cost/benefit analyses have been done. One report into eight specialist drug courts in California reckoned that there were cost savings of $3.50 for every dollar invested. That estimate just relates to savings to the criminal justice system – and not wider costs of avoided property damage, hospital bills, and lost wages. Red Hook now has the safest police precinct in Brooklyn.
I have visited the North Liverpool Community Justice Centre twice this year, as part of LAG’s Access to Justice Audit. You can see a film as part of the Guardian’s 'Justice gap' series.
The court is a radical experiment in the criminal justice system. It was launched in 2005 at huge cost - £5.2 million - and that was just to open the doors. The initiative takes its inspiration from a court on the other side of the Atlantic, the Red Hook Community Justice Center in Brooklyn.
There is now a proliferation of so-called ‘community justice centres’ but North Liverpool is the only court centre built on the Brooklyn model. The American court has been credited with contributing to the regeneration of a part of Brooklyn that Life magazine once labelled as one of America’s most ‘crack-infested’ areas.
In 2002, the then Lord Chief Justice, Lord Woolf, visited Red Hook and was suitably impressed. A trip by the then Home Secretary, David Blunkett, followed and he returned a convert. Sadly, it seems that one of the boldest examples of judicial thinking has been quietly buried. Tucked away in the recent green paper, Engaging communities in criminal justice, published earlier this year, policy-makers ruled out future centres ‘in light of the costs involved’.
North Liverpool Community Justice Centre, based in a former secondary school on Boundary Street in Kirkdale, is close to the heart of the community that it seeks to serve. It is a bright, shiny, hi-tech court complex – a million miles away from the Victorian gloom of Salford Magistrates’ Court (which houses the Salford Community Justice Initiative). There are 60 court staff in North Liverpool including all the main support services (probation officers, Citizens Advice, drug treatment officers etc) on site. Offenders’ cases are dealt with without delay and their other needs, from addiction treatments to housing benefit claims, can be dealt with promptly.
One judge – Mr Justice David Fletcher – presides over all cases enabling consistency of sentencing and help with the rehabilitation of offenders who are called back before the court under special sentencing review powers contained in the Criminal Justice Act 2003. His court sits as magistrates’ court, youth court, Crown Court and county court.
Frances Crook, director of the Howard League for Penal Reform, has been to both Liverpool and New York. A sceptic at first, she is now a convert. Crook calls the approach ‘completely radical’. ‘We’ve tried whipping, branding, executing, transporting, prison and now we have orange flak jackets. We have to see these things in a more holistic way and try and solve the problem, that is the best way to protect victims.’
According to the government, North Liverpool ‘continues to be an extremely valuable and successful test-bed for the community justice approach as a whole, but we do not believe that the costs involved in building new centres can be justified at present’.
There are some 2,500 such courts now in the US. Many cost/benefit analyses have been done. One report into eight specialist drug courts in California reckoned that there were cost savings of $3.50 for every dollar invested. That estimate just relates to savings to the criminal justice system – and not wider costs of avoided property damage, hospital bills, and lost wages. Red Hook now has the safest police precinct in Brooklyn.
Tuesday, 13 October 2009
Welcome proposed separation of civil and criminal legal aid budgets
The government has announced a review of legal aid delivery to be conducted by Sir Ian Magee. The review will look at separating the criminal and civil legal aid budgets. This is something LAG has consistently argued for in order to stop the government raiding the civil legal aid fund to pay for increases in criminal legal aid. We therefore very much welcome this review.
Unless the funds are separated, government policy on legal aid will continue to be dictated by the invidious choice of either paying for representation to ensure people are not wrongly imprisoned or to get help with housing, family and other civil law problems. The review will also look at providing effective management of the funds and ensuring ministerial accountability for the policy direction of legal aid. LAG argues that it is important to prioritise the independence of decision-making on cases and that the separation of the funds should be more than just a paper exercise easily unpicked when the Treasury calls for cuts.
We have to point out, though, that the Access to Justice Act 1999, which has been on the statute book for ten years, envisaged the eventual separation of the funds by government. This really is a case of better late than never. Sir Ian has to report in January and we believe it could be possible, if he recommends separation, to implement the change this side of the general election.
Unless the funds are separated, government policy on legal aid will continue to be dictated by the invidious choice of either paying for representation to ensure people are not wrongly imprisoned or to get help with housing, family and other civil law problems. The review will also look at providing effective management of the funds and ensuring ministerial accountability for the policy direction of legal aid. LAG argues that it is important to prioritise the independence of decision-making on cases and that the separation of the funds should be more than just a paper exercise easily unpicked when the Treasury calls for cuts.
We have to point out, though, that the Access to Justice Act 1999, which has been on the statute book for ten years, envisaged the eventual separation of the funds by government. This really is a case of better late than never. Sir Ian has to report in January and we believe it could be possible, if he recommends separation, to implement the change this side of the general election.
Thursday, 8 October 2009
Nottingham rethinking advice?
Last week people from the advice world travelled to Nottingham to be taken on a journey through systems thinking (to paraphrase the blurb), the new model of planning advice services which AdviceUK, the national organisation representing independent advice centres, is pushing. While it sounds like the jargon of management speak, the Nottingham experience seems to demonstrate that the approach is worth looking at, though in Nottingham it is limited in the areas of law it covers and does not include private sector solicitors.
Nottingham City Council currently spends £3m on advice services. These are spread across an in-house welfare rights team, which specialises in benefits and debt, and the voluntary sector. A Law Centre®, a Citizens Advice Bureau, a Housing Advice Centre and an independent advice centre have signed up with the council for this experiment in advice services planning. Four hundred and eighty four interviews with clients were observed by researchers. What they found was that 280 interviews dealt with a life event such as a client losing his/her job and needing advice on benefits. The big revelation was that 204 interviews were to do with a failure in the system - in other words government agencies getting it wrong.
An example of a systems failure given by the council is the procedure over benefit appeal tribunals. Once a client appeals, a TAS1 form is sent to him/her which s/he has to respond to within 14 days. Many do not. This results in advisers having to apply to reinstate the appeal. AdviceUK argues that by adopting a systems thinking approach such waste can be reduced by joint working and the spare capacity which is freed up can then be used to improve services.
The researchers found that 15 per cent of clients presented with multiple problems. They also found evidence of the need to triage cases. For example, straightforward enquiries, which would only take a few minutes to deal with, were having to join the same waiting list of a few weeks for interviews as those clients with more complex cases.
A few alarm bells did ring when LAG interviewed advice workers at the Town Hall event. There seemed to be very little referral to solicitors, apart from some cases going to the Law Centre. Even in disrepair cases, advisers seemed to believe that expert reports and experience of litigation were not generally necessary. Another problem was the lack of understanding regarding the potential for conflicts of interest with council-run advice services.
What the Nottingham experience does show is that systems thinking can be used to improve advice services by identifying waste caused by systemic failures and act as a way to galvanise services to work more effectively together. The overriding impression of the Nottingham experience is that the advice sector had a unity of purpose to serve people more efficiently. This is perhaps the systems thinking project's most useful achievement.
Nottingham City Council currently spends £3m on advice services. These are spread across an in-house welfare rights team, which specialises in benefits and debt, and the voluntary sector. A Law Centre®, a Citizens Advice Bureau, a Housing Advice Centre and an independent advice centre have signed up with the council for this experiment in advice services planning. Four hundred and eighty four interviews with clients were observed by researchers. What they found was that 280 interviews dealt with a life event such as a client losing his/her job and needing advice on benefits. The big revelation was that 204 interviews were to do with a failure in the system - in other words government agencies getting it wrong.
An example of a systems failure given by the council is the procedure over benefit appeal tribunals. Once a client appeals, a TAS1 form is sent to him/her which s/he has to respond to within 14 days. Many do not. This results in advisers having to apply to reinstate the appeal. AdviceUK argues that by adopting a systems thinking approach such waste can be reduced by joint working and the spare capacity which is freed up can then be used to improve services.
The researchers found that 15 per cent of clients presented with multiple problems. They also found evidence of the need to triage cases. For example, straightforward enquiries, which would only take a few minutes to deal with, were having to join the same waiting list of a few weeks for interviews as those clients with more complex cases.
A few alarm bells did ring when LAG interviewed advice workers at the Town Hall event. There seemed to be very little referral to solicitors, apart from some cases going to the Law Centre. Even in disrepair cases, advisers seemed to believe that expert reports and experience of litigation were not generally necessary. Another problem was the lack of understanding regarding the potential for conflicts of interest with council-run advice services.
What the Nottingham experience does show is that systems thinking can be used to improve advice services by identifying waste caused by systemic failures and act as a way to galvanise services to work more effectively together. The overriding impression of the Nottingham experience is that the advice sector had a unity of purpose to serve people more efficiently. This is perhaps the systems thinking project's most useful achievement.
Monday, 28 September 2009
Risk and release
Daniel Sonnex, who had been released on parole licence after a conviction for a violent robbery, killed two French students last year after torturing them to obtain their pin numbers. The case illustrated the tragic consequences of failures in the system to monitor and assess an offender when s/he has been released. How, though, does the criminal justice system assess the risk of prisoners convicted of serious crimes reoffending if released? This was the question the lawyers, psychiatrists and psychologists grappled with at last week's Association of Prison Lawyers conference.
All agreed that the psychological testing methods developed for identifying whether a prisoner is likely to reoffend if released could never be guaranteed. What the psychiatrists and psychologists did seem reasonably confident about was their success in identifying risk factors that made reoffending more likely in certain groups of prisoners. For sex offenders these included the number of previous sexual convictions, age and whether they had never had an intimate relationship. Actuarial calculations can be made from such factors and these can be extrapolated to a group, but they cannot be used directly to predict an individual's behaviour.
Polygraph or lie detectors are being trialled to assess the truth of an offender’s assertions regarding his/her rehabilitation, but opinion on the reliability of these seemed mixed among the experts at the conference. Psychological tests remain the main tool for assessing individual prisoners’ rehabilitation. Factors such as personality, attitudes and emotional control are assessed. The tests need to be applied correctly and are dependent on well-trained and qualified people to do this.
A question submitted in writing from a prisoner asked why he was always seen by a trainee when he was undergoing a psychological assessment. All the participants on the panel the question was put to agreed that there is a shortage of fully qualified forensic psychologists who carry out the assessments in prisons. Opinion was divided, though, on whether the trainees who are widely used are competent to undertake the work. The representative from the Ministry of Justice argued that most trainees do have the experience and skills to do this work, with their trainee status being attributable to changes in qualification requirements. The independent experts were less convinced and one argued that many were not sufficiently skilled and that 'their supervision was sporadic'.
A sceptical lawyer in the audience questioned if the methods used to assess prisoners’ likelihood of reoffending were too subjective. Another lawyer argued that one client had had two results in a test - one finding a medium risk and one finding a high risk. In reply the psychologists said that as long as the tests were applied correctly they were reliable and that the tests and clinical assessments still allowed room for professional judgments. Other than never releasing any prisoner convicted of a serious crime there seems little alternative to the current system, but the system needs to be properly resourced to optimise the chances of reaching the correct decisions, as the consequences of not doing so can be tragic.
See LAG's new book: Prisoners: law and practice by Simon Creighton and Hamish Arnott.
All agreed that the psychological testing methods developed for identifying whether a prisoner is likely to reoffend if released could never be guaranteed. What the psychiatrists and psychologists did seem reasonably confident about was their success in identifying risk factors that made reoffending more likely in certain groups of prisoners. For sex offenders these included the number of previous sexual convictions, age and whether they had never had an intimate relationship. Actuarial calculations can be made from such factors and these can be extrapolated to a group, but they cannot be used directly to predict an individual's behaviour.
Polygraph or lie detectors are being trialled to assess the truth of an offender’s assertions regarding his/her rehabilitation, but opinion on the reliability of these seemed mixed among the experts at the conference. Psychological tests remain the main tool for assessing individual prisoners’ rehabilitation. Factors such as personality, attitudes and emotional control are assessed. The tests need to be applied correctly and are dependent on well-trained and qualified people to do this.
A question submitted in writing from a prisoner asked why he was always seen by a trainee when he was undergoing a psychological assessment. All the participants on the panel the question was put to agreed that there is a shortage of fully qualified forensic psychologists who carry out the assessments in prisons. Opinion was divided, though, on whether the trainees who are widely used are competent to undertake the work. The representative from the Ministry of Justice argued that most trainees do have the experience and skills to do this work, with their trainee status being attributable to changes in qualification requirements. The independent experts were less convinced and one argued that many were not sufficiently skilled and that 'their supervision was sporadic'.
A sceptical lawyer in the audience questioned if the methods used to assess prisoners’ likelihood of reoffending were too subjective. Another lawyer argued that one client had had two results in a test - one finding a medium risk and one finding a high risk. In reply the psychologists said that as long as the tests were applied correctly they were reliable and that the tests and clinical assessments still allowed room for professional judgments. Other than never releasing any prisoner convicted of a serious crime there seems little alternative to the current system, but the system needs to be properly resourced to optimise the chances of reaching the correct decisions, as the consequences of not doing so can be tragic.
See LAG's new book: Prisoners: law and practice by Simon Creighton and Hamish Arnott.
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