“The legal aid system needs to be improved. And simplification would be a start.”
At the Legal Aid Practitioners Group, we try to balance the many activities of a membership organisation: we run events including training, celebrate the work of fantastic legal aid lawyers at the Legal Aid Lawyer of the Year awards, respond to consultations, set off cheerfully to many, many meetings, campaign on policy and operational issues, jointly (with Young Legal Aid Lawyers) run the All-Party Parliamentary Group on Legal Aid, and so much more.
But I’m haunted by the question: how did we end up here? How did we end up with such low fees in crime and civil; with such disillusionment and demoralisation among people who are committed to this work; and with such disdain from the government? How have we ended up in the civil legal aid sector with such an extraordinarily complex system, where our members ask us for help as they despair at the endless hurdles over which they have to jump to survive?
There are issues for practitioners in the running of their practices. From office hours (can we be open 10–6 rather than 9–5?), to supervision by Skype (can we do a supervision meeting by Skype rather than face to face?), to the liabilities of an LLP director (do they have any protections?) – members ask us to clarify what they have looked into and cannot work out.
Civil practitioners in particular face challenges in running cases that have increased over the past few decades. The financial information clients need to produce is much more complex. Making applications, amendments and billing on the online CCMS portal is no simple matter. Interpreting the contracts and guidance when running a case provides no certainty that funding will be allowed.
Years ago, I went to a meeting where the chief executive of the Legal Aid Board (LAB), Steve Orchard, talked about how the LAB would see something it thought inappropriate and then amend the legal aid scheme accordingly, followed shortly by someone working out a way to get around the newly tightened rule (or behaving in some other way that the LAB would want to clamp down on).He said it was like a game of cat and mouse.
Surely it would help all parties if the contract and related documentation were simplified and worked on by those seeking to comply with them?
In the 1990s, legal aid work became franchised and then contracted. Rules and regulations proliferated and things have only got more complex since. Over the years, the Law Society has offered to work with the Legal Aid Agency (LAA) to simplify both the civil and crime contracts. Surely it would help all parties if the contract and related documentation were simplified and worked on by those seeking to comply with them?
Practitioners frequently report that they feel desperate. They have a client in front of them who is financially eligible for advice or representation, whose case is in scope, and yet they simply cannot run the case because of hold-ups. What would cause a delay? It could be a problem with CCMS, it could be that the practitioner needs a decision in a faster timescale than the LAA will deliver, a refusal may be given that could be incorrect due to a lack of training of the LAA staff or because of a mistake by the practitioner; regardless, the system needs to be improved. And simplification would be a start.
An overly complex system that leans towards bureaucratic box-ticking can always be justified as being necessary to protect the public purse. It is, however, ironic that as the Solicitors Regulation Authority has stopped being so prescriptive (much to the concern of lawyers who want a bit of certainty), those working under legal aid contracts have ever more numerous and complex rules to follow.
The pressure on practitioners who are trying to meet professional standards when running cases and who are totally beleaguered by the system is one concern. A bigger concern is the number of people who cannot obtain advice or representation, many because their cases are out of scope, but many whose cases are in scope but cannot be conducted properly or at all.
The civil legal aid system in a nutshell
To illustrate the complexity of the system, this is a quick run-down of the civil legal aid documentation. There are the current contracts: