Solving the problem of advice deserts
Thanks to a lack of local providers in a number of areas, many people are unable to obtain assistance through legal aid. Dirghayu Patel suggests a solution that may allow legal aid providers to meet the growing demand for their services in areas that have historically lacked provision.
When the last government was sponsoring the bill that eventually became the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), many providers and representative bodies (including the Law Society and the Bar Council) warned of the disastrous effect restricting the scope of legal aid would have on the principle of access to justice. Sadly, these warnings were not heeded and LASPO became law. Since then, the concerns expressed by campaigners have been realised and senior members of the judiciary have commented on the problems surrounding the growth in the number of litigants in person (see, for example, ‘Litigants in person make life “infinitely more difficult” – CoA judge’, Law Society Gazette, 9 May 2014).
The reduced take-up in services can be seen in the recent statistical bulletin for legal aid spending in England and Wales for the July to September 2016 quarter (Legal aid statistics in England and Wales: July to September 2016, Ministry of Justice Statistics Bulletin, 15 December 2016). This noted a fall in the number of acts of assistance for housing by nine per cent from the same quarter the previous year. There has also been a significant longer-term decline since 2013, when LASPO came into force. These declines are mirrored in other areas of civil and criminal legal aid.
Cambridgeshire: a case in point
A key factor behind the falling legal aid spend is that clients in many areas are unable to obtain advice due to the shortage of local advisers. One area that has experienced this problem is Cambridgeshire. In July 2016, the only provider of legal aid in housing and debt in the area, Citizens Advice Peterborough, terminated its contract with the Legal Aid Agency (LAA). The decision was brought about as a result of difficulties in finding a replacement for its solicitor, who left for personal reasons. Subsequently, a county with a population of 800,000, and with 16 lower layer super output areas falling within the 20 per cent of the most deprived areas in England, was left without a legal aid provider in housing and debt.
In response to the withdrawal of Citizens Advice Peterborough, the LAA retendered the contract for the provision of housing and debt in the Cambridgeshire procurement area (Invitation to submit an expression of interest to deliver legal aid housing and debt services in the Cambridgeshire procurement area, LAA, 25 October 2016). The rules of the tender were largely the same as those that applied for the 2013 tender round. However, in recognition of the difficulty in attracting bidders, the LAA relaxed two important tendering requirements. While giving preference to bidders that had (i) a supervisor in housing law and (ii) a presence in the procurement area, the LAA would consider expressions of interest from providers that did not meet these criteria as long as they could demonstrate how a service would be delivered in the procurement area.
It is noteworthy that the LAA has relaxed the tendering requirements for other areas that lack legal aid providers and where it is seeking to attract bidders: Hull; Surrey; Calderdale; Warrington and Halton; and North Hertfordshire. This demonstrates a recognition of the scale of the problem it faces in reversing the trend towards declining legal aid assistance.
The retendering of the contract for Cambridgeshire attracted my interest. I was the supervising solicitor and manager of the legal aid contract at Citizens Advice Peterborough from 2011 to 2012. I have remained in contact with Citizens Advice since leaving. When it relinquished its contract, many of the existing clients transferred to my firm. The retendering presented an opportunity for my firm but the difficulty was that we did not have a presence in the procurement area. Establishing an office in an area in the hope of winning a contract to deliver legal aid is financially risky.
A winning solution
However, the solution to the problem was obvious: to work in partnership with Citizens Advice Peterborough, which does have a presence in the area. It has an established reputation locally as the place to go to seek advice on legal problems. This gives Citizens Advice the advantage of being able to identify and refer cases to us. Our role would be to decide whether to take a particular referral and, if we did, to provide face-to-face advice at our regular sessions in Peterborough.
The plan is also to work with other Citizens Advice branches in the Cambridgeshire area so that appropriate referrals are made. Fortunately, Citizens Advice Peterborough has, from the outset, been in agreement with our bid and model for the delivery of face-to-face advice and representation. It has also developed a web-based referral process called Refernet, which will allow it to make referrals quickly and securely. The advantage of Refernet is that it is accessed by other branches in Cambridgeshire, which improves their ability to make referrals and enables them to be made from across the county.Based on our commitment to work in partnership with Citizens Advice Peterborough, the LAA awarded the contract to us. The people of Cambridgeshire are now able to receive legal assistance in housing and debt through the partnership between Citizens Advice Peterborough, other voluntary organisations and GT Stewart.
It is possible the LAA may adapt its tendering rules in the new civil bid round that, at the time of writing, was due to open in May 2017 (see also page 12 of this issue), perhaps in response to the shortage of legal aid providers in other areas. Partnership working may, therefore, be a good way forward to extend provision in areas that have lacked legal aid provision in the past. This will ensure more clients can get advice and representation when they need it, thus promoting access to justice.
Partnership working is beneficial to providers, as it means the costs of running a successful legal aid contract can be shared.
Partnership working, however, is also beneficial to providers, as it means the costs of running a successful contract can be shared. For example, a not-for-profit agency that has the premises but not a qualified LAA supervisor can avoid the cost of hiring one if it can operate the contract in partnership with a provider that does have one. Similarly, a provider with a LAA supervisor but not the premises can avoid the cost of obtaining them if it can agree the use of an existing provider’s premises.
Tips for partnership working
Identifying suitable partners
The first task is to identify existing providers in the area to form a partnership. The partners should complement each other to ensure that tendering requirements on supervision and office presence are met. Therefore, an organisation that has a LAA-recognised supervisor but lacks a presence can pair with one that has an office but lacks such a supervisor.
The partnership can overcome these difficulties, allowing clients to get face-to-face advice from their solicitors. Face-to-face advice is important at the beginning of a case as it allows the adviser to explain to the client how it will be funded, to obtain satisfactory proof of income and capital, to complete the necessary forms for legal aid and to provide initial advice. The initial meeting will therefore cement the relationship between client and adviser. Beyond the initial meeting, the case can be pursued remotely, with the client informed of developments by telephone, email or teleconferencing via Skype.
The choice of providers to pair with will depend on the area in which they operate and serve. It was easy for GT Stewart to decide to operate in the Cambridgeshire area as we have personnel who live locally and can staff the outreach sessions. This reflects another important issue: existing providers of legal aid tend to be concentrated in London and the big cities, while the advice deserts tend to be in smaller cities or towns. It is likely, however, that many legal aid solicitors live in under-provided areas but commute to work every day. The opportunity for bidding for contracts in areas where there has historically been an under-supply means firms can better utilise staff who live in these areas but travel to work outside them every day. This could lead to a reduction in the need to commute, which may have the added benefit of improving employee well-being.
Next, reach agreement on a protocol for referrals. The organisation that will conduct the casework under the LAA contract should work with the organisation making referrals. It is vital that the referral agencies know what types of cases can be done on legal aid. This will require training for their volunteers and staff. Citizens Advice branches have an advantage in this regard as they have spent considerable resources over the years training their volunteers and developing web-based referral systems such as Refernet. Indeed, technology, in particular the use of cloud computing, will be important in ensuring the new model works: it will enable the provider to create a virtual office when servicing clients in the procurement area.
The biggest difficulty that providers will face in establishing a service in an area that has not historically had one will be a lack of knowledge that legal aid is available.
It is vital that the new arrangements are publicised as much as possible to promote awareness of the service. The biggest difficulty that providers will face in establishing a service in an area that has not historically had one will be a lack of knowledge that legal aid is available. To counter this, there will need to be an effective publicity campaign. This could be achieved by publicising the service on the internet (eg, on local Citizens Advice websites and those of other voluntary groups) and through other media.
We have been through a generation of change and upheaval in legal aid. We have witnessed a significant decline in the number of providers, denying many communities access to justice. The changes in tendering rules represent a small sign that the pendulum could be swinging towards greater provision if existing providers can take advantage of such changes and embrace the opportunities presented by partnership working.

About the author(s)

Description: Dirghayu Patel
Dirghayu Patel is a solicitor-advocate at GT Stewart specialising in housing, public and human rights law.