Last month the Legal Services Commission (LSC) published the results of the tender round for the 2013 Standard Civil Contract. The number of legal aid providers applying for contracts exceeded the work available (see page 4 of this issue) and the LSC adopted a strategy of dividing up the available contracts as widely as possible. The downside of this approach is that it may penalise big providers which were relying on large contracts to reflect their current level of legal aid work. There is likely to be a messy period of ‘musical chairs’ as providers restructure to reflect this new pattern of supply.

Whatever strategy the LSC had opted for would have been criticised: for example, concentrating supply among fewer large providers would equally have led to an outcry. A criticism which LAG believes has merit is that the spread of small contracts is likely to lead to lower quality work among some providers. While practitioners are reluctant to go public about this issue, they often complain about poor quality work from some legal aid providers, which reflects badly on all and gives clients a raw deal. LAG hears these complaints most frequently about some immigration practitioners. There seems to be some shoddy work in this area, but a scandalous reluctance on the part of the LSC and the government to do anything about it.

In November last year, Justice at risk: quality and value for money in asylum legal aid was published.1Julie Gibbs and Deri Hughes Roberts, Justice at risk: quality and value for money in asylum legal aid, final report, Runnymede, November 2012. Available at: www.runnymedetrust.org/uploads/publications/pdfs/JusticeAtRisk-2012.pdf. This provides a useful round-up of the relevant literature in the field and some original research on representation of immigration clients and asylum-seekers. The findings of the Early Legal Advice Project (ELAP), based in Solihull, are discussed. In a nutshell, ELAP found that paying practitioners an hourly rate, as opposed to a fixed fee, led to better preparation of cases and, thus, to fewer unnecessary appeals, which overall saved the government money. In an enlightened move, ELAP was supported by both the UK Border Agency (UKBA) and the LSC. Of greatest concern to LAG is that the report exposes the poor standard of work in many cases paid for under the fixed fee scheme. It seems that a significant number of providers are not getting the basics right.

Asylum-seekers are some of the most vulnerable clients with whom the legal system deals. For many, whether they are allowed to remain in this country or face deportation depends on the effectiveness of the advice and representation they receive. Evidence to support asylum-seekers’ accounts is often hard to come by, which means that their own witness statement and related supporting information are of fundamental importance to their case. The report suggests that nowadays UKBA decision-makers rarely receive witness statements in adult asylum cases because of time pressures on representatives, who admit that they no longer research and gather expert evidence in the way they did in the past. Fixed fees give them no financial incentive so to do.

The report highlights LSC figures which showed that, in 2009/2010, 27.3 per cent of fixed fee asylum cases earned more than twice the amount that would have been paid under the hourly rate scheme. The report cites evidence from answers to parliamentary questions put down by Lord Avebury. The replies showed that 64 providers were abusing the system by over-claiming for work in asylum cases. They received 20 per cent of the fixed fee asylum budget. A high proportion of these providers went on to bid successfully for current contracts.

Success in legal cases can often come down to the time spent on researching and preparing a case. Many of the findings of Justice at risk could apply equally in other areas of law. For example, a practitioner preparing an employment tribunal case often needs more time to take a comprehensive witness statement from an applicant and supporting statements than is covered by the fixed fee. The report shows that in many asylum and immigration cases, fixed fees have led to lower quality work and greater overall costs to the government because cases are more likely to go to appeal if they have not been prepared well at the beginning of the process.

Justice at risk suggests that raising quality standards would weed out providers who abuse the fixed fee system. It also argues that returning to hourly rates in complex cases needs to happen if these cases are to be prepared properly. These are good ideas which, LAG argues, must be considered.