This month marks the beginning of a new era in civil legal aid. but many who work in the field believe the arrival of fixed fees is a disaster for the profession. Jon Robins reports


October marked the introduction of the Carter revolution. It has been 18 months since the publication of Lord Carter of Coles’ report into legal aid procurement and since then it has been a dizzying ride for the publicly funded side of the profession.



Large areas of woodland have been sacrificed to provide a steady stream of heavy consultation papers leading to increasingly ill-tempered exchanges between the profession and the Legal Services Commission (LSC), five legal challenges and proposals which many lawyers believe to be a crass interpretation of Patrick Carter’s original blueprint (which they did not much like anyway).



When the constitutional affairs select committee took evidence from Richard Miller earlier in the year, the then director of the Legal Aid Practitioners Group was having a typically tough morning. He had downloaded no fewer than 19 consultation documents from the LSC’s website published that morning. ‘I can barely cope with this blizzard of publications,’ he told MPs. ‘How on earth can any practitioner, who is trying to conduct a substantial caseload to a high standard, be expected to do so?’



Now the 1 October start-date for the new fee structures for civil and family work has passed, and lawyers are coming to terms with the realities of the reforms for the first time. What kind of challenge does it represent to the profession? ‘It means a whole new way of working,’ says Mr Miller, who joined the Law Society as its legal aid manager over the summer. ‘It requires more attention to financial management than firms have had to worry about before. It also requires much more careful selection of the cases that they have taken on. Firms need to ensure that the caseload is a reasonable balance between the smaller cases and the other more complex ones. For many that’s simply going to be impossible, and for others it might be possible over a period of time, but it is certainly not going to be an easy transition.’



Come the revolution

So how are the firms preparing for the revolution? ‘By burying our heads in the sand and sticking our fingers in our ears,’ says one leading legal aid practitioner.



Meanwhile, David Emmerson, a partner at south London firm Edwards Duthie who chairs the family lawyers group Resolution’s legal aid committee, points out that practitioners have been busy dealing with the constraints of ‘the ridiculous timescale to which everybody is working’. He points out that within three working days of the start date, family lawyers were still downloading ‘hundreds of pages’ of guidance from the LSC’s website. ‘The fear is that a tough and unforgiving LSC isn’t going to be understanding when people make mistakes and people have not got on top of the documentation because they just haven’t had the time,’ he says.



Gareth Mitchell, a housing law specialist at London practice Pierce Glynn, reports that preparing for fixed fees has been ‘very time-consuming and difficult’. ‘Staff training has been a nightmare because the rules are so complex and because the training materials provided by the LSC have been inadequate and have been provided so late in the day,’ he says. ‘We’ve also spent huge amounts of time adapting our IT and cost systems, which has all had to be done at the 11th hour because of a lack of information supplied by the commission about the new forms and processes we will need to use to implement the fixed-fees system.’



Richard Miller reflects that firms have not dwelt as much on the practical implications of the reforms as they might. ‘There are two main reasons for this,’ he says. ‘The first is that they are just so busy coping with day-to-day practice that it’s very difficult for them to take a step back and look at long-term structural issues. But the other problem is – and it has been a common problem for many years – that the LSC announces something, then they set a start date for it, it doesn’t happen, and that timetable slips.’



Mr Emmerson acknowledges that this month represents the beginning of a new era. ‘The great fear about fixed fees is that you obviously hope that you’re going to make more money, but you don’t know how much for the next three or four years,’ he says. ‘That’s the time it takes for the difficult and challenging cases to go through the system.’



He predicts major cashflow issues because, under the tailored fixed-fees scheme which preceded fixed fees, ‘you were paid for almost everything that you did straight away’. However, under the new arrangements, legal aid lawyers will have to send all the cases that fall outside the fixed-fee regime – because they pass the escape threshold – to the LSC, which he predicts ‘will not be able to cope with that process very quickly’. He adds: ‘As we all know, it is cashflow which causes businesses problems, not necessarily profitability.’



Mr Mitchell believes fixed fees for practitioners in London are ‘a disaster’, particularly for those providing the highest-quality advice, ‘because average costs... far exceed the level at which the fixed fee has been set’. He says: ‘Many of the best local firms have already abandoned legal aid because it is no longer economically viable and I am sure that many more will follow suit. Those who have already given up have not moved to other legal aid supplies. They have abandoned legal aid for good.’



Mr Mitchell takes the view that the LSC now appears to want ‘a cull of housing suppliers’ in London. ‘I doubt that the LSC will be particularly worried about this, but the human cost, in terms of people unnecessary losing their homes and homeless people remaining homeless because they are increasingly unable to access high-quality advice, is really depressing,’ he says.



An LSC spokesman defends the fixed-fees regime. ‘Fixed fees are a desirable and necessary step in the move to a competitive market,’ he says. ‘The new fee schemes will help providers prepare for competition. The legal aid reforms are specifically about maximising access to legal aid for the future. By achieving best value for money and rebalancing the overall budget to provide more funding for civil work, we can continue to increase the numbers of people helped.’



Centre of attraction

Civil and family practitioners also note that it is not just fixed fees that they have to contend with. The LSC has noticeably speeded up its roll out for CLACs and CLANs (community legal advice centres and networks) over the past few months. It was recently announced that Hull will become the next venue for a CLAC after Hull City Council agreed to jointly fund it. That makes it the eighth local authority to agree to work with the LSC to develop these new services.



Should this be regarded as a threat by private practice firms in the area as they are frozen out of the new CLACs? ‘The LSC has made no secret that it wants to move to a system of one contract for each area and a total of 150 contracts around the country,’ says Mr Miller. ‘OK, that could involve a lot of subcontracting with a lot of other organisations and so there may be different ways that firms could stay within the system. But there is a real concern that it is going to lead to a degree of monopolisation, which won’t be healthy for the market in the long term if you’re locking all of these firms out.’



Lucy Scott-Moncrieff, chairwoman of the Law Society’s access to justice committee and managing partner at Scott-Moncrieff Harbour & Sinclair, says that her firm is trying to work out the likely impact of fixed fees in mental health work when they begin in January (the start date was put back from October). ‘We know that the LSC wants a very well-rounded practice and so we will be dropping some of our more complicated and difficult mental health and tribunal work,’ she says. ‘Of course, we hope that someone else will pick up those clients, but we don’t see why anyone would. We are going to do a lot more straightforward work so that we can balance the books – that’s what we are going to do because that is what we have been told to do. It doesn’t seem like good value for money to me but there you go.’



So tough decisions have already been made? ‘Absolutely,’ Ms Scott-Moncrieff says. ‘People have got to make a living. They are “tough decisions” in the sense that they are stupid decisions in terms of using people’s expertise. But in terms of complying with what the LSC wants us to do, we are doing exactly that.’



The arrival of fixed fees means that her practice is fundamentally changing in focus. ‘I am trying to do everything I can to find alternatives so that people here are not dependent on legal aid,’ she says. ‘I do not trust the government and I don’t think the LSC is efficient. I feel extremely sorry for the client. However, I don’t intend to be one of those people who are dependent on the commission for my living.’



Instead, the firm is branching out to non-legal aid work and training, but there is a good way to go – 95% of its workload is publicly funded at present. ‘We have some branching out to do,’ she says. ‘We have been really committed to legal aid but we feel that the commitment has been entirely one-sided and we have to try and protect ourselves.’



Making the grade

Mr Mitchell argues that ‘like many other suppliers, we have been actively encouraged by the LSC to respond to fixed fees by employing paralegals and other low-grade staff to provide frontline housing advice. But housing law, done properly, is too complex for this model of advice provision and we aren’t prepared to fob off vulnerable clients with sub-standard advice.



‘We are also encouraged to reduce our average cost per case by taking on a more “representative” set of cases, which means that we should take on easier cases for clients that are easier to deal with, and which would necessarily mean that our resources were diverted away from helping those in greatest need to meet this objective. Again, that is something we find deeply unattractive because it goes against out commitment to focusing our skills on helping those vulnerable clients who will benefit from them the most, but many suppliers will doubtless be tempted to pursue such an approach.’



He further contends that ‘because fixed fees cut our advice and assistance income by around a half, turning work that was already unprofitable into work that is grossly so, the number of legal aid advice and assistance cases we are able to carry out will decrease as we spend more of our time doing other work… Because all the other suppliers in our area are adopting the same approach in order to survive, those needing help are already finding it increasingly difficult to obtain face-to-face advice and assistance.’



Michael Kennedy, a mental health law specialist at the Wakefield firm Switalski’s, is similarly apprehensive about the impact on his firm. ‘Many mental health providers of our type – that is, where there is a predominance of forensic and more complex work – will be disproportionately hit,’ he says.



The LSC has said that 75% of mental health providers nationally will see an increase in their average cost per case. It is a view that has been challenged by Richard Charlton, chairman of the Mental Health Lawyers Association, who recently said: ‘The new rates are disastrous and, having talked to other practitioners, we are anticipating a mass exodus. Just looking around our committee, it is difficult to know who will stay.’



The first day of this month was a significant one for Switalski’s for another reason. Four new branches of the firm in Dewsbury, Halifax, Huddersfield and Morley officially opened following its takeover of West Yorkshire firm Chadwick Lawrence’s family legal aid practice. The takeover, which brings in 30 new staff, makes Switalski’s one of the largest legal aid firms outside London. ‘We have made no bones about it and for a long time we have taken the view that the only possible way of surviving is to be very big,’ says Mr Kennedy. ‘There is a sense in our firm that if anybody is going to be doing legal aid in the Yorkshire or Humberside, north of Howells in Sheffield, it’s going to be us. We are absolutely committed to it and we would not be taking on all these people if we were not. So in that sense, people are relatively optimistic.’ The firm now has 75 fee-earners and 130 staff and is ‘perhaps double the size we were two years ago’.



Howells is anticipating a change in focus as a consequence of the new fee regime. ‘Historically, we have worked with the not-for-profit agencies as second-tier specialist advice providers,’ says legal director Pam Kenworthy. ‘We have not had to provide low-level advice and what we have heard referred to us is specialist work. But now with the advent of fixed fees, we are competing for the same work because the whole point behind the contract is that you deliver across-the-board advice, not just specialist advice as a specialist provider.’ The firm is considering setting up a ‘triage’ system so when people come in they can receive generalist advice and then, if necessary, be referred on to the specialist at the firm.



Legal triage

Howells has gone further than most firms in readying itself for a new regime and creating innovative ways to provide legally aided advice. For example, it recently struck a groundbreaking partnership with Sheffield company A4E, the largest training provider for the government’s New Deal programme, to provide the CLS (Community Legal Service) Direct service in a contract worth £1.8 million. It is believed to be the first partnership between a legal aid firm and a private business to deliver that service.



‘We have been gearing up for the changes for sometime now,’ says Ms Kenworthy. ‘Yes, we all want more money for legal aid in the same way that doctors want more money for the health service and teachers want more money for schools. The fact of the matter is that there are limited funds available. We don’t want to give up legal aid. The philosophy of the firm is to carry on delivering publicly funded work and create the right environment so we can keep on doing it.’



Jon Robins is a freelance journalist