Civil unrest?

Community legal aid centres are a key part of the Legal Services Commission’s strategy for civil legal aid. But Philip Hoult hears that the plans could damage the existing supplier base


Lawyers working in civil legal aid could be forgiven for thinking that it was their criminal defence counterparts who faced the most uncertain future. After all, it was the relentless rise in the criminal legal aid budget that the government’s troubleshooter, Lord Carter of Coles, was principally brought in to deal with.


Well, they could be in for a shock.


In March this year, the Legal Services Commission (LSC) published its Community Legal Service (CLS) strategy for 2006-2011. This was in response to research showing that people often have ‘clusters’ of related problems – they may, for example, have a combination of benefits, debt and housing issues that all need addressing. But because they have to get help from different solicitors and agencies, they often tire of being referred and fall out of the loop.


‘It is research that we are not surprised by,’ admits Crispin Passmore, director of the CLS. ‘[It shows] we need to be organised more around clients’ problems. But the legal profession is largely organised around specialisms. None of that makes sense to clients and it is a barrier to them getting the advice they need. If you organised other services like that, it would be like sending kids to one school for maths and another for French.’


Central to delivering the vision of a more consistent, better co-ordinated service – stretching from basic advice all the way to representation in the highest courts – is the commission’s plan to establish community legal advice centres (CLACs) and community legal advice networks (CLANs).


A CLAC will be a single legal entity, jointly-financed by the LSC with local authorities and, in time, other funders. It will provide as a minimum a ‘core bundle’ of five social welfare law services – community care, debt, employment, housing and welfare benefits – but will be expected to expand in due course into other areas such as family, education and mental health.


‘We are not suggesting that a client [coming through the centre’s doors] is going to find a single lawyer and they will be able to deal with everything,’ says Mr Passmore. ‘You still need lawyers with different skills. But the client might see general advisers working across housing, debt and benefits first of all. The complex part can then go to a specialist lawyer. That’s a more efficient way of working. You deal with the problems at the lowest appropriate level in terms of experience and skill.’


The commission expects to locate these centres in deprived communities, local authority areas with more than 50,000 benefit claimants and a high population density. It has identified a maximum of 75 areas that have the potential to host a CLAC, although in practice this is expected to be fewer.


Each centre will be run by either a single provider, which could be a private practice supplier or a not-for-profit organisation, or a consortium. Although not mentioned in the original strategy document, it has now emerged that a certain amount of sub-contracting may be allowed. Great store will be set on the centre’s ability to provide services in innovative ways, particularly through the use of technology.


Tenders for the first two centres, in Leicester and Gateshead, were launched last month (see [2006] Gazette, 1 June, 5), with a view to them being up and running by 31 March 2007. A sizeable carrot is on offer to the successful bidders: the Leicester centre will attract £3 million in funding over three years, while the Gateshead one will receive slightly under £2.6 million during that time.

Colin Stockwell, a special adviser to Gateshead’s chief executive and a practising solicitor, says the council’s cabinet was attracted to the prospect of a more efficient method of delivering services. There is also the hope that the tender will come up with new ways of reaching out to communities that normally do not get access to legal services. ‘You often get innovative ideas that can be quite simple,’ he says. ‘Law is the subject matter of the CLAC, but the issue underlying it is social inclusion. We want people to exercise their rights in a way that they have not done before.’


Networks providing the same five core legal services will meanwhile be set up by the LSC in those areas that are considered unsuitable for a centre. These will again be jointly funded, but with the services provided collectively by a group of suppliers, and it is highly unlikely that this will simply allow all the existing providers in an area to club together. The commission estimates that – after grouping together local authorities – some 36 CLANs will be established over the next five years, although this is described as a ‘baseline figure’.


Significantly, the strategy document reveals that where there is a CLAC, ‘other providers’ social welfare contracts may be reduced or not renewed from April 2007’. In addition, it says that the ‘direction of travel’ is ‘clearly one where all legally aided social welfare advice and representation is provided by a combination of centres, networks and CLS Direct’.


According to the commission, there are currently in the region of 3,600 private practice and 400 not-for-profit providers of social welfare law advice across England and Wales.


It is, of course, not as simple as to suggest that these 4,000 suppliers will be replaced by 75 centres and 36 networks – many of the 4,000 are family lawyers, for example, and the commission will need to maintain a diversity of supply in every area because of conflicts. However, CLACs are expected to make waves in the family arena. The two centres in Leicester and Gateshead have, for example, each been set a target of handling 500 such cases a year.


Even taking into account as well the limited amount of sub-contracting that a centre or network will be permitted, however, it is hard to escape the conclusion that there will be a major reduction in the current supplier base. ‘This is the last straw,’ was the reaction of one legal aid lawyer in Leicester who spoke to the Gazette.


It is this potentially drastic cut that most concerns a number of organisations involved in civil legal aid, many of which supported the original concept of CLACs as long as they were located in areas where there is a lack of supply. They point out that no organisation, whether a law firm or a not-for-profit agency, currently meets the specification for a centre set out in the tender documents.


Creating such an unproven model for delivering services while simultaneously reducing – and losing the confidence of – the existing supplier base is in the critics’ view unnecessarily risky.


‘There is a real danger that the outcome will prove to be just a rearrangement of existing supply that costs a significant amount of money without delivering sufficient additional benefits to clients to justify the expense,’ warns Richard Miller, director of the Legal Aid Practitioners Group. ‘At worst, supply will be reduced and concentrated in a single organisation that will be vulnerable to changes in the attitude of the local authority towards funding it.’


Ann Lewis, policy director at the Advice Services Alliance, agrees. ‘We supported the proposal to pilot CLACs in areas with insufficient provision,’ she says. ‘However, as we feared, the first CLACs are being set up in areas where there are a number of existing providers. The establishment of CLACs in such areas may simply disrupt local provision and damage relationships between suppliers by encouraging competition instead of co-operation.’


Although arguing that the threat to the existing supplier base has been reduced because consortia will be allowed to bid for the contracts and because firms can become sub-contractors, Mr Passmore accepts that there will be a significant reduction. ‘I would not want to pretend that it does not have an impact on the supplier base,’ he says. ‘There is a shift – and quite a sizeable shift – to larger but fewer contracts… some small firms and agencies are not going to be able to make the transition and will leave legal aid.’


Some hope that the CLS strategy could yet be scrapped in the wake of Lord Carter’s final report. However, they are likely to be disappointed because this emphasis on fewer but larger suppliers chimes very much with the peer’s own approach.


Mr Passmore insists he does not have a percentage cut in the supplier base in mind, claiming it will be up to market forces to decide. And while the strategy might mean the end of some law firms’ involvement with legal aid, he says it represents a significant opportunity for others, not least because of the financial prize on offer. ‘As much as it is a threat to some, it is a fantastic opportunity for other law firms,’ he says. ‘At Leicester, it’s £3 million over three years. Even on low margins, that’s attractive.’


But the commission also stands accused of underestimating the start-up costs that a successful bidder will face. These include the regulatory and legal work in setting up the single legal entity, including the need to meet Law Society requirements and to put in place any joint venture or partnership arrangements.


Technology is likely to be a significant outlay, as an efficient case management system will be essential to delivering a joined-up service. Bidders for the Gateshead and Leicester contracts are also expected to set out in their proposal how they will use new technologies such as webcams to provide outreach services. These costs are of course in addition to the expense of recruiting staff and, potentially, taking out new or extra office space.


‘[Assessing how to bid] is a very complex process,’ says Steve Hynes, director of the Law Centres Federation. ‘The costs of setting up and amalgamating have to be evaluated; all these potential pitfalls have to be assessed.’


It is a view shared by James Sandbach, policy director at Citizens Advice. ‘There are a lot of practical issues that have not been thought out,’ he says. ‘For example, who will be the employer of the casework staff when a consortium bids for a contract?’


In both the Gateshead and Leicester tender documents there is a proposal that the first year’s payments will be weighted to take into account these set-up costs, but this only appears to kick in once the centre has opened and services are being provided.


Mr Passmore insists it is up to the bidders to decide what structure suits them best, and it is not for the commission to interfere in their business planning; he is also adamant that there does not need to be a significant capital outlay. ‘There is a common misunderstanding that this is about new, shiny buildings,’ he says. ‘It is not. It is about the way services are delivered.’


He also shrugs off the suggestion that CLACs and CLANs might be vulnerable to the winds of political change, arguing that it is a fact of local democratic life and therefore nothing new. ‘Lots of people say that local authorities will use this as an excuse to cut funding, but this has not happened in Leicester and Gateshead,’ he adds. ‘You could argue that this will make it harder for them to cut what they spend.’


What about the LSC – will it be spending more, the same or less on CLACs and CLANs than it currently spends in the selected locations? Mr Passmore says there is some additional money going into the Leicester and Gateshead areas to deal with social inclusion, and that it is hard to make an exact comparison between what it is going to spend compared to what it shelled out before. However, he says it is ‘certainly not a cut’. Some areas where CLACs and CLANs are based may see extra money, some may see less.


But then the commission may not need to reduce what it spends directly to do well out of the new strategy. It is noteworthy that the CLS strategy document focuses almost entirely on how the plans will theoretically benefit clients, but says much less about the advantages CLACs and CLANs have for the LSC itself. After all, a large cut in the supplier base must mean huge savings in administration.


Critics of the strategy nevertheless suggest it would be better – and less hazardous – to concentrate on building up CLANS first. ‘We believe networks have the power to gain many of the intended benefits for clients without the risks inherent in the current approach,’ Mr Miller argues, ‘and that the LSC would be better advised developing them initially with the possibility that they would evolve into centres, if this was desirable, once the individuals and organisations concerned were more used to working together.’


The commission is not swayed by this argument, however. ‘Over the last five years, quite a lot has been done through Community Legal Service Partnerships and variations on that,’ Mr Passmore says. ‘We gave people the chance to work together and join up services but we have still ended up with a very fragmented service. It still does not meet the interests of the clients.’ Trying out new ways of delivering an integrated service is therefore essential, he argues.


When the commission launched the CLS strategy back in March, it said it planned to establish ‘up to 12 CLACs over the next year’. But it has already been forced to row back from this bold promise, partly because many local authorities are tied in to existing funding arrangements. ‘Putting together a tender with a local authority that has similar aims but very different methods of achieving them is very complex,’ adds one observer.


Only two or three centres in addition to Leicester and Gateshead are now likely to be in place by the end of 2007, with 12 in place by 2008. There is still no news on when the first network will be set up, although the commission hopes to make an announcement over the summer as to where it is going to be, as well as to reveal the location of new centres.


Mr Hynes suggests that this slippage in the timetable will mean that Leicester and Gateshead are effectively the pilots he and many others in civil legal aid have been calling for. ‘The commission is very reluctant to use the word pilot but I think that’s what we have got now,’ he claims.


On the shelving of the commission’s original forecast, Mr Passmore acknowledges that partnership working is ‘a slow process’ but insists that ‘to a certain extent [the commission has] been pushing at an open door’ with local authorities very receptive to the concept. Importantly, he also promises a full evaluation of CLACs and CLANs by the Legal Services Research Centre, which may mollify some doubters.


‘We want to do it right, we are not just chasing numbers,’ says Mr Passmore. ‘We want to deliver new ways of working that have a real impact. We have got to do it properly and not just quickly.’

Whatever the pace of change, by 2011 the civil legal aid landscape will undoubtedly look very different to how it does now.