The LSC before the Justice Committee 30/11/10

On parliament.tv I watched recently the quizzing of the LSC hierarchy by the Justice Committee.
The LSC still maintains that it indicated that membership of a panel would be an important criteria of the family tender process. It doesn’t seem to matter to the LSC that at no point before Feb 2010 when the tender documents were published did the LSC mention that caseworkers would have to be members of an accreditation panel. This was the real reason along with the lack of time to prepare that the Administrative court decided for The Law Society and against the LSC (something the LSC seems to wish to ignore).
What has also been ignored is the fact that the LSC and Resolution and The law Society and others knew in June 2009 that accreditation was not an indicator of quality. How then the LSC felt able to rely upon membership of an accreditation panel as a bidding criteria is also unclear.
Extract from QWG minutes

Accreditation Research
AS (Avrom Sherr of IALS) gave a very brief update on the result of the research carried out to find whether there was a correlation between accreditation profile and peer review results.
257 family providers were sent a questionnaire and 18% of them returned it. AS said that the questionnaire was too detailed and slightly confusing, which he thought had affected response rate and data quality. Analysis of the results indicated that there was no correlation between the number of accredited advisers working at a firm and the peer review score. However, the proportion of fee earner time spent on legal aid work did correlate with a higher score at peer review. AS stated that accreditation had not yet been proved a meaningful measure of quality.
In response to points made about the low number of Below Competence scores in peer review, AS commented that it appeared that practitioners did understand what peer reviewers, who are themselves practitioners, were looking for when reviewing files. This meant that Peer Review had an effect more generally than just on those providers reviewed.
AS said that a more formal report on the outcome of the accreditation research would be made available to the group.

No “formal report” has been provided to QWG or if it has been provided it has not been disclosed. What is there to hide? That Accreditation is a waste of time and merely a money-spinning exercise for those who accredit Solicitors? A robust and meaningful system of CPD and assessment (aligned to a pro-active education programme in relation to business management, marketing etc etc and Ethics) is far better than accreditation and re-accreditation, in my view.
What is most worrying about the Judgment against the LSC is the fact that Sarah Kovac Clark was found to have made an unjustifiable assertion concerning approval by The Law Society and others to the criteria for caseworker accreditation

“By January 2010 the LSC still did not know what the selection criteria were to be, and they had not yet been announced. But there is controversy as to whether the representatives of the Law Society, at a meeting on 15 January 2010, were asked to endorse the selection criteria which it was proposed to adopt.
70. In her statement dated 13 September 2010, Eleanor Druker, an employee of the LSC, states that the purpose of the meeting was to seek the views of the representative bodies on the proposed criteria. Sarah Kovac Clark goes so far as to say that the approach of awarding points for panel membership and experience was endorsed by the Law
Society, Resolution and the LAPG (see paragraph 47).
71. This we reject. We can only attribute this unjustifiable assertion to the pressures of urgency in the preparation for this litigation imposed on LSC's officials. The contemporaneous document that has been produced by Mr Miller in his third statement at paragraph 34 (an e-mail in November) shows that what was proposed was an
informal workshop-style session to review the terms of the tender documentation (see paragraph 34 of Mr Miller's third statement).
72. Ann Graham, a policy adviser in the legal aid team at the Law Society, describes in her statement how the documents containing the criteria were circulated at the meeting and had to be handed back at the end of the meeting. There was no possibility of consulting
those for whom the Law Society was responsible, since neither advance sight of those documents was given, nor could they be taken away. It is difficult in the light of the process described by Ms Graham to see how it could have been called an endorsement.
73. Further, the meeting of 15 January demonstrates what we were told during the course of argument by Mr Lewis QC, frankly, on behalf of the LSC that the final decision as to the criteria had not even been made then. On the contrary, at that meeting there was
still a possibility that scoring would allow of experience to count as highly as accreditation by panel membership (see Graham's statement at paragraph 16 (and in relation to domestic abuse experience and accreditation see Druker at paragraph 22).
74. Moreover, as the e-mail of November 2009, quoted by Mr Miller, indicates, apparently a decision had been made not to publish the criteria and scoring in advance of the announcement of the tender. That, it was pointed out by Ms Druker in her e-mail, would give an unfair advantage to those who were consulted who themselves proposed
to tender (see Druker at paragraph 18). It is difficult, in the light of those factors, to describe any reaction at that meeting as being "approval on behalf of a representative body".”
The Judgment

My conclusion is that the LSC is willing and prepared to say anything but the truth to advance the policy of the MoJ in “reforming” legal aid.
What this also shows (see para 74 above) is that there were some firms and groups who had been consulted about the criteria who had an advantage in that they could have surmised (correctly as it turned out for the tender process) that accreditation for all staff and the office cat would be worth pursuing to gain an advantage.
My suggestion for reform of legal aid is to scrap the LSC. Court and Tribunal based legal aid should be granted and controlled and paid by HMCS. Non Court based legal aid should be granted by The Law Society and scrutinised by the SRA. In one fell swoop we could rid ourselves of an unnecessary level of bureaucracy that adds nothing to the delivery of publicly funded advice and representation to those who need it. As MoJ sets the policy then MoJ can set the legal aid Regulations and Funding Code.
The MoJ needs to look at the Justice systems and consider how they are funded and how access to those systems should be funded. They should have no pre-conceived ideas or pathways or any other pseudo-biz speak notions and should consult openly with Solicitors and other participants in the systems.
An understanding of what legal aid is should be reached: is it a benefit (as with Income Support) available to consumers of legal services direct for them to spend (that would sort out eligibility) or is it a method by which those who cannot afford to pay for legal advice are able to obtain that legal advice at no direct cost to them with the provider of legal advice or representation being compensated directly by the State. This distinction provides a different emphasis with the “consumer” becoming a client (again) of the Solicitor and with remuneration coming from the State.
The problem at present is that the LSC, as a Commissioning body, believes that Solicitors’ clients are in fact their consumers and their responsibility-hence a huge and disproportionate bureaucracy.
Does the State have an obligation to ensure quality legal advice is provided or is that a job for the Regulator? This discussion has not yet been started-it must be. All the past and current chatter about legal aid reform is spume on the sea of justice reality.
There is a huge gap between the LSC’s desire to ensure that only those entitled to legal aid should have access to legal aid and the need of those seeking advice-who cannot afford to pay for it-to have access to legal advice. This deficit is acknowledged in the way that the CLA delivers publicly funded legal advice by telephone. In those circumstances the documentary evidence that Solicitors offering face to face advice must obtain do not apply. Anyone can get two hours free legal advice from the CLA without adducing evidence of means-the same does not apply to Solicitors giving advice to a client. The LSC would say that in an emergency the requirement for documentary evidence does not apply. The truth is that upon audit an LSC auditor will find any reason to go behind the reasons given by the Solicitor for giving emergency advice and demand repayment. To ensure there is no recoupment Solicitors demand the documentary evidence from clients who are desperate for advice. All this for about £60.
The point is that Solicitors are paid fixed fees. One would have thought that this would mean reduced bureaucracy but no, the bureaucracy increases with demand for greater certainty of entitlement for relatively low fees.
The other great lie is that spending on legal aid has increased. In fact inflation accounts for the increase and legal aid spending has actually fallen. Fees paid for work have been reduced and bureaucracy and red tape and form filling and rules have increased.

“Following questioning from former City solicitor Lord Phillips of Sudbury, Djanogly conceded that the legal aid budget has not doubled over the last two decades, as he has frequently claimed in justification of the government’s proposed budget cuts.
The minister said the £2.1bn budget had doubled in ‘absolute’ terms, but he could not contradict Phillips’ assertion that in ‘real’ terms that amounted to a ‘significant shrinkage’.
Djanogly said the budget had shot up and then evened out over the lifetime of the last government, with a big change when personal injury work was taken out of scope.”
The Gazette 2 December 2010

What is worst of all is that those charged with criminal offences are means tested and have to fund their defence before guilt is established. A fairer system would be to ensure that those convicted of an offence pay for the defence costs and the prosecution costs. In that way the State funds the process and those who are guilty repay the State’s loan to them.