Low expectations?

 

Nick Jones takes a look at an advice sector-led proposal to increase investment in advice services in England and Wales.

The Low Commission was established in late 2012 by the Legal Action Group (LAG), with funding drawn from a group of major trusts and foundations together with some corporate support, and a membership drawing together a variety of legal expertise from across the public, voluntary and commercial sectors, under the chairmanship of Lord Low, a cross-bench peer.

The commission’s self-imposed brief was to compile a strategy for access to advice and legal support on social welfare law in England and Wales, to be adopted by the next government in 2015. It is a response to the cuts to provision heralded by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, which in the commission’s own words ‘destabilised and reduced the advice and legal support sector at a time of increased need’.

However, the commission’s proposals start from an explicit acceptance that to call for a reinstatement of Legal Aid at previous levels is neither a ‘realistic strategy in the current economic context’, nor is it ‘necessarily desirable’ in view of the ‘excess bureaucracy’ which it says was a feature of the old system.

Over a period of 12 months, the commission gathered evidence from more than 250 organisations and individuals, including Citizens Advice Bureaux (CABs), law centres, local authorities, charities, commercial law firms and private individuals.

On the basis of this evidence, it makes six key recommendations.

The commission bases this £50 million figure on its overall estimate of £500 million a year, as the minimum required to ensure a basic level of provision of information, advice and legal support on social welfare law in England and Wales. Estimating that by 2015, post implementation of the LASPO Act, there will be approximately £400 million a year available to fund advice and legal support services (mainly coming from local authorities, the Money Advice Service (MAS), the Big Lottery Fund and the legal aid that remains for social welfare law), the commission projects a £100 million shortfall, half of which it recommends should be made up by the proposed National Fund (to be financed by the Ministry of Justice, the Cabinet Office and the DWP).

Of this £50 million, the commission proposes that 90 per cent should be allocated to local authority areas, based on indicators of need, to help implement the local advice and legal support plans, to be co-produced by local authorities and the local advice sector (see recommendation 3 below). The remaining 10 per cent is earmarked for commissioning national initiatives, including national public legal education and specialist national support for frontline agencies (so-called ‘second-tier’ support) and, significantly, a proposed one-stop national helpline and website, to cover all areas of social welfare law and ‘provide a comprehensive advice service for the general public, which can act as a safety net for those who have nowhere else to go or whose needs cannot be met by other providers’.

The commission suggests that the remaining £50 million of the projected shortfall could be pieced together from a number of national and local statutory, voluntary and commercial funders, including NHS clinical commissioning groups, housing associations and additional MAS funding (eg, by increasing the Financial Conduct Authority’s levy on financial institutions and introducing a levy on payday loan companies), as well as trusts and foundations, the Big Lottery Fund and lawyer fund generation schemes, such as the Interest on Lawyer Trust Accounts (IOLTA) and dormant funds held by solicitors.

The report further recommends the appointment of a Minister for Advice and Legal Support to sit within the Ministry of Justice, with a cross-departmental brief and responsibility for leading the development of this strategy, and to act as ‘a champion for advice and legal support within government’. The strategy should be developed in consultation with the Equality and Human Rights Commission to ensure that the needs of disadvantaged and discriminated-against groups are taken into account.

The headline proposal here is that the DWP and the Home Office should be incentivised by the Ministry of Justice to get things right first time by improving their decision-making and dispute-resolution processes through a tribunal costs regime for those cases which they lose, specifically; at the end of a tribunal case in which an applicant has been represented by a qualified lawyer, an Office of the Immigration Services Commissioner-accredited representative or an adviser working for a registered charity such as a CAB, the representative should be able to apply for the costs of preparing the case and representing at the hearing. A scale of £100 to £500 is suggested, with the maximum fee intended to compensate representatives who have had to prepare and represent in a hearing lasting over three hours, while the minimum intended to compensate a representative who has assisted a client in a short hearing of under an hour’s duration.

The commission also calls for the DWP to be required to make a strategic contribution to the proposed National Advice and Legal Support Fund, ‘in recognition of the fact that its policies create demand for advice services and require the support of advice agencies to ensure successful implementation’.

There are a number of proposals put forward here, the majority focusing on the issue of making courts and tribunals more user friendly for those individuals who have to pursue their cases without representation – an ever-growing quota in the post-LASPO world, as the commission acknowledges. Recommendations include: the commissioning (by the proposed National Advice and Legal Support Fund, the Ministry of Justice and other funders such as MAS) of relevant agencies to develop authoritative and independent self-help guides for all areas of social welfare law, including a review of all current guides, with the aim of ensuring that litigants in person know what is expected of them in the most common types of cases and know what evidence they need to produce; a cost–benefit analysis (by the Ministry of Justice and DWP) of funding independent duty specialist advice schemes, along the lines of housing possession court duty schemes, to operate at busy tribunal centres during the rollout of universal credit; a review (by the Ministry of Justice) of the welfare benefits appeal process, with particular regard to improving and expanding the use of alternative dispute resolution, drawing on the experience offered by the work of the Social Fund Commissioner (now abolished). Suggested improvements here include the use of expert assessors, inquisitorial fact finding, and telephone contact with the appellant prior to hearing.

The commission makes an explicit call here for greater collaboration, both between local authorities and advice agencies, and between agencies themselves, claiming there is considerable scope for services working more closely together, and even merging if appropriate.

With regard to the structure and content of the proposed plans, the commission places heavy emphasis on ‘early action initiatives’, as a means of tackling preventable demand. For this reason, it calls for 10-year plans as a recognition that preventative work often produces tangible results only in the longer term, which are likely to be sacrificed without continuity of funding over a significant period.

The advice service umbrella bodies are also encouraged to work more closely together and share their resources and experience more widely.

The commission calls for the government to integrate information about legal rights and responsibilities into the national curriculum programmes of study for citizenship, and recommends the allocation of resources from the proposed National Advice and Legal Support Fund to support the development of web-based legal education resources for the general public. Particular emphasis is placed on the proposed national ‘catch-all’ social welfare helpline (see recommendation 1), as a means to ensuring the option of self-advocacy for those individuals who are left unable to access advice.

Advisers will no doubt have their own views on some of the details on the commission’s report, such as the suitability of the Big Lottery Fund as administrator of the scheme, or whether introducing the principal of being able to recover costs at the First-tier Tribunal for social security appeals is a good idea. Fundamentally though, the commission does demonstrate the importance of access to social welfare advice as an essential component of a fair and functioning society, as embodied in the call for a national strategy and attendant minister. It is to be hoped that its approach will succeed in creating a broad political consensus on the need for increased resources for advice, and a commitment from the next government to make those resources available.

The commission intends to continue working up to the general election in 2015. For more information on its activities, go to: www.lowcommission.org.uk

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.