Access route

An expanding caseload, recognition from local solicitors and sheriffs as plugging gaps in the “access to justice” network, and a high percentage of clients who believe that the advice received has improved their situation. Such is the track record of the Hamilton In-Court Advice project, one of four local pilots around Scotland now well past the halfway mark of their two year trial period.

Awaiting news of whether the Executive will continue his funding beyond next April is resident adviser Frank Jarvis, who like his counterparts in Airdrie, Aberdeen and Dundee operates as an offshoot of the local CAB. With an office that people have to pass on their way into the civil court itself, and accustomed as a result to making last-minute interventions on his clients’ behalf, Jarvis nevertheless believes that the service is establishing a distinct role for itself alongside the other advisers operating locally – the legal profession included.

“Initially self-referred or people just turning up was accounting for about 90% of our caseload or thereabouts. It’s now less than 50% and the majority of people come to us from other agencies such as Citizens Advice, local solicitors or various agencies of the local authority – housing officers, social work, and their own money advisers”, he explains, adding that his proximity to the court and focus on the debt and tenancy actions that form almost 90% of the court’s business give his work a very different flavour from the average CAB office.

“Also not every CAB can offer representation at sheriff court hearings, and that is a feature of the service – constrained by the limits on lay representation imposed by legislation”, adds Jarvis. His own route to the job was six years’ experience in CAB advocacy, including benefit appeals and employment tribunals; now he is taking his LLB through the part time course at Strathclyde.

Work behind the scenes

Within the limitations imposed by rights of audience, once clients have contacted the service they stay on the books until their case has to be referred elsewhere – which it will if there is a risk of duplicating other provision in the area.

Head of the in-court advice family, as it were, is the Edinburgh service, already with eight years’ operation under its belt. So why further “pilots”? An interesting question, Jarvis agrees. “I think we’re following Edinburgh in a loose sense in that we’ve clearly got some objectives to aim at and to replicate, but how we achieve those is not necessarily dictated by the way the Edinburgh project operates. I think it was recognised that each service may differ according to its varying needs and indeed according to the local advice landscape, which is going to vary between the different courts.”

Despite the “In-Court” badge, it is far from the case that most of his work consists of court appearances. “I suppose in terms of actual intervention it’s similar to what CABx or in some instances solicitors would offer, in that the business of standing up in court explaining the client’s circumstances is a very small percentage of the work and that alone won’t go very far to resolve the client’s difficulties. The sort of meat and veg of the work is really done in here either by interviewing and advising the client or through negotiation with other parties.

“The hearing itself is merely symptomatic of a wider problem – with rent arrears you can have all the continuations in the world but until you address the root of the problem, perhaps housing benefit or other financial worries and commitments, until these are remedied the matter is going to drag on and on through the court and it’s not going to get any easier for the person to defend the action. So the nature of the intervention is often in terms of very simple things like straightening out benefits and negotiating on the debt repayments.”

Two-way traffic

Jarvis’ description of relations with the legal profession locally throws some light on the access to justice debate and the roles of the different service providers. While his office will refer clients to a solicitor in matters beyond its remit, such as criminal charges and family actions, referrals come the other way too.

“The typical referrals are obviously small claims where there’s no legal aid available, and most solicitors if it’s not a complex case will tell their clients that because of the rules on expenses they may find themselves out of pocket even if they win their case, particularly if you’re talking about a low value claim. Various debt actions, things such as time to pay orders and matters concerning arrangement and attachment – again solicitors, particularly those we have close dealings with and are aware of the service that we provide, they would usually send them on to us. Some solicitors as a matter of policy are not keen on taking on summary cause work on legal aid because of the problems with fees and so on. That covers most rented accommodation which is a huge area of work.”

The service’s primary role in meeting an unmet need is a recurring theme of his remarks. “I think in-court advice came about not through any problem with the quality of the legal services that were already available, but through a recognition of the gaps between the various legal service providers, the most obvious being those litigants who are covered by legal aid and those who aren’t.” His comment is echoed by Paul Gostelow, a solicitor on the service’s advisory committee, in the annual report: “For a long time solicitors have been aware that there is a significant unmet legal need for help and representation for those in our community facing eviction, summary cause and small claims actions”.

Problem, or opportunity

Jarvis believes that those practising solicitors who are most familiar with his role are also the readiest to accept it – but acknowledges that opinions differ. This showed when the service sought to adopt the Edinburgh practice of having an information leaflet included with every heritable summons issued: some local solicitors objected unless they could do likewise and the sheriff principal, turning down the proposal, decided that the summons could not go out full of “junk mail”.

“The reason I brought this up is because I think our relationship with the legal profession is mixed to that extent”, Jarvis comments. “Those we have direct dealings with I think see us very much as a complementary service, as part of a mixed model of legal service provision. The practices or the individuals that have made the objections have not had any direct dealings and I think there is the scope for misunderstanding about what we are trying to do – we’re seen as perhaps an alternative, a threat to legal aid funding.”

Stretched resources

On present resources there are indeed limits to what he can hope to do. Even if the Executive decides to keep his project going, a simple extension would not be enough to meet anticipated need. “We pick up 30 to 40 new clients a month but we certainly don’t complete that many cases, so it’s an ever-burgeoning caseload. We’re now at the stage where either we take on more staff, as we’re doing, or we simply spread what resources we have thinner among more and more clients.”

Currently awaiting publication of an independent evaluation of the service’s first year, Jarvis has his own views of what it has achieved, and its as yet untapped potential. “We’ve had the most unequivocally good feedback from clients”, he states. “I think we’ve also been effective in securing positive outcomes… Even where we’ve had only minimal intervention or very little time to act, we’ve been able to get a better result for the client.”

On the other side of the coin, “I don’t know that I can actually say that we’ve increased the number of people attending court; to do that we need to think very seriously about how we can raise awareness of the service and get people in at an early stage.”

But if those who turn up are just the tip of the iceberg, as it were, would success in that aim not mean a great increase in court business?

Knowing who to ask

“That’s true, but I think the vast majority of court staff and certainly sheriffs would want to see that. It’s my perception that sheriffs are very loth to take a decision where they clearly don’t have all the facts before them, and if you just can’t get a defender into the courtroom there’s a very real chance that all the facts aren’t available, so I think sheriffs would share a view that decrees in absence are no good. Also a decree granted in absence is such that you can recall it, open the whole thing up again, that happens a lot in housing cases and that leads you into further court time and expenditure for everybody.”

He returns to this theme after explaining how the service can help tenants threatened with eviction to negotiate a realistic repayment arrangement, or claim their full housing benefit entitlement. “I think it’s unfortunate when clients say, as they often say, that they wish they’d known about us sooner, because it indicates the extent to which people are looking to resolve these matters early. It’s often the perception that people have just got their head in the sand and they’re waiting to be hauled into court, and I don’t think that’s the case. They’re not always aware of where or when to go to seek help, and I think that ties in with what I said earlier about the importance of raising our profile and making people aware of the service.”

As for the wider future of in-court advice services, Jarvis believes that while there are different models of service delivery – Dundee for example is a joint partnership between Shelter and the CAB, while Kilmarnock has an adviser funded directly by the local authority – the service is essentially a non-lawyer one and likely to stay that way. Nevertheless discussions between advisers from the different courts have thrown up the idea of some sort of support structure, possibly involving a solicitor employed under Part V of the Legal Aid (Scotland) Act, to reduce the difficulties for each adviser working in isolation.

For the moment, the ball is in the Executive’s court, but the chances are that in-court advice services in their various guises, dovetailing with the legal profession, are here to stay.