Burdening the legal aid lawyer

To: Scottish Legal Aid Board

Dear Sirs

I write on behalf of the Scottish Association of Law Centres (SALC) and our member organisations:

Castlemilk Law & Money Advice Centre
Drumchapel Law & Money Advice Centre
Dundee North Law Centre
East End Community Law Centre
Environmental Law Centre, Scotland
Ethnic Minorities Law Centre
Fife Law Centre
Govan Law Centre
Legal Services Agency
Renfrewshire Law Centre

We acknowledge receipt of the Scottish Legal Aid Board’s draft proposed Guidance on Verification of Financial Eligibility for Advice & Assistance/ABWOR in Civil and Children’s Cases, which was issued by the Board on 22 February 2010.

This is SALC’s response.

Summary of guidance

The draft guidance and cover letter run to over six pages. There follows a summary of the main points:

• The Board say they have already undertaken a review of A&A and the process for solicitors checking eligibility. They say they have already consulted the Law Society of Scotland and a number of solicitors.
• Solicitors should only grant A&A if satisfied the client is eligible with reference to income and capital.
• They should obtain documentary evidence of financial eligibility at the initial meeting or as soon as possible afterwards, and retain this on file.
• They should obtain the client’s signed mandate authorising inquiries to be made of relevant third parties, e.g. employers, benefits providers and banks.
• They may not charge for the process of checking eligibility.
• They should not undertake any legal work until satisfied of eligibility.
• The "great majority" of client meetings are by appointment, so at the time of booking an appointment solicitors should be advise the client to bring relevant documents.
• They should check capital first, even if the client receives a passporting benefit.
• They should have sight of bank statements or passbooks and share certificates. But even at this they should not consider themselves satisfied. They should "specifically ask" about other forms of capital and see evidence of them.
• The Board acknowledge it is "difficult" to obtain evidence of a negative position. However, solicitors should be able to demonstrate they asked about each of the following: equity in any heritable property owned by the client or his/her partner (except their principal residence); money in banks, building societies, post office accounts, premium bonds, national savings certificates etc; investments, stocks and shares; money capable of being borrowed against insurance policies; other non-essential items, like boats, caravans, second cars (are client and partner allowed one each?), jewellery (except wedding or engagement rings), antiques and items bought for investment; money owed to the client or his/her partner; money due from an executry; money capable of being borrowed against business assets; redundancy payouts.
• Solicitors should see the client’s most recent wage slip if employed, or a letter of appointment or a P60.
• They should have sight of the client’s most recent benefits award letter.
• In a negative position, they should record why they are satisfied of eligibility.
• The Board have a direct link with the DWP to verify benefits.
• They acknowledge it may not always be possible to obtain documentary evidence at the initial meeting, for example if the client has a chaotic lifestyle, but solicitors should obtain it as soon as possible afterwards, or record why they are satisfied of eligibility.
• They should establish the client’s financial circumstances during the seven days prior to grant, although the Board acknowledge some documentation may be slightly older. If so, solicitors should put "judicious questions" to the client to ensure circumstances have not changed. They should record any such questions and the client’s answers.
• The Board claim the guidance is "not intended to act as a barrier to access to justice".

Response

This is SALC’s response to the foregoing draft guidance:

• Although described as "guidance", what the Board proposes does not, we would respectfully submit, constitute guidance per se. The word "guidance" connotes something facilitatory or precative in nature, e.g. an aid for assessing eligibility. What is proposed, however, is largely imperative in nature, therefore it in fact constitutes rules, i.e. it dictates what solicitors must do in order to grant A&A.
• There is no authority in existing legislation whereby the Board may create such rules. The new rules would transport, lock stock and barrel, the job of policing A&A from the Board to the profession, which is inconsistent with the will of Parliament as reflected in existing legislation. Therefore, the new rules would be ultra vires.
• These proposed rules represent a significant retrograde measure that would likely act as a barrier to access to justice. Although the Board may claim otherwise, we at SALC do not find this persuasive or reassuring.
• The Board says it has already consulted the Law Society of Scotland as well as a number of solicitors. However, SALC now ask the Board (a) why were we excluded from any previous consultation; (b) which solicitors were included; and (c) how were they selected ?
• The Board presents the new rules as a fait accompli, which is inconsistent with real, democratic consultation.
• The new rules would transport, lock stock and barrel, the job of policing A&A from the Board to the profession.
• This would significantly hinder the public from accessing justice.
• The new eligibility verification process would delay and prevent access to justice, therefore clients would be forced to wait probably weeks for checks to be made, or find themselves excluded altogether.
• This would be particularly serious where a client faces an urgent legal crisis requiring immediate action, e.g. responding to litigation, recalling decree, emergency interdict, emergency time bar proceedings etc.
• Although the Board may rebut the foregoing observation by claiming solicitors may take immediate measures to safeguard a client’s interests subject to checks being carried out afterwards, nonetheless in reality these new rules would have the practical effect of deterring solicitors from taking such cases at all where payment remains uncertain pending verification. This would exclude some clients from accessing justice.
• The Board claims the "great majority" of client meetings are conducted by appointment. However, it overlooks drop-in surgeries and in-court helpdesks, for example. This seems particularly improvident at a time when the Board recently began to administer in-court projects, claiming it wishes to foster access to justice by such means. Accordingly, SALC now ask the Board to confirm (a) exactly what proportion of meetings does it deem to be conducted by appointment; and (b) how did it arrive at this figure?
• The Board overlooks the reaction of courts and tribunals to solicitors’ requests to adjourn cases for verification checks to be carried out. Courts and tribunals may reject any such motion for adjournment, particularly in urgent cases where it is perceived there may arise some prejudice to the opponent in delaying proceedings.
• Accordingly, the new rules would only widen the inequality of arms between private parties and legal aid clients, thus raising serious questions in terms of compliance with human rights law, particularly article 6 of the ECHR.
• The new eligibility verification process would cost solicitors money they cannot afford. They would require to write to employers, benefits providers, banks etc in almost every case without payment. They would require to spend time in drafting these letters and money on stationery, photocopying, envelopes and stamps, again without payment. It is likely this cost would run into thousands of pounds a year for a modest-sized firm, and could entail staff redundancies.
• The Board offers no "guidance" on where solicitors may avail themselves of the additional money necessary for this. In reality it is likely firms would spend less time on legal aid casework or take fewer legal aid cases, thus promoting the ratio of private cases in order to subsidise the deficit.
• A&A rates already pay only about one-third of private client rates. These new rules would make legal aid practice even poorer, forcing firms to deregister for legal aid. This would only hinder access to justice.
• The new rules would require solicitors to ask clients for a great deal of information up front, and to "specifically ask" "judicious questions" about "negative positions". The overall tone of the rules makes it plain that solicitors would be expected to distrust their clients and to interrogate them about their financial circumstances. This would undermine the solicitor-client relationship at its very foundation of mutual trust.
• The Board overestimates the ability of some clients to understand certain forms of capital, e.g. "money capable of being borrowed against insurance policies", which it is proposed should be put to them as a specific question.
• Since the Board itself currently performs the job of policing A&A, and since the new rules would transport this job to the profession, SALC now asks the Board to confirm how it intends to reallocate its own existing internal policing resources. Does it intend to make redundancies? If so, how many Board employees are to be laid off? What does the Board propose to do with the revenue thus saved? Alternatively, if it intends to redeploy its existing resources to "police the police", i.e. double policing, then how does it justify this as an appropriate use of public funds?
• Why would the Board not simply undertake spot checks on legal aid applicants and apply appropriate, strict penalties in instances of fraudulent applications, thus sending a clear message to the public about the impropriety of providing false information to procure legal aid?
• SALC now asks the Board to confirm what cost/benefit analysis it has undertaken into the draft new rules. What losses are currently sustained under the existing system? What savings would be made under the new rules? How is the public to benefit? How is the legal profession to benefit?

We trust the foregoing is in order and look forward to your response.

Yours faithfully,

Jon Kiddie
SALC Secretary