Smoothing the path

New forms of delivering legal services have developed over time in response to changing needs at a local and national level. The models for service delivery are already varied and this article describes one such model – the Civil Legal Assistance Office (CLAO), operated by the Scottish Legal Aid Board – which has been designed to increase access to justice.

Government priorities

The introduction of Civil Legal Assistance Offices is part of a programme of work over the last year to improve access to justice in Scotland:

In April 2009, the Scottish Government introduced changes to financial eligibility for civil legal aid by extending eligibility limits to those with disposable income up to £25,000, which meant that many more people would be eligible financially for civil legal aid.

• In April 2009, responsibility for the funding of eight well-established in-court advice projects was transferred from the Scottish Government to the Board. The Board enhanced the services to provide advice and/or representation to people facing eviction or repossession of their homes, as part of the Board’s wider programme to improve access to advice for people affected by the economic downturn.
• The Scottish Government made additional funds available to the Board to create a grant funding programme. The Board has awarded funding of more than £2 million to a total of 16 projects across Scotland which will run between October 2009 and April 2011.

The aim of this programme is to help people resolve problems involving repossession, debt and other issues related to the economic downturn at as early a stage as possible, by getting appropriate, high-quality legal advice and representation to people at the right time. The projects involve joint working between solicitors and advice agencies and cover such activity as helping people avoid repossession; early intervention and pre-court work; help for people to represent themselves; representation at court; post-court follow-up work; and training for providers in relevant areas of law.

Scottish ministers are responsible for legal aid policy and the Scottish Legal Aid Board advises ministers and operates the legal aid system, including monitoring supply and developing different ways of providing legal services. Following decisions by ministers, the Board set up four CLAOs with the primary focus on improving access to justice.

Using solicitors directly employed by the Board, the offices provide a service that complements existing advice provision and helps address unmet legal need in relation to matters dealt with under civil legal assistance.

Understanding roles

The commencement of Part V of the Legal Aid (Scotland) Act 1986 in 2001 provided for the first use of direct employment of solicitors by the Board. The first phase of work involved development of “Part V projects”, a handful of small-scale projects where individual solicitors employed by the Board were located in and worked in partnership with other agencies such as Citizens Advice Bureaux (CABs) to provide services for the benefit of clients of these agencies.

The projects demonstrated that by solicitors and advice providers combining their respective areas of expertise and services rather than working in isolation from each other, improved outcomes could be achieved for both clients and the advice providers. One key lesson from these innovative projects was that an understanding of the roles of the various advisers, services and agencies in the landscape was crucial for the successful development of any service that aimed to do the best job for clients in need of publicly-funded advice, assistance or legal representation.

Solicitors in private practice are a major feature of that landscape, but there are many other professional and voluntary sector advice agencies, support agencies and groups, and local government agencies, all with important and valuable parts to play.

While there have been many initiatives focused on getting advice agencies to work together more closely, there had been few that focused on how to facilitate more effective engagement between these advice agencies and solicitors’ firms. This was what the Part V programme aimed to do as it developed into the Civil Legal Assistance Offices.

Operational arrangements

CLAO solicitors grant advice and assistance and submit applications for civil legal aid in the same way as solicitors in private practice. However, CLAOs do not submit accounts or claim payment of fees on a case-by-case basis in the same way as a solicitor in private practice would where legal aid work is done. A CLAO solicitor may not act where the work is privately funded or under insurance, etc.

From the client’s perspective, eligibility and the application process are the same. Clients can be assessed as liable for a contribution and are subject to recovery/clawback too.

Although CLAO solicitors are salaried solicitors in the employment of the Board under Part V of the Act, the CLAOs are run as distinct entities, operationally and professionally separate from the Board. The Board takes no part in professional matters relating to cases. The solicitors are subject to the standard rules of the profession in carrying out legal business for clients.

The key operating principle is that where a local solicitor is willing and able to represent a client seeking (and entitled to) legal services under legal aid, CLAO will refer the client on to that solicitor. CLAOs will only take the client on where no local solicitor can reasonably be found. In this way the service is truly complementary.

Highland venture

The Board’s monitoring of the supply of publicly funded legal services resulted in a report to Scottish Ministers in 2007, highlighting potential access to justice problems in the Highlands and Islands. Ministers asked the Board to set up an office in Inverness, with the remit of addressing unmet legal need across Moray, Highland, the Western Isles and Northern Isles, an area encompassing 12 sheriff court districts.

When the key operating principle of complementing local provision and not competing with solicitors in private practice was made known to solicitors in the local area, the service development gained the full co-operation of local solicitors. After discussion with the faculties across the Highlands and Islands, the office opened in February 2008. It does mainly family and child work, social welfare/housing, and employment, but will consider wider civil work if within competence and workloads, with the exception of personal injuries work, professional negligence work, or work relating to land and buildings (other than residential leases/housing, etc). The CLAO is also taking on mental health work, on which most solicitors in the local area do not provide advice.

The CLAO’s commitment to the principle of referral was reflected in a protocol developed with input from the local faculties. Solicitors in private practice were quick to appreciate the advantages this could give them. On a regular basis, solicitors’ firms receive offers from the CLAO to refer clients to them, on topics in which the solicitors have pre-registered an interest with CLAO, which offers they are free to accept or decline.

In the other direction, where a client presents directly to a firm, and the firm for whatever reason does not wish to undertake the work, they can refer the client to CLAO. Initially, CLAO will then seek to refer the client to another firm if possible, and if not, and subject to capacity, etc, take the client on directly.

Working both ways

For this type of arrangement to work, it requires ongoing communication and discussion between the CLAO, solicitors’ firms and the local advice agencies on who is doing what work, when, and in what circumstances.

The arrangements have worked well, enabling solicitors’ firms to receive referrals for client work that they are well placed to take on, and enabling them to refer cases to the CLAO where they do not wish to take the case rather than simply having to turn a person away. For advice and support agencies such as Women’s Aid it also means they have somewhere to direct clients rather than having to call round numerous solicitors’ firms in the area. By building up a far clearer picture of what type of work is preferred by firms around the region, it makes it easier for people to be helped to find the right source of assistance first time round.

As well as client casework and the role of referral hub for the region, the CLAO also provides support to the CABx and Women’s Aid services across the area. By providing support, the CLAO solicitor assists the bureau adviser, for example, with their client work, and the “ownership” of the client remains with the advice agency. This is an important resource, and CABx report that such support is invaluable either in assisting the resolution of matters for clients, or identifying when the time has come to refer a client to a solicitor or other agency. The office also actively promotes inter-agency working and cross-agency training and development.

Carol Greer, CAB advisory officer for Highland and Islands, says that, in common with elsewhere in Scotland, the CABx in the Highlands and Western Isles are dealing with ever more complex enquiries from their clients, many of these including legal issues. She said: “The service delivered by the team at the Civil Assistance Office provides an excellent support for our volunteer and paid advisers and helps to ensure that they can help people deal with the legal issues affecting their lives. This in turn ensures that the citizens of the area have enhanced access to justice as CAB advisers are better able to deal with a wider range of legal issues. The support of the Civil Legal Assistance Office allows us to better deliver legal advice to communities who would otherwise have real difficulties in accessing such advice.”

Eight months after the Inverness office opened, the volume and nature of the work was such that there was a clear need to augment the three original solicitors. There are now five solicitors in post, and despite this increase, and the fact that nationally there is a large increase in the volume of civil legal aid applications since the economic downturn, the service in Inverness continues to have to work very hard to meet all demand for its services.

Activity in other areas

The CLAO model is very much seen as one tool (among several) to address problems in locations where, for whatever reason, the supply of legal services under legal aid from existing outlets, i.e. solicitors in private practice, is not meeting demand or need.

The Board monitors supply of civil legal assistance services and we identified gaps in the provision of civil legal assistance, particularly related to housing, debt and employment matters in the Edinburgh and Aberdeen areas. To address these needs, tackle the need for advice as a result of the economic downturn and to provide additional resource to meet the needs arising from the Homeowner and Debtor Protection Act, Scottish ministers asked the Board to set up CLAOs in Edinburgh and Aberdeen. There is also a CLAO based in Lochgilphead.

The Edinburgh CLAO delivers casework services with a particular focus on work arising as a direct result of the economic downturn, including repossession, rent and mortgage arrears, debt, housing, employment and benefits. It operates the same system as Inverness in developing referral links to local solicitors’ firms and advice agencies. The office covers the local authority areas of City of Edinburgh, Midlothian, East Lothian and West Lothian. It also operates a themed project developing innovative methods of delivering civil legal services to prisoners and their families in four prisons across Scotland.

The Aberdeen CLAO focuses on economic downturn work for Aberdeen and Aberdeenshire. The team works closely with local advice agencies, and has developed successful referral links to local solicitors’ firms, being able to direct client work to them that they would otherwise not have received in an appropriate and timely way. The CLAO shares accommodation with the Aberdeen In-Court Adviser (the In-Court Advice scheme is funded across Scotland by the Board), and this enables access to support and advice for the adviser, as well as offering a route for referral to solicitors either from the CLAO or solicitors in private practice for cases where this is necessary.

The office in Lochgilphead has been in place since 2005, having started out as a Part V project. The service is focused on the particular unmet legal need issues of the rural and island communities of Argyll & Bute, but with heavy emphasis on partnership working with local solicitors and the Argyll and Bute Advice Network. The solicitor plays a central role in connecting advice agencies, local voluntary sector organisations and solicitors’ firms together across what is a wide geographic area. The organisations work together to identify how referral is operating, to identify any new work that could be done to meet arising legal needs in the local communities, and to actively involve solicitors’ firms in helping to meet those needs.

Public function

The Civil Legal Assistance Offices increase access to justice by advising those people who would otherwise not have received advice and they support solicitors’ firms by referring clients in the areas of work they want to do. They also work with a wide range of advice providers to help co-ordinate the provision of advice services. There is increasingly wider understanding of the need for publicly funded legal services to achieve the effectiveness and efficiencies that come from having the right job done by the right supplier, and ensuring that this is co-ordinated to maximise the benefit in a cash-strapped time for public services.