The following are the notes taken from our most recent meeting the Scottish Legal Aid Board. Members may well have experiences which confirm or contradict this information or suggestions to make as to how legal aid matters be taken forward but we can only represent members' views if these are put forward to us. It is clear that legal aid is a very inportant part of the profession's business but, more importantly, a crucial facility for the access to justice of a huge proportion of the public whom our profession serves and the input of practitioners is likely to be equally crucial in establishing practices which are in the interests of making that business work and of making available that access to justice. The Board clearly has an agenda which includes the securing of legal services with due regard to economy but we have always found the Board to be very willing to receive information and suggestions and it is up to individual practitioners to put forward notice of any problems or unfairness which they perceive in the operation of legal aid. If there are any issues which we have failed to raise with the Board, it is simply because we have not been told about them.
MEETING WITH SCOTTISH LEGAL AID BOARD 01/05/09
1. ABATED ACCOUNTS PROCESSED MORE SPEEDILY?
Steven Carrie, Senior Technical Specialist from the Board’s Accounts Specialist Unit explained that all fees and outlays were paid at the offer stage and only the abated amount was held back with the exception of advice and assistance accounts. Plans are now under way to make sure that all advice and assistance accounts which come in online are paid at the offer stage subject to retention only of proposed abatements. The Board policy is to persuade solicitors to use the online facilities.
2. PROSPECTIVE EFFECT OF PUBLIC EXPENDITURE CUTS
At this stage, it is not clear what the impact of the Budget and the Scottish Government’s financial position will have on legal aid expenditure. All aspects of public expenditure in Scotland are likely to come under review. However, the Board envisages making savings in its running costs by streamlining procedures and, in particular, by the better use of technology. Legal aid Fund expenditure is currently not cash limited and it is the Board’s hope to retain that status. However, there is likely to be greater pressure to find further efficiency savings in legal aid.
3. SUMMARY JUSTICE REFORM
The monitoring work of the Summary Justice Reform Group and meetings with the Falkirk and Hamilton bars have indicated that the new system of ABWOR for guilty pleas and other measures have greatly improved the system and the Board has successfully amended its procedures to take into account the various summary justice reforms which have taken place and feedback currently indicates that this has been successful and beneficial.
4. VERIFICATION OF FINANCIAL ELIGIBILITY
There is a large and unacceptable instance of applications for advice and assistance in which solicitors confirm financial eligibility but without sight of or production of wages etc verification. This means that solicitors are indicating that applicants meet the financial requirements but without necessarily having any evidence to that effect and there is also a significant number of such cases transpiring not to meet the financial requirements. The Board takes the view that repeated instances of this within the same firm or through the same practitioner might well amount to a compliance issue. The Board urges that solicitors should bear in mind that the legal aid fund is taxpayers’ money which should not be disbursed unless all the relevant rules and regulations are met. The submission of claims to satisfy financial eligibility without evidence is a long standing problem and these cases are being checked more frequently and invalid claims are being uncovered. The Board is very serious about addressing this issue and points out, in particular, that it may be extremely unfair on those firms which check or provide verification if they suffer inconvenience or prejudice as a result of the remedial measures implemented by the Board.
5. REVIEW OF DUTY SOLICITOR SCHEME
This will become subject to review. One objective shall be to remove any closed shop type restrictions on new practitioners entering the scheme. While there is a reported perception that there are not enough solicitors available to fill duty schemes, the opposite is the case and the issue shall be to regulate the numbers that wish to access the scheme. The cost of the duty scheme has increased from £600,000 to £2m over a period of 6 years and, as this represents serious expenditure and a serious investment in access to justice, the Board seeks to maximise the value achieved by this expenditure.
6. CRIMINAL PEER REVIEW QUALITY ASSURANCE
This will be in place by summer and will involve an exercise similar to the civil scheme in which, for example, each practitioner, or firm, submits files for external inspection by a peer reviewer.
This is authorised by the Scottish Government and not by SLAB but there is no doubt that the office is here to stay. For one thing, it provides the Board with insight to the practice and delivery of legal aid and the criminal justice system and recent statistics so far show that there is a high rate of client satisfaction through the PDSO service. The extent of the provision is governed by the Scottish government and not by SLAB. The Scottish Government has no policy or proposals to increase the provision of PDSO services beyond the current level. However, that provision could be subject to increase in accordance with circumstances. For example, where there was market failure (i.e. local solicitors not providing services) such as occurred in Stonehaven and in Kirkwall, where the whole duty scheme was taken over by PDSO changes might be needed. It is noted that private practice solicitors have now rejoined the duty scheme for Stonehaven. It is the policy of the Board and the Board understands that it is also the policy of Scottish Ministers that both PDSO and private practitioners shall be retained but no figures are available as to what percentage of provision shall be supplied by the PDSO. It is likely, however, that the provision will be expanded if problems need to be addressed such as lack of private provision in certain areas of geographical or types of business. At present as far as Glasgow criminal legal aid is concerned, there are two PDSO solicitors and there is no intention to increase that provision. Ministers have publicly made it clear that they see the vast majority of criminal legal assistance being provided through private practice. There are around 15 PDSO solicitors across Scotland and around 1350 private practice solicitors providing criminal legal assistance.
The Board takes on trainee solicitors and intends to take on more trainees than it actually requires with a view to considering, for example, shared traineeships and with a view to stimulating connection between the Board and the practising profession. Trainees at the Board receive a broad traineeship across the main areas of practice but are likely to have special skills in the operation of legal aid. The Board would like to consider possible arrangements for sharing trainees with private firms.
Generally, it is a misconception to think that there are not enough solicitors available to deliver criminal legal aid. In fact, in some areas, for example Glasgow, there appears to be a fairly saturated market.
8. GRANT FUNDING
There is increasing scope for the provision of legal aid by specific grants to fund services in particular geographical or jurisdictional areas. The Scottish Government has provided additional funding to the Board for a grant scheme to provide additional help to people in difficulties as a result of the recession, particularly in relation to debt or housing problems. Publicity involving applications for grant funding will go live on Wednesday, 6 May 2009. Applications may come from the advice sector, law centres or private practice solicitors.
9. IN-COURT ADVISERS
These are usually non-solicitors provided by agencies such as CAB and law centres and their function is not to represent persons at court but to give them basic advice. These advisors do not replace solicitors and, in fact, there are signs that one of the effects of in-court advisers is that persons who might not otherwise have been aware that they would benefit from representation or how to obtain representation are advised accordingly and thereafter seek representation so that legal aid applications are likely to be increased, rather than decreased.
10. EMPLOYED CIVIL SOLICITORS
The Board is also recruiting a small number of additional solicitors in Aberdeen and Edinburgh where there are difficulties in finding private solicitors who undertake debt, mortgage rights, and repossession work, to assist in providing access to justice in these areas.
11. SIMPLIFICATION OF CIVIL LEGAL ASSISTANCE
New forms have been in place from March 2009 with family cases split off from other cases. So far as possible tick boxes have been introduced, particularly in the forms of application for sanction. There has been good feedback so far and the Board has been told that the transition to the new forms has been smooth and successful and that the service has improved.
12. CHANGES TO FINANCIAL ELIGIBILITY
There has been a dramatic increase in the maximum disposable income, to £25,000 per annum although the capital limits have not been changed. This greatly increases the scope of availability for legal aid. However, the tapering system means that there are substantial contributions payable from higher earners and legal aid in these cases is likely to be appropriate for high value or complex cases mainly. However, it is not always wise to be put off using the legal aid facility just because of a substantial contribution because litigants have to bear in mind that by proceeding without legal aid, they lose the protection against adverse expenses. Contributions can also be restricted to the solicitor’s estimate of the cost of the case although a contribution up to the maximum can be requested if the case costs exceed the solicitor’s estimate.
13. SUPPLIER SUPPORT
This relates to the Board setting up contact with individual firms to provide feedback on the Board’s experience with the firm (for example, quality of civil legal aid appliacations, percentage of rejected applications, the frequency of particular problems and other statistics concerning the legal actions raised or defended). This has proved beneficial in a small pilot project and the system is now ready to be rolled out to the top twenty legal aid firms which undertake a large volume of legal aid business.
14. LEGAL AID ONLINE
Use of Advice and Assistance online continues to increase to just under 70% of intimations and increase applications. Feedback from users is very positive. Criminal legal aid online and civil legal aid online are now being piloted and will be rolled out to the profession over the next couple of months. If there are any problems in this area, contact should be made with Diane Ireland, who is in charge of online issues. It is acknowledged that there is an issue where practices who operate case management systems need a link with the Board’s online system to include information about legal aid applications in their own systems and this is under investigation.
15 SUBJECTIVE TEST IN CRIMINAL ABWOR APPLICATIONS
Where solicitors submit these applications they have to carry out the work without knowing whether their responses to the subjective tests as to the merits are acceptable to the Board eg prospect of imprisonment etc, and therefore whether or not their accounts shall be paid. The Board view appears to be that the tests are necessary and that, in many cases, it is perfectly obvious that the test is not satisfied but that, nevertheless, solicitors have claimed that the test has been satisfied and the Board is determined not to pay in such cases. It appears that the solicitor would have to decline to represent the accused or else be prepared to act on a gratuitous basis.
Your own comments are invited concerning any legal aid issues.