THE LEGAL Aid Board has come out firmly in favour of the Lord Chancellor's legal aid reform plans in its response to the Green Paper.
The board's response, unveiled last week, outlines how cash limited block contracts for legal aid can be put into place.
As expected, the board has not supported pre-determining the criminal legal aid budget, warning that such a move would “probably result in applications to the European Court of Human Rights”.
But it says controlling expenditure is vital if the legal aid system is to improve significantly.
It advocates a contracted service based on franchising and a more focused and continuously applied merits test which, it says, “could lead to significant improvements”.
But the board does warn of the dangers of putting out contracts to competitive price tendering and says contracting should be introduced gradually.
It adds that it is keen to work with the Law Society to develop specialist lawyers' panels and accreditation schemes.
Legal Aid Board chair Sir Tim Chessells said: “The Lord Chancellor has offered an opportunity to make improvements that could lead to more of the right people receiving the legal aid they need while excluding the undeserving.
“The current scheme is losing credibility with the public and confidence must be restored.”
Chief executive Steve Orchard rejected Law Society claims that the paper was a bureaucrat's charter for reform.
“As far as I'm concerned a system like the one we have set out in our response would be far less bureaucratic than the current system.”
Russell Wallman, head of professional policy at the society, said the document failed to address the key concerns of the society, the Bar Council and consumer groups that plans for exclusive pre-determined block contracts would lead to the rationing of legal aid.
THE KEY PROPOSALS
Controlling expenditure is vital if the system is to be improved. A “contracted service, based on the quality assurance provided by franchising” is the best way of doing this.
There is no direct, objective measure of the quality of legal services, but the board wants to work with the Law Society to incorporate specialist panels and accreditation schemes, along the lines of the police station advice scheme, into franchising.
The monitoring of how cases are being resolved will also help the board control quality. “We want to develop sets of outcome measures which give an indication of the sort of results which competent practitioners would achieve in particular types of cases.”
The introduction of contracts would be radical and could not be implemented overnight. The changeover would have to involve the use of pilots. Contracts can be individually tailored for firms reflecting the type of work they do although most contracts for different categories of work “will be broadly the same, covering a typical case mix for that category”. Contracts will be monitored to ensure firms do not cherry pick the easier cases.
The board is particularly excited about the scope contracting allows for planning the provision of legal services and recommends the setting up of a network of legal services committees along the lines of the existing North Western Legal Services Committee.
It says the network “could work with information giving an indication of where need for help was likely to be concentrated, and drawing on local information links, and consulting widely, could draw up a strategic plan for provision which would set up the geographical areas and categories of work where contracts were necessary to meet local priorities”.
Merits test and eligibility
A new continuous merit test should be constructed “so that suppliers reapplied the merits test as more information became available and did not take cases further than the merits justified”.
Contracts should be divided into three categories: initial fact gathering, basic advice and assistance and more detailed problem resolution. The issuing of court proceedings would be a good dividing line between levels two and three.
And while the board believes eligibility should be the same for these two levels, “incentives should be built in to encourage clients to settle their cases out of court by making level two non-contributory and exempt from the statutory charge in the majority of cases”.
The board is not in favour of competitive tendering for contracts on price alone because of concern over quality. But it adds that “approached constructively, and with the appropriate safeguard for quality, competition could have benefits, particularly in ensuring the best value for money”.
Competitive tendering could be introduced on a “controlled basis” to test the approach but quality would be put at risk if a system was introduced across the board “without proper exploration of its likely effects”.