Introduction
Citizens Advice been asked to provide comments on the draft recommendations of the report for the independent review. We welcome the fact that the review has resulted in bold and far-reaching recommendations for the development and of the CLS, which if fully implemented could result in major improvements in service delivery and capacity.
- We note that some of these are unlikely to be cost neutral, and urge that a full cost assessment is undertaken.
- The recommendations may need to be prioritised further, we would rank as most important those recommendation aimed at resolving the approach to commissioning services - these should be the top priority because there are signs that the system is not sustaining itself due to short term annual cycle of bid rounds.
- We feel that the review has missed the opportunity to address the role and funding of the CLS across Government– how should departments other than the DCA be contributing to the CLS? This is hinted at in the recommendations over costing legislative change, but what are the related funding implications between Government departments and the CLS? If so, through what sort of formula?
Operationally, the approach to engaging and managing suppliers is the key issue to resolve to bring stability and effective partnership between the public and private sector. With an increasing number of suppliers withdrawing from publicly funded advice, and the continued uncertainly surrounding the freeze on contract values, addressing this issue has become an urgent priority – the Department of Constitutional Affairs cannot afford to allow this issue to remain unresolved in future years.
Overall, there is a need for greater focus in the review’s final report on the user’s perspective. The recognition that the public needs an holistic service as close to the point of access is a re-statement of the CAB position for decades, and now clearly backed up the findings of the LSC Causes of Action research. However, do the public recognise the CLS Logo as an access to help point in the same way as the Legal Aid logo?
The reports findings are a stark benchmark for assessing how far the CLS has to develop to meet existing needs, provide an adequate and joined up network of access and service points, and demonstrate a culture of continuous improvement. Can the CLS really be expected to ‘grow its own’ capacity under current funding restraints?
Clarifying the aims and functions of the CLS
The aims of the CLS are in many respects fundamental to achieving any coherent change programme in the CLS. The report identifies a tension between the traditional role of managing legal aid, and the ‘wider CLS’ role in signposting and joining up information and provider services. However, the tension is about the CLS mission rather than just about its operation. Is the aim about promoting and accessing legal rights, remedies and procedures through services, or is the CLS mission primarily about tackling social exclusion and the underlying issues of social exclusion in communities. Whilst the intention of the review to more clearly focus the CLS, and particularly Advice, on the tackling of social exclusion will be welcome to Bureaux, careful thought is needed as to how the equally important perspective of promoting/accessing rights can be reconciled and mutually re-enforced.
In defining the aims and function the CLS it would help if the report clearer about what they encompass within the CLS - ie that it includes all and any arrangements made to procure services from different sectors, as well as the mechanisms to encourage these services to work effectively to appropriate standards, and in co-ordinated way (QM, CLSPs etc). Does the CLS also involve a wider network of agencies in formulating policy and evaluating impact? Also what is the role of public legal education, and should the CLS have a clearer role in promoting the advice sector’s work? (It could be argued that the more the CLS tries to fulfil this role of developing the sector, demand intensifies further and the capacity problem becomes more acute).
We would agree that there has been a lack of clear leadership. (1.3.1) The new structures (separate CLS, own CEO, independent programme board) proposed are clearly desirable in that they give the CLS both greater prominence within the public sector and independence from government control. The outstanding question though is where will the additional funding required come from? It is difficult to see how such a major re-organisation could be cost neutral. Whilst we want to see change, we would not want to see the LSC diverting resources from the already over-stretched CLS civil budget in order to achieve the proposed restructuring.
Establishing the evidence base for the CLS (1.3.2)
We would not want to see the CLS restricted to existing social policy objectives. We know from our own experience that providers of legal advice are often in a position to spot emerging trends, which have not yet been picked up by local or national government.
We would welcome properly planned and structured research to demonstrate the effectiveness of advice in enabling people to make better informed choices and avoid the consequences of inaction when faced with legal problems. There is already good deal of published work in this field. The report suggests that the case has yet to be made (6.2), a more pessimistic analysis might say that the case has yet to be heard because of the short-term costs implications.
Adding a significantly new perspective (for example an economic analysis of public costs saved over a broad spectrum, as well as financial gains for individuals, and the overall economic cost of failing to resolve justiciable problems) would clearly help to strengthen the case, but it is likely this would cost more and take longer than the paper envisages (3-6 months to establish and 18 months to produce results 6.2).
Developing funding streams and procedures (1.3.3)
We support many of these recommendations, for example hypothecating the civil budget, and it is of utmost importance that a ring-fenced or hypothecated budget is linked to the process of costing legislative change, as suggested in recommendation 3.3. Proposals for legislative change must be costed on the basis of their impact on the civil budget and any increase agreed with the LSC and added at the same date that the legislation takes effect. However, this may require a cross governmental approach to achieve.
We must comment though on the conclusion that fixing the CLS budget in a similar way as the Immigration and asylum budget could be a viable way forward (6.3). We have just seen an unprecedented reduction in the amount of advice and representation available to asylum seekers and others seeking immigration advice. We can predict that it will have knock-on effects on expenditure elsewhere in the system and that more people will try to access CAB advice, without additional funding being made available to bureaux. We cannot support this as a model for potential wider application.
Most welcome are the recommendations which concerning the commissioning process. We support changing the contractual basis for commissioning services from both ‘for profit’ and ‘not for profit’ agencies to achieve a better focus between outputs and outcomes, and we agree that the current methods of need analysis do not provide sufficient detail to develop a supply and demand model of the CLS at a regional and sub-regional level as a basis for effective contract allocation and strategy.
The alternative model proposed of service level agreements, range of outputs and outcomes would have the benefit of greater flexibility has the merit that providers would be encouraged to change and adapt their practices and procedures to respond to changing patterns of demand and issues in their community. Service level agreements have been successfully operated by the voluntary sector in other public service contexts.
The report states that it has not found clear evidence of the likely benefits of a competitive approach (6.3). We would agree that the operation of the LSC’s recent civil bid round gave rise to some apparently illogical decisions and required the operation of an elaborate appeals system. We also note that the LSC with its ‘preferred supplier’ status pilot contracts, is on the way to developing a more competitive approach to contracting. We hope that lessons from the recent bid round will be taken into account when establishing a mechanism for allocating contracts in future.
The consortia approach to contracting is one the most radical and innovative changes proposed; we welcome this approach although far more work is needed on how such a model could work in practice and it would be important that any new obligations should not detract unduly from the most important job of delivering frontline advice services to clients. As the report says though, the current basis of contracting ‘’does not encourage flexibility or innovation’’, or help resolve issues around access, coverage and regional variation. One of the principal concerns with the current system of contracting is that different agencies are unable to achieve seamless referral processes and co-operation through partnerships because there is no contractual incentive for them to do so, and the specialist and fragmented nature of the contracts can actually mitigate against closer co-operation. The contracts are about the types of legal aid service that can be provided for eligible clients, and accountability for those services, they do not contain incentives to address aspects of holistic service delivery (such as partnership work).
We would, however, sound one note of caution on the practicality of the consortium approach to contracts. Getting agencies to work in partnership can sometimes prove to be a difficult and delicate process, which can take years of negotiation. Where it works the results may be brilliant; but cannot be seen as a panacea. It is proposed that the consortia approach may be piloted an ‘advice deserts’ areas, but these may be precisely the areas in which advice sector has such limited capacity, that achieving this level of partnership working is likely to prove challenging. Working in partnership has real resource implications, and resources have to be found to allow agencies to do this as well as their core work. The smaller the organisation, the greater the proportion of its staff resources will be needed to attend meetings, agree protocols etc. Over time this may all become part of agencies core work, but the difficulties of moving from one model of service provision to another should not be under-estimated.
Ensuring Quality (1.3.4)
We would welcome any reduction in the audit process for good providers; but would not want to see the system itself devalued as a good audit process can help spread and encourage best practice. A system similar to Citizens Advice’s membership scheme of a meaningful audit every three years could be a suggestion.
We favour of peer review as we use it ourselves. Part of Citizens Advice’s success with peer review is that we undertook an extensive pilot and consultation stage, so that bureaux felt confident in the system and accept those carrying it out as their peers. The early stage in the LSC’s pilot has not been so transparent. We appreciate that this is probably due to their enthusiasm for the system; but Citizens Advice’s experience is that it is important to involve the potential subjects of peer review as much as possible, even if that means a longer lead in time. There has not been as much communication about the scheme as would be desirable, and the letter requesting files for audit tended to stress the possible negatives which could follow from failure rather than the positive side of the process.
Translating the CLS aims into local provision (1.3.5)
There issues with CLS performance on this issue appear to be.
- CLSP performance is highly variable as research demonstrates ;
- Whilst some CLSPs have undertaken excellent needs analysis work, variability means that this is incomplete with some CLSPs having to largely base needs analysis on anecdotal evidence
- They have no money or other dedicated resources (eg secretariat, local authority help with specific functions such as local needs analysis)
The report’s suggestion that re-focusing CLSPs in itself will regenerate them may be over-optimistic. It is also going to need money to persuade people back to the table.
We are not convinced that the recommendations fully recognise the challenges of engaging the private sector in largely public sector processes - what is the incentive for the solicitors firms to take part in CLSP processes, even if put on a statutory footing? The refocusing proposed also needs to be a little clearer in what it is trying to achieve, such as a role for CLSPs in social policy work (e.g. to improve the Local Authority approach to dealing with Housing Benefit or rent arrears)
We are unclear how the idea of a ‘development fund’ is significantly different from PIB and the current rebranding process for the PIB that is now underway? However we agree with the report’s observations on the PIB, many agencies found the PIB process lacked transparency and that they wasted effort on one approach, only to find that the goal posts had changed. Nevertheless, the funding stream has been important as a source of innovative projects often involving hard to reach groups. We recognise that Government would like to create measurable projects from the beginning, but there is so much evidence of good practice in ongoing projects that the delay and expense involved in new trials (whether using "Randomised Controlled Trial methodology" or not) may not be justified. It is important to evaluate what there is.
The idea of an ‘experienced practitioner’ assessing needs and helping clients to access different services is not new. However, it must be stressed that the ‘experienced practitioner’ has to have a range of work, to ensure that they do not lose their own skills. If experienced advisers are removed from in-depth advice and casework, they lose their ability to identify the range of a client’s needs.
We very much welcome recognition of the lack of emphasis on preventative policy work. Implementing practical recommendations to remedy this would surely the most cost effective approach.
Piloting a salaried service (6.5)
The report alludes to the ‘Public Defence Service’ – this should be the Public Defender Service (the name was changed shortly after its inception as it was felt to have wider recognition). Many argue that PDS has actually been much more expensive than its private practice equivalent and that it deals with far fewer cases.
However, a salaried service would seem to have potential in eradicating advice deserts, and some international comparative research has considered the merits of salaried service as distinct from client based and judicare schemes. Drawn from limited available costs data; this tends to show that salaried services are cheaper on a cost-per-case basis. For social welfare law, there is some (very limited) evidence to suggest that salaried lawyers are able to secure similar outcomes even though they spend less time per case. However, there is a danger with any salaried scheme that it can become overloaded, as staffing and resources fail to keep pace with increased demand; as a result, the quality of the service deteriorates. Staff may then become demoralised and leave, leading to further reductions in quality
It is not necessary to identify a new model as Law Centres or advice centres and CABx with solicitors could provide this service, with the added benefit of independence. Quality and Cost research by Richard Moorehouse goes some way to demonstrating the value of the NfP approach compared to the private sector.
We certainly welcome though the more flexible model contract suggested in the paper, as the existing model has proved inflexible, restricting advice to eligible clients and particular activities in relation to their cases (see earlier comments).
|
