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Jean-Yves Gilg

Editor, Solicitors Journal

Carolyn Regan: legal aid is the fourth plank of the welfare state

Carolyn Regan: legal aid is the fourth plank of the welfare state


The chief executive of the Legal Services Commission is on the 'most wanted' list of many legal aid lawyers. Nothing personal, they say, but Carolyn Regan just happens to be the person presiding over a range of unpopular reforms to the legal aid system initiated by Lord Falconer when he was Lord Chancellor.

The chief executive of the Legal Services Commission is on the 'most wanted' list of many legal aid lawyers. Nothing personal, they say, but Carolyn Regan just happens to be the person presiding over a range of unpopular reforms to the legal aid system initiated by Lord Falconer when he was Lord Chancellor.

After Lord Falconer famously announced in 2004 there would not be any more money for legal aid, the order of the day at the LSC has been to manage increased demand within a fixed budget. And Regan does not expect things to change, irrespective of who wins the next general election.

With a background in the health service it is little surprise that she would see legal aid as another public service like healthcare. This is a rather positive premise but it also means that the service, in her eyes, should be run along similar lines, including tighter budgetary controls. Much to the dismay of her critics, who say that by refusing to increase funding reformers ignore the fundamental needs of a growing proportion of the population and that there is no general access to justice in the way there is general, free access to healthcare.

'Legal aid is no different to any other large public sector organisation in that the need to balance access, quality and value for money are the three parts of the jigsaw,' she says. 'That's an ongoing balancing issue, and crucially so at the moment when we know demand is going up.'

And, as legal aid turns 60 this week, Regan is keen to highlight the successes of the system, starting with accessibility. The number of people eligible has fallen from an estimated 80 per cent in 1950, to 29 per cent in 2008. This year, however, the LSC estimates that following a change to the means-testing rules more people will be eligible for civil legal aid '“ albeit only a seven per cent increase from last year.

Casting a wide net

'There's always been issues about funding and eligibility,' Regan comments. 'A senior judge in the 1950s decided that eligibility should be according to whether you owned a television or not. People hark back to the golden age of legal aid but ten years ago we spent one quarter of what we currently do, and legal aid now covers a much wider range of issues and problems that it ever has done.'

On the crime side, which absorbs just over half of the legal aid budget, Regan says legal aid has gradually been extended, culminating in the availability of a duty solicitor in all police stations under the Police and Criminal Evidence Act. Criminal legal aid however is in line for a budget crackdown, starting with the introduction of means testing in the Crown Court and a cap on recoverable costs for acquitted defendants.

Regan retorts that a lot of the work the LSC does is not means tested, ranging from domestic violence to public law children and mental health tribunal work, and from the telephone service to the website. She is particularly proud of the website, which she says gets three million hits every year.

But that is where her critics await. Telephone advice and web-based communications are all very well for routine or very straightforward issues that can be dealt with remotely by somebody with less experience than a solicitor with years of practice, but what happens, they ask, when people need face-to-face advice, in particular in rural areas?

Regan's response is clear: these new services are not going to take over and replace face-to-face advice, they are intended to work in parallel. They are a response to the way people live their lives; as much as they are shopping and banking online, they should be given access to legal advice online which they can tap into and expect an answer from any time in the day.

'People don't want to walk into a high street solicitors firm, they find it intimidating; they either want to go to a one-stop shop or use the internet,' she says. 'This is where the community legal advice centres come in: they're on the high street, they're open longer hours than nine to five, they welcome anyone who walks through the door and they cover all sorts of legal issues.'

Her plans go further. 'We are looking at one-stop shops with health centres, local councils, or GP surgeries. This is where people go, this is where we should be putting those one-stop shops.'

Indirectly Regan is also throwing the gauntlet at the profession, challenging it to adapt to the public's evolving needs.

The feedback her organisation has had is that both the providers running the services and clients find these integrated services very effective. 'It means that other people need to think about how they respond to those challenges: what are my firm's hours of opening, can I communicate by email, at what point in the process do I need to use my more experienced solicitor, etc. '“ those are all the things that the health service has been through in the last 15 years.

'Until you see them it's very hard to measure: everyone who hasn't seen them says it's a terrible idea, but everyone who has seen them has been impressed.'

CLACs and clusters

One reason Regan is so passionate about the CLACs is that they allow the LSC to address the problem of clusters '“ where people coming with one legal problem also turn out to have a few other related issues.

The difficulty for a legal aid firm is that in order to bid for contracts across all connected areas, it has to show it has the same level of expertise and manpower in all the areas for which it intends to bid, but often its size is such that it does not have the required capacity level across all these areas. Without the contracts, firms pull out of publicly funded work, leaving legal aid deserts in place of their old catchment areas '“ a problem most acute in rural areas.

The issue is a concern for legal aid lawyers but also for the LSC, and Regan says the CLACs have, in fact, gone to provide joined-up services in places where access was a problem.

She also says that firms involved in the centres' work have embraced more innovative approaches, including webcam communication and outreach clinics on a rotation basis. 'That's what lawyers need to be thinking about, and technology makes that possible,' she says.

Another major criticism of the current approach is that it reduces client choice, but again Regan rejects the accusation. 'I keep hearing that there is a problem with not enough access in this or that area, but when we have investigated, it was rarely true,' she says. 'And if it is a problem we can have a bid round.'

As an example she mentions the recent bid round the LSC held to address the shortage of provision in immigration law in Yorkshire and Humberside, where contracts were awarded to 13 out of 17 bidders. 'Some were in another part of Yorkshire and said they would do a session there a few days a week '“ that's what we're trying to encourage, and we can do that to respond where there is a gap.'

What, though, of the criticism that those bids are driving prices down, a growing concern as the prospect of best value tendering '“ despite announcements this week that it would be delayed '“ is casting an uneasy shadow over the profession?

Regan dismisses the suggestion that some firms deliberately bid low to get the work and cannot feasibly deliver the expected quality of service. The process, she says, includes an assessment that the price is realistic, and that any auction the LSC will hold would start above the existing prices. It is also within the LSC's powers not to accept a bid which it reckons is not realistic.

'If someone said 'I'm going to cater for your dinner party and I'm going to do it for £2 a head' you'll say that's impossible, how are they going to do that,' she says.

For legal aid contracts, this means the LSC has to be 'very clear about the quality standards, use peer review, be clear about supervisor standards, use volume indicators, and what the firm's outcomes are'.

Peer review and accreditation

This last criterion, according to Regan, is likely to become increasingly relevant as clients want to instruct lawyers with a good track record of successes. As with any other service, clients will want to compare before they buy.

'Before you book somewhere you look at other customer reviews '“ that's how people live their lives and I don't think our clients are any different,' Regan says.

Peer review should also be used less systematically and more proportionately. 'If you have been a Level One crime firm for the past three years, you don't need to be peer-reviewed every five minutes, we need to use peer review where it is most needed.'

While this will be a relief to many, the wider issue of funding for the quality assurance process is likely to cause more ructions. 'Should we, as the commissioning body, be paying for quality accreditation?' Regan asks rhetorically.

Peer review and accreditation costs the LSC £3.2m a year and Regan's view is that the profession should be responsible for it. 'As a profession, lawyers should bare the responsibility of demonstrating to us that they can meet the quality standards. Of course we'll have to go out and carry out audits and spot checks but we shouldn't be carrying out the peer review.'

While understanding the principle, lawyers are reluctant to foot another professional bill and discussions with the various professional bodies promise to be tense '“ particularly as the practising certificate fee will rise to £1,180 from October.

Regan's argument is that unlike doctors there is no quality system. 'It's ironic that if you walk into a high street firm and you pay privately to see a lawyer, there's no peer review, no quality system '“ all you know is that they're a lawyer,' she says. 'With doctors there are medical audits, published statistics on their outcomes, mortality indicators, etc. '“ there's nothing similar for solicitors.'

Working towards the same goal

In the face of criticism the LSC is also trying to tidy up its own house. A new public spending round is expected soon, and whatever the result of a general election, Regan says it is unlikely that any additional funding will be available. So, on top of the announced staff cuts, the legal aid body is also looking at further initiatives to cut costs across the whole system.

One initiative which should be welcomed by lawyers is the new web-based form which will allow solicitors to assess immediately in 75 per cent of cases whether a client is eligible for legal aid. 'This is for our mutual benefits,' Regan says, emphasising that legal aid lawyers and the LSC are working towards the same goal.

'We need to be working in partnership with the profession and other players in the justice system: solicitors, barristers, and not-for-profit organisations to say that legal aid is really important, highlight the achievements, and show that it helps the justice system in a productive way. It's the fourth plank of the welfare state.'

Regan's commitment to making the system work within a fixed budget is unquestionable and the LSC's 'community' approach tries to provide a modern solution to access to justice. A lot of firms, however, will argue that they are already helping their local communities, and they will need more convincing that the commission's approach is the only viable one.