Community legal services – access to justice for all?
From April, the new community legal service will radically change publicly-funded advice. It will affect the activities of funders and service providers, ranging from local authorities through to solicitors and community groups, and is based on the development of local networks of information providers – welfare agencies, libraries and community groups. Yet knowledge of the new service remains sketchy. Nick Whitton provides an overview.

Background
Current legislation
Planning to meet need
Working together
The quality badge
Other developments
What will the community legal service look like?
Some concerns

'I want to see national government looking outwards, establishing partnerships with local authorities and others who support legal advice in the community. The Legal Aid Board and those organisations working in the field, and those who fund them, will be working together to assess the local community's needs and to plan how best they can be met.' Lord Irvine, Lord Chancellor [footnote 1]

Background
Legal aid is a child of the Welfare State, born soon after its better-known siblings, comprehensive social security and the National Health Service. Since 1950 it has grown considerably and despite the attempts of successive administrations to control it, changing both the scope of the scheme and the eligibility criteria, its costs have continued to rise.

The New Labour Government inherited a programme of reform that can be traced back to the Legal Aid Efficiency Scrutiny Report (June 1986). Although written fourteen years' ago, many of the report's conclusions would not look out of place in much more recent documents. For example, it noted that 'The provision of legal advice [footnote 2] is a particularly difficult area. There are no arrangements for co-ordinating the agencies and private practitioners who provide advice on similar matters, for ensuring that it is available for all who need it, or for ensuring that the best use is made of the public money used to provide it.'

In the intervening years the Legal Aid Board (the administering body set up under the Legal Aid Act 1988) made progress on many of the themes identified in the Scrutiny Report. In 1994, following a pilot in Birmingham, it introduced its franchise scheme (its quality scheme). It also experimented with 'not-for-profit' suppliers providing 'solicitor-like' services. So that by 1997, the direction in which legal aid was travelling was well established. The New Labour Government has continued to pursue its predecessors' goal of controlling expenditure – from this year the legal aid fund will be a cash-limited 'pot' – but has added some interesting refinements to the existing ideas.

Current legislation
The Access to Justice Act 1999 sets out what the Government has described as 'the biggest programme of reform in British legal services for at least fifty years'.[footnote 3] Section 4 places the responsibility for establishing, maintaining and developing the community legal service solely with a new Legal Services Commission. This will take over the Legal Aid Board's responsibilities and resources from April this year.

The range of help to be provided is broadly defined. Services are to be paid for out of a new Community Legal Service Fund. The Commission must also 'inform itself about the demand for services', the provision and quality of existing services and 'in co-operation with such authorities and other bodies and persons as it considers appropriate', plan how to meet demand itself and facilitate others' plans to meet demand from within their resources. The emphasis on partnership is, of course, one of the Government's main policy themes. A number of commentators have noted, however, the potential for difficulty where only one party to a collective endeavour is required to participate.

When the new Commission takes up its responsibilities, much will already be in place.

Planning to meet need
In 1996 the Legal Aid Board set up regional legal service committees in each of its 13 regions, chaired by members of the Legal Aid Board with other members appointed from a range of backgrounds. (This followed what was seen as a successful re-launching of the North Western Legal Services Committee, the only survivor from earlier co-ordinating and consultative initiatives in the 1970s.) In 1999 each produced a Regional Strategic Plan. These are being used in transferring the 'Advice and Assistance' scheme to contracted suppliers from January 2000.

The plans divide each region into 'bid zones', largely corresponding to local authority boundaries. The need for services is prioritised within each zone, in part, using needs' models developed by the Legal Aid Board in three areas of social welfare law – housing, welfare benefits and debt. All the models use secondary data (for example, the English House Condition Survey 1996). A fourth model, for employment, has recently been added. They produce an overall weighting for a particular area and a weighting adjusted to reflect population. The plans also use local knowledge and information from consultation.

Working together
Local authorities are the largest single group with whom the new Commission must co-operate and plan. In December 1998, six authorities were invited to 'pioneer' the new approach, with a further 44 joining over time (the bulk from March 1999) – representing some 10 per cent of local authorities. They were asked to develop programmes looking at: needs assessment; mapping service provision; consulting consumers; developing provider networks and referrals; developing joint strategies. The project has been evaluated by the Institute of Advanced Legal Studies and a final report is due soon.

The Government has set an ambitious target of wanting a third of local authorities to be involved in partnerships by Autumn 2000, with 90 per cent of the population covered by 2002. It has consistently refused, however, to impose a responsibility on authorities to participate, preferring instead to offer incentives (see, for example, the Beacon Council Prospectus, February 1999) and, in conjunction with the Legal Aid Board, to run a vigorous marketing campaign.

The quality badge
Early in 1999 the Lord Chancellor's Department established a quality task force, comprising 18 organisations, to make recommendations on a comprehensive quality scheme. It proved difficult to deal with the necessary detail in the time available and, over the summer, the Legal Aid Board led a much smaller group to develop the proposals for consultation. Final recommendations were accepted by the Lord Chancellor in November 1999 and will form the basis of the scheme.

The quality mark standards were developed from a quality framework containing seven quality principles. Detailed standards for each area of the framework (with one minor exception) have been written at three service levels - information, general help and specialist help (with sub-divisions at the information and general help levels), corresponding broadly to the service levels envisaged for the community legal service. Unsurprisingly, the existing Legal Aid Franchise Quality Assurance Standard (LAFQAS) has been adopted, with minor alterations, for the specialist help level. Other levels are new and work is still ongoing to develop detailed standards for the proposed general help with casework level. The sub-group of the quality task force is likely to be retained to undertake work on new problems and services.

The Legal Aid Board has always audited LAFQAS. The new Commission has a power to set and monitor standards 'in particular by accrediting, or authorising others to accredit, persons or bodies providing such services'. The Legal Aid Board has said that it will consider applications from other organisations to accredit at the information and general help level. Those organisations will have to have auditors who have been trained and approved by the new Commission which, for the moment, intends also to retain sole responsibility for accrediting to the specialist help level. The Legal Aid Board has said it will accredit publicly-funded and non-fee-charging organisations at no cost.

Services with an existing franchise will be passported into the new system in April. Over the last two months the Legal Aid Board has been running a national programme of seminars to inform and recruit applicants to the information and general help level.

Other developments
The Lord Chancellor's Department's consultation paper, The Community Legal Service (May 1999), emphasised the possibilities offered by new technology. It describes 'a virtual advice arcade…including general information…expert systems or intelligent checklists…and one-to-one advice online'. Its website will be launched early in 2000, although many of its more ambitious features are unlikely to be immediately available.

The website is likely to contain the community legal service directory, produced and maintained by the Commission. To aid referral, the directory will list all members 'to include areas of law covered and the extent of competence in each law category'.[footnote 4] It will be available on the Internet, on CD-ROM and in a paper version. It will also be accessible via a telephone helpline. Eventually, the directory will contain only those who have been awarded the full quality mark badge. For the moment, however, those who are not yet badged will be included in a separate section and will be removed from future editions unless they meet the standard.

The Legal Aid Board believes that the community legal service must deliver services in different ways and commissioned research by the Policy Studies Institute into alternative service approaches.[footnote 5] Following that it has established pilots for consultancy services to service providers and plans to pilot services direct to the public through outreach, telephone and combination services.

What will the community legal service look like?
Although at present there is still no definite answer, it is now possible to discern some firm intentions and common beliefs:

• Community legal service partnerships will be responsible for geographical localities, generally corresponding to local authority boundaries. At times they may be wider. Key partners will be the Legal Services Commission and local authorities, although other funders and suppliers will be involved.
  
• Where such partnerships exist, they will be responsible for measuring the need for legal services and planning how best to meet those needs. In this role they will have a relationship with the regional legal service committees, although its nature is still emerging.
  
• The definition of 'legal services' in the Administration of Justice Act 1999 is very broad, but the priority for services is likely to be those problem areas, commonly referred to as the 'social welfare categories' – family, housing, debt, welfare, employment, mental health, community care and education.
  
• Services will be funded by the partners and will operate in networks which can be divided into three broad levels of service:
  a) Information-giving: ranging from simple 'sign-posting' to helping individuals analyse their information needs and select relevant information.
  b) Advice giving: to include general help which will sometimes involve additional help in specified areas, but which will not normally require more than one contact between the agency and the individual.
  c) Assistance: advice and legal help on complex problems, including representation.
  
• The networks will have 'active referral' arrangements and organisations which are not able to deal with an individual's problem will pass the person on to one that can.
  
• Service providers will be quality assured under a single quality framework.

At its launch the community legal service is unlikely to fit the above description. This is unsurprising, as the strategy has always been intended to be developmental. If it is to make further progress, however, it still needs to recruit a 'critical mass' of support, in particular from local authorities and others as suppliers of services, especially at the information-giving level.

Some concerns
After April 2000, one of the Government's aspirations will certainly be met. Legal aid expenditure will be from a cash-limited budget and under control. Attaining that goal, however, raises several potential difficulties. The Lord Chancellor's Department has argued that if organised more effectively, existing resources are sufficient to meet the need for legal services. Few suppliers of services believe that to be true, and the latest and most ambitious research tends not to support the claim.[footnote 6] There are two dangers here. Firstly, that the overall 'pot' will prove inadequate. And secondly, that increases in spending in one part of a closed system will reduce capacity in another. For example, some commentators suggest that expenditure on criminal and family matters may squeeze spending on social welfare problems.

The current size of the pot is not based on measured need in any absolute sense (the Legal Aid Board's models have a very different purpose, showing relative demand between geographical areas). In many ways this is reasonable, since there has always been latent demand, and the latest research [footnote 7] confirms that many people do not seek help. But the Government is on record as saying that it wishes to improve access, and improvements in access are likely to stimulate demand. When demand exceeds capacity it must either be turned away or form queues – an all too familiar experience in the advice world.

The proposals for improving quality must be welcomed, but franchising among solicitors has tended to favour larger organisations, which can offset increases in operating costs through economies of scale. It is not clear whether this tendency will be replicated in the advice sector.

Whilst there is now broad agreement about the 'vision' there is still much detail to be worked out as to how individual partnerships will function. As always, the 'devil will be in the detail'. For example, will different service eligibility criteria cause tensions between partner agencies? Will variations in the priorities of partnerships result in differences in levels of service in adjoining areas? The answers to these, and many other, questions remain to be discovered.

The gestation of the community legal service has been longer than might at first appear. Much ground has been covered, but there is still some way to go before the proposals are to achieve the laudable intention of ensuring that 'the disadvantaged and socially excluded will find help with the issues that affect their everyday lives'. [footnote 8]

Footnotes
1. Speech by the Lord Chancellor, Lord Irvine, Mary Ward Centre, 2 November 1998 [back to text]
2. Advice here means the 'Advice and Assistance' scheme [back to text]
3. Modernising Justice, White Paper, December 1998 [back to text]
4. Community Legal Service – the Quality Mark: recommendations to the Lord Chancellor following consultation, November 1999 [back to text]
5. Steel, J and Seargeant, J Access to Legal Services – the contribution of alternative approaches, 1998 [back to text]
6. Genn, H Paths to Justice, Hart Publishing, 1999 [back to text]
7. ibid [back to text]
8. Lord Chancellor's speech, Pioneers' Conference, 4 October 1999 [back to text]

Nick Whitton
Poverty 105, Winter 2000