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CONSULTATION ON REFORM OF CIVIL ADVICE AND ASSISTANCE

Proposals for civil advice and assistance reform

1. INTRODUCTION

Why reform civil advice and assistance?

1.1 The civil advice and assistance scheme currently provides help in around 130,000 cases every year, on a wide range of matters and provided by a large and widespread body of solicitors. Discussions of the Tri-partite Group of the Scottish Legal Aid Board (the Board), the Law Society of Scotland (the Society) and the Scottish Executive (the Executive) suggest however that far-reaching reform of civil advice and assistance is necessary to promote access to justice for those who require it while achieving an appropriate balance between fair reward for the profession, retaining high quality provision, promoting early intervention and securing best value for taxpayers' money.

1.2 The reform of civil legal aid, which was successfully implemented in October 2003, introduced quality assurance for all civil legal assistance provided by solicitors, which includes both civil legal aid and civil advice and assistance. A peer review system for quality assurance has been established and is now operating successfully. The proposals described in this paper take account of this development.

1.3 The proposals should also be seen in the context of the development by the Board of Legal Aid Online, a system for the electronic submission and processing of all kinds of legal aid applications and accounts. This system will itself reduce bureaucracy and speed up many processes and will support the reforms proposed in this paper.

1.4 The proposals in this paper seek to address a number of key concerns:

• The current arrangement for the payment of minimum fees is seen as wasteful of public funds, especially when linked with the wide discretion available to the solicitor to make multiple grants of civil advice and assistance;
• The system of limited authorised expenditure is a significant administrative burden on both the Board and the solicitor. Appropriate and adequate control of expenditure should be achieved with far less bureaucracy;
• The payment rates for civil advice and assistance have remained unchanged for many years, leading many firms to say that the work is uneconomic and leading to concerns of withdrawal from advice and assistance work. The Deputy Minister for Justice has already announced that, alongside implementation of the reforms, the fee rates for civil advice and assistance will be increased further, taking the total increase, including the 5% interim increase made in June 2004, to 21%.
• The scope of civil advice and assistance is very broad, covering the application of any aspect of Scots law to the client's circumstances. We believe that the advice and assistance system should enable a solicitor to provide help where he or she is best placed to do so, but should also recognise that non-legally qualified advisers might also appropriately provide advice in many circumstances.
• Some of the rules for civil advice and assistance appear inconsistent with those for civil legal aid. The distinction between the type of work carried out under advice and assistance and that carried out under civil legal aid may not always be clear, but different financial eligibility tests and contributions structures apply. This can be confusing for some clients and will not always appear fair or be consistent with the principle of ability to pay. We think that changes to the system are needed to ensure that the tests and other conditions to be applied are appropriate and proportionate to the service being provided.

What do the proposals seek to achieve?

1.5 It is intended that the proposed reforms will provide benefits for those seeking advice and assistance, for practitioners and for the taxpayer by:

• retaining high quality provision;
• encouraging the negotiation and settlement of cases;
• clarifying whether and when assistance from a solicitor is required and appropriate;
• reducing bureaucracy;
• improving the commercial feasibility of providing advice and assistance;
• providing a more tailored assessment of financial eligibility;
• providing better value for taxpayers' money.

The proposals

1.6 We will describe the proposals in three sections.

• Procedures for granting and providing civil advice and assistance ( Section 2)
• Financial assessment and contributions ( Section 3)
• Remuneration of practitioners ( Section 4)

1.7 A series of consultation questions is included on the attached response form. These are intended to help structure your response, focus it on the key issues on which we are seeking your views and help us with the analysis of responses.

1.8 Should you wish to make points not covered by these questions, please do so, but distinguish these points from any responses to the specific questions.

2. GRANTING AND PROVIDING CIVIL ADVICE AND ASSISTANCE

Entry to civil advice and assistance

2.1 At present a solicitor is entitled to provide civil advice and assistance to a client on any matters of Scots law. We think that some changes are needed to ensure that civil advice and assistance is focused on those matters on which advice from a solicitor is appropriate.

2.2 We think the best way to do this is for a list to be drawn up of categories of cases, in relation to which it may be assumed that advice from a solicitor is appropriate. Where a client has a problem that is reflected in this list, the solicitor will grant and provide civil advice and assistance largely as at present.

2.3 Where the problem presented by the client is not on the list, or where this is unclear, a solicitor would still be able to grant civil advice and assistance, but only for the purpose initially of diagnosing the client's problem and determining whether further advice and assistance from a solicitor is required.

2.4 The flowchart below illustrates the proposed new arrangements, and paragraphs 2.7 to 2.19 describe the stages in more detail.

The list of case categories

2.5 A suggested draft list has been prepared and is included as Appendix 1. This represents our initial thinking and has been based on the existing profile of work done under civil advice and assistance and initial discussions between the Scottish Legal Aid Board and the Law Society of Scotland. The draft list is very much a work in progress: we are seeking your views on the categories included in the list, and any others where you think it clear that the advice of a solicitor would be appropriate.

2.6 The list of case types will be specified in secondary legislation and/or in guidance issued by the Board. The list and associated guidance will be periodically reviewed by the Board to ensure that all subject areas and case types are included where it is appropriate for the solicitor to provide civil advice and assistance.

Civil advice and assistance for listed categories

2.7 Initial authorised expenditure for cases in the listed categories will be as at present (85 or 160, to be uprated further in line with the additional increase in fee rates).

2.8 It is proposed that the grant of civil advice and assistance for a 'listed case' should cover the direct subject matter and also "all matters reasonably ancillary thereto". This means that the solicitor will not be able to make separate grants in relation to each one of a group of related matters. If a client has more than one unrelated problem at the same time, which fall into separate listed categories, it will still be possible for the solicitor to make separate grants of civil advice and assistance.

2.9 Before granting and proceeding to provide civil advice and assistance on a matter which is within a listed category, the solicitor will satisfy him/herself that it is reasonable to do so, having regard to the value and importance of the case and the likely cost of providing the advice and assistance required.

2.10 Existing regulations require the solicitor to apply to the Board for authority to give civil advice and assistance if the client has received advice and assistance in respect of the same matter from another solicitor. Under the new arrangements we propose that the client should be asked to certify that he/she:

2. does not have available 'other rights and facilities', such as legal expenses insurance or Trades Union cover, making it unnecessary for him/her to obtain advice and assistance (i.e. meets the criteria which currently apply only to assistance by way of representation); and
4. has not previously received civil advice and assistance from any solicitor in relation to the subject matter of the proposed grant.

2.11 Where the client cannot certify that this is the case, we propose that the Board's authority should be needed before advice and assistance can be given.

2.12 In recent years, the Board has developed templates for increases in authorised expenditure in certain types of case. This system allows for a single, substantial increase in authorised expenditure from the outset of the case to allow the solicitor to undertake all of the work normally required for the type of case concerned. The 'templated increase' is not a guarantee of a certain level of payment, but it does significantly reduce the bureaucracy otherwise inherent in the system of recurring requests for increases in authorised expenditure.

2.13 We propose that the template system should be significantly extended to cover many of the listed categories. In relation to work for which a template exists the solicitor will be able to access a semi-automatic templated increase in authorised expenditure up to limits published by the Board for the relevant template. The appropriate levels of authorised expenditure for each template in each category will be periodically reviewed by the Board in consultation with the Society, and, where appropriate, with practitioner groups working in the relevant fields.

2.14 Where a solicitor has undertaken work and exhausted the initial authorised levels of expenditure or has reached the limit of authorised expenditure allowed by the template and a further template is not available, it will remain possible for the solicitor to make application to the Board for a further increase in authorised expenditure. In considering such a further increase the Board will consider whether a further increase is reasonable, having regard to what has been achieved within the current level of authorised expenditure, what might reasonably be achieved by granting a further increase and whether it is reasonable in the circumstances of the case for further expenditure to be incurred.

Civil advice and assistance for diagnostic cases

2.15 Where the problem presented by the client is not reflected on the list of categories, or where this is unclear, a solicitor will be entitled to grant civil advice and assistance for the purpose of diagnosing the client's problems and determining whether further advice and assistance from a solicitor is appropriate. The initial level of authorised expenditure in such a diagnostic case will be 35 and the minimum fee arrangement will be abolished.

2.16 A client would not usually be entitled to more than one diagnostic interview within a period of three months. For a second or subsequent grant of a diagnostic interview within a three month period authority from the Board would be required.

2.17 Following a diagnostic interview the solicitor may determine that the client does not require further assistance from a solicitor, in which case their involvement ends. Alternatively the solicitor may determine that the client's problem does require further assistance from a solicitor. If at this stage it is determined that the client's problem falls within a listed category, the process described in paragraphs 2.7 to 2.14 above applies. Otherwise, the procedure is as set out below.

Civil advice and assistance following a diagnostic interview for matters not within the listed categories

2.18 If, flowing from a diagnostic interview, the solicitor determines that the client's problem requires further advice and assistance but is not in a listed category, he or she must request the Board's approval before exceeding the 35 limit of authorised expenditure. In deciding this, or any subsequent request for an increase in authorised expenditure, the Board will consider whether advice from a solicitor is appropriate and whether it is reasonable in the circumstances of the case to authorise further expenditure.

2.19 As in listed cases, the client will be asked to certify that he or she has not previously received advice on the same matter and does not have 'other rights and facilities'.

3. FINANCIAL ASSESSMENT

3.1 Currently all advice and assistance is granted on the basis of an assessment of the client's disposable income in the seven days prior to making the application and on the disposal capital available. This approach does not reflect the full reality of civil advice and assistance which may be provided over a lengthy period of time, involve high levels of expenditure and cover work similar to that which in other circumstances might be carried out under civil legal aid and in which a more rigorous test of financial eligibility will apply.

3.2 We believe that the current arrangements are not consistent with the principle of ability to pay and result in inequities as between clients with civil legal aid on the one hand and civil advice and assistance on the other. For these reasons we are proposing a number of changes to the financial eligibility regime. In particular, we propose that a new threshold be introduced, based on the value of the work carried out on behalf of the client. Different tests would apply above and below this new threshold. We would propose that this threshold should be set at a level of expenditure closer to that which might be expected under civil legal aid. It is expected that this would be somewhere in the region of 750 - 1000 (to be considered further in the light of consultation responses and detailed analysis to determine the most appropriate figure and impacts on clients and administration) so that the new tests would affect a relatively small number of clients. Those affected will be those with the most expensive cases and who are best placed to make a more realistic contribution towards that cost.

Diagnostic advice

3.3 Where there is a diagnostic interview only, the maximum contribution to be paid by any client would be 35. Lesser contributions would be payable on a sliding scale based on a simplified version of the existing structure, which specifies contribution levels for different bands of disposable income. As at present, solicitors will carry out the initial eligibility test and collect any contributions assessed at that stage.

Work up to the new threshold

3.4 In listed and non-listed cases in which advice and assistance is sought up to the proposed new threshold (see above, paragraph 3.2) the current financial eligibility tests and the same contribution levels (from 7 to 114, as uprated annually) will continue to apply. Again, solicitors will carry out the eligibility test and collect any contributions assessed at this stage, as at present.

Work beyond the new threshold

3.5 Where the threshold is to be exceeded, either by moving up to a higher value template or by an increase in the level of authorised expenditure, the client would be subject to a more robust means test and would potentially be liable for a contribution that is more proportionate to the value of the work done and more closely in line with that payable in a civil legal aid case.

3.6 There will be a number of new features to this new financial eligibility test:

• the assessment period will be extended from seven days to a period of six months, consisting of three months prior to the date of the increase and three months after;
• the client will have a duty to advise the Board of any material change in circumstances during the lifetime of the case;
• the solicitor will be asked to confirm to the best of their knowledge and belief that the client continues to be eligible to receive advice and assistance whenever an increase in authorised expenditure is sought, including where a template applies;
• where an applicant is no longer eligible to receive advice and assistance, arrangements will be put in place to enable the Board to suspend and/or terminate the grant of advice and assistance;
• where an applicant remains eligible following a change in circumstances, it is proposed that the amount of contribution due will be adjusted either up or down, subject to minimum levels of change;
• solicitors will apply the new test using a simple proforma, similar to that used for work carried out under special urgency provisions for civil legal aid;
• any "higher scale" contributions will be collected by the Board and, as with special urgency work, the client will sign a mandate agreeing to pay the contribution to the Board;
• applicants will be given an extended period to pay "higher scale" contributions by instalments;
• where the client is to pay a "higher scale" contribution but the solicitor's final account is less than the threshold amount, the higher scale contribution will be refunded to the client (meaning they will pay a maximum of 114, as per the existing arrangements);
• where multiple grants of advice and assistance and the periods of repayment overlap, sums yet to be paid will be taken into consideration when assessing eligibility for subsequent applications. This would also apply where the same applicant also had a contribution to pay for civil legal aid, whether flowing from the advice and assistance or not.

4. REMUNERATION

Diagnostic cases

4.1 Payment for advice and assistance that extends no further than the diagnostic stage will remain as at the current rates of remuneration, to be paid on a time and line basis up to a maximum of 35.

Listed cases and non-listed cases

4.2 Where a solicitor grants advice and assistance on a listed case, or obtains advice and assistance under a non-listed case, they will be paid throughout at an increased rate of 21% of remuneration rates in force before June 2004.

5. CONCLUSION

5.1 We believe that the proposals in this paper will improve civil advice and assistance in a number of important respects. Increased rates of pay will help ensure the provision of high quality services, while the proposed procedural changes will reduce bureaucracy while focusing expenditure on areas where advice from a solicitor is appropriate, thereby achieving better value for the taxpayer. The proposed changes in financial eligibility and contributions will mean that some clients will pay more. However, we believe that ensuring continuing eligibility and seeking higher contributions towards the cost of expensive cases from those best placed to pay them is both appropriate and consistent with the position under civil legal aid.

5.2 We are keen to hear your views on the proposals contained in the paper and the attached list of categories.

APPENDIX 1

PROPOSED LIST OF CASE CATEGORIES FOR WHICH IT MAY BE ASSUMED THAT ADVICE FROM A SOLICITOR IS APPROPRIATE

• Divorce;
• Separation;
• Variation;
• Contact;
• Aliment/Child Support Agency;
• Residence;
• Adoption (including Freeing Order for Adoption);
• Matrimonial Homes;
• Parts I, II and III of the Childrens Scotland Act 1995;
• Recovery of Heritable Property (including Eviction and Mortgage Rights Acts);
• Interdict (including interdicts under Matrimonial Homes (Family Protection) (Scotland) Act 1981);
• Reparation;
• Employment;
• Interdict (to include "other", "matrimonial" and "protection from abuse" interdicts and including non-harassment orders);
• Immigration;
• Criminal Injuries Compensation Agency;
• Mental Health;
• Breach of Contract;
• Adults with incapacity;
• Contempt of Court (including minutes for failure to obtemper) ;
• Fatal Accident Inquiry;
• Judicial Review;
• Child Abduction/Hague Convention applications;
• Reduction;
• Declarator;
• Benefit Appeals;
• Appeals;
• Bankruptcy/Petition by Debtor;
• Conveyancing;
• Implement;
• Summary Application;
• Statutory Discrimination;
• Division & Sale;
• General Defence to any Action (e.g. where a client is in receipt of a writ);
• Delivery;
• Wills;
• Executries;
• Restoration of driving licence.

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