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Chapter 7: Reforming Civil Advice and Assistance

The consultation stated:

By civil legal assistance we mean publicly funded legal assistance administered by the Scottish Legal Aid Board, and delivered by solicitors and counsel: civil A&A, ABWOR and civil legal aid.

At present only solicitors (or, where appropriate, counsel) may provide A&A under the Legal Aid (Scotland) Act 1986, and SLAB has no powers to pay other, non-legally qualified advisers for the provision of legal advice.

In Scotland a wide range of other, often non-legally qualified advisers are however also engaged in the provision of civil PFLA. To facilitate further investigation of provision of legal advice by lawyers and non-lawyers we believe that in the longer term a national co-ordinating body would need to be able to fund services delivered by non-legally qualified providers, in particular specialist advisers. A mechanism for the payment of outlays incurred by (specialist) non-lawyer providers funded by the national co-ordinating body would also need to be developed.

To make progress in the short to medium term towards our goal of greater integration and co-ordination of services, we propose that SLAB should be empowered to fund provision by non-legally qualified providers, as well as to administer an outlays fund that can be accessed by non-lawyers. Any such system to fund non-lawyers or to administer an outlays fund (to be accessed by non-lawyers with no further engagement with the Board) could only function where an overarching quality assurance system is in place.

7.1 The consultation asked:

Q11: In the short to medium term, should SLAB be able to fund provision by non-legally qualified advisers as well as solicitors and advocates?

Overall, 44 respondents (68%) addressed this question. Of these, 43 provided a firm view with the remaining 1 respondent providing relevant commentary only. The firm views are summarised in Table 11 overleaf.

Overall, the vast majority (81%) of those who provided a view was in favour of SLAB being able to fund provision by non-legally qualified advisers as well as solicitors and advocates. However, this overwhelming support masked differences between respondent sectors, with the strength of support from non-legal bodies and individuals far greater (93%) than that expressed by legal bodies (57%).

Table 11: Summary of views on whether SLAB should be able to fund provision by non-legally qualified advisers as well as solicitors and advocates

NB. Percentages may not total 100% exactly due to rounding

7.1.1 Views in Favour of SLAB Funding Provision by Non-Legally Qualified Providers

A recurring comment was that non-legally qualified practitioners were already making a significant contribution to the delivery of legal advice and would continue to have much to offer (Vol, LA, Indiv). Others considered that the proposal would open up consumer choice on provider (Vol, LA), and could better serve the needs of specific groups such as asylum seekers and refugees (Vol). It was argued that there seemed to be no justification not to go down this route ( LA) and that the proposal should be implemented sooner rather than later ( LA, Vol). One consultee went further to propose that SLAB be given powers to enter into contracts or grant funding arrangements with non-legal agencies (Leg).

Some consultees stressed that the key issue should be the quality of provision and not necessarily the source of advice (Indiv, Vol). Many respondents agreed that the scheme should be underpinned by a robust system of quality assurance and accreditation of the non-legal advisers involved (Leg, LA, Vol, Oth).

One beneficial by-product of the proposal was identified as helping voluntary organisations to employ dedicated staff to deliver advice (Vol). Another consultee suggested that the scheme be piloted to establish best practice and helpful benchmarking (Oth).

Several respondents expressed cautious support for the proposal provided that certain features were in place. These included the provision of additional funds to pay for the scheme (Leg, LA, Oth); clear definitions of what is meant by "non-legally qualified" to help to make the scheme transparent ( LA); clear categorisation of the type of advice which will be covered under the proposals eg money advice, neighbour disputes (Leg); and clear attribution of roles and responsibilities of the parties concerned (Leg).

Another view was that the scheme should not be aimed at promoting a cheaper alternative to using a solicitor (Vol). One consultee argued that any non-legally qualified advice provider should work under the wing of a qualified practitioner (Leg).

7.1.2 Views Against the Proposal that SLAB Fund Provision by Non-Legally Qualified Providers

Of the few respondents who opposed the proposal, 2 argued that non-legally qualified providers were not equipped to provide legal advice (Leg). One expressed their view thus:

" Legal advice should be provided by lawyers who are qualified, insured and vigourously regulated" (Leg)

It was felt that the proposal could result in a confusion of roles and conflicts of interest (Indiv) and was better dealt with by the national co-ordinating body on a service rather than individual case basis (Leg). Another suggestion was for the scheme to be funded separately, perhaps by a local authority grant (Leg).

Finally, one respondent who was unsure about whether or not to support the proposal, raised the question of what recourse service users would have under the proposals to complain about the advice they had received ( LA).

7.2 The consultation asked:

Q12: Should SLAB be able to administer an outlays fund that could be accessed by non-legally qualified providers?

Overall, 41 respondents (63%) responded to this question. Their views are summarised in Table 12 below.

Table 12: Summary of views on whether SLAB should be able to administer an outlays fund that could be accessed by non-legally qualified providers

NB. Percentages may not total 100% exactly due to rounding

The vast majority (88%) of those who responded agreed that SLAB should be able to administer an outlays fund that could be accessed by non-legally qualified providers.

A common theme was that this arrangement would avoid the need for non-legally qualified providers to have to refer cases to a solicitor simply to obtain necessary reports (Vol, Oth, Indiv, Leg). One typical comment was:

" We are aware that some advisers currently refer a client to a solicitor purely for the purpose of the solicitor granting advice and assistance and obtaining a medical report necessary to advance the case" (Leg)

This process was considered by many to be inefficient and inconvenient for all concerned.

Other views were that the proposal made sense in terms of equity of treatment of legally and non-legally qualified practitioners (Vol, LA) and would replace the current system which was flawed on account of its focus on who provides the advice rather than what advice is provided (Vol).

One consultee stated that they supported the proposal on condition that it would be funded with additional monies (Leg). Another suggested that the system be closely monitored to ensure it was not used excessively or was too costly ( LA).

Several respondents considered that the outlays fund for non-legally qualified providers would serve to promote access to legal advice and enhance its provision ( LA, Vol).

Finally, one view was that as most current outlays are fully recoverable following successful litigation, consideration should be given to making the proposed outlays funds also recoverable subject to appropriate public interest and reasonable test (Leg).

Only a few arguments were outlined in opposition to the proposal. One respondent argued on the principle that by definition, non-legally qualified personnel cannot give legal advice and therefore the proposals were flawed (Leg). Another considered that this approach would not be as effective as appropriate grant funding of such providers (Vol). One view was that this proposal begged the question of why should local authorities not also have access to further funding to cover the cost of such outlays (Leg). One respondent who was unsure whether or not to support the proposal stressed the need for clarity on which specific categories of outlays could be claimed (Leg).

7.3 The Role and Remuneration of Specialist Solicitors

The consultation stated:

The first stage of reforms to civil A&A will introduce a tiered system of remuneration, and an aspect of further reform in the future will be the introduction of a further enhanced rate for solicitors undertaking A&A work which requires specialist knowledge and experience of a particular subject.

To allow an enhanced rate to be paid for specialist solicitors a system of accreditation would be needed. In the longer term this would need to be compatible with an overarching system for quality assurance for all civil PFLA.

We intend, by introducing an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience, to improve the availability of high quality A&A provision by encouraging solicitors to develop the necessary expert skills and encourage those who have the skills to take on this type of work.

The consultation asked:

Q13: Do you agree that an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience should be introduced?

Overall, 43 respondents (66%) addressed this question. Of these, 41 provided a firm view with the other 2 respondents providing relevant commentary only. The firm views are summarised in Table 13 below.

Table 13: Summary of views on whether an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience should be introduced

NB. Percentages may not total 100% exactly due to rounding

The vast majority (85%) of those who commented was in favour of the introduction of an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience.

Respondents identified a range of benefits which they envisaged would result from this proposal. The most commonly cited benefit was that the incentive of the enhanced rate would encourage more solicitors to develop skills in specialist areas of law in which high quality advice could, at present, be difficult to access. For example, it was suggested that specialist areas might include sex discrimination (Vol), asylum and refugee issues (Vol), family law (Vol), race discrimination (Vol) and the cases of those with learning disabilities (Vol).

The proposal was seen as facilitating the wider availability of high quality advice ( LA), and could be used strategically in areas of unmet need to stimulate specialist provision ( LA, Vol). Paying an enhanced rate for specialist skills was viewed as a means of addressing the current disadvantage faced by some people in being unable to access the advice they require (Leg).

Some respondents expressed their satisfaction that the proposal represented an acknowledgement of the need for specialist advice to be recognised and properly funded (Leg). Others commented on the fairness of giving just reward for specialist skills (Leg, LA).

Whilst supporting the proposal in general, some respondents suggested that the scheme should not be confined simply to legally qualified practitioners but should be expanded to cover those non-legally qualified providers who were providing high quality advice in specialist areas (Leg, Vol, Oth, LA). Another view was that the proposal appeared to be worthwhile but only if supported by additional funding (Vol). Others remarked that there should be a system of accreditation of "specialists" to ensure quality standards were maintained and to prevent any abuse of the scheme ( LA, Vol).

Some debate emerged over how "specialist" would be defined. It was stressed that there should be clarity from the start over what was within the scope of the scheme ( LA) and the level of enhanced rate (Leg). A recurring theme was that establishing categories of specialisms could be challenging ( LA, Oth, Vol) and should be reviewed on a regular basis in order to respond to changing needs (Vol).

One particular concern was that the scheme should not result in those providing general advice being squeezed out of the system (Indiv, Leg). One comment was:

" Access to urban, sub-urban and rural solicitors' offices and quality general legal advice must remain but there is a risk that the remuneration rates may be such that the only viable option left to the solicitor would be to specialise in narrow areas. This would be an unsatisfactory situation" (Leg)

A few consultees developed the concept of enhanced rates further. One suggested different levels of rate for different levels of accreditation of skills and/or seniority of provider (Leg). Another recommended that specialists could be funded to transfer their knowledge via training and supervision of others (Vol).

However, in contrast to this support for the proposal, were concerns that the system could prove to be overly bureaucratic, creating delays in advice provision (Leg). One view was that it would be more cost effective to employ solicitors with specialist skills (Indiv). Another consultee stated simply that all solicitors (and not just those with specialist skills) should be properly remunerated (Leg).

7.4 Summary Points

• The vast majority (81%) of those who provided a view was in favour of SLAB being able to fund provision by non-legally qualified advisers as well as solicitors and advocates.
• The strength of support for this proposal was far greater amongst non-legal bodies and individuals (93%) than that expressed by legal bodies (57%).
• A recurring comment was that non-legally qualified practitioners were already making a significant contribution to the delivery of legal advice and would continue to have much to offer.
• The vast majority (88%) of those who responded agree that SLAB should be able to administer an outlays fund that could be accessed by non-legally qualified providers.
• A common theme was that this arrangement would avoid the need for non-legally qualified providers to have to refer cases to a solicitor simply to obtain necessary reports.
• The vast majority (85%) of those who commented was in favour of the introduction of an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience.
• The most commonly cited benefit was that the incentive of the enhanced rate would encourage more solicitors to develop skills in specialist areas of law in which high quality advice could, at present, be difficult to access.

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