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HLPA’s response to:

Civil Bid Rounds for 2010 contracts: A Consultation

21st January 2009

Contact Details:

James Harrison (HLPA Executive Committee member), Edwards Duthie, 292 -294 Plashet Grove, East Ham, London E6 1EE, t: 020 8514 9000,

Gareth Mitchell (HLPA Executive Committee member), Pierce Glynn, 8 Union Street, London SE1 1SZ, t.020 7407 0007,

Mike O’Dwyer (HLPA Executive Committee member), Philcox Gray, 61 Peckham High Street London SE15 5RU t: 020 7703 2285,

Web:

About HLPA
The Housing Law Practitioners Association (HLPA) is an organisation of solicitors firms, advice agencies, barristers and others who work in the field of housing law. It has existed for over 10 years. HLPA currently has 281 members. Although the Association is London based, the membership is countrywide.
Membership of HLPA is on the basis of a commitment to HLPA’s objectives. HLPA’s objectives are:
  • To promote, foster and develop equal access to the legal system.
  • To promote, foster and develop the rights of homeless persons, tenants and others who receive housing services or are disadvantaged in the provision of housing.
  • To foster the role of the legal process in the protection of tenants and other residential occupiers.
  • To foster the role of the legal process in the promotion of higher standards of housing construction, improvement and repair, landlord services to tenants and local authority services to public and private sector tenants, homeless persons and others in need of advice and assistance in housing provision.
  • To promote and develop expertise in the practice of housing law by education and the exchange of information and knowledge.
This response has been prepared by the HLPA legal aid working group. This group meets regularly to discuss legal aid issues as they affect housing law practitioners. The Chair of the group reports back to the Executive Committee and to members at the main meetings which take place very two months. The main meetings are regularly attended by over one hundred practitioners.

Sections 1, 2 and 3: Foreword, Executive Summary and Introduction

  1. In the wake of the Unified Contract litigation the LSC said that it would develop a more constructive, collaborative relationship with legal aid suppliers.
  1. HLPA is therefore concerned that the LSC has chosen not to put a single question to respondents about the first 3 sections of this consultation paper; even though they set out a highly controversial vision for the future of civil legal aid. In addition, there are many otherimportant proposals in the consultation paper to which there are no corresponding consultation questions.
  1. HLPA hopes that this is not an attempt by the LSC to stage manage this consultation exercise and that the LSC will give careful consideration to responses about all aspects of the consultation paper, including the following:

A) Problem clusters

  1. The consultation proposes to abolish housing only contracts. It does so by requiring that housing suppliers must in future offer family law also, or welfare benefits and debt also. For the reasons set out in this consultation response,HLPA believes that the abolition of housing only contracts will have a disastrous impact on access to housing advice, just as the need for housing advice is rising due to the recession.
  1. HLPA also believes that the consultation paper overstates the significance of so called “problem clusters” and the need to introducing sweeping changes to the provision of civil legal aid in order to address them. In particular, the prevalence of problem clusters covering requiring housing, welfare benefits and debt advice.
  1. The LSC’s current approach relies heavily on the LSRC’s Causes of Action research, carried out in 2004 and 2006. The consultation paper asserts that as a result of this research “problems were identified as occurring in three principal and distinct clusters relating to family, homelessness and economic issues” (paragraph 3.5).
  1. However, it is important to remember that the Causes of Action research merely involved a statistical analysis of a survey in which a random sample of members of the public were asked to indicate whether they had experience of 18 broadly defined problems during the previous 3½ years.
  1. The majority of respondent said they hadn’t (63% in 2004, 67% in 2006).
  1. Of those who said they had, the majority said they had only experienced one such problem.
  1. Only 17% of the total survey sample in 2004, and 12% of the total survey sample in 2006 said that they had experienced more that 2 or more problems during the previous 3½ years.
  1. Only 8% of the total survey sample in 2004, and 5% of the total survey sample in 2006 said that they had experienced 3 or more problems during the previous 3½ years.
  1. Where a respondent indicated that they had experienced 2 or more problems during the last 3½ years the researchers identified this as a problem cluster; however,the survey respondents were not asked whether the 2 problems were actually related.
  1. The researchers then conducted a number of complex statistical calculations (hierarchical cluster analysis and factor analysis) to see whether, of those who reported 2 or more problems during the previous 3½ years, the mix of problems was unpredictable or whether there were any statisticallysignificant patterns.
  1. When they did so they found a fairly strong trend for “domestic violence”, “relationship breakdown” and “divorce” to be reported together. But the other statistical trends were far less pronounced.
  1. For example, in 2004 there was no clear statistical trend towards “rented housing” or “homelessness” problems being reported together with either “welfare benefits” or “money/debt”.
  1. Instead the only “housing” problem cluster revealed by the statistical analysis in 2004 was “homelessness” and “unfair treatment by the police” (2004, p.39).In 2006 the “homelessness” and “unfair treatment by the police” cluster had disappeared (2006, p.69).
  1. In 2004, another statistical trend was for “a broad range of problem types including those relating to welfare benefits, consumer transactions, money/debt, employment, neighbours, rented housing, personal injury, and owed housing” to be reported together (p.40).
  1. In 2006 the same broad range was identified, with the addition of “discrimination” (p.70). Within that broad range, there were also certain sub-sets, which included “money/debt”, “consumer problems”, “neighbours” and “employment” and a further sub-set which included “personal injury” and “owned housing”.
  1. However neither survey revealed a strong statistical trend for housing, welfare benefits and debt problems to all be reported at the same time. Instead, the problem cluster patterns were far more unpredictable and multi faceted.
  1. The consultation paper also relies on Cardiff University’s research “A trouble shared – legal problem clusters in solicitors’ and advice agencies”. But the authors of this report were at pains to point that:

”The unequivocal nature of the LSC’s claim that, “People do not face ‘legal problems’ but clusters of problems to which the law may offer one solution” (LSC, 2006, 3) is actually based on the more modest findings of Pleasance et al’s Causes of Action study that less than half of the respondents to the LSRC’s periodic needs survey that had any non trivial justiciable problems in 2001 had more than one such problem. By 2004 the figure had dropped to 37% (Pleasance et al, 2005, 53)”[1] (p.88.)

  1. And that:

“Standing back from the results a little, it is worth observing that the precise details of individual clusters are in some ways less important that the tendency for different problems to occur for the same clients in broad and unpredictable ways” (p.89)

  1. HLPA would agree with both of those statements. The impression that the LSC creates that most housing clients also have debt and welfare benefits problems does not match HLPA’s members’ experiences. Neither is it supported by the research that the LSC has commissioned. Instead, most housing clients only need help with a housing problem - and for those housing clients who do need help with other problems, the mix of interrelated problems is broad and unpredictable.

B) Inadequate funding

  1. HLPA is concerned that the LSC continues to fail to acknowledge that the main reason for the reluctance of many of HLPA’s members to offer welfare benefits and debt advice is that it would not be financially sustainable for them to do so given the low fixed fees for controlled work in these areas, coupled with the limited opportunities to cross subsidize unprofitable fixed fee work through certificated work and inter partes costs orders (cf the position for housing law).
  1. As a result, HLPA is concerned that rather than addressing the financial disincentives which have historically discouraged housing suppliers from carrying out welfare benefits and debt work[2], the LSC is instead planning to rely solely on crude commissioning arrangements to try to compel more housing suppliers to offer advice and representation in a broader range of social welfare law categories (in particular, by proposing to eliminate housing only contracts).
  1. Such a superficial approach is of itself unlikely to achieve tangible benefits for legal aid clients, and will be at the expense of an increased number of specialist housing providers abandoning legal aid work at a time when an ever increasing number of people are in need of good quality housing advice and representation[3].

C) The real motivation for these proposals

  1. HLPA is concerned that the main drivers behind the proposals in this consultation paper are not to improve the experience of legal aid users, but to help the LSC make efficiency savings (by reducing the pool of suppliers with whom it contracts) and to pave the way for price competitive tendering from 2013 (even though the LSC has yet to produce any empirical evidence demonstrating that legal aid users will benefit from this).
  1. In relation to the former, HLPA considers that even if the LSC is able to achieve efficiency savings from a further reduction in the overall number of legal aid suppliers, the impacts both on an already fragile supplier base and on client choice are too high a price to pay.
  1. In relation to the latter, HLPA members do not understand how price competitive tendering will improve the ability of legal aid users to secure high quality, holistic advice so long as price and the volume of outputs remains the primary determinant of success in the bidding process, rather than the quality of the advice on offer.

D) Procurement plans and budgets (paragraphs 5.60-61 and 6.6)

  1. First, whilst the LSC does not propose to cut the overall level of spendingon social welfare law in each procurement area, HLPA is very concerned that the LSC proposes to fix the budget allocated to each category of law in each procurement area according to national averages, rather than on the historic spend on each social welfare law category in each area.
  1. HLPA is concerned about that because it seems to assume that the demand for different areas of social welfare law is equal in each of the 138 procurement areas. That is manifestly not the case in relation to housing law – where demand is driven not only by the level of social deprivation but also by the availability of affordable housing.

For example, in London the demand for housing advice is much higher than areas where there is a greater supply of affordable housing: because owner occupation and private renting is out of the reach of so many people, creating chronic overcrowding, high levels of homelessness applications, huge social housing waiting lists, public authorities who adopt a far tougher approach to meeting their statutory housing duties etc.

  1. Second, HLPA notes that before July 2009, the LSC will publish a ”procurement plan” for each procurement area, in order to justify the type of bids it wants. These plans will cover the value and volume of work in a particular area and other, “relevant local factors”. It seems obvious that existing suppliers should have some input into these plans, as they are likely to be the ones carrying them out – yet there is no such proposal in the consultation paper.

E) Lack of information re fee changes

  1. HLPA’s ability to respond to this consultation has been significantly curtailed by the LSC’s decision to conduct a separate and subsequent consultation on the rates of remuneration that will be offered to suppliers who secure civil legal contracts from April 2010 onwards (paragraph 2.16).
  1. In particular, it is very difficult for HPLA’s members to assess the workability of these proposals – and to decide whether they want to start making changes to their organisations so as to be able to meet the proposed, new contract terms (for which they must submit bids in Summer 2009[4]) – without any indication as what the remuneration changes are likely to be and why it is that the LSC is unwilling to disclose the nature of the changes at this point.

Section 4: Types of services we want to buy

Q.1. Are there any areas of family work other than child abduction that should be procured separately?

  1. No comments.

Q.2. Are there any other areas within low volume categories that are so significantly distinct that it would be more appropriate to tender for this work separately from the rest of the category?

  1. No comments.

Q.3. Do you agree with the types of services we intend to procure in each category of law? If not, how should services be structured to ensure more integrated advice?

  1. Answered under Q.4

Q.4. Do you agree with the types of civil legal aid service we will no longer procure? If not, why?

  1. In so far as the LSC is proposing that housing law should no longer be a discrete category of law, but rather a sub category of “social welfare law” for which contracts will only be awarded to non-family suppliers as part of a “housing, debt and welfare benefits” bundle, HLPA strongly disagrees with these proposals. (In so far as the LSC is making proposals about other areas of law HLPA has no specific comments).
  1. First, at paragraph 4.4 you say that there will be no ‘debt only’ contracts, no ‘welfare benefits only’ contracts, and no ‘housing only’ contracts. This would seem to leave the way open for ‘welfare benefits and debt’ contracts, and ‘welfare benefits and housing’ contracts, and ‘debt and housing’ contracts. However, this is contradicted by paragraph 4.3 and by Annex B which both indicate that ‘welfare benefits and debt’ contracts, and ‘welfare benefits and housing’, and ‘debt and housing’ will also come to an end. This response has been on the assumption that paragraph 4.4 is inaccurate in this respect.
  1. Second, the majority of housing clients do not have a “problem cluster”. The majority of housing clients only require help with a housing problem. As a result the majority of housing clients will lose out as a result of these proposals. They will lose out because of the inevitable reduction in the number of housing suppliers – and therefore the inevitable reduction in accessibility and choice. They will also lose out because many of the housing suppliers who will exit the legal aid scheme as a result of these proposals will be high quality niche providers.
  1. Third, for the minority of housing clients who do have a “problem cluster” the nature of these problem clusters are complex and unpredictable. Some may require help with welfare benefits and/or debt problems. But many others require help with other areas of law covered by the legal aid scheme: for example immigration and asylum advice, mental health advice, criminal law advice, and community care advice. Yet others require help with linked problems which fall outside the scope of the legal aid scheme altogether.
  1. Fourth, the LSC’s proposals will not improve the way in which legal aid suppliers respond to problem clusters. The LSC’s proposals will have a negative effect on the resolution of problem clusters.
  1. To resolve a problem cluster requirestwo critical steps: identification and resolution.
  1. As the law is so complex legal aid solicitors or advice workers will typically specialise in a single area of law. Housing law is particularly complex, and so most housing solicitors or advice workers specialise in housing alone. That is a good thing because if one person spreads themselves too thin, and tries to practice in too many different areas, it is very difficult to maintain the knowledge and experience necessary to provide high quality advice in each area.
  1. However, this presents an important challenge in terms of the identification of problem clusters. Very, very few clients initially present with a problem cluster. They present with whatever is the most serious issue they face. The homeless client will phone up and ask for help because they don’t have anywhere to live. They will rarely volunteer, for example, that they are also a person from abroad with schizophrenia who is on bail.
  1. So what is critical is that the housing solicitor or advice worker who initially meets with the client has sufficient skill, experience and time to not just approach with the homelessness problem with tunnel vision, but to also find out about potentially linked problems and assess whether the client would, in this example, benefit from immigration, mental health, community care and/or criminal law advice.
  1. Compelling organisations who provide housing advice to also provide welfare benefits and debt advice will have little or no impact on this first, identification stage of the process.
  1. It will have little or no impact because even if the housing solicitor knows that there is a welfare benefits adviser elsewhere in the building, or in a consortium partner’s office, the potential for a referral to the welfare benefits adviser does not even arise unless the housing solicitor, with whom the homeless person initially makes contact, has sufficient skill, experience and time to work out that it might be worth making a referral (e.g. because the housing solicitor works out that the client is probably mental ill, makes enquiries about the NHS or social services, and then works out that the mental health problems are so serious that they will not only enable the client to make a successful homelessness application, but may also be significant enough to trigger an entitlement to a disability benefit – at which point a referral to a welfare benefits adviser may be appropriate if that is what the client wants).
  1. So keeping skilled and experienced housing solicitors and advice workers in the legal aid system, and ensuring that they have the time and funding to adopt a holistic approach to advice provision, is critical if the LSC is serious about improving the way in which problem clusters are addressed.