Ms Laura di Blasi

Civil Contracting Policy Unit

Legal Services Commission Head Office

85 Grays Inn Road

London

WC1X 9TX

23rd December 2002

Dear Laura,

Re: Not-for-Profit General Civil Contract Consultation

We welcome the opportunity to respond to the proposed changes to the new Not-for-Profit General Civil Contract, due to commence on 1st April 2003. We hope that our comments will be useful in helping to shape the final contracts so that they deliver value for money and ensure their user-friendliness. We trust that the desire to make changes for these reasons does not detract from the original and ongoing purpose of Community Legal Service, namely to increase the access to justice for the socially excluded.

Introduction

London Advice Services Alliance (Lasa) is a second-tier resource agency for advice and information providers across Greater London. Lasa provides expert resources in three main areas:

  • welfare benefits advice, information, training, representation at Social Security Appeal Tribunals, and the Specialist Support Project for other CLS providers;
  • information systems technology support, advice and assistance, including a multi-lingual website;
  • reviewing, informing and influencing policy development affecting the advice sector across London.

Lasa works closely with other advice networks, hosting the London Advice Forum, which brings together representatives from Advice Services Alliance, Age Concern London, bassac, DIAL UK, Federation of Information and Advice Centres London region, Law Centres Federation, National Association of Citizens Advice Bureaux London region, and Youth Access.

Of particular note is the fact that Lasa has maintained a contract with the Legal Services Commission since 1995, under the welfare benefits category of Legal Help. Lasa was one of the first Not-for-Profit (NfP) agencies to be awarded a contract and as such, we feel that the in-depth knowledge gained from working to the contract conditions makes our experiences invaluable in assessing the likely impact of the proposed changes.

Quality against cost

A primary concern to Lasa is the way that the proposals for contract compliance assessment and time recording guidelines appear to mitigate against accepted good practise when providing welfare benefits advice, will fail to measure qualitively the standard of advice provided, and are not supported by independent research. As was noted in the annual report of the Legal Services Commission[i] (2.25), “Many of the NfP contractors took significantly longer than contracted solicitors to carry out work on a matter or a case, but may have achieved a higher level of quality; certainly in the perception of the client.” Presumably, this acknowledgement arose from the recent “Quality and Cost” report[ii], in which a number of specific recommendations were made, including (11.114):

  • It takes time to get good results and solicitors and [NfP] advisers need a regime which allows for this;
  • The Commission’s quality assurance system needs to be strengthened and developed to look more directly at the quality of work. Peer review represents the best available means of doing this;
  • The funding of representation under contract should be revisited in the light of the levels of positive outcome that can be achieved;
  • The amount of time spent by NfP on matters suggests that the need for contractual criteria other than, or in addition to, specifying the numbers of hours spent on cases should be considered in NfP contracts.

It should be noted that the report found that “contracting must be flexible enough to encourage quality of service and technical and practical work, to a range of clients giving rise to appropriate levels of outcomes”, and that NfP agencies took between two and two and a half times as long as solicitors to carry out their work but also evidenced better quality in terms of client satisfaction, peer review assessment of work and (to a lesser extent) gaining positive outcomes for clients.

Proposing time guidelines based on those that apply for a solicitor’s General Civil Contract contradicts these fundamental findings and serves to undermine the very strengths of the NfP advice sector that have been otherwise tacitly acknowledged. When the annual report announced the introduction of cost assessment auditing, it was stated that the Commission would “begin to look at the achievement of value for money, including the benefits of spending slightly longer on a case.” The proposed changes do allow that certain cases may take longer to resolve than the standard times allowed, but the implication is that these will be exceptional rather than usual.

To illustrate why we feel this approach to be wrong-headed, a simple comparison can be made of the overall amount of time allowed to prepare an appeal under the proposals against the actual average time taken by Lasa’s Advocacy Team. Under the proposed time guidelines, the usual maximum time allowed to interview a client and prepare their case for appeal would appear to be 5 hours, with a further 30 minutes available to expedite a hearing and up to 60 minutes to follow-up.

Actual time taken in appeal cases at LASA:
Average eligible work per case: / 12 hours 23 minutes
Range: / Least time taken: / 5 hours 8 minutes
Most time taken: / 24 hours 42 minutes
The above figures are based on analysis of all LSC cases closed by the Lasa Advocacy Team in the period 1 June 2002 to 30 November 2002. In all, 61 cases are included for this period. Cases that were not resolved at Social Security Appeal Tribunal have been excluded from the analysis (i.e. cases where the matter proceeded past the initial determination of an appeal tribunal to the Commissioners or a setting aside application, and cases where the matter was resolved prior to a Tribunal decision). The times are based on all the eligible work carried out on each case (thus, excluding travelling time and representation at the tribunal hearing).

With a success rate at hearing of approximately 80% (which incidentally is well in excess of similar figures in the Quality and Cost report[iii]), the value of the extra time spent on a client’s case is quite clear to see.

Further, it can be noted that the average time taken by the Advocacy Team in assisting clients to prepare for an appeal exceeds the proposed Upper Casework Limit of 10 hours. Whilst acknowledging that there is a concession to allow a Regional Director the discretion to increase a supplier’s Upper Casework Limit where the increase is justified by their previous record, it does illustrate how the time guidelines do not accurately reflect the amount of time it can effectively take to deal with the range of welfare benefit problems.

Lasa only provides representation at Social Security Appeal Tribunals and Social Security Commissioners, taking referrals for clients from other advice agencies. This specialism means that we have been able, over the seven year course of our contract, to develop particularly efficient and effective ways of working when preparing appeals and preparing clients for their appeals. For these reasons, we would maintain that the time guidelines proposed for a caseworker to prepare a client’s appeal properly, offering a quality service that provides a reasonable chance of success, are unworkable and unrealistic.

Case study example 1

Client was a 34 year old Sudanese woman who is a single parent. She was born in UK and has right of abode but went to live in Sudan as a child, returning to live in the UK in July 2001. She had two income support (IS) appeals arising from the question of her habitual residence in the UK for linked periods of time. She had made four claims for IS with the assistance of a Citizens Advice Bureau and had a very complicated adjudication history as a result.

When the caseworker contacted the Appeals Service (TAS) to check on the progress of the appeals, it was found that the Department of Work and Pensions (DWP) had told TAS that both the appeals had lapsed because IS had been awarded from February 2002. This was incorrect as the client had outstanding appeals for the period from July 2001 to February 2002. The caseworker contacted the DWP and found that they had got the four claims and the decisions relating to those claims muddled up so that the wrong decisions were linked with wrong claims. These mistakes had caused them to inform TAS to withdraw the appeals. The caseworker went through the adjudication history with the DWP and got them to re-arrange their documents and produce two new appeal bundles. This took a number of phone calls and chasing up over the period of a month.

On top of the “standard” hours taken to initially interview the client, draft the attendance notes, liaise with TAS to get both appeals heard at the same time and to draft an appeal submission, including the caseworker needing to look up and quote the most recent case law on habitual residence, it can be seen from this case study that a great deal of time was needed to unravel the particular complexities of the client’s case, especially in negotiation with both the DWP and TAS to progress the appeal. This is not an uncommon scenario when a caseworker begins to advise a client on their appeal, often due to a combination of poor decision making and a lack of knowledge from the client as to what is happening to them in relation to their benefit claims or appeal.

Case study example 2

Client was an Indian woman with a first language of Urdu. She has with severe mental health problems and a diagnosis of schizophrenia. Client was refused Disability Living Allowance (DLA) and appealed against the decision. She was referred to Lasa from an Asian Women’s resource centre.

Client was seen at the referring resource centre due to her need for an interpreter, as well as for cultural and religious reasons. The caseworker travelled to the centre and interviewed the claimant. It was ascertained that very little medical evidence was available to be able to proceed with the appeal process immediately. Although the client was able to offer partial self assessment in terms of her care and mobility needs, this was extremely limited given the severity of her mental health condition. It was agreed to contact the client’s husband and carer by telephone to clarify the degree of supervision needed and explain the process involved in relation to both the benefit entitlement conditions and the appeals process. Additionally, the caseworker advised the client’s husband to keep a diary of his wife’s needs on a day-to-day basis.

The caseworker wrote asking for further detailed medical evidence from both the G.P. and the community psychiatric nurse. When the appeal papers were received, the caseworker had to thoroughly read and assess them in order to be certain of the veracity of the client’s claimed care needs as well as weighing up the DWP arguments as to why she was not entitled to DLA. Following this action, an appeal submission was prepared for the hearing, including relevant case law.

This case study illustrates how multi-layered problems and difficulties that clients experience can impact upon each other, leading to the caseworker needing to spend extra time to travel to visit the client in a suitable environment, to make use of another person to interpret the client’s needs, to make an assessment of what evidence and information is required to progress an appeal, both in a formal medical sense and in a day-to-day evidential sense.

Clarity and bureaucracy

We feel there is a lack of clarity in the terms used throughout the draft contract, as well as a confusion over exactly what time can be claimed for activities necessary to Lasa’s work on clients’ appeals.

Take, as an example, the proposal that further work preparing for an appeal should take no more than three hours. Is this proposal intended to cover all further work beyond initial interview? Or can the transcription of initial interview notes, requests for medical evidence, telephone negotiation with the other side and with the Appeals Service, researching relevant case law, reading appeal documents, preparing and drafting an appeal submission be claimed for separately? This lack of clarity is very alarming and could seriously jeopardise Lasa’s ability to fulfil the proposed contract compliance assessment audit, simply because of misunderstanding about exactly what activities and what times can be claimed for.

From 1st October 2002, Lasa has been operating the Specialist Support Project (SSP) in the London region, offering telephone advice, supported and direct casework to organisations with CLS general and specialist quality marks. There is a complete absence of guidance within the proposed time guidelines on exactly how organisations record time taken when making use of the SSP service. Indeed, given the need to justify extra work carried out over and above the proposed time guidelines, we have concerns about how the proposals could actually work against CLS suppliers making full and proper use of this pilot service. As a baseline, we would like to see written assurances that all time claimed by an adviser engaging with the SSP on a particular case as being automatically justified on the contract compliance assessment.

The need for a continuing written justification of work done, in terms of:

  • what activities an adviser does for a client,
  • how long the adviser spends working on the client’s case,
  • as well as the existing sufficient benefit test,

will cause enormous increases in administrative requirements, as well as raising the amount of time that advisers will need to discuss cases with supervisors to check on the validity of the justification. All of which shifts the adviser’s focus away from what should be central to their vision, namely the needs and requirements of their clients.

Further, the imposition of another audit will have implications for the ability of contracted suppliers to fully inform and train all advisers working under contract of the new requirements, will probably lead to changes in IT time-recording systems, and impose additional management and supervisory requirements on NfP suppliers. Again, this could lead to more non-compliance with contractual requirements, rather than less.

Form completion and benefit checks

We have concerns on the proposed restrictions of time that can be claimed for form filling. Together with the proposals restricting legal research and benefit checks, we feel that these strike at the very heart of the holistic approach that most NfP advice agencies take towards their clients. The draft contract states that (15.6), “Legal Help should not generally be used to assist the client in completing forms. This is an administrative task….it might be reasonable for you to provide advice regarding completion of a form…where, for example, an issue of law arises.” We strongly disagree with this statement. Virtually every form that a person completes in relation to welfare benefits contains a legal disclaimer to the effect that they have entered a true and complete record of the required information, and they understand that action may be taken against them if this is later found not to be the case. Indeed, in welfare benefits and immigration appeals, matters of English law can arise at each question and have been subject to judicial interpretation on the exact meaning of words, questions and responses at the highest levels of the judiciary.

As noted in the LSC annual report[iv] (2.1), “Helping people to resolve civil disputes can reduce the social exclusion experienced by the most disadvantaged individuals. Providing education, timely information and advice can help people deal with problems and also reduce expensive claims on other public bodies.” If an individual arrives at an advice centre and requests assistance with the completion of a claim form, it is usually the case that they do require help, for reasons such as education, literacy, language, health, confidence, etc, to accurately describe their circumstances in writing and in the appropriate manner. Often, problems arise because application forms are completed incorrectly or sent without necessary evidence, which can then lead to time-consuming work to rectify matters.

Incorrect form completion can put that person at risk of incurring overpayments, to accusations of fraud, and can be the cause of time-consuming appeals: it can, in effect, lead to a whole raft of other expensive problems that would have been avoided but for some “timely information and advice” on how properly to complete their claim form. Indeed, Social Security Claims and Payments Regulations now state that a person is not deemed to have made a claim, and is not therefore entitled to a decision on a claim, until a properly completed claim form, with all necessary evidence and information, is received at the appropriate office.

This problem is compounded by the poor standard of decision making by the Department of Work and Pensions, with only 59% of income support decisions and 67% of jobseekers allowance decisions being found to be correct, these being the two main subsistence benefits[v]. Claimants’ wider awareness of these issues are exactly why they come to advice agencies for assistance with making claims for benefits, as well as requiring assistance to get bad decisions put right.