Friday, October 06, 2006

Means Tested Legal Aid

A new legal aid system has been introduced, and as from 2nd October 2006 criminal legal aid has reverted to means testing. To get legal aid for a criminal case you now need to pass the interests of justice test and the means test. For the past seven or eight years you simply had to pass the interests of justice test.

What is the interests of justice test? It is simply qualifying the need for a solicitor. For example if you apply for legal aid and there is a pretty good chance you could go to prison due to the seriousness of the case you would usually be given legal aid. Also if your case involved a complex area of law then you may meet the interests of justice test.

The means test is back, but in a new way. Means testing used to exist, but it was abolished because it was believed that means testing was too expensive to actually collect in money that people had to contribute to their legal aid if their income fell between certain levels. I like the idea of means testing, those defendants who can afford to pay for legal services should pay for them. Those Defendants who cannot afford to pay for legal services should qualify for legal aid. The Legal Services Commission has been behind the reintroduction of means testing and they have made a right pigs ear of it.

Here some examples of why applications have been rejected recently:
The form had been filled out in blue ink and not black ink.
The ethnicity part of the form had not been completed to specify the applicants ethnicity
The application of a 12 year old youth had not specified whether or not he had a marital partner
The application submitted before the first hearing did not contain a copy of the applicants previous convictions even though these are not available to defence solicitors until the first hearing
Many defence solicitors, including myself, are aggrieved by the attitude of the Legal services Commission over means testing. They have somehow managed to move the job of processing legal aid applications from experienced Court staff to administration staff who have had no experience of the interests of justice test, or have any practical experience of Court work to know how to apply the interests of justice test.

The real problem with the new means testing scheme is that applications for legal aid cannot always be processed on the first hearing when the Defendant appears in Court. For example, my local Court is served by a central administration office. If I want to lodge a legal aid application it has to be sent through the post or document exchange to an office, I then have to wait two days to find out if the application has been granted. Now this all sounds fine until you realise that there are Defendants in Court without time to make an application for legal aid. If I represent a Client for a matter at the Police Station they might appear in Court within 24 hours having been refused bail by the Police - and in these circumstances I cannot ensure that legal aid is in place before the Client appears in Court wanting to be represented. In reality the Legal Services Commission want solicitors to gamble and to guess when legal aid will be granted. There is no way for me to recoup losses (other than ridiculously small fees) if I have spent the vast majority of my time at Court for a Defendant who has been refused bail by the Police and is also refused legal aid several days later!

The Derek Hills of the Legal Services Commission, and Vera Baird QC of the Department for Constitutional Affairs, have shown utter contempt for legally aided defendants over means testing. There are some very real issues such as young defendants remaining in custody for longer than is necessary whilst legal aid applications are resolved. The UK has a record of locking up a higher percentage of the population than other European countries, we also lock up more of our youths. Means testing is adding to this issue. At a meeting on 2nd October 2006 I was told by the head Clerk that if Defendants have to remain locked up in order to process legal aid applications then so be it.

2nd October 2006 was the date for the reintroduction of means testing, it will go down in my diary as Black Monday.

37 comments:

Anonymous said...

The UK has a record of locking up a higher percentage of the population than other European countries...

Thats because we have a higher rate of crime Gavin!

Case Closed!

Next!

Anonymous said...

We had a client who was denied legal aid due to the fact that only his signature was in blue pen. How crazy is that?

Anonymous said...

It is called risk shifting. We are already in the hands of court listing,Cps,legal advisors,clients. They all determine when we get our cases on and are responsible for wasted time.They determine the progress of our cases through the court.Now we take the risk in applying for rep orders that it will be refused as client does not have the right details or does not bring his partner to sign the form.
Roll on the abolition of waiting time!

Constable Shortman said...

Good, whilst I sympatathise with the solicitors, this shifts some responsibility onto the criminal.

They have been pandered to for too long.

Smartie said...

Its interesting because twice i have got up in the Mags courts this week and said 'sorry the Legal Aid office are refusing to give out LA forms and i therefore cannot represent the interests of this defendant'. This happened in Highgate and Horseferry Road Magistrates, and both times the DJ adjourned and got the Clerk to give forms (when the LA office said they dont have any). Anyone else experiencing this?

Filling in the forms takes sometime - really, how is a client in custody going to get his / her partner to come and sign the form after stating their income, and how many know their NI numbers!

Some of those reasons for refusal of LA are quite petty. Whats even worse is when Counsel fill in the forms, LA is refused for whatever reason, and we get paid nada from solicitors because somehow it was our fault!

Anonymous said...

You can get the forms from the LSC website, no excuse for saying they 'won't let you have them'. I had a look and they don't look that hard to fill in (unless you ar a company director or similar).

Smartie said...

>no excuse for saying they 'won't let you have them'

Solicitors should print and send to us just like they send briefs. Actually one firm did after my Highgate incident ;)

Anonymous said...

"Good, whilst I sympatathise with the solicitors, this shifts some responsibility onto the criminal".


Surely you mean 'suspect' not criminal?

Constable Shortman said...

No I mean criminal. It is very rare for someone to appear at court without having previous convictions. Ergo the use of the word criminal. Just like a spade really.

Gavin said...

Anon,

You said, "You can get the forms from the LSC website, no excuse for saying they 'won't let you have them'. I had a look and they don't look that hard to fill in (unless you ar a company director or similar)."

Before legal aid forms were supplied by the Court, now solicitors are expected to provide the forms for the Clients. This now means to apply for legal aid we have to print off roughly two forms of up to 35 pages for each application, do that five to six times a day and the cost mounts up. This is a cost that has been passed on to us without any warning.

Then if you talk about the general availablity of forms you are correct to say that you can get them from the LSC web site. The majority of defendants will not have the ability to print off a form, particularly those who have been remanded over night by Police.

I am the Court Duty Solicitor for my local Court for all of next week. If I am at Court and I run out of application forms because I have used up my supply and the Court refuses to supply me with any how are defendants in custody supposed to apply for legal aid?

The Courts have historically supplied these forms and in my opinion they should continue to do so.

Anonymous said...

1) so what if you have spent convictions? do the constabulary still see you as a 'criminal' as opposed to a suspect?

2) The police officers who refer to 'criminals rights' always amuse me as having done police federation work I know that police officers are the first to exercise their 'rights' at the suggestion of any impropriety against them.

3) If a police officer has a disclipinary finding against them should their rights be affected if they happen to be accused again?

4) The LSC actually wrote to solicitors last week saying the courts would be given forms to provide to solicitors. They just did not write to the court to tell them!

Constable Shortman said...

1) so what if you have spent convictions? do the constabulary still see you as a 'criminal' as opposed to a suspect?

I see them as both.


2) The police officers who refer to 'criminals rights' always amuse me as having done police federation work I know that police officers are the first to exercise their 'rights' at the suggestion of any impropriety against them.

That may be because complaints against police are very often malicious, which the detection rate will prove, especially when compared to criminal (sorry "lawfully challenged individual") detections.

3) If a police officer has a disclipinary finding against them should their rights be affected if they happen to be accused again?

They are! Have you heard of Pro-active complaints and discipline depts? Or how about never being able to get that job or course because mud has stuck.

I cant believe these poor solicitors are complaining about having to fill a form in.

We have to jump through hoops to complete discloure requests, cctv requests etc. I dont get paid any extra or have my workload reduced.

Gavin said...

Constable Shortman said, "I cant believe these poor solicitors are complaining about having to fill a form in."

There are two reasons for complaining. the first is that completed forms are being rejected by officious bearucrats for ridiculous reasons such as the forms not being in block capitals, or on a youths application not specifying whether they are single, married, co-habiting etc.

The second reason is that the government tells us that the Courts will refuse to assist defendants complete the forms and that we (meaning solicitors) must do extra work for no extra pay. Although I appreciate that Police Officers have to fill in a mountain of paperwork, the level of paperwork you complete does not effect the income that your force generates.

Smartie said...

>that the Courts will refuse to assist defendants complete the forms and that we (meaning solicitors) must do extra work for no extra pay.

Meaning junior counsel also since in London we spend a good couple of years at least in Magistrates ;)

Anonymous said...

3) If a police officer has a disclipinary finding against them should their rights be affected if they happen to be accused again?

They are! Have you heard of Pro-active complaints and discipline depts? Or how about never being able to get that job or course because mud has stuck.



exactly : Is that right? of course not

so can you not see the parallel between that unfair position and treating anyone who appears before
the court with a pre-con as a 'criminal'?

Smartie said...

http://observer.guardian.co.uk/cash/story/0,,1889597,00.html

Just thought t'was interesting re. Civil Legal Aid cuts...and sad :(

Anonymous said...

"That may be because complaints against police are very often malicious, which the detection rate will prove"

I dealt with a police federation case the other day where the officer was accused of assault. The accuser was his wife! I doubt she made the complaint just because her husband was a police officer.

Secondly, Iloved the idea that the 'detection rate' will prove that most complaints are malicious. First, the allegations are essentially being investigated by the officers mate (whether the investigator and criminal (sorry i meant officer under suspicion) are know to each other or not they are always chummy). Secondly, the one thing that statistic s do 'prove' is that the police force couldn't detect their way out of a paper bag. Or, detect a shag in a brothel, or a drink in a bar... the list of what the modern police can't detect is endless!

Anonymous said...

Gavin

"Before legal aid forms were supplied by the Court, now solicitors are expected to provide the forms for the Clients. This now means to apply for legal aid we have to print off roughly two forms of up to 35 pages for each application, do that five to six times a day and the cost mounts up. This is a cost that has been passed on to us without any warning."

From what I understand solicitors can now claim up to £75 to help someone fill in the form - that should at least cover the costs of photocopying 20 odd sheets of paper.

And what did you do before 2 Oct when the court ran out of forms?

Gavin said...

Anon,

The government has dreampt up a variety of ways to pay solicitors for completing the forms. I have cut and pasted a letter sent from Derek Hill of the Legal Services Commission.

1. "We will also allow a payment of £25 + VAT for helping the client fill in the form where Early Cover is not paid. For this payment to be made you will need to have given advice to a client that although their case is one which would, in all probability, satisfy the interests of justice test they would not satisfy the means test. Your file will need to record why you considered the case would satisfy the IoJ test, but you will not be required to make the application to the court. This payment will only be available to you if that client does not then go on to instruct you as a private client; and advice will need to have been given within 10 working days of your client being charged or summonsed for the offence in question."

This means that you must see the Client face to face, write a detailed attendance note setting out the advice you gave, open a file, and send a Client care letter. In all it takes longer than 30 minutes to go through the forms with a Client, and once you have to open a file and write to the Client you are talking about taking about 45 minutes in total. That means that the £25 payment equates to an hourly rate of about £33 an hour. Once you have deducted overheads such as salaries, premises, etc., etc., the payment of £25 does not really seem worth the effort. There are better paying tasks that can be undertaken in an attempt to earn a reasonable living from legal aid.

2. "Where a representation order is refused on the means test, we will allow the Early Cover payment of £75 + VAT, where the application was submitted within the requisite time period, namely 2 days or 5 days if the client is in custody. That will cover any costs incurred in helping the client complete the means form."

This means that the Client has to be organised enough to provide proof of their income if they are not on benefits, and if that can be done within the time limits we might get the £75 fee provided that the case is serious enough. Most Clients commit crime because their life lacks order and most Clients suffer with problems (some are self inflicted) and as such it is extremely unlikely that they will be able to produce the requiste evidence within the time limits. This offer of £75 plus VAT is made on the basis that work will be done on the case hoping that legal aid will be granted subsequently.

3. The third method of payment is where a legal aid application is completed and subsequently granted 30 minutes of time spent completing the application can be claimed on the total legal aid bill for that case. You cannot claim an additional £25 as mentioned at 1 above, or claim an additional £75 in 2 above. We do not get paid on a per hour basis in the Magistrates Court and the offer of payment for 30 extra minutes actually means it gets absorbed in to the general bill and actually offers no more money except in cases where lots of work is undertaken and the bill for the case is generally out of the standard range.

In short the payment schemes on offer are unfair and offer no incentive to rush to complete the forms because the rules and guidelines to claim the payments actually have no practical effect. I am not aksing to get money for nothing, I just want to be sure that I will get paid for work that I do when applying for legal aid rather than just keeping my fingers crossed.

Can you imagine going to work and only being paid for certain tasks that you undertook because payment was actually beyond your control? For example if a plumber was being paid on the same basis he might turn up to a job. He would only be able to claim the £25 fee provided that he saw a customer, recorded the fault they complained of, provided a short report on the fault analysis but subsequently did no further work, and whilst he was sat earning his £25 he could not go out and complete more profitable work. Or perhaps he is assigned a job and goes to a customers house. The job requires a spare part that only the customer can obtain, and it must be obtained within 2 working days. He might be able to claim the £75 fee if the spare part is acquired by the customer and the job was actually serious enough to need a plumber in the first place. Does that sound crazy?

bagpuss said...

It's not just Criminal Legal Aid. Similar changes are proposed for Family legal aid. This means that once again the most vulnerable members of society will be unable to access legal advice and representation.
One of the most invidious parts of the 'refprms' is that there will (both in family and crime) be more fixed fees and even less consideration given to the quality or quantity of the work done. This means that there is very little incentive for lawyers (already overstretched and underepaid, for legally aided work) to 'go the extra mile' to find evidence which will assist their clients.

The carter review is likely to make changes bringing in fixed fees for family work. As a resukt, my firm is almostertain to give up legal aid, as it is not costs effective. We don't want to. We have always provided legal aid, but we are reaching the point where we can no longer afford it. We are not alone.
We are currently one of 2 firms in our town providing legal aid for amily cases. We stopped providing criminal legal aid 2 years ago (we were the last to go. 6 years ago 5 firms in the town offered legal aid. Now there is no provision at all for criminal representation and only 2 firsm offering legal aid for family cases.)

Part of the problem is that many solicitors who do legal aid work do so, at least in part, due to a feeling of public duty and commitment to the idea that everyone should have access to justice. Unfortunatly this means that because we do not want to deprive our (often vulnerable and disadvantaged) clients of these rights, we have continued to do the work in the face of ever increasing beaurocracy and ever decreasing returns. We do have our limits and these are fast being reached. Do you really wanbt to live in a world where justice (whether in a criminal or a civil court) is open only to those who can pay?

I have been doing legal aid work, for 10 years. In that time, the rates paid for such work have been increased by just £5 per hour. And there are some pieces of work for which we are not paid at all.

Anonymous said...

My husband was due to visit Exeter prison last Friday (the week they re-introduced means testing)all seven Solicitors due to visit clients had cancelled. It is fair to say that local defence Solicitors' morale is very low and I think by Friday they had had enough. Since they vast majority are at least the wrong side of 40 (if not 50) they remember the last time means testing was introduced - it cost £1.23 to collect every £1. There is no indication so far -and in fact quite the contrary - that the figure will be any better. So what if half a dozen high profile celebs get free representation every year! They do pay more taxes and this is no reason to send the system into chaos.
Archbold, the cat

Constable Shortman said...

Hi,

Gavin:

" I appreciate that Police Officers have to fill in a mountain of paperwork, the level of paperwork you complete does not effect the income that your force generates.

"No the effect is much worse as it directly affects the ability of police to be mobile, visible and able to protect the public. Look at any full file and you will see what I mean.

"so can you not see the parallel between that unfair position and treating anyone who appears before
the court with a pre-con as a 'criminal'? "

There is no parallel. Whilst I and many others would call them criminals, the court does not (in fact they usualy see them as victims). Therefore it has no real impact.

""That may be because complaints against police are very often malicious, which the detection rate will prove"

I dealt with a police federation case the other day where the officer was accused of assault. The accuser was his wife! I doubt she made the complaint just because her husband was a police officer."

The point being what?

If a criminal assaults somebody does the state try him on the balance of probabilities? With the threat of your livlihood hanging over your head? No of course it doesnt.

"Secondly, Iloved the idea that the 'detection rate' will prove that most complaints are malicious. First, the allegations are essentially being investigated by the officers mate (whether the investigator and criminal (sorry i meant officer under suspicion) are know to each other or not they are always chummy)."

You claim to have knowledge of the internal police proceedures yet come out with a statement like that?!

Chummy?! In all my years in the job Complaints and Discipline have never been chummy with any humble PC. They act in an underhand way. almost persecuting officers. They are also highly trained and experienced detectives, sgt and above. That and you would never be investigated by an officer who you had worked with.

As for your claim about detections, I cant really see what you mean? We detect around a third of offences reported. With most of the crimes reported to us if we had an army of shelock holmes we could still not detect them.

If your point is that stats are meaningless I would agree, however in the main, comlaints against police are still very small and manipulation is harder to do.

I still am very surprised that Solicitors are comllaining about filling a for. Welcome to my world.

Davout said...

It is not the filling in of the forms we are complaining about. We do that over and over. Our paperwork rivals that of the police - and frequently for nothing, just like the police's forms.

The Means Testing fiasco is the straw that is breaking the camel's back. It is yet another change "consulted" upon by the government. By "consulted" I mean "implemented without thought or consideration for those who are having to make it work". On top of the Carter proposals, this is a very real threat to our livelihoods. Yes, most solicitors will find something else to do, probably for more pay and less hours.

How will the public feel when the first defendant is freed because he was denied the right to legal advice at the police station as there were no more solicitors left in that area?

How will a police officer feel when he is arrested and can't get the same standard of legal advice as has been available to suspects since the Duty Solicitor Scheme was introduced?

There is not a generation of individuals who can leap straight into the hole created by the government's destruction of private practice and the Public Defender Service, although staffed by competent individuals, is far more expensive.

Pay us a decent wage and stop drowning us in bureaucracy. And yes, whisper it soft, do the same for the police. Stop paying an inflated army of managers and consultants and allow us to do our jobs.

Sorry, rant over and that bottle of wine is nearly finished.

Back to it tomorrow, but probably not for much longer. The wife and kids are fed up with the hours and I have another offer on the table.

Smartie said...

>The wife and kids are fed up with the hours and I have another offer on the table.

Ooooh, can you say what the offer is?

I've been offered a post with the GLS. Time to get out of the poverty stricken criminal bar ;)

Davout said...

The offer is to go into a commercial firm for a hugely inflated salary. Yes the hours will often be as long, but without the uncertainty of call outs and knowing that I will have a future.

I don't really want to do it as the work does not inspire me, but the salary will, to misquote Woody Allen, buy me the kind of misery I can live with.

Anonymous said...

There is a certain irony to the Legal Services Commission kicking back legal aid applications over little more than a clerical errors (point 4 excepted). How many times have clients been cleared with tenuous and technical defences based on the clerical error of someone further down the food chain of the criminal justice system?

Nonetheless enjoyable blog. Keep up the good work.

Anonymous said...

Is 'constable shortman' aware of the role of the Police in a democratic society as opposed to a Nazi state?...OBJECTIVITY!...
comtemptable

Davout said...

So how is means testing going in your area, Gavin?

Jon Katz said...

Thanks for this posting.

Practicing in the state and federal courts in two states (Maryland and Virginia) and the colony of the District of Columbia, I have seen staggering differences in the ease or difficulty in obtaining indigent defense.

In the District of Columbia Superior Court, as a colleague described, an applicant needs merely to be breathing.

In Maryland, a person need not be dirt-poor, so long as the applicant is below the assigned income level for the particular alleged crime (such other factors as financial dependents are also considered), and has limited assets. Consequently, when I was a Maryland public defender lawyer, I often saw well-dressed college students from solidly middle-class-income families qualifying for public defender assistance, because their parents' incomes were not considered, even if their parents provided them full financial support. I agree with this approach of only considering the adult applicant's assets and income, and not the parents'.

Virginia is the hardest of the three jurisdictions for obtaining indigent defense assistance to the point that I believe too many defendants who are considered not poor enough to obtain indigent defense are too poor to afford a qualified lawyer.

I blog more about this situation, including Virginia's abysmally low pay to court-appointed lawyers, here: http://www.markskatz.com/VirginiaCrime.htm#27

Underdog

Anonymous said...

Perhaps if you had been one of the two incredibly naive and silly boys in court - from another country - facing Crown Court as our Government says certain "crimes" must be heard there - terrified as they had already been held in one of our finest youth establishments for two and a half days, nice young fresh fodder I suppose for the inmates to play with - anyway - due to our new means testing - back for a further two days whilst the forms were duly processed. At what cost to the tax payer? Not all criminals are actually hardened scurges of society - some are completely stupid youths who havent actually hurt anyone but fallen into this enourmous mess. Perhaps if you were one of these boys - you may have wished for the good old days of non means tested legal aid... I wont mention the wasted court time costs etc etc etc

Miffed of Manchester said...

"the court does not (in fact they usualy see them as victims)"

What utter tosh.

This officer is annoying me now. Firstly, the number of times cases have been delayed because an important communication has been ignored by an OIC so the CPS must come to court and apologise and apply to adjourn is ridiculous.

Secondly, I am sick to death of the police claiming to be impartial and "simply there to investigate" (as one of my clients was told in interview yesterday. How many times does CCTV never get sought out by the police despite being mentioned in interview immediately after arrest? Well, I am on 5 in the last 6 months alone.

The police are rarely interested in investigating. Cases of "neighbour disputes" where one party shouts first/louder are frequently investigated no further than that first/loudest complaint. Court time is then wasted whilst we (defence solicitors) demonstrate to the court that the supposed AP is actually the criminal and the defendant IS the victim. The same can sometimes be said of DV cases.

It is no surprise that a police officer says that he always thinks of suspects as criminals because it takes that sort of person to do his job but this does perhaps remind all of us in criminal defence that the police are still as ignorant and short-sighted as always.

Most of us came into criminal defence not for the money (because the legal aid gravy-train disappeared into the distance a long time before old Vera Baird got her hands on it) but because of an interest in justice. We, as lawyers, recognise that justice is a balance not an assumption. These days, that motivation is more important that it has been in decades. Let us not lose sight of that even though we are short of money for Vim.

Does anyone remember trying to teach trainee police officers about how to be effective witnesses? I do. It was like trying to teach a class of monkeys how to play the entire works of The Amazing Blondelle. The main problem was that they always assumed that the lawyer (whether for Evidence in Chief of Cross-Examination) was there to somehow "trick" them. We tried to demonstrate that if they simply told the truth rather than trying to put a "spin" on the evidence then there was no room for trickery. That simple.

We need to struggle on because, unlike the police and CPS, we have not had a bunch of new tools put at our disposal. Maybe some of the dinosaurs will be culled in this assault by the LSC but there will still be criminal defence lawyers though they may be spotted more often on a bike than in a BMW.

Anonymous said...

If the legal profession hadnt taken the piss for so many years you wouldn't be suffering this now. How much do you get for advising a client to no comment on a shoplifting (15th offence) where he is on cctv and with a store detective witnessing the whole thing. Why are there so many not guiltys in these cases. It even happens when the offence has been admitted in interview.
These jobs were always good for a few adjournments in the past, wasting everyones money and time but lining your pockets. Never mind the client risking a heavier sentence for not entering an early guilty plea. Its happened to everyone else now its your turn in the barrel.

Anonymous said...

Annonymous


Hear hear!! Never a truer word spoken!

ANON

Gavin said...

We get paid the same amount of money at the Police Station for someone to admit to a crime as we do for them to deny a crime.

Anonymous said...

But you get more for adjournments and a not guilty plea

Anonymous said...

As a law student researching this area i was interested to know if you have noticed any improvement in the means testing system since the changes made in April 2007?

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