Why We May No Longer Be Able To Accept Legal Aid Cases

This is a personal statement from Douglas Silas:

"It is with great regret that as of 1st April 2007, Douglas Silas Solicitors may no longer be able to accept any new cases which require legal aid funding.

This is because I have felt unable to sign the new Unified Contract that the Legal Services Commission has now required all solicitors to sign in order to be able to continue to do legally aided work. In essence, I believe the contract is not only an unlawful and unworkable one but also one which has severe ramifications for legally aided clients as well as for small firms of solicitors like ourselves.

I have not taken this decision lightly and feel it is important for me to explain the reasons for my decision publicly which I have done below. I encourage you to read them in full.

BACKGROUND

The Legal Services Commission (LSC) is the central body which provides public funding for those people who are on a low income and who would otherwise be unable to bring legal cases.  It pays for advice and assistance (Legal Help) or representation in court cases (Legal Representation). Legally aided work is historically well known for being paid at extremely low rates.   In fact, the budget of Civil Legal Aid (as opposed to Criminal Legal Aid which the Government/LSC accepts has been allowed to spiral out of control) has remained virtually static over the last 10 years.

On the 1st April 2007 the LSC required all solicitors or Not for Profit organisations (NFPs) who wished to continue doing legally aided work to sign a new 'Unified Contract' before being allowed to do so. The Unified Contract will significantly affect not only the way in which legally aided advice and representation will be able to be carried out in the future but also purports to reduce even further the remuneration that solicitors or NFPs will receive for undertaking this kind of work.

The solicitors advising the Law Society said that the contract was also an unlawful one. They stated that their main areas of concern were that:

• The contract may be unilaterally amended by the LSC on as little as seven weeks' notice thus depriving practitioners of both legal and commercial certainty.
• The contract is terminable by the LSC, without fault on the part of a practitioner, on six months' notice without compensation.
• Practitioners are deprived of a contractual right of appeal in respect of some profoundly important decisions which the LSC has the right to make under the term of the contract.
• In certain cases the contract permits the LSC to act with unqualified discretion.

The Law Society argued that the contract did not represent a fair deal for legal aid practitioners, that it created great uncertainty for practitioners and was oppressive in some of its terms.

The significance of the contract will be immense as it is the means by which the LSC proposes to introduce unprecedented and untested changes to legal aid. Many people and organisations have argued that the primary driver behind the reforms is only to cut the legal aid budget further. The reforms threaten the viability of the legal aid sector and the Government knows this from the evidence of a report that it has commissioned itself (Otterburn).

Although it was thought that many solicitors and NFPs would not sign the new contract, many of them felt at the last minute that they had no choice but do so as otherwise they would effectively be having to close down their firms/organisations within a few weeks. This means that only a small number of firms such as ours have stuck by our decision but in doing so have effectively given up our right to now do new legally aided work. Many of the other firms who have signed have said though that they are just buying time in order to be able to contemplate a future without doing legally aided work.

MY REASONS FOR NOT SIGNING

I have been committed to doing civil legal aid work, mainly Education, since starting as a trainee solicitor in 1995 because I wished to provide access to justice for the more vulnerable and disadvantaged individuals in society, particularly children with special educational needs or disabilities.   I have always been against a two-tier system of justice (i.e. only those who can afford to pay can access quality legal advice and representation).

But under the new contract the LSC now wish to pay Education solicitors such as ourselves, a fixed fee of £296 per Legal Help case no matter how long that case lasts for and under the terms of the new contract can even require firms to take on cases even though doing so may require them to make a significant financial loss. The LSC have argued that unless firms agree to do this they will not be allowed to also do Legal Representation work which is comparatively better paid but is still poorly remunerated when considering things in an overall context.

The LSC has also announced its intention that in the next couple of years, it intends to only deal with 'Preferred Suppliers' which, although they said that it may not, could mean that they are mainly dealing with larger firms (or collectives) of solicitors' firms or NFPs who can offer a variety of different areas of legal advice and representation. They say that this will help streamline systems and provide better access to justice for the public at a large cost-saving to the public purse. The LSC seem to envisage that legal work can be done effectively, for example, by a number of non-qualified paralegals under the supervision of a solicitor and that this should make the contract cost effective for lawyers.

Nearly all commentators have pointed out that the only way in which legal services will then be available to all members of the public will be either through firms running legal aid cases at a loss and subsidising it through privately paid work or by providing legally aided clients with a lower quality of casework.

The Education, Disability & Public Law work that my firm does is of a highly specialised nature. I do not believe in lowering the quality of our work due to pressures to keep costs down. I believe that if a job is worth doing it is worth doing properly.

We are also a very small firm and do not, like larger firms, have the luxury of having other departments doing privately funded work who can help keep us afloat. We are already a very efficient firm (for example, by using technology to help keep costs down) and we have no intention of trying to grow into a larger firm.

My aim of setting up in sole-practice was not to try and make as much profit as possible. In fact, I purposefully left these kind of firms and set up on my own because I felt that the best way of doing the kind of work that I do is to provide a more 'personal' service to clients. Our success rate of 85-90% of cases within our first two years and the compliments that I and our firm have received during this time is clearly testament to the fact that this was the right decision to make.

Unfortunately though, the low rates of pay, the high rates of paperwork/bureaucracy and the slow rates of them paying our bills means that it is no longer feasible for us to continue dealing with the LSC and doing legally-aided work otherwise we may no longer be able to sustain our firm as a business. At the same time you will appreciate that I also have to be able to run an office properly, pay my staff and myself and ultimately support my own family.

It is also important to point out that the Government pays their own lawyers far more when they are working for legal organisations such as the Treasury Solicitor or Local Authorities who also being paid out of the public purse but at considerably higher rates than are paid to legal aid lawyers.  Given that in most cases that we deal with we are trying to help people challenge unlawful decisions or actions made by public bodies represented by these kinds of lawyers, I do not believe that this is right or fair. It is not a level playing field.

As you probably already know, I am passionate about and committed to the areas of work in which I practice and have always tried to make my advice as accessible to all members of society, for example, through the free information available on my website. However, I am not prepared to reduce the quality of my work to reflect the lower average cost per case that I will be paid and I also cannot work at a loss.  Any business also cannot be run without a degree of certainty for the future, which I feel is denied under the terms of the new contract. To put it in even clearer terms - I would not be prepared to advise a client of mine to sign this new contract.

With regret, I have therefore chosen to not sign the new Unified Contract and have been made aware that by doing so I will probably not be able to do so in the future.  I understand that the LSC should allow me to continue to finish off the existing cases that I have already started under Legal Help or Legal Representation and my existing clients have my assurance that I will still try and do this to the best of my ability.

I am deeply saddened about this decision that I feel I have been forced into taking and hope that others will appreciate why I have taken it.  I still intend to try and provide access to legal advice and assistance and representation for those members of society who are not able to afford it, in other ways in the future so please still contact us in case we may be able to help you in some way."

Douglas

6 April 2007

 

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