Not sure if people are aware of the Legal Service Commission's current consultation paper "The Use of Experts - Quality, price and procedures in publicly funded cases"
(click this link for copy of consultation paper).
For some reason, you can (eventually) find the paper on the LSC website under the criminal consultation section, even though the proposals affect all civil contract holders, including both solicitors and not-for-profit agencies.

Essentially, the Commission feels that paying experts for their services, for example, paying a consultant practitioner for a medical report about a client, should be subject to guidelines as to the maximum acceptable fees that can be charged. Further, where possible, the use of accredited experts would be encouraged (indeed possibly being made mandatory) so, for example, an advisor needing an interpreter for a client would be expected to use an interpreter from the National Register of Public Service Interpreters.

Attached is a paper covering the main points for agencies operating under a civil contract, click this link for the paper - if you have any thoughts on the issue, then please feel free to post them here or get in touch with me direct - closing date for responses is 25.02.04.

Three questions of particular interest may be:

1) Do you agree that experts' fees for services under the Community Legal Service should be lower than in privately funded cases;
2) Do you agree that, like lawyers, experts should keep a detailed record of the work they perform (and of time taken), and what do you think are the benefits and drawbacks of doing this?
3) Do you see any problems in needing to obtain medical reports or using interpreters in respect of your clients if the proposals are accepted? If so, please provide details.

I think the lack of response to this is (almost) fascinating in itself.

I would never deny that this is a very serious issue, and feel it is the thin end of a wedge that shows itself currently by a blanket initial refusal for prior auhtority for disbursements over £250, which will lead to total LSC control over third party help.

But my total reaction to reading this (and I had read it before seeing it on this thread, with exactly the same reaction) was 'leave me alone in my hole, I can't cope any more.'

Kidney punches to turn everything into a call centre where nothing happens. Has anyone read "The Scheme For Full Employment" by Magnus Mills?

Andrew,

I don't think that the "leave me alone" response from advisers is at all surprising in the current climate of funding cuts, joint working initiatives, new tax credit issues etc etc - however, I do have some serious concerns about an erosion of the concept (indeed the Human Right) of appellants having an "equality of arms" with the other side (be they the DWP, IR or a local authority) when presenting their case.

Why should their ability to obtain supporting evidence be subject to limits that are lower than if an appellant is paying for evidence themself? Why should the pool of doctors or interpreters be restricted to those who sign up to a certain scheme? Further, would such a scheme actually undermine the strength of, for example, a GP's report that is obtained for free and therefore is seen by the tribunal as suspect or inferior to a report from a "listed expert"? I also feel there is a danger that doctors would blanketly refuse to provide expert evidence, unless they receive payment, as the scheme became more widely.

At this stage, the proposed limits for payments wouldn't seem a problem necessarily, but a quick glance back thru recent history would suggest that whenever limits on eligibility for legal help are proposed and imposed, a subsequent lack of access for those in need will always follow e.g. only ~20% of population currently eligible for legal aid, against ~80% of population when the scheme was set up.

The scheme for full employment? More like the Restraint of Beasts as choice and responsibility are used to slowly twist unknowing and unwitting people into evermore increasingly restricted situations....only it doesn't make me laugh as much as the book did

You could even say that the lack of response showed it was all quiet on the orient express...

You could say that, andrew, but i've been been doing unpaid for work at a DLA tribunal for two and a half hours this morning - the Moyna decision swung it for us - it's about time the LSC reviewed their position on not paying for tribunal representation. I can see no reasonable grounds for their position of refusal, given the available EVIDENCE, and it leaves the government open to the embarrassing question that their civil servants are taking an unreasonable stance for what esteemed commissioners might call 'quite improper' motives. ie saving the government money by denying access to justice through bureaucratic means.

My view? - another bogus consultation with cuts presented as benefits on mere assertion. There is no evidence of even an awareness of the sensitive nature of the relationship between the criminal and civil justice system and the administration of the legal aid help scheme, and the necessity that administration of the funding system doesn't improperly interfere with access to justice.

There is no evidence that the LSC has subjected its views to critical scrutiny before publication. Could it identify no risks or disadvantages? Did it identify some but decided to omit them because it didn't serve its purposes? Did it just not do the work, even though it is the only authority resourced to do it? Are civil servants no longer capable of objective and impartial thinking, and further, unaware that there are problems with the idea of total bureaucratic control?

If the government wants to cash limit justice it should say so, instead of getting civil servants to do their dirty work. Are civil servants afraid to disagree on any grounds? or what?

How about telling them to withdraw it and resubmit a balanced and considered paper when they've done some proper work on it, with all the minutes and records of all discussions of this subject, prior to it reaching Contract Design?

jj

Hello jj I'm so glad you won your tribunal and that Moyna has had some use to someone. Thought experiment anyone?

I heard of someone with some pilot contract who had time for repping in their contract from the off and couldn't understand that it could be any different.

I do my pre tribunal appointment on the day now so if the tribunal is late starting I can just explain it very well, and explain post tribunal stuff whilst waiting for the decision.

hi andrew

thanks. CDLA 0492 para 10 - if i get chance i'll post something on the disability forum - i'm having a heavy appeal phase at the moment and don't know whether i'm coming or going. i was rather looking forward to the now scrapped appeals service IT system which was going to let you book your own hearing dates, (assist in managing one's own workload - reduce stess) instead of the periodical bombardments. i gave up a morning's work to attend the presentation to service users, but never really got anything approaching a clear explanation of why it was scrapped, and left guessing. it wasn't a random event and the withholding of reasons is whatever it is...


i hope gary's reading this, because i'm too tired to post a reply. have probably said more than enough there anyway, and hope he finds it in some of my other posts.

the pilot contract allowing tribunal representation is news to me.

aside from the disadvantage to the client, doesn't it work against the purpose of the specialist quality mark, if the contract discipline mitigates against the development of expertise? a self defeating exercise?

this could be a very bad idea - especially if there is a battle for total bureauctratic control, but mightn't it be a more creative/constructive approach if the LSC considered the posibility of a levy on the various government and public departments that are part of the strain on the civil legal aid budget? there are a lot of good reasons that could be put forward.

i have to sort out about attendances of a presntation of the direct payments scheme - who's going and when. i need to know the gen. on when payments go into the wrong account and will i get what i need to know to do my job properly from an 'it's wonderful' propaganda session, or am i being deeply cynical again? : ) i can feel another 'dear commissioner, i apologize for being a prat' letter coming on again... ( for info. to gary - that was a spurt of optimism : ) )

i had to give appeal advice today on a PCA failure with back pain and nil points. go figure. another wierd day. : )

oh oh. <nb for gary> do you think it's true that DWP threatened the funding of the ILO over publication timing of the forced labour report? <do you see what i mean, gary? : ) it's a very peculiar condition, but i wouldn't call it a complaint. : ) >

must get some sleep now.

cheers, andrew..

jj

Off topic but in relation to legally aided representation at tribunals, I can't see there is any possibility of this being considered at present - the recent White Paper, Transforming Public Services: Complaints, Redress and Tribunals made the following statement:

10.14 The government does not accept that blanket availability of legal aid in this way is necessary. It is important to bear in mind that funding is already available for representation at certain tribunal proceedings, including the Employment Appeal Tribunal, any Mental Health Review Tribunal, the Immigration Appeal Tribunal or proceedings before an adjudicator, the Special Immigration Appeals Commission, or the Proscribed Organisations Appeal Commission. In addition, proceedings before the Protection of Children Act Tribunal and certain proceedings before the VAT and Duties Tribunal and the General and Special Commissioners of Income Tax, are also in scope of the Community Legal Service. For other tribunals our intention is to reduce the need for representation by the provision of alternative approaches to dispute resolution, which do not require representation, by improved advice and assistance for the preparation of cases and by better trained and more highly skilled panel members. This will help the majority of citizens who can present their case effectively. There will still, however, be a need for representation in some cases, where an individual cannot represent his or her own case and the tribunal is resolving a matter of great importance to the individual. Funding is already available for such exceptional cases under the Access to Justice Act 1999 s.6(8)(b).

10.15 The government believes that the current scope and structure of the Community Legal Service’s contribution to supporting users in the administrative justice and employment field is about right for the current process but there is also a case for looking at these issues in a more flexible way. The case for representation and advocacy is based on assumptions about the nature of the tribunal process. As the process changes, so does the need for support.

In my opinion, these statements demonstrate a fundamental lack of understanding as to why appellants need representation at SSATs - it is not the tribunal process, per se, that they cannot manage; rather it is understanding the complexity of social security legislation in respect of welfare benefits appeals, and knowing how to argue the relevant points in an appropriate manner.

As Commissioner Jacobs said in CIB/2058/2004

The functions of a representative

1. A representative fulfils at least three functions.
2. First, the representative acts as a companion for the claimant, and may provide confidence in a strange environment. The Genn Report shows that the presence of a companion, even one who has no knowledge of the law, increases the chances of a claimant’s success at a hearing (page 68).
3. Second, the representative may assist the tribunal in gathering the evidence from the claimant. Sometimes the tribunal may be as able as the representative to obtain the relevant evidence. But a representative who is familiar with the claimant’s case may be able to elicit evidence that the claimant does not realise is relevant and does not emerge from the tribunal’s questions.
Third, the representative may make submissions on the law and may draw issues of evidence, fact or law to the attention of the tribunal.