Legal Aid Payment Review Panel: report to the Minister for Community Safety

Section 4: Shorter Term Recommendations on Payment Models, Staff Retention Issues and Quality Assurance

Introduction

In addition to looking at the costs of Legal Aid, and the process for reforming Legal Aid fees as a whole, the Panel discussed a variety of more specific measure that can be taken forward – in many cases in the short and immediate term. This section goes through each of the main areas that the Panel looked at and provides more detail on the Panel’s recommendations that:

1. Increased diversity in the use of mixed models of payment for the delivery of legal aid services and this should be embedded in the reformed legal aid system.

2. Further evidence needs to be developed to identify challenges in the running of businesses and delivery of legal aid services in the context of wider changes in the justice system, employment market and technological landscape. This will include a focus on recruitment and retention and the extent to which challenges in this regard are particular to the provision of legal aid services or other factors. Where required, fees could be structured to encourage a younger and more diverse workforce supplying legal aid to ensure the supply of the service remains sustainable.

3. Quality assurance is an important part of evidencing the quality of service provided. Greater clarity around the respective roles of those who deliver services and those who fund the delivery would improve understanding of expectations and experience of the user.

4. Improvements should be made to the legal aid system that would reduce the administrative burden on solicitors and would have a benefit in reducing business costs. The panel recommends that the reforms proposed by the Scottish Government in December 2020 be consulted on at the earliest opportunity to address a number of issues raised during the lifetime of the panel.

This section outlines the reasons for these recommendations with a brief summary of the Panel’s discussions in each area.

Service Agreements and Grants

The group considered the range of payment methods that could be put in place in the reformed system. While case by case fees are the predominant means of paying for legal services and are a useful way of allowing the market to flex depending on workload, they do not provide for security of income for solicitors or for ensuring access to legal services, particularly in priority areas of need. The panel had heard evidence from those involved in the NHS contracting with GP practices and private dentists. There were elements of this approach that were attractive to the panel and although it again was not considered to be a perfect read across it demonstrated that judicare was not the only way to remunerate private businesses providing public services. In a user-centred public service such as the NHS these agreements guarantee a standard of service for the user while providing security of income to the provider.

The lack of security of income in legal aid in comparison to the likes of dentists was illustrated in the recent Covid-lockdown, where the reduction in business prevented the normal stream of work, and payment for that work, from operating, or slowed work down. Dentists under contract to provide NHS services benefited from a continued revenue stream despite the need to close surgeries. In contrast, for legal aid providers, there was no means for the Scottish Government to provide that security of income. While the Scottish Government put in place an enhanced interim fee payment scheme to support cash flow, and a Covid-19 Resilience Fund to provide financial support (and there was access to the UKG Furlough scheme), a formal arrangement involving a commitment to deliver - and be remunerated for – an agreed level of business would have provided a better platform for offering financial support.

SLAB conducted a review of the potential use of contracts in the legal aid system in 2013 and found that there were a number of challenges in moving forward with contracting, not least the challenges in determining likely demand and supply needs, and the readiness of the profession to participate in a procurement exercise. Since that time, attempts to introduce price competitive tendering in England and Wales were not successful in some aspects and the panel considers this would be unlikely to be suitable for use in the legal aid system in the Scottish context.

Subject to Scottish Government approval of the overall plan as to the criteria of a programme, SLAB has the power to enter into grant funding arrangements for civil legal assistance work, including the provision of advice by third sector organisations, and those grants work well. The funding is provided for an overall service that targets either certain case types or clients, or both, rather than case by case funding. It works well in ensuring that overall client needs can be met beyond the specific problem or dispute presented.

The working environment for solicitors providing legal aid services can be demanding, depending on the business model in operation. In developing a new model for the payment of fees, a review of the model of delivery should also be conducted to determine whether a redesigned model of delivery, and therefore payment, could help address a number of issues previously identified, such as long working hours, and patterns, gender and other diversity issues. For example the challenge of 24/7 delivery for firms of different sizes and structures, and recruitment and retention of staff. It would be particularly relevant in developing more flexible approaches to payment for legal services.

Overall, there was support for the benefits of using a variety of payment methods for legal aid work, of which judicare would continue to be a part. There is an opportunity to consider this as part of the legal aid reforms.

Recommendation: Increased diversity in the use of mixed models of payment for the delivery of legal aid services is needed and this should be embedded in the reformed legal aid system.

Recruitment and Retention

Members of the group reported on difficulty in recruitment and retention of staff, thought to be as a consequence of the salaries they felt able to offer. The ability of other organisations, such as COPFS and Scottish Government to offer higher initial salaries put some, for example Law Centres, at a disadvantage when recruiting staff.

There are a number of reports on this issue specifically with regard to lawyers. The Law Society of Scotland’s report on the Profile of the Profession, published in 2018, reports that 54% of respondents had considered leaving the profession in the last five years. Respondents most frequently felt that achieving an improved work-life balance was their most important career aspiration over the next five years.

This resonates with the outcome of a survey conducted by the Scottish Young Lawyers Association, again undertaken in 2018. That report reflected that over 75% of those surveyed have considered a career outside of law since commencing their traineeship. The majority of reasons cited were in order to achieve a better work-life balance and better pay. It should be noted that respondents would have included trainees and NQ lawyers engaged in non-legally aided work and therefore this is not a problem unique to legal aid but to the legal profession in general. It may also be reflective of the business model of younger lawyer’s terms and conditions being set by partners.

A study on Gen Y^[4] (born between early 80s and early 00s) reports that graduates increasingly prioritise work-life balance. Gen Y graduates are also more mobile than previous generations. This does not translate into a long-term commitment to their employer, with most looking to move on within two years. A “portfolio career”^[5] is replacing the “job for life” habits of previous generations. The Panel identified a need for better evidence about challenges of recruitment and retention and their causes, including whether and to what extent such challenges are associated with current rates of pay, working conditions, and career development within the legal aid sector are impacting on attracting and retaining new talent.

The ability to offer traineeships and retain those trainees was raised as a concern and linked to questions over the sustainability of the provision legal aid services.

There is a lack of clear evidence on the extent, nature and causes of the reported difficulties in recruiting and retaining staff to undertake legal aid work. In particular, it is unclear whether such difficulties as exist are symptomatic of a wider evolution of working habits and to what degree specific issues in delivering legal aid contribute to the challenges reported in the group. There can be no doubt that the business models developed by legal firms and practitioners will have an impact on their ability to recruit and retain staff.

There is a need to understand – and an opportunity to learn – more about the supply of legal aid, including the make-up of the workforce (age, diversity, experience etc.) and whether the current structure of the market can deliver high quality and flexible jobs in order to ensure that standards of delivery are maintained and solicitors are incentivised to deliver legal aid in the future.

Recruitment, retention and the ability to engage trainees are clearly important aspects of both sustaining the delivery of legal aid services and in ensuring that the market is thriving. A review should consider these issues as part of the work on creating health indicators for the system.

Recommendation: Further evidence needs to be developed to identify challenges in the running of businesses and delivery of legal aid services in the context of wider changes in the justice system, employment market and technological landscape. This will include a focus on recruitment and retention and the extent to which challenges in this regard are particular to the provision of legal aid services or other factors. Where required, fees could be structured to encourage a younger and more diverse workforce supplying legal aid through multiple channels to ensure the supply of the service remains sustainable.

Quality and accountability

Current quality controls include the peer review process, which is highly regarded by the profession and is thought to have had a positive impact on improving standards. The Scottish Legal Complaints Commission reports that there are few complaints made about legal aid solicitors.

In respect of advice providers, the Scottish Government owns and SLAB manages the accreditation process for the Scottish National Standards for Information and Advice Providers quality assurance scheme. The Faculty of Advocates operates an internal quality assurance scheme that applies to all aspects of advocates’ work, not just legal aid work.

Solicitors and advocates are also officers of the court and are required to meet the needs of the court.

There should be a clear link between standards of service and payment, however that link is not clearly articulated in the current system. In providing best quality for public funding it is important to have evidence that demonstrates public funds are being used appropriately. Quality assurance schemes, such as peer review, provide much of that evidence. What is lacking is a clarity around what is expected of service deliverers and what deliverers can expect from funders.

For example, dentists can attract funded continuing professional development (CPD) depending on how much NHS work is carried out. Service level agreements, or memorandums of understanding, can be a useful way of ensuring clarity of expectations and could sit alongside the peer review scheme. This is something that featured in the consultation of legal aid reforms.

Recommendation: Quality assurance is an important part of evidencing the quality of service provided. Greater clarity around the respective roles of those who deliver services and those who fund the delivery would improve understanding of expectations and experiences of the user.

Simplification

There is general consensus that the current system is too complex, and simplification is one of the key drivers for reforming the system. For solicitors delivering legal aid, that complexity adds to their workload, particularly in respect of a) understanding the correct fee to apply, b) identifying the appropriate amount to claim and c) preparing accounts. Sometimes the complexity is disproportionate to the amount of fee being claimed, or that which is paid. The process for assessing accounts, including negotiating abatements (deductions from amounts claimed made on the basis that SLAB is not satisfied that they meet the taxation standard) can add to the administrative burden on solicitors and can be frustrating. Individually, these can seem to involve small amounts but there is an aggregate impact on the management of the legal aid fund. It can be debilitating for both the profession and SLAB, which is bound to apply the terms of statute in dealing with accounts, and this has contributed to a sometimes challenging relationship.

The complexity of the fee models, particularly those that still rely on “time and line” and the growing disparity between modern court process and often long standing fees collide to create a lack of clarity on what fee should be applied. When combined with situations where there is a lack of agreement on what is “reasonable” we have a system where consensus can be difficult to achieve.

Work on simplifying the system has been ongoing and most recently the simplified system for claiming fees for telephone calls in a police station has seen expenditure on this area of provision rise from £557k in the 12 months to December 2017 to £1.53m in the 12 month period to July 2019.

The Panel considered that further simplification of the system could have a positive impact on solicitors and shouldn’t wait until the reforms were in place. For example, simplification of fees for solemn criminal cases could change the way in which S76 cases were dealt with. The Law Society of Scotland and SLAB were engaged in discussions on how a single aid type might be developed which would significantly simplify the system.

Recommendation: Improvements should be made to the legal aid system that would reduce the administrative burden on solicitors and would have a benefit in reducing business costs. The panel therefore recommends that the fee reforms proposed by the Scottish Government in December 2020 be consulted on at the earliest opportunity to address a number of issues raised during the lifetime of the panel.