Written evidence from Guy Beringer
Submitted by Guy Beringer in a personal capacity and not on behalf of any of the organisations with which I am connected.
I propose a new policy approach for the Legal Aid Agency and the funds that it administers based on four new principles to be adopted as follows:
1 Legal aid should fund delivery organisations which provided legal advice, help and representation and should no longer fund individual cases.
2 The LAA and the fund should be judged on outcomes for citizens, communities and the economy and not on inputs of time spent or numbers of matter starts.
3 The LAA and the fund should operate on the basis that its delivery organisations will assess eligibility properly- a system of trust and checks rather than a system of rigid controls and micromanagement of applications.
4 When calculating value for money for the purposes of public accountability, regard should be had to outcomes for citizens and communities and job creation rather than inputs and LAA administrative costs.
The rationale for each principle is as follows:
1 In the last year the LAA processed over 400,000 applications for legal aid and over 1 million bills. This is a waste of time and effort because no significant effort is made to assess whether the cases assessed and scrutinised provided value to citizens or the economy.
The KPI’s of the LAA (as set out in their Annual Report) are almost entirely self-referential and relate to its own efficiency in dealing with administrative tasks. Its annual report says nothing about outcomes or the benefits arising to members of the public from its work.
For the first time, the LAA’s risk report last year records that ‘the risk of insufficient provider volume’ was elevated to live issue status owing to the in-year development of this risk. The LAA’s own published statistics show that the number of civil legal aid providers decreased by almost 25% over the past 5 years with only 2 % of that increase occurring over the past year. The number of criminal legal aid providers decreased by 14 % over the past 5 years with a 6% decrease in the past year. This has been a live problem for five years and it is not mentioned in the LAA KPIs.
The key to quality provision of support and representation lies in sustainable providers who can invest in infrastructure (IT and case management), knowledge management, staff training and best practice. These are the things which will determine outcomes and which should be funded. They are the only reliable proxies for value for money.
There are around 1,500 organisations providing legally aided services, split between the private sector and the third sector. They are almost all SMEs. It is one of the most accessible and easily influenced groups of SMEs in the economy.
The provider community should be regarded as a potential source of new jobs, economic growth and local prosperity in addition to being regarded as providers of state funded advice and support. The focus should therefore be on funding providers and not cases and the sustainability of those providers should be viewed as the key metric in delivering benefit to the public.
2 The current system of micromanagement of eligibility and of cases severely penalises the provider community financially. A system of trust with oversight (which would devolve responsibility for determining eligibility to providers and which would leave providers to apply funds as efficiently as possible to cases) would maximise the benefit of public funds.
LAA oversight should focus on measuring the degree to which citizens and communities benefit from legally aided advice and representation and using that information to set standards which are required from providers.
The speed with which the LAA processes bills or complaints or the number of matter starts required would no longer be relevant criteria. The quality and value of outcomes for citizens or communities would be the only relevant criteria. The role of the LAA would be a collaborative one, designed to spread best practice and improve performance of providers.
The level of input hours and cases dealt with by delivery organisations should therefore be influenced by improving the capacity, efficiency and quality of those organisations rather than constantly counting hours and cases.
3 The current system appears to presume that providers cannot be trusted to apply the rules on eligibility and cannot be trusted to maximise the number of good outcomes achieved from the resources available. Providers are accordingly micro-managed at every stage of the process, resulting in government processing 400,000 applications and 1 million bills. There is no net value to the public purse in doing this.
If the system switches to funding the running costs of organisations on condition that the process of eligibility and case management is handled by providers themselves, the efficiency gains on both sides will be transformational.
Why does government need to check everything? The LAA annual report states that its counter fraud activity preserved or uncovered £568,467 of public funds in 2019/20- this amount of saving was not worth the cost and effort expended (both directly and indirectly through the friction caused by the micromanagement). There is no evidence of significant fraud in the system. The economic friction caused by the administrative micromanagement of legal aid far outweighs any loss likely to occur from switching to a system where primary responsibility for eligibility and case management is delegated to providers.
4 The LAA includes value for money amongst its four KPIs. Its measurement of value for money is limited to :
-financial stewardship of the fund
-effective commissioning of services
-change management in relation to LAA activities.
This measurement pays no regard to the value generated by its provider base as as businesses or employer. It also pays no regard to the additional costs to the public purse of gaps in legally aded services or the cost of poor outcomes from legally aided services. In other words, it looks solely at the world of the LAA but takes no account of the costs or benefits of the services to the public (or their absence) funded by the LAA.
The legal aid provider base is one of the largest identifiable groups of SMEs directly funded by the government. The LAA offers no analysis of the profitability, efficiency, sustainability or job creating capacity of that group.
The current review of legal aid provides an opportunity to create an additional fund of money to support legal aid. This additional funding should be constituted as a separate legal aid enterprise growth fund.
It should be treated as a new enterprise growth fund. It should be distributed direct to existing providers as well as to new providers in legal aid deserts. It should be distributed in the same way as other government enterprise growth funds and should concentrate on job retention, job creation, training and investment in systems to boost quality and efficiency. It should not be tied to matter starts or cases undertaken.
The new fund should also be set up to provide multi-year grants at the outset. A single year grant cannot encourage sustainability or the training of new providers.
This should be used as a pilot for switching the whole legal aid fund onto a similar basis of funding provider capacity and not buying lawyers’ time. This will require development of new conditions and requirements to be placed on provider firms designed to improve performance and create sustainability in the provider base.
In such a new regime, it will undoubtedly be better to administer the bulk of the fund regionally and in conjunction with the administration of other advice services and with other enterprise growth schemes.the ultimate goal is to have an efficient and sustainable base of provider firms, which are growing and which are training the next generation of professionals.
This will support economic growth, it will create new jobs and it will provide training opportunities for young professionals. It will also assist in ‘levelling up’ and reducing disadvantage in all parts of the country.